Black Bear Solutions, Inc., and Tony Diez appeal from a judgment of the Montgomery Circuit Court (“the trial court”) affirming a decision of a hearing officer in support of the termination of their participation in the federal Child and Adult Care Food Program (“the CACFP”), which is administered in Alabama by the State Department of Education, and their disqualification from future participation in the CACFP. We affirm the trial courts judgment.
The CACFP
The CACFP is a federal program that authorizes federal assistance to states to initiate, maintain, and expand nonprofit food-service programs for children and adults. 7 C.F.R. § 226.1. In Alabama, the CACFP is administered by the State Department of Education (“the Department”). 7 C.F.R. § 226.6 outlines the responsibilities of the Department in administering the CACFP and requires the Department to, among other things, review the operations of participating institutions. See 7 C.F.R. § 226.6(b). A participating institution is required to enter into an agreement with the Department providing, among other things, “that the institution accepts final financial and administrative responsibility for management of a proper, efficient, and effective food service, and will comply with all requirements” of the CACFP. 7 C.F.R. § 226.6(b)(4)(ii). 7 C.F.R. § 226.6(c)(3)(ii) provides a list of “serious deficiencies” that a participating institution can be found to have committed in its operations. According to § 226.6(c)(3)(iii), if the Department determines that a participating institution has committed one or more serious deficiencies, it must provide the institution notice and an opportunity to take corrective action. If timely corrective action is not taken to “fully and permanently correct the serious deficiency(ies),” 7 C.F.R. § 226.6(c)(3)(iii)(C), the Department is required to inform the institution, among other things, that it is proposing to terminate the institutions agreement and to disqualify the institution from further participation in the CACFP. 7 C.F.R. §§ 226.6(c)(3)(iii)(C)(1) and (5). The Department is also required to specify the procedures for seeking an administrative review of, among other things, the notice of the proposed termination of an institutions agreement or the notice of the proposed disqualification from further participation in the CACFP; specifically, 7 C.F.R. § 226.6(k)(2) provides, in pertinent part, that
“the State agency must offer an administrative review for the following actions:
“․
“(iii) Notice of proposed termination. Proposed termination of an institutions agreement ․;
“(iv) Notice of proposed disqualification of a responsible principal or responsible individual ․;
“(v) Suspension of participation. Suspension of an institutions participation ․;
“․
“(viii) Recovery of advances. Recovery of all or part of an advance in excess of the claim for the applicable period. The recovery may be through a demand for full repayment or an adjustment of subsequent payments ․;
“․
“(xi) Overpayment demand. Demand for the remittance of an overpayment ․; and
“(xii) Other actions. Any other action of the State agency affecting an institutions participation or its claim for reimbursement.”
However, 7 C.F.R. § 226.6(k)(3) provides that the Department is prohibited from offering an administrative review of, among other things, a determination that an institution is seriously deficient, the disqualification of an institution (or a “responsible principal” or a “responsible individual” associated with a participating institution) from the CACFP, or the termination of a participating institutions agreement. “The request for administrative review must be submitted in writing not later than 15 days after the date the notice of action is received ․” 7 C.F.R. § 226.6(k)(5)(ii). According to 7 C.F.R. § 226.6(k)(5)(x), “[t]he determination made by the administrative review official is the final administrative determination to be afforded the institution and the responsible principals and responsible individuals.”
Procedural History
In the present case, Black Bear Solutions, Inc., and its president, Tony Diez (hereinafter referred to collectively as “Black Bear”), contracted with the Department as a service provider under the CACFP. In a letter dated January 17, 2017, June B. Barrett, the coordinator of the CACFP for the Department, informed Black Bear, among other things, that, following an administrative review of Black Bears participation in the CACFP, the Department had determined that Black Bear was “seriously deficient” in its operations under the CACFP and that correction of the identified deficiencies and documentation thereof was required to be completed within 30 days of the receipt of Barretts letter. Barretts letter also indicated that the deficiencies and disallowances identified had resulted in a total overclaim of $42,266.25, which amount was required to be paid to the Department, along with Black Bears response outlining corrective action with regard to the identified deficiencies, and that unallowable costs in the amount of $26,466.87 were required to be refunded to the CACFP account within 30 days of Black Bears receipt of the letter. Barrett informed Black Bear that it could appeal the determination of the overclaim, see 7 C.F.R. §§ 226.6(k)(2)(xi), but not the determination regarding the serious deficiency. See 7 C.F.R. § 226.6(k)(3)(ii).
In response to Barretts letter, on January 25, 2017, Black Bear filed an “appeal” with the Department, challenging the Departments findings and demands resulting from the administrative review. On April 12, 2017, hearing officer Michael E. Meyer sent Black Bear a certified letter with the subject “final decision for administrative review appeal,” informing Black Bear that administrative review was not available to challenge the Departments determination that a serious deficiency existed but that an institution, i.e., Black Bear Solutions, could seek review of “an administrative demand for the remittance of an overpayment and unallowable costs.” See 7 C.F.R. §§ 226.6(k)(2)(viii) and (xi). Meyer stated, among other things, that, following a “thorough and deliberative review of the entire file,” he had determined that remittance in the amount of $42,266.25 plus any applicable interest was due and payable to the Department, along with documented proof that unallowable costs of $26,466.87 had been refunded to the CACFP account. (C. 95). As to those issues, as discussed further below, Meyers determination was final. See 7 C.F.R. § 226.6(k)(5)(x).
On April 18, 2017, Barrett sent to Black Bear a final request, informing Black Bear, among other things, that the balance of the overclaim and unallowable costs had not been paid within 30 days of her January 17, 2017, letter to Black Bear; that interest had begun to accrue; that failure to respond to a review could result in the termination of Black Bears agreement and its disqualification from further participation in the CACFP; and that failure to provide a response within 5 days of the receipt of the final request would lead to a proposed termination of Black Bears agreement and disqualification of Black Bear from further participation in the CACFP. In a letter dated April 28, 2017, and addressed to the Department, Black Bears attorney asserted, among other things, that the CACFP “appeal process” failed to meet the minimum requirements necessary to preserve Black Bears due-process rights and that there was no valid legal basis for the demands outlined by Barrett. Attached to the letter was a corrective-action plan that outlined Black Bears response to the Departments findings resulting from the administrative review. On May 5, 2017, Barrett sent Black Bear a letter indicating that, after reviewing the documentation detailing the actions that had been taken by Black Bear to correct the serious deficiencies that had been identified by the Department, the Department had determined that Black Bear had not fully and permanently corrected the serious deficiencies that had been cited. Thus, the letter stated, the Department proposed to terminate Black Bears agreement to participate in the CACFP and to disqualify Black Bear from future participation in the CACFP. Barrett stated that Black Bear was entitled to “appeal” the proposed termination and disqualification. See 7 C.F.R. §§ 226.6(k)(2)(iii) and (iv).
In a May 19, 2017, letter from Black Bears attorney to Meyer, Black Bear communicated its intent to “appeal” the proposed termination and disqualification as well as the demand for the remittance of certain funds to the Department; Black Bear requested, among other things, an “inperson hearing of the appeal” and Meyers recusal as hearing officer. Black Bear filed a separate motion before the Department, seeking Meyers recusal and the appointment of an independent hearing officer. On October 13, 2017, hearing officer Amanda Bradley entered a final order noting that Meyer had recused himself and that the appeal had been assigned to her. Bradley stated in her order, in pertinent part:
“Counsel for [Black Bear] argued in conference call to this Hearing Officer that a review of the documentation evidence that was the basis of Hearing Officer Michael Meyers Final Decision for Administrative Review Appeal is necessary to provide due process to [Black Bear] in the present appeal. However, this Hearing Officer is prohibited by the doctrine of res judicata from considering the basis of the Final Decision for Administrative Review Appeal entered by the previous Hearing Officer. Thus, this Hearing Officer finds that the sole basis for the decision entered in the present appeal must be based on whether Petitioners have submitted and implemented a Corrective Action Plan to [the Departments] satisfaction and that monies have been repaid as ordered in the Final Decision for Administrative Review Appeal. Neither has occurred.
“Accordingly, this Hearing Officer has no choice but to find that [Black Bear] may be Terminated and Disqualified by [the Department] as [a] provider[ ] for the [CACFP].”
In a letter dated October 16, 2017, Barrett notified Black Bear of the termination of Black Bears agreement to participate in the CACFP and of Black Bears disqualification from future participation in the CACFP. The letter also stated that Black Bear could not “appeal” the hearing officers termination or disqualification of Black Bear from the CACFP, but affirmed that Black Bear was still required to remit the outstanding $42,266.25 overclaim, plus applicable interest, and the amount of $26,665.41, including interest, in unallowable costs to the CACFP account. On October 23, 2017, Black Bear filed a notice of appeal from Bradleys final order with the Department. On that same date, Black Bear filed in the trial court a notice of appeal from Bradleys final order.
On February 21, 2019, the Department filed a motion to dismiss, asserting that Black Bears noncompliance with § 41-22-20, Ala. Code 1975, had resulted in the trial courts lack of subject-matter jurisdiction to hear the appeal. On February 25, 2019, Black Bear filed in the trial court a brief in support of its appeal and a motion requesting oral argument. The Department filed a brief in response to Black Bears brief on March 25, 2019. On March 28, 2019, Black Bear filed a response to the Departments motion to dismiss. On April 8, 2019, Black Bear filed a reply brief, responding to the Departments March 25, 2019, brief. The trial court entered an order on April 18, 2019, setting the appeal and all pending motions for a final hearing on May 16, 2019.
On June 16, 2020, the trial court entered a judgment in favor of the Department; the trial court stated that the judgment was entered “[a]fter hearing testimony and considering the evidence.” Black Bear filed a “motion to reconsider” on July 7, 2020. The Department filed an opposition to the motion to reconsider. The trial court entered an order denying Black Bears motion to reconsider on July 21, 2020. Black Bear filed its notice of appeal to this court on August 7, 2020.
Jurisdiction
As an initial matter, we must first consider whether this court has jurisdiction over Black Bears appeal.
“It is well settled that ‘subject-matter jurisdiction may not be waived; a courts lack of subject-matter jurisdiction may be raised at any time by any party and may even be raised by a court ex mero motu.’ C.J.L. v. M.W.B., 868 So. 2d 451, 453 (Ala. Civ. App. 2003); see, e.g., Ex parte Norfolk S. Ry. Co., 816 So. 2d 469, 472 (Ala. 2001) (‘We are obliged to recognize an absence of subject-matter jurisdiction obvious from a record, petition, or exhibits to a petition before us.’). A judgment entered by a court that lacks subject-matter jurisdiction is void. See C.J.L., 868 So. 2d at 454; see also J.B. v. A.B., 888 So. 2d 528 (Ala. Civ. App. 2004).”
S.B.U. v. D.G.B., 913 So. 2d 452, 455 (Ala. Civ. App. 2005).
The Department argues on appeal, as it did in its motion to dismiss filed in the trial court, that the CACFP is a federal program, funded with federal dollars and regulated by a defined method for resolving claims, and that 7 C.F.R. § 226, which provides the key regulations governing the CACFP, does not provide for an appeal through a state court but, instead, permits only administrative review governed by federal law. The Department asserts that, because the determination of the administrative-review official, i.e., the hearing officer, is the final administrative determination, see 7 C.F.R. § 226(k)(5)(x), and there is no provision in the federal regulations providing for judicial review of the final administrative determination, the trial court lacked jurisdiction to consider Black Bears appeal from Bradleys final order. The Department cites in support of its argument Mahoning-Youngstown Community Action Partnership v. Ohio State Department of Education, No. 11AP-582, 2011 WL 6170559, Dec. 13, 2011 (Ohio Ct. App. 2011) (not reported in N.E.2d). In Mahoning-Youngstown, the Ohio Court of Appeals concluded that the circuit court in that case had lacked jurisdiction to consider an appeal from decisions entered by a hearing officer pursuant to the finality provision of 7 C.F.R. 226.6(k)(5)(x). The Department urges this court to adopt the reasoning in Mahoning-Youngstown, which concluded that allowing an appeal from the final administrative determination “would arguably be in conflict with the finality the federal regulations seek.”
Conversely, Black Bear asserts on appeal that the Departments reliance on an unpublished decision from another jurisdiction is unavailing and cites a number of decisions from other jurisdictions that have considered appeals from administrative decisions under the CACFP. See, e.g., Arkansas Dept of Human Servs. v. Arkansas Child Care Consultants, Inc., 318 Ark. 821, 889 S.W.2d 24 (1994); Four Oaks Family & Childrens Servs. v. Iowa Dept of Educ., 899 N.W.2d 739 (Iowa Ct. App. 2017) (table) (unpublished disposition); and Sparkman Learning Ctr. v. Arkansas Dept of Human Servs., 775 F.3d 993 (8th Cir. 2014). Our supreme court has stated that “[t]he opinions of our sister states are merely persuasive authority, and this Court is not bound by the doctrine of stare decisis to follow such decisions.” Fox v. Hunt, 619 So. 2d 1364, 1367 (Ala. 1993). Thus, this court is not bound to follow the reasoning expressed in Mahoning-Youngstown.
Black Bear argues that judicial review of Bradleys final decision is available pursuant to the Alabama Administrative Procedure Act (“the AAPA”), Ala. Code 1975, § 41-22-1 et seq. Section 41-22-20(a), Ala. Code 1975, of the AAPA provides, in pertinent part, that “[a] person who has exhausted all administrative remedies available within the agency, other than rehearing, and who is aggrieved by a final decision in a contested case is entitled to judicial review under [the AAPA].” In its brief to this court, the Department argues that application of the AAPA in this case would contradict the intent of Congress in providing a fast and final process for administrative reviews pursuant to the CACFP. In support of its position, the Department cites Ex parte Alabama State Board of Pharmacy, 253 So. 3d 972 (Ala. Civ. App. 2017), in which this court determined that, because federal regulations mandated that the Alabama State Board of Pharmacy report adverse action taken against a pharmacist and pharmacies to the National Practitioner Data Bank, the Montgomery Circuit Court had erred in ordering the Board of Pharmacy to void its report of that information following the entry of a stay of the suspension of the pharmacists license while an appeal was pending in the circuit court. 253 So. 3d at 976, 981. Specifically, this court concluded that the “order directing the board to ‘void’ the report it submitted to the [National Practitioner Data Bank] necessarily requires the board to violate its mandatory obligations under federal law to report the suspension of [the pharmacists] license and the placing of the pharmacies on probation within 30 days.” Id. at 981. Further, this court stated that the order directing the Board of Pharmacy to void the report “impedes the accomplishment of Congresss objectives in enacting the [Health Care Quality Improvement Act of 1986, 42 U.S.C. 11101 et seq.,] and the legislative scheme Congress developed to carry out those objectives.” Id.
In the present case, the Department argues that to impose the AAPA framework upon matters governed by the CACFP would contradict the intent of Congress in providing a fast and final process for those matters. We disagree. In Ex parte Alabama State Board of Pharmacy, this court concluded that the action of the circuit court was in direct conflict with mandates of a federal regulation. Indeed, this court observed, in pertinent part, that “ ‘[a] state-law action is preempted under the Supremacy Clause of the federal Constitution if the intent of Congress to preempt state law is clear and explicit in the statute. English v. General Elec. Co., 496 U.S. 72, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990).’ ” 253 So. 3d at 979 (quoting Norfolk S. Ry. Co. v. Goldthwaite, 176 So. 3d 1209, 1213 (Ala. 2015)).
In the present case, we must consider whether 7 C.F.R. § 226.6(k)(5)(x) explicitly preempts judicial review of the final administrative decision contemplated therein. As asserted by the Department, “[t]he language used in an administrative regulation should be given its natural, plain, ordinary, and commonly understood meaning, just as language in a statute.” Alabama Medicaid Agency v. Beverly Enters., 521 So. 2d 1329, 1332 (Ala. Civ. App. 1987). Additionally, our supreme court has stated that “ ‘ “[t]here is a presumption that every word, sentence, or provision [of a statute] ․ has some force and effect ․ and ․ that no superfluous words or provisions were used.” ’ ” Richardson v. Stanford Props., LLC, 897 So. 2d 1052, 1058 (Ala. 2004) (quoting Sheffield v. State, 708 So. 2d 899, 909 (Ala. Crim. App. 1997), quoting in turn 82 C.J.S. Statutes § 316 at 551-52 (1953)). Black Bear argues on appeal that the inclusion of the word “administrative” in 7 C.F.R. § 226.6(k)(5)(x) must be given effect. We agree.
Black Bear cites § 41-22-20(a) of the AAPA, which, as noted earlier, provides, in pertinent part, that “[a] person who has exhausted all administrative remedies available within the agency, other than rehearing, and who is aggrieved by a final decision in a contested case is entitled to judicial review under [the AAPA].” Thus, the provision in 7 C.F.R. § 226.6(k)(5)(x) that “[t]he determination made by the administrative review official is the final administrative determination” does not directly conflict with the application of the AAPA, under which judicial review is available only following the entry of a final administrative determination. Moreover, there is no express language in 7 C.F.R. § 226.6(k)(5)(x) indicating that judicial review of the final administrative determination is precluded, despite the absence of any provisions specifically providing therefor. Accordingly, the present case is distinguishable from Ex parte Alabama State Board of Pharmacy, supra.
Section 41-22-2(a), Ala. Code 1975, provides, in pertinent part, that the AAPA “is intended to provide a minimum procedural code for the operation of all state agencies when they take action affecting the rights and duties of the public.” Section 41-22-25(a), Ala. Code 1975, provides, in pertinent part, that the requirements imposed by the AAPA “shall be in addition to those created or imposed by every other statute in existence on the date of the passage of [the AAPA] or thereafter enacted.” Thus, the AAPA was intended to supplement procedural rules imposed on state agencies, including the Department. Because the language of 7 C.F.R. § 226.6(k)(5)(x) does not preclude application of the AAPA, we conclude that the trial court had subject-matter jurisdiction under the AAPA to consider Black Bears appeal.
Analysis
Black Bear argues on appeal that hearing officer Bradley erred in failing to vacate the April 12, 2017, decision of hearing officer Meyer and that the trial court erred in affirming Bradleys error in that regard. In support of its argument, Black Bear asserts that it showed that Meyer was not an independent and impartial administrative-review official, as required by 7 C.F.R. § 226.6(k)(5)(vii); that orders entered before a recusal is entered should be vacated when there is a showing of actual bias; and that the purported demonstration by Black Bear of Meyers actual bias, combined with Meyers ultimate recusal from Black Bears May 19, 2017, appeal from the proposed termination and disqualification of Black Bear from participation in the CACFP, required that Meyers previous decision determining that the monetary demands for recovery of advances and overpayment by the Department were due and payable should have been vacated. We note, however, that Black Bear failed to argue before the trial court or to the Department that Meyers April 12, 2017, decision should have been vacated. “[An appellate court] cannot consider arguments raised for the first time on appeal; rather, [its] review is restricted to the evidence and arguments considered by the trial court.” Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala. 1992). Accordingly, Black Bears argument on this point is waived. Id.
Moreover, we note that Black Bear failed to seek judicial review of Meyers April 12, 2017, decision. As stated previously in this opinion, 7 C.F.R. § 226.6(k)(5)(x) provides the procedure for administrative reviews pursuant to the CACFP and provides that the determination of the administrative-review official “is the final administrative determination to be afforded the institution and the responsible principals and responsible individuals.” Thus, Meyers April 12, 2017, decision was the final administrative determination with regard to Black Bears challenge to the Departments demands for payment from Black Bear outlined in Barretts January 17, 2017, letter. As determined previously in this opinion, the AAPA allowed for judicial review of that determination if sought, within 30 days. See § 41-22-20(d), Ala. Code 1975. Black Bear did not seek judicial review before the trial court, however, until October 23, 2017. Thus, Black Bear did not timely seek judicial review of Meyers April 12, 2017, decision, and both the trial court and this court are precluded from considering the correctness of that decision pursuant to 7 C.F.R. § 226.6(k)(5)(x) and § 41-22-20(d), including determining whether Meyers decision should have been vacated based on Black Bears assertion of actual bias. Additionally, because neither the trial court nor this court may consider arguments pertaining to the propriety of Meyers April 12, 2017, decision, we also decline to address Black Bears arguments that that decision violated certain provisions of the AAPA based on the lack of specific findings of fact and a brief statement of the grounds for the ruling.
Black Bear next argues on appeal that the trial court erred in declining to overturn Bradleys October 13, 2017, order because, it asserts, she incorrectly relied on the doctrines of res judicata and collateral estoppel in concluding that she was not permitted to review the documentary evidence upon which Meyers decision had been based. In its brief on appeal, the Department argues that Meyers decision became the law of the case.
“ ‘ “ ‘Under the doctrine of the “law of the case,” whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.’ Blumberg v. Touche Ross & Co., 514 So. 2d 922, 924 (Ala. 1987). See also Titan Indem. Co. v. Riley, 679 So. 2d 701 (Ala. 1996).” ’ ”
Poole v. Prince, 61 So. 3d 258, 273 (Ala. 2010) (quoting Bagley ex rel. Bagley v. Creekside Motors, Inc., 913 So. 2d 441, 445 (Ala. 2005), quoting in turn Southern United Fire Ins. Co. v. Purma, 792 So. 2d 1092, 1094 (Ala. 2001)). Black Bear argues in its reply brief before this court that “the proceedings in front of Bradley were simply a continuation of the proceedings in front of Meyer after he recused” himself and that Bradley “stepped into his shoes as the administrative review official, and could have and should have vacated his prior decisions.” As discussed above, however, Black Bears assertions to that end are misguided. Bradley was correct that Meyers decision was the final administrative determination on the matters addressed therein, i.e., that the monetary demands for recovery of advances and overpayment by the Department were due and payable, and that Bradley was precluded from reconsidering those matters because Black Bear was not entitled to further review of those matters. Thus, assuming, without deciding, that Bradley erred in her application of the doctrines of res judicata or collateral estoppel, any such error was harmless. See Rule 45, Ala. R. App. P. (“No judgment may be reversed or set aside ․ for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”).
Because Black Bear has limited its arguments on appeal to challenges related to the April 12, 2017, decision entered by Meyer, which it failed to timely appeal, and because no arguments have been presented that merit reversal of the trial courts judgment affirming Bradleys October 13, 2017, order, the trial courts judgment is affirmed.
AFFIRMED.
MOORE, Judge.
Thompson, P.J., and Donaldson, Edwards, and Hanson, JJ., concur.