[Code of Federal Regulations]

[Title 7, Volume 4]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 7CFR279.7]



[Page 948-949]

 

                          TITLE 7--AGRICULTURE

 

    CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE

 

PART 279_ADMINISTRATIVE AND JUDICIAL REVIEW_FOOD RETAILERS AND FOOD 

WHOLESALERS--Table of Contents

 

                        Subpart B_Judicial Review

 

Sec. 279.7  Judicial review.





    (a) Filing for judicial review. Except for firms disqualified from 

the program in accordance with Sec. 278.6(e)(8) of this chapter, a firm 

aggrieved by the determination of the designated reviewer



[[Page 949]]



may obtain judicial review of the determination by filing a complaint 

against the United States in the U.S. district court for the district in 

which the owner resides or is engaged in business, or in any court of 

record of the State having competent jurisdiction. The complaint must be 

filed within 30 days after the date of delivery or service upon the firm 

of the notice of determination of the designated reviewer in accordance 

with Sec. 279.5(e); otherwise the determination shall be final.

    (b) Summons and complaint. Service of the summons and complaint in 

any such action shall be made in accordance with the rules of civil 

procedure for the U.S. district courts. The copy of the summons and 

complaint required by the rules to be served on the agency whose order 

is being attacked shall be sent by registered or certified mail to the 

person in charge of the applicable regional office of FNS.

    (c) Trial de novo. The suit in the U.S. district court or in the 

State court, as the case may be, shall be a trial de novo by the court 

in which the court shall determine the validity of the questioned 

administrative action. If the court determines that the administrative 

action is invalid, it shall enter a judgment or order which it 

determines is in accordance with the law and the evidence.

    (d) Stay of action. During the pendency of any judicial review, or 

any appeal therefrom, the administrative action under review shall 

remain in force unless the firm makes a timely application to the court 

and after hearing thereon, the court stays the administrative action 

after a showing that irreparable injury will occur absent a stay and 

that the firm is likely to prevail on the merits of the case. However, 

permanent disqualification actions taken in accordance with Sec. 

278.6(e)(1) of this chapter shall not be subject to such a stay of 

administrative action. If the disqualification action is reversed 

through administrative or judicial review, the Secretary shall not be 

liable for the value of any sales lost during the disqualification 

period.



[Amdt. 136, 43 FR 43279, Sept. 22, 1978, as amended by Amdt. 274, 51 FR 

18752, May 21, 1986; Amdt. 356, 59 FR 29714, June 9, 1994; 64 FR 23174, 

Apr. 30, 1999. Redesignated and amended at 68 FR 41053, July 10, 2003]



    Effective Date Note: By Amdt. 397, 70 FR 72354, Dec. 5, 2005, Sec. 

279.7 was amended by removing the words ``registered or certified mail'' 

and adding in their place the words ``using any delivery method as long 

as the method provides evidence of delivery'' in the last sentence in 

paragraph (b), effective January 4, 2006.