Nadia Int'l Mkt. v. United States
Opinion
16‐364‐cv Nadia Intʹl Mkt. v. United States
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26th day of April, two thousand seventeen.
PRESENT: GUIDO CALABRESI, DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
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NADIA INTERNATIONAL MARKET, Plaintiff‐Appellant,
16‐364‐cv
v.
UNITED STATES OF AMERICA, Defendant‐Appellee.
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FOR DEFENDANT‐APPELLEE: MELISSA A.D. RANALDO, Assistant United States Attorney (Nikolas P. Kerest, Gregory L.
Waples, Assistant United States Attorneys, on
the brief), for Eugenia A.P. Cowles, Acting United States Attorney for the District of Vermont, Burlington, Vermont.
Appeal from the United States District Court for the District of Vermont (Reiss, C.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Nadia International Market (ʺNadia Marketʺ) appeals from a judgment of the district court entered December 7, 2015, granting summary judgment in favor of defendant‐appellee United States and dismissing Nadia Marketʹs complaint, which sought judicial review of its permanent disqualification from the Supplemental Nutrition Assistance Program (ʺSNAPʺ). The district court explained its reasoning in an opinion and order filed December 2, 2015. We assume the partiesʹ familiarity with the underlying facts, procedural history, and issues on appeal.
Nadia Market, a small grocery store in Winooski, Vermont, began participating in SNAP in November 2010. In 2012, the Food and Nutrition Service (ʺFNSʺ), the agency of the United States Department of Agriculture that administers SNAP, began an investigation into unusual patterns of Electronic Benefit Transfer (ʺEBTʺ) transactions at Nadia Market. Transaction reports for August through October 2012 identified several types of statistically unusual EBT transactions, including (1) transactions ending in the same cents value (e.g., ʺ.00ʺ), (2) rapid successive purchases
by different households, (3) rapid successive purchases involving the same household, (4) groups of transactions that largely depleted a householdʹs benefits over a period of minutes or hours, and (5) relatively high dollar‐value transactions given Nadia Marketʹs size and inventory. As part of the investigation, FNS compared Nadia Marketʹs EBT activity from the three‐month period with that of other similarly sized, SNAP‐ authorized stores within one to two miles of Nadia Market. Following this analysis, a FNS field officer visited Nadia Market to inspect its inventory, stock, layout, and pricing, and spoke with a store clerk.
On November 28, 2012, FNS notified Nadia Marketʹs owner, Yahya Ikhmayyis, that it had identified ʺclear and repetitive patterns of unusual, irregular, and inexplicable activity,ʺ and was considering permanently disqualifying Nadia Market from SNAP. App. 46. In subsequent communications, Ikhmayyis explained that the identified transactions resulted from allowing customers to purchase items on credit and rounding totals to the nearest dollar, in accordance with Iraqi custom. Ikhmayyis also submitted a ledger of credit transactions.
On December 19, 2012, FNS sent a determination letter advising Ikhmayyis that it was charging Nadia Market with ʺtrafficking,ʺ or exchanging SNAP benefits for cash. A.R. 177. In the letter, FNS invited Ikhmayyis to provide additional documentation before a final decision was issued, as well as to request imposition of a civil money penalty instead of permanent disqualification. After Ikhmayyis requested
review of his case, the Administrative Review Branch (the ʺReview Branchʺ) provided Nadia Market with another opportunity to submit additional information. Nadia Market submitted an affidavit from Ikhmayyis and an accountantʹs analysis of its EBT data and credit ledger. The Review Branch nevertheless sustained the recommendation to permanently disqualify Nadia Market from SNAP. FNS also determined that Nadia Market was not eligible for a civil money penalty in lieu of disqualification.
Nadia Market sought review of the agencyʹs decision in the district court pursuant to 7 U.S.C. § 2023(a). After the close of discovery, the district court granted the governmentʹs motion for summary judgment. Acknowledging that Nadia Market did not dispute the validity of any of the evidence on which FNS relied, the district court concluded that the government was entitled to judgment as a matter of law because Nadia Market had not established by a preponderance of the evidence that it did not engage in trafficking. The district court further determined that FNSʹs decision to permanently disqualify Nadia Market from SNAP, rather than impose a civil monetary penalty, was not arbitrary and capricious. This timely appeal followed.
On appeal, Nadia Market argues that (1) the government was not entitled to summary judgment because the EBT transaction data was insufficient to establish trafficking and support disqualification, and (2) FNSʹs decision to permanently disqualify Nadia Market from participating in SNAP rather than issue a civil monetary penalty was arbitrary and capricious. We review a grant of summary judgment de novo,
ʺconstru[ing] the evidence and draw[ing] all reasonable inferences in the light most favorable to the non‐moving party.ʺ Proctor v. LeClaire, 846 F.3d 597, 607 (2d Cir. 2017). We affirm when ʺthere is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.ʺ Id. (citations and internal quotation marks omitted).
The Secretary of Agriculture may permanently disqualify any approved retail food store from participation in SNAP upon ʺthe first occasion or any subsequent occasion of a disqualification based on the purchase of coupons or trafficking in coupons or authorization cards by a retail food store.ʺ 7 U.S.C. § 2021(b)(3)(B). Section 2021(b)(3)(B) grants the Secretary discretion to impose a civil monetary penalty in lieu of permanent disqualification for trafficking ʺif the Secretary determines that there is substantial evidence that such store or food concern had an effective policy and program in effect to prevent violations of the chapter and the regulations.ʺ Id.
Upon disqualification, a retail food store operator may obtain judicial review by way of ʺa trial de novo . . . in which the court shall determine the validity of the questioned administrative action in issue.ʺ 7 U.S.C. § 2023(a)(13), (15).1 In
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