Four Winds Behavioral v. United States

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 13, 2022
• Docket: 21-2089
• Status: Unpublished

Opinion

Appellate Case: 21-2089 Document: 010110710083 Date Filed: 07/13/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 13, 2022 _________________________________ Christopher M. Wolpert Clerk of Court FOUR WINDS BEHAVIORAL HEALTH, INC.,

Plaintiff - Appellant, No. 21-2089 v. (D.C. No. 1:19-CV-00212-SCY-LF) (D. N.M.) UNITED STATES OF AMERICA,

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT * _________________________________

Before BACHARACH, BALDOCK, and EID, Circuit Judges. _________________________________

Four Winds Behavioral Health, Inc. (Four Winds) appeals the district

court’s rejection of its challenge to the United States Department of

Agriculture’s decision to permanently disqualify Four Winds from

participating in the government’s Supplemental Nutrition Assistance

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-2089 Document: 010110710083 Date Filed: 07/13/2022 Page: 2

Program (SNAP). Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

I. Background

Four Winds operates a residential substance abuse treatment facility

in Rio Rancho, New Mexico. It sells candy bars, snacks, and drinks to

residents at a small on-campus convenience store called the cubby-hole.

In 2016, Four Winds obtained permission for the cubby-hole to

participate in SNAP. This program “provides eligible households with

monetary benefits, colloquially known as food stamps, to purchase eligible

food items at authorized retail food stores.” Aplt. App. at 131. Recipients

use Electronic Benefit Transfer (EBT) cards to make authorized purchases.

Some SNAP providers facilitate transactions that enable recipients to

bypass limitations on their authorized use of funds. For example, a SNAP

provider might swipe a recipient’s EBT card and provide the recipient with

cash instead of food. The government refers to the facilitation of

unauthorized SNAP transactions as “trafficking.” See 7 U.S.C.

§ 2021(b)(3)(B). SNAP providers that engage in trafficking can be

disqualified from participating in the program. See id. § 2021(a)(1).

To combat trafficking, the government employs an electronic

surveillance tool called ALERT. The ALERT system “identifies EBT

transactions within a given time that fall within certain patterns that are

2 Appellate Case: 21-2089 Document: 010110710083 Date Filed: 07/13/2022 Page: 3

statistically unusual and suggest transactions that are in violation of

SNAP.” Aplt. App. at 134–35.

In 2018, the government charged Four Winds with trafficking based

on transaction data flagged by the ALERT system. The suspicious activity

included numerous transactions ending in .00 cents or .50 cents, repeat

transactions by the same customers within a set timeframe of about 24

hours, and “excessively large purchase transactions.” Id. at 136 (internal

quotation marks omitted). Four Winds responded to the charges with

explanations of its pricing structure, customer behavior, and inventory

management practices.

After reviewing the ALERT data and Four Winds’ response, the

Department of Agriculture permanently disqualified Four Winds from

participating in SNAP. Four Winds appealed the disqualification to the

agency’s Administrative Review Branch. An administrative review officer

upheld the agency’s disqualification, finding “that the transaction data and

overall firm record demonstrate the patterns of unusual, irregular, and

inexplicable SNAP activity for this firm is likely the result of trafficking,”

and “that Four Winds provided inadequate explanations for the suspicious

transactions and insufficient evidence to legitimize its transaction data.”

Aplt. App. at 134 (internal quotation marks omitted).

Four Winds then brought this action in the district court under 7

U.S.C. § 2023(a)(13), which provides for judicial review of the agency’s

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action. Its original complaint raised an Appointments Clause challenge to

the administrative review officer’s authority to adjudicate Four Winds’

administrative appeal. But Four Winds filed an amended complaint that

“affirmatively removed the Appointment[s] Clause language that was in its

original Complaint.” Aplt. App. at 155. “[O]n the eve of trial,” Four Winds

filed a motion to amend the pleadings to re-assert the Appointments Clause

challenge. Id. The district court denied the motion in part because it was

not timely and thereafter entered a pre-trial order that did not reference the

Appointments Clause issue.

The district court then conducted a bench trial and found “Four

Winds did not meet its burden to prove, by a preponderance of the

evidence, that the trafficking violations did not occur.” Id. at 154. It

therefore “affirm[ed] the agency’s disqualification decision.” Id. at 131.

II. Discussion

Rule 28(a)(8) of the Federal Rules of Appellate Procedure requires

an appellant’s brief to contain an argument section, “which must contain:

(A) appellant’s contentions and the reasons for them, with citations to the

authorities and parts of the record on which the appellant relies; and (B)

for each issue, a concise statement of the applicable standard of review.”

In addition, Tenth Circuit Rule 28.1(A) requires, “[f]or each issue raised

on appeal,” that all briefs “cite the precise references in the record where

the issue was raised and ruled on.”

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“Under Rule 28, . . . a brief must contain more than a generalized

assertion of error, with citations to supporting authority.” Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (ellipsis and

internal quotation marks omitted). “Consistent with this requirement, we

routinely have declined to consider arguments that are not raised, or are

inadequately presented, in an appellant’s opening brief.” Bronson v.

Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007). Indeed, to invoke appellate

review, a party “must do more than offer vague and unexplained

complaints of error.” Femedeer v. Haun, 227 F.3d 1244, 1255 (10th Cir.

2000).

Four Winds’ opening brief is inadequate to preserve any issue for

appellate review. To begin with, the opening brief has no argument section

at all. Instead, it contains “Statement of Issues Presented” and “Summary

of the Argument” sections that present Four Winds’ complaints. Aplt.

Opening Br. at 4, 16 (emphasis omitted). The issues Four Winds identifies

are the following: (1) “Unconstitutional as applied,” (2) “To investigate is

to defame and destroy,” (3) “Lucia and Bandimere,” (4) “Chilling effect of

charges and unreasonable terms,” (5) “Infirm standard of review,” (6)

“Weyerhaeuser v. United States Fish & Wildlife,” (7) “Governmental

Insensitivity, ‘The Ex-Con Population’ and Ipse Dixits,” (8) “Ex parte

communications,” and (9) “Carr v. Saul.” Id. at 4–15 (emphasis omitted).

The one-page summary-of-the-argument section contains passing

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references to the Fifth Amendment right against self-incrimination, the

Privileges and Immunities clause of the Fourteenth Amendment, the

administrative review officer’s constitutional authority to adjudicate Four

Winds’ administrative appeal, and the supposed insufficiency of the

evidence to support a finding Four Winds had engaged in trafficking.

Four Winds does not identify where in the record most of its

arguments were raised and ruled on. Indeed, we see no connection between

most of the issues Four Winds seeks to raise and the district court’s

rulings. To the extent Four Winds makes arguments that might relate to the

district court’s rulings, Four Winds does not provide us with the applicable

standards of review as required by Federal Rule of Appellate Procedure

28(a)(8)(B), and its arguments are too vague and inadequately developed to

invoke appellate review.

For example, Four Winds asserts error because something about the

administrative process or statutory scheme was “[u]nconstitutional as

applied.” Aplt. Opening Br. at 4 (emphasis omitted). But Four Winds does

not identify which constitutional provision it believes has been violated.

Nor does it tell us what portion of the administrative process or statute it

believes is unconstitutional, or why the facts in this case make the

application unconstitutional here.

Four Winds also states that some standard of review was “[i]nfirm.”

Id. at 11. But we cannot tell from its opening brief what standard of review

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it is referring to in part because the brief discusses both an unidentified

agency review provision and 7 U.S.C. § 2023, 1 which provides for judicial

review of agency actions. And Four Winds’ argument consists only of the

statements that “the standard is wrong and unconstitutionally vague,” and

“invites [administrative review officers] to render arbitrary and capricious

[decisions].” Aplt. Opening Br. at 11–12 (emphasis, ellipses, and internal

quotation marks omitted). These perfunctory attacks, which are

unaccompanied by any citation showing Four Winds made them in the

district court or any explanation of why we should accept them, do not

suffice. See, e.g., Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497

F.3d 1135, 1141 (10th Cir. 2007) (“This Court will not consider a new

theory advanced for the first time as an appellate issue, even a theory that

is related to one that was presented to the district court.”); Sawyers v.

Norton, 962 F.3d 1270, 1286 (10th Cir. 2020) (“[The] briefing-waiver rule

applies equally to arguments that are . . . presented only in a perfunctory

manner.” (brackets and internal quotation marks omitted)).

Similarly, Four Winds apparently seeks to challenge the district

court’s conclusion that Four Winds was precluded from raising an

Appointments Clause argument at trial because “the claim was not in the

1 The opening brief references 7 U.S.C. § 2022. See Aplt. Opening Br. at 12. But the statute was renumbered, and § 2023 now contains the language Four Winds recites. 7 Appellate Case: 21-2089 Document: 010110710083 Date Filed: 07/13/2022 Page: 8

operative complaint, and Four Winds’ motion to amend the pleadings [to

include the Appointments Clause issue], on the eve of trial, was untimely.”

Aplt. App. at 155. Four Winds offers the undeveloped assertions that

“nothing would have changed had Four Winds re-cited [Bandimere v. SEC,

844 F.3d 1168 (10th Cir. 2016)] and [Lucia v. SEC, 138 S. Ct. 2044

(2018)] in the Amended Complaint,” Aplt. Opening Br. at 15, and that the

pre-trial order’s statement that “[t]he pleadings will be deemed merged

herein,” Aplt. App. at 96, included Four Winds’ original complaint and

various filings it made before and after the court entered the pre-trial

order. But Four Winds does not provide a record citation showing it made

these assertions in the district court. Four Winds also fails to give any

reason to credit either assertion. Cf., e.g., Aplt. App. at 155–57 (district

court “point[ing] out that when Four Winds filed its Amended Complaint,

it affirmatively removed the Appointment[s] Clause language that was in

its original Complaint,” and noting that “had the issue been in the

[amended] complaint, the United States could have moved for summary

judgment,” which “[t]he [c]ourt would have granted”); Davis v. TXO Prod.

Corp., 929 F.2d 1515, 1517 (10th Cir. 1991) (“[I]t is well established that

an amended complaint ordinarily supersedes the original and renders it of

no legal effect.” (internal quotation marks omitted)); Fed. R. Civ. P. 7(a)

(limiting “pleadings” to the seven listed types of filings). And Four Winds

does not tell us why either assertion undermines the district court’s ruling

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that Four Winds waived its Appointments Clause argument. See Nixon v.

City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (“The first

task of an appellant is to explain to us why the district court’s decision was

wrong.”).

Four Winds finally states “[t]here was no trafficking. Far less by a

convincing margin.” Aplt. Opening Br. at 16 (emphasis, ellipsis, and

internal quotation marks omitted). To the extent Four Winds intends this

statement to challenge the district court’s factual finding that Four Winds

did not meet its burden of proof, we cannot evaluate this argument because

Four Winds failed to include any evidence submitted to the district court in

its appendix. See Naimie v. Cytozyme Lab’ys, Inc., 174 F.3d 1104, 1113

(10th Cir. 1999) (“[W]here appellant fails to submit sufficient portions of

the record, an appellate court cannot review the district court’s factual

findings and must accept them as correct.” (internal quotation marks

omitted)). And the statement is insufficient for the independent reason that

Four Winds does not discuss any evidence that would support a contrary

conclusion. See Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1249 (10th

Cir. 2015) (“It is obligatory that an appellant, claiming error by the district

court as to factual determinations, provide this court with the essential

references to the record to carry his burden of proving error.”).

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III. Conclusion

We affirm the district court’s entry of final judgment.

Entered for the Court

Per Curiam