P T Nguyen, Inc. v. United States of America
Filing
22
RULING AND ORDER: Defendant USA's 17 Motion for Summary Judgment is GRANTED. This matter is dismissed with prejudice. Signed by Judge John W. deGravelles on 9/23/2019. (KAH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
PT NGUYEN, INC. D/B/A JASMIN
FOOD MART
CIVIL ACTION
NO: 18-00062-JWD-EWD
VERSUS
UNITED STATES OF AMERICA
RULING AND ORDER
This matter comes before the Court on Defendant United States of America’s (“Defendant”
or “United States”) Motion for Summary Judgment. (Doc. 17). Plaintiff, PT Nguyen, Inc. d/b/a
Jasmin Food Mart (“Plaintiff” or “Jasmin Food Mart”), opposed the motion. (Doc. 20). Defendant
replied. (Doc. 21). The Court has carefully considered the law, the facts in the record, and the
arguments and submissions of the parties and is prepared to rule. For the following reasons,
Defendant’s motion for summary judgement is granted.
I.
Relevant Factual and Procedural Background
Jasmin Food Mart, under the ownership of Peter Q. Nguyen, Nhung N. Tu, Thinh Q.
Nguyen, and Kim Thoa Nguyen, is a Louisiana corporation that operates a retail convenience store
and food market on North Sherwood Forest Drive in Baton Rouge, Louisiana. (Doc. 1, ¶¶ 1, 7).
Plaintiff alleges that “at all times relevant hereto”, Jasmin Food Mart was an authorized participant
retailer in the Supplemental Nutrition Assistance Program (“SNAP”). (Id.). SNAP is administered
by the United States Department of Agriculture (“USDA”), Food and Nutrition Service (“FNS”).
(Doc. 1, ¶ 1).
On October 17, 2016, Plaintiff alleges that the FNS issued a letter to Jasmin Food Mart,
alleging that records of Electronic Benefit Transfer (“EBT”) transactions at Jasmin Food Mart
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between the months of April 2016 and November 20161 showed “clear and repetitive patterns of
unusual, irregular, and inexplicable activity for [Jasmin’s] type of firm.” (Doc. 1, ¶ 8). SNAP
benefits are issued to households through an EBT system. SNAP benefits are stored in a central
computer database and electronically accessed by households at the point of sale via reusable
plastic cards. SNAP benefits may also be issued through an off-line EBT system in which benefit
allotments can be stored on a card or in a card access device and used to purchase authorized items
at a point-of sale terminal. FNS monitors retailer transaction data through EBT system reporting.
(Doc. 1, ¶ 6).
In its letter to Plaintiff, the FNS alleged that the EBT records showed (1) multiple
transactions were made from individual benefit accounts in unusually short time frames; and (2)
excessively large purchase transactions were made from recipient accounts. (Doc. 1, ¶ 8). Based
on this information, the FNS charged Jasmin Food Mart with “trafficking” as defined by 7 C.F.R.
§ 271.2. (Id.).
On October 24, 2016, Jasmin Food Mart alleges that it responded to the charges and
provided a written explanation regarding the EBT records. (Doc. 1, ¶ 9). Plaintiff asserted that
many of its customers shopped daily, if not multiple times per day. Plaintiff noted that its fresh
seafood sales accounted for the higher priced transactions. Plaintiff asserted that there was a higher
volume of SNAP recipients following the flooding in Baton Rouge in August 2016. Also, during
this time, SNAP participants were permitted to purchase hot food items not ordinarily eligible for
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In its Complaint, Plaintiff alleges the time period of April-November 2016 for the investigation. (Doc. 1, ¶ 8).
Defendant’s motion refers to the period April-September 2016 as the investigation period. (Doc. 17-1, p. 6). The
Charge Letter issued by the FNS is dated October 2016, before Plaintiff’s alleged time period expired. (A.R. 122141). The Court believes that the relevant investigation time period to be April-September 2016, as more fully set
forth herein.
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purchase with SNAP benefits, which increased the volume of purchases with SNAP benefits at the
store. (Doc. 1, ¶ 10).
Plaintiff alleges that it provided FNS with additional information and supporting
documentation in response to the charges, including inventory invoices from seafood and meat
distributors, between October 24, 2016 and November 3, 2016. (Doc. 1, ¶ 11).
On July 5, 2017, FNS issued a letter to Jasmin Food Mart, advising that it had reviewed
the available information and found that the violations had occurred as cited.
FNS then
permanently disqualified Jasmin Food Mart from SNAP pursuant to 7 C.F.R. §§ 278.6(c),
278.6(e)(1). (Doc. 1, ¶ 12).
In response, Jasmin Food Mart made a written request on July 14, 2017, for a review of the
FNS decision. Plaintiff alleges that it reiterated its previous contentions and provided additional
documentation for transactions between April 2016 and October 2016. Plaintiff also requested the
results of the FNS investigation. (Doc. 1, ¶ 13).
FNS issued its final agency decision dated December 28, 2017, upholding the permanent
disqualification of Jasmin Food Mart. (Doc. 1, ¶ 15). Plaintiff alleges that FNS improperly relied
“solely on analysis of EBT records and disregarded or gave insufficient consideration to facts
presented by Jasmin Food Mart and/or information that was otherwise available to the FNS,
concerning the nature of Jasmin Food Mart’s business, its purchases and sales, its customers’
typical transactions, and the extenuating circumstances surrounding the time period of the
investigation”. (Doc. 1, ¶ 16). Plaintiff alleges that FNS “failed to consider the nature and scope
of the alleged violations”, failed to warn Jasmin Food Mart about the possibility of violations, and
failed to evidence Jasmin Food Mart’s intent to violate SNAP regulations. (Doc. 1, ¶ 17).
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Plaintiff instituted suit pursuant to 7 U.S.C. § 2023 for de novo judicial review of the final
agency decision by the FNS, which permanently disqualified Jasmin Food Mart from participation
as an authorized retailer in SNAP. (Doc. 1, ¶ 1).
II.
Relevant Standard
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). If the mover bears his burden of showing that there is no genuine issue of fact, “its
opponent must do more than simply show that there is some metaphysical doubt as to the material
facts … [T]he nonmoving party must come forward with ‘specific facts showing that there is a
genuine issue for trial.’” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986) (internal citations omitted). The non-mover’s
burden is not satisfied by “conclusory allegations, by unsubstantiated assertions, or by only a
‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(citations
and internal quotations omitted). The party opposing the motion for summary judgment may not
sit on his hands, complacently relying on the pleadings. Weyant v. Acceptance Ins. Co., 917 F.2d
209 (5th Cir. 1990). “Where the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co.,
475 U.S. at 587. General allegations that fail to reveal detailed and precise facts will not prevent
the award of summary judgment. Walton v. Alexander, 20 F.3d 1350, 1352 (5th Cir. 1994).
Further:
In resolving the motion, the court may not undertake to evaluate the credibility
of the witnesses, weigh the evidence, or resolve factual disputes; so long as the
evidence in the record is such that a reasonable jury drawing all inferences in
favor of the nonmoving party could arrive at a verdict in that party’s favor, the
court must deny the motion.
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Int’l Shortstop, Inc. v. Rally’s Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
III.
Discussion
A.
Parties’ Arguments
1.
Defendant’s Memorandum in Support (Doc. 17-1)
Defendant explains that the FNS utilized the Anti-Fraud Locator Using Electronic Benefit
Transfer Retailer Transactions (“ALERT”) System to monitor and identify suspicious patterns of
EBT card usage that may suggest SNAP benefits are being trafficked. (Doc. 17-1, p. 4 (citing
Doc. 17-3, p. 3; Rockland Convenience Store v. United States, Civ. A. No. 10-260, 2011 WL
5120410, *3 (D.N.H. Oct. 27, 2011)). In 2016, the ALERT System “flagged” Plaintiff’s EBT
transaction data as having met patterns consistent with possible SNAP trafficking violations. (Doc.
17-1, p. 6 (citing A.R. 104)). As a result, FNS opened an investigation and analyzed data covering
a six-month period from April 2016 through September 2016. (Doc. 17-1, p. 6 (citing A.R. 103121)). A “Charge Letter” was issued on October 17, 2016, by FNS to Plaintiff, notifying Jasmin
Food Mart of a charge of trafficking in SNAP benefits. (Doc. 17-1, p. 7 (citing A.R. 122-141)).
The Charge Letter identified instances of multiple transactions from individual SNAP accounts in
a short time frame. (Doc. 17-1, p. 7 (citing A.R. 122; 125)). Defendant provides examples of the
“flagged” transactions. (Doc. 17-1, p. 7).
Plaintiff submitted a written response to the Charge Letter on October 24, 2016. (Doc. 171, p. 8 (citing A.R. 144-145)). Defendant admits that Plaintiff explained the effects of the flood
of August 2016, as well as its seafood business and customer purchasing habits. (Id.).
Defendant issued a “Determination Letter” on July 5, 2017, informing Plaintiff that the
charged trafficking violations had occurred and permanently disqualified Jasmin Food Mart from
SNAP.
(Doc. 17-1, p. 8 (citing A.R. 223-226)).
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On July 14, 2017, Plaintiff requested
administrative review with the Administrative Review Branch of the FNS. (Doc. 17-1, p. 9 (citing
A.R. 229-231)). Plaintiff claimed that the charge of trafficking and resulting disqualification of
Jasmin Food Mart from SNAP was “arbitrary, without cause, and in violation of Plaintiff’s due
process rights”. (Id.). The Administrative Review Officer requested additional information on
July 19, 2017, and Plaintiff submitted same on August 1, 2017. (Doc. 17-1, p. 9 (citing A.R. 265266, 270-1463)). Plaintiff reiterated that it provided documentation to justify the high volume of
sales of higher priced items and of SNAP benefits transactions; that high dollar transactions and
increased frequency of SNAP benefits was attributed to the August 2016 flood, later implemented
by FNS as the “Special Disaster Rules”; that FNS authorized SNAP benefits for purchasing hot
foods through October 17, 2016; that FNS did not conduct an on-site investigation; and FNS did
not charge Plaintiff with a violation of SNAP prior to this time. (Doc. 17-1, pp. 9-10).
A “Final Agency Decision” was issued December 28, 2017, supporting the trafficking
determination and permanent disqualification of Plaintiff from SNAP. (Doc. 17-1, p. 10 (citing
A.R. 1471-1486)).
Defendant’s primary argument is that the evidence supports that trafficking did, in fact,
occur, and that it is Plaintiff’s burden to show that the violation, i.e., trafficking, did not occur.
Defendant groups the “hundreds of … EBT transactions that cannot be explained as the exchange
of SNAP benefits for eligible food” into four categories: (1) “multiple withdrawals from the same
account in short timeframes”, (Doc. 17-1, pp. 13-14); (2) “excessively large transactions”, (Doc.
17-1, pp. 14-15); (3) there are many other SNAP retailers in the area, and customers were not
dependent on Jasmin Food Mart, (Doc. 17-1, pp. 15-16); and (4) the flood of August 2016 and the
hot foods exception do not explain the statistical data, (Doc. 17-1, pp. 16-17). Defendant argues
that since a firm may be permanently disqualified based on a single incident of trafficking, Plaintiff
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must prove that every suspicious transaction was legitimate. (Doc. 17-1, p. 18 (citing 7 U.S.C. §
2021(b)(3)(B); 7 C.F.R. § 278.6(e)(1)(i); Idias v. United States, 359 F.3d 695, 697 (4th Cir.
2004))).
Defendant argues that because no reasonable factfinder could conclude that Plaintiff did
not traffick SNAP benefits, Defendant is entitled to summary judgment, affirming the
administrative determination that Plaintiff engaged in trafficking. (Doc. 17-1, p. 18). Further,
Defendant argues that the penalty imposed, permanent disqualification, is proper both under the
law and because Plaintiff does not challenge the propriety of the sanction. (Doc. 17-1, pp. 18-20).
2.
Plaintiff’s Opposition (Doc. 20)
Plaintiff opposes Defendant’s motion. It argues that the FNS conducted an investigation,
but based its decision to charge Jasmin Food Mart with trafficking solely on the EBT data analysis.
(Doc. 20, p. 1 (citing the Charge Letter, A.R. 122-141)). Plaintiff argues that the documentation
provided to FNS on October 24, 2016, explained the EBT transactions, specifically including the
inventory invoices demonstrating regular seafood sales and higher volume of hot food purchases
after the flood. (Doc. 20, p. 2 (citing A.R. 148-210)). Plaintiff also points to the EBT receipts,
credit card receipts, and inventory invoices generated between April 2016 and November 2016
that Plaintiff provided to the FNS. (Doc. 20, p. 2 (citing A.R. 270-1463)).
Plaintiff agrees with Defendant’s stated standard for motion for summary judgment and for
review of administrative determinations. (Doc. 20, pp. 2-3). However, Plaintiff argues that
Defendant “conflates” Plaintiff’s burden of proof with the summary judgment standard by stating
that Plaintiff cannot satisfy its evidentiary burden of proof and, therefore, no reasonable factfinder
could conclude that Plaintiff did not traffick SNAP benefits. Rather, Plaintiff argues that it “need
only come forward with specific facts showing a genuine issue for trial” and that the facts and
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evidence, when viewed in the light most favorable to Plaintiff, demonstrate a genuine issue of
material fact, thereby defeating Defendant’s motion. (Doc. 20, p. 3).
Plaintiff addresses each of Defendant’s categories of suspicious activity that Defendant
argues evidences trafficking. (Doc. 20, pp. 4-10). Plaintiff argues that the “issue of fact that
undercuts all of Defendant’s arguments is that Jasmin Food Mart is a neighborhood store and the
primary source for fresh and boiled seafood for nearby residents”. (Doc. 20, p. 4). Plaintiff argues
that if the FNS had entered the “employee-only” walk-in cooler when it made its site visit, then it
would have “observed multiple large bags of fresh crawfish, crabs, and/or shrimp, consistent with
the invoices from seafood distributors that Jasmin Food Mart provided to the FNS”. (Id. (citing
A.R. 270-1463)). Plaintiff further argues that there is a genuine issue of material fact in the FNS
site visit report that states that there was no indication inside or outside Jasmin Food Mart that it
sells seafood or meat by the pound. (Doc. 20, pp. 4-5 (citing A.R. 66-87)). Plaintiff contends that
it does not advertise the price of seafood because the price fluctuates with the market and because
it sells seafood in a “bundle” deal with other SNAP-eligible items for a flat price. (Doc. 20, p. 4
(citing Doc. 20-2)). Further, Jasmin Food Mart advertises its fresh seafood on Coca-Cola signs
posted on its fencing, advertising the sale of boiled crawfish. (Id.). Therefore, Plaintiff argues,
the FNS site visit and investigation was flawed and improperly concluded that there was “no hint”
of the sale of high-priced specialty items or “bundles” and that it was a “low-dollar value” store.
It also improperly concluded that the seafood was only available as a “hot meal” purchase. (Doc.
20, p. 5 (citing A.R. 66-87)). Plaintiff also argues that because Jasmin Food Mart is conveniently
located and has built a relationship with its customers and offers competitive pricing, it is the mart
of choice in the area for seafood. (Doc. 20, p. 5).
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Plaintiff next addresses the “multiple transactions by individual accounts”, cited as
suspicious EBT activity. (Id.). Plaintiff first argues that the FNS only identified seventeen
individual transactions over six months out of 11,692 total transactions. (Id. (citing A.R. 105)).
Plaintiff then argues that the high dollar and multiple purchases made in the same day by the same
account as well as the facilities better suited to small volume purchases can be explained by “ample
evidence”: (1) because of the store’s proximity, many customers walk to the store several times
within one day or the week, (Doc. 20, p. 6 (citing Doc. 20-2; A.R. 144)); (2) the lack of shopping
carts and baskets supports that customers make multiple trips to the store and purchase fewer items
within one visit, (Doc. 20, p. 6); (3) multiple transactions are sometimes made in one visit because
customers sometimes purchase items for their neighbors, (Doc. 20, p. 6 (citing Doc. 20-2)); and
(4) customers sometimes purchase seafood separate from other SNAP-eligible items. (Id.).
Plaintiff argues that these four points raise issues of fact regarding whether the sets of multiple
transactions identified by the FNS are evidence of trafficking.
Plaintiff argues that Defendant’s argument that transactions at Jasmin Food Mart were
“excessively large” compared to “other similar stores in Louisiana” is unreliable because it is based
on analysis and conclusions “colored by the flawed and incomplete” site visit. (Doc. 20, p. 7).
Plaintiff specifically points to Defendant’s statement that there is “no evidence that [Plaintiff] sold
specially-priced meat or seafood bundles or packages”. (Id. (citing Doc. 17-1, pp. 14-15)).
Plaintiff reiterates its initial argument of “ample evidence” that Jasmin Food Mart sells both fresh
and boiled seafood. (Doc. 20, p. 7 (citing Doc. 20-2; A.R. 148-210, 270-1463)). Further, Plaintiff
highlights that Defendant compares Jasmin Food Mart to “20 nearby convenience stores”, none of
which sell fresh or boiled seafood based on the evidence in the administrative record. (Doc. 20,
p. 7 (citing A.R. 111; Doc. 17-1, p. 15)). Of the three “small grocery stores” to which Jasmin Food
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Mart was compared, two sell frozen seafood and the third sells no seafood, which Plaintiff argues
is an unreliable comparison. (Doc. 20, p. 7 (citing A.R. 213)). In summary, Plaintiff argues that
there is a disputed factual basis in Defendant’s comparison of Jasmin Food Mart and other stores
in its area; therefore, Plaintiff argues, since reasonable persons could conclude that the high value
transactions are due to the high inventory of fresh and boiled seafood, summary judgment is not
appropriate. (Doc. 20, pp. 7-8).
In response to Defendant’s argument that customers visited other SNAP-authorized stores
and then then spent large dollar amounts at Jasmin Food Mart, which was suspicious activity
indicative of trafficking, Plaintiff relies on the premise that Jasmin Food Mart is unique to its area
because it sells fresh and boiled seafood. (Doc. 20, p. 8 (citing Doc. 17-1, p. 16)). For example,
Plaintiff argues that a customer may visit a Walmart Superstore, that has a larger selection of
SNAP-eligible inventory and spend $26.10, but then visit the neighborhood Jasmin Food Mart for
the competitive pricing of boiled crawfish that was not available at the Walmart Superstore. (Doc.
20, p. 8 (citing A.R. 116; Doc. 17-1, p. 15; Doc. 20-2)).
Plaintiff lastly addresses Defendant’s chart comparing Jasmin Food Mart’s sales between
April and September 2016 with regard to the effects of the flood of August 2016 and the hot foods
exception to the SNAP rules. Plaintiff argues that it is unfair to compare Plaintiff’s sales in August
and September 2016 to April and May 2016 and conclude that the difference is “minimal” and,
therefore, cannot be attributed to the effects of the flood. Again, Plaintiff relies on seafood sales
– the peak of crawfish season is April and May, which are the higher volume and higher priced
transactions months, and to compare same to September 2016, which recorded more than 2,000
additional transactions than in July, and conclude that this is “insignificant” is faulty. Plaintiff
claims that the hot foods exception cannot be compared to the “crawfish months”. Issues of fact
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regarding the true effect of the flooding and hot foods exception should preclude summary
judgment. (Doc. 20, pp. 9-10).
3.
Defendant’s Reply (Doc. 21)
Defendant argues in reply that FNS reached its decision to charge Plaintiff with trafficking
after “identifying hundreds of EBT transactions that could not be explained as the exchange of
SNAP benefits for eligible food, and from information gathered during a … site visit”. (Doc. 21,
p. 1). Defendant represents that there were 17 total individual transactions that were considered,
eight sets of “multiple transactions within an unusually short time frame”, and 889 excessively
large purchases. This is consistent with Plaintiff’s argument. (Doc. 21, p. 1 (citing A.R. 109-114,
122, 125-141)). Defendant then argues that because “Plaintiff has not proven that every suspicious
transaction was legitimate, Defendant is entitled to summary judgment”. (Doc. 21, p. 1 (citing 7
U.S.C. § 2021(b)(3); 7 C.F.R. § 278.6(e)(1)(i); Idias, 359 F.3d at 697 (“[A] firm may be
permanently disqualified from SNAP based upon a single incident of trafficking.”))). Defendant
argues that the issue before the Court is whether Plaintiff has satisfied its burden of raising issues
of fact as to the suspicious transactions identified by the FNS. (Doc. 21, pp. 1-2 (citing Kahin v.
United States, 101 F.Supp.2d 1299, 1303 (S.D. Cal. May 2, 2000); Tony’s Pantry Mart Inc. v.
United States, Civ. A. No. 15-2967, 2017 WL 514184, *5 (N.D. Ill. Feb. 8, 2017)(quoting Young
Choi Inc. v. United States, 639 F.Supp.2d 1169, 1178 (D.Haw. May 28, 2009)(“[t]o defeat a
motion for summary judgment, the nonmoving party needs to raise material issues of fact [as] to
every alleged violation charged against it”)); Ganesh v. United States, 658 Fed.App’x. 217, 219
(6th Cir. 2016))). Defendant contends that none of Plaintiff’s seafood theory arguments are
sufficient to defeat summary judgment. (Doc. 21, p. 2).
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Defendant argues that Plaintiff’s “boiled seafood” argument should be disregarded because
it was raised for the first time in opposition to the motion for summary judgment. (Doc. 21, p. 2).
Further, Defendant argues that Plaintiff “offers no evidentiary support” for the premise that boiled
seafood was served cold in order to comply with 7 C.F.R. 271.2, and, therefore, cannot defeat
summary judgment. (Doc. 21, p. 3).
Defendant argues that Plaintiff’s argument based on its customers’ shopping practices is
not supported by the Affidavit of Mr. Nguyen. Rather, Defendant contends that Plaintiff’s affidavit
is composed of general statements of general observations and the argument made by Plaintiff in
its opposition, in contrast, is more specific. Also, Plaintiff’s argument does not specifically address
each of the 8 sets of transactions within a short amount of time; Plaintiff simply applies the general
argument of customers’ shopping habits in an over-arching, conclusory way, which is insufficient
for summary judgment. (Doc. 21, p. 4 (citing Tony’s Pantry Mart Inc., at *4 (quoting Rockland
Conv. Store, at *8 (“[B]ecause summary judgment may be defeated only when the plaintiff
identifies a genuine factual dispute as to each alleged violation, general statements about
[customer’s] shopping patterns or other [customer] practices are not enough to create a triable issue
of fact.”)))).
Defendant also takes issue with Plaintiff’s seafood argument in response to the excessive
transactions that allegedly totaled over 880 in number. Defendant’s argument is that Plaintiff lacks
any evidence that each of these “excessive” transactions were actually for the purchase of fresh or
boiled seafood. Defendant questions where the itemized receipts are that show that the high dollar
transactions were attributed to the sale of seafood. Without closing this gap, Plaintiff’s “evidence”
is insufficient on summary judgment. (Doc. 21, p. 5).
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B.
Applicable Legal Authority - SNAP
Congress established the federal food stamp program “[t]o alleviate ... hunger and
malnutrition” and “permit low-income households to obtain a more nutritious diet through normal
channels of trade by increasing food purchasing power for all eligible households who apply for
participation.” 7 U.S.C. § 2011. Congress amended the statute in 2008. The federal food stamp
program is now known as the Supplemental Nutrition Assistance Program and is referred to as
SNAP or the food stamps program interchangeably. Jerusalem Halal Meats, Inc. v. United States,
No. 17-1423, 2019 WL 1026302, *1 (S.D. Tex. Feb. 7, 2019). SNAP benefits are administered
by the USDA. Sharif v. United States, No. 16-67, 2017 WL 58837, *1 (N.D. Miss. Jan. 5, 2017).
The FNS oversees the program and provides food stamps to states participating in the program,
and the states then distribute the food stamps to qualified individuals and households.
“The
assistance provided is focused on increasing the food purchasing power of eligible households by
supplementing the funds families have to spend on food with SNAP benefits, to purchase eligible
food items at authorized retail stores.” Id. The FNS provides eligible households with EBT cards,
which are used like credit cards at the cash register to exchange SNAP benefits for eligible food.
See 7 U.S.C. §§ 2012(i), 2016(a). These EBT cards may be used “only to purchase food from
retail food stores which have been approved for participation” in SNAP, 7 U.S.C. § 2016(b), and
“may be accepted … only in exchange for eligible food,” and “may not be accepted in exchange
for cash.” 7 C.F.R. § 278.2(a).
The FNS regional office “shall ... disqualify a firm permanently if” the firm has engaged
in the trafficking of food stamps. 7 C.F.R. § 278.6(a). “Trafficking means the buying, selling,
stealing, or otherwise effecting an exchange of SNAP benefits issued and accessed via EBT cards,
card numbers and personal identification numbers (“PIN”s), or by manual voucher and signature,
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for cash or consideration other than eligible food, either directly, indirectly, in complicity or
collusion with others, or acting alone.” 7 C.F.R. § 271.2. Food stamp trafficking unquestionably
undermines the goals of the food stamp program. See H.R. REP. NO. 271, 99th Cong. (1st Sess.),
reprinted in 1985 U.S.C.C.A.N. 1103, 1260; S. REP. NO. 504, 97th Cong. (2d Sess.), reprinted in
1982 U.S.C.C.A.N. 1641, 1700–02.
The government electronically monitors participating
retailers’ EBT transactions, conducts periodic reviews of retailers, and initiates investigations of
stores when suspicious transactions occur. Sharif, at *1.
A firm's disqualification from participation in the program “result[s] from a finding of a
violation on the basis of evidence that may include facts established through on-site investigations,
inconsistent redemption data, evidence obtained through a transaction report under an electronic
benefit transfer system, or the disqualification of a firm from the Special Supplemental Nutrition
Program for Women, Infants and Children (WIC).” 7 C.F.R. § 278.6(a). The regulations have no
requirement that a store owner must receive a warning, demonstrate intention to violate the
regulations, or benefit from the trafficking. Goldstein v. United States, 9 F.3d 521, 523-24 (6th
Cir. 1993); Kim v. United States, 121 F.3d 1269, 1273-74 (9th Cir. 1997). The penalty for
trafficking in food stamps is permanent disqualification. 7 U.S.C. 2021(b)(3)(B).
A retail food store or wholesale food concern that is subjected to a penalty under 7 U.S.C.
§ 2021 may first timely seek administrative review of the validity of the determination, and upon
the final administrative determination, may timely seek judicial review of the agency
determination pursuant to 7 U.S.C. § 2023(a)(13). Such suit “shall be a trial de novo by the court
in which the court shall determine the validity of the questioned administrative action in issue.” 7
U.S.C. § 2023(a)(15). De novo review is broader than the review standard under the Administrative
Procedure Act. Modica v. United States, 518 F.2d 374, 376 (5th Cir.1975). The Administrative
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Procedure Act provides in pertinent part as follows: “To the extent necessary to the decision and
when presented, the reviewing court shall decide all relevant questions of law, interpret
constitutional and statutory provisions, and determine the meaning or applicability of the terms of
an agency action.” 5 U.S.C. § 706. De novo review of an agency decision encompasses more,
“requir[ing] the district court to examine the entire range of issues raised, and not merely to
determine whether the administrative findings are supported by substantial evidence.” Modica,
518 F.2d at 376. “The court must reach its own factual and legal conclusions based on the
preponderance of the evidence, and should not limit its consideration to matters previously dealt
with in the administrative proceedings.” Ruhee M., Inc. v. United States, No. 05–1547, 2006 WL
1291356, *2 (S.D.Tex. May 5, 2006) (citing Modica, 518 F.2d at 376). The aggrieved party bears
the burden of establishing the invalidity of the administrative action by a preponderance of the
evidence. Redmond v. United States, 507 F.2d 1007, 1011 (5th Cir.1975). The aggrieved party
“may offer any relevant evidence available to support his case, whether or not it has been
previously submitted to the agency, and the agency itself may offer any evidence available to
support its action, whether or not in the administrative record.” Id. at 1012. “If the court determines
that such administrative action is invalid, it shall enter such judgment or order as it determines is
in accordance with the law and the evidence.” 7 U.S.C. § 2023(a)(16).
A retail food store or wholesale food concern that is subjected to a penalty under 7 U.S.C.
§ 2021 may similarly first seek timely administrative review and then judicial review of whether
the penalty was in accordance with the applicable regulations promulgated under SNAP. Judicial
review of a sanction imposed under SNAP is limited to the determination of whether the sanction
is valid; a sanction is valid as long as it is not “arbitrary and capricious,” that is, “unwarranted in
law or without justification in fact.” See Butz v. Glover Livestock Comm'n Co., 411 U.S. 182, 185–
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89, 93 S.Ct. 1455, 36 L.Ed.2d 142 (1973); Goodman v. United States, 518 F.2d 505, 511–12 (5th
Cir. 1975). See also Estremera v. United States, 442 F.3d 580, 585 (7th Cir.2006); Woodard v.
United States, 725 F.2d 1072, 1077 (6th Cir.1984) (citing Kulkin v. Bergland, 626 F.2d 181, 184
(1st Cir.1980)); Cross v. United States, 512 F.2d 1212, 1218 (4th Cir.1975) (en banc). However,
the court may conduct de novo review of facts that are primarily relevant to the imposition of
sanctions. See, e.g., Mohamed v. USDA Food and Nutrition, No. 05-00657, 2009 WL 2986960,
*2 (E.D. Cal. Sept. 16, 2009). The district court decides only whether the agency's interpretation
was plainly erroneous or inconsistent with its own regulations; otherwise, the agency's
construction of its own regulations is controlling. Silwany–Rodriguez v. INS, 975 F.2d 1157, 1160
(5th Cir.1992).
“Cases arising under [SNAP] may be resolved in the district court by summary judgment
where there are no genuine issues of material fact.” Cullen Drive–In Grocery v. Block, 778 F.2d
1141, 1142 (5th Cir.1985) (citing Modica, 518 F.2d at 376).
C.
Analysis
“Pursuant to 7 U.S.C. § 2023(a)(15), the Court will conduct a de novo review of the
agency’s determination that Plaintiff engaged in trafficking of SNAP benefits.” Sharif, 2017 WL
58837, *3; see also, Razzak v. United States, 2014 WL 582079, *2 (W.D. Tex. Feb. 13,
2014)(“When challenging a SNAP disqualification decision, an aggrieved store owner is entitled
to a ‘trial de novo’ by the district court” pursuant to 7 U.S.C. § 2023(a)(15)); see also, Jerusalem
Halal Meats, 2019 WL 1026302, *4 (“The district court review de novo the ‘validity of the
questioned administrative action in issue’” pursuant to 7 U.S.C. § 2023(a)(15)). On de novo
review, the Court may look beyond the administrative record and reach its own factual and legal
conclusions; however, the burden is placed upon Plaintiff to prove by a preponderance of the
16
evidence that the violations did not occur. Kim, 121 F.3d at 1271. The “Court must consider the
evidence before it and determine if there exists a genuine issue of material fact as to the validity
of the FNS’s determination of trafficking”. Sharif, at *3; Kahin, 101 F.Supp.2d at 1302.
To “defeat a motion for summary judgment, the nonmoving party needs to raise material
issues of fact [as] to every alleged violation charged against it.” Young Choi, 639 F.Supp.2d at
1178; see also, McClain’s Mkt. v. United States, 214 Fed. Appx. 502, 505 (6th Cir. 2006)(“To
survive summary judgment, a plaintiff in a Food Stamp Program disqualification case must raise
material issues of fact as to each alleged violation.”); Jackson v. United States, No. 08-2770, 2009
WL 941766, at *7 (N.D. Cal. Apr. 3, 2009)(“In order to preclude summary judgment, Plaintiff
must raise material issues of fact as to each of the violations charged against her store that are
established in the administrative record.”). This is required because “permanent disqualification
is warranted on ‘the first occasion’ of coupon trafficking[;] [thus] it is Plaintiff’s burden to raise
material issues of fact as to each of the transactions set forth as suspicious by the FNS.” Kahin,
101 F.Supp.2d at 1303; see also, McClain’s Mkt., 411 F.Supp.2d at 777. The non-movant’s
explanation and evidence must account for all of the suspicious activity highlighted by the FNS in
its final decision. See Kahin, 101 F.Supp.2d at 1303; see, e.g., AJS Petroleum, Inc. v. United
States, 2012 WL 683538, at *6 (D.Md. Mar. 1, 2012).
1.
The EBT ALERT scans and site visit
The EBT ALERT scans collected data from April 2016 through September 2016. (A.R.
103-121). FNS conducted a site visit on June 2, 2016. (A.R. 66-87, 103-121). The report of the
site visit stated that the variety and quantity of SNAP-eligible goods was limited. (A.R. 66-87,
103-121). The mart had two cash registers, one EBT point of sale device, and no shopping carts
or baskets. (A.R. 66-87). The checkout had no conveyor belts. (A.R. 81-82). FNS did not find a
17
“strong basis to attract customers”. (Doc. 17-1, p. 6 (citing A.R. 66-87, 107-109)). The EBT scans
found that multiple transactions were made from individual accounts in short time frames. (A.R.
122, 125). On September 7, 2016, one household redeemed $150.00 in benefits at 7:10 p.m. and
then $59.75 in benefits one minute later. (A.R. 125). On July 9, 2016, the same household
redeemed $46.19 in benefits and then less than four hours later redeemed another $293.16 in
benefits. (A.R. 125). ALERT identified 8 sets of transactions valued at $1,448.56 and completed
within short time frames. (A.R. 125). EBT recorded excessively large transactions compared to
transactions in similar stores parish-wide. (A.R. 122, 126-141). On August 25, 2016, one
household redeemed $200.00 at 4:54 p.m., a second $200.00 redemption at 5:10 p.m. the next day,
and a third $12.26 redemption two minutes later. (A.R. 115, 126).
The average SNAP transaction at Jasmin Food Mart totaled $8.50. (A.R. 110). Of the
mart’s 11,692 transactions in the investigation period, 889 were $33.00 or more. (A.R. 110).
Within two miles or less of Jasmin Food Mart, there are 30 SNAP-authorized firms, including two
supermarkets, two superstores, three medium grocery stores, four small grocery stores, and 20
convenience stores. (A.R. 111). The supermarkets, superstores, and grocery stores are better
stocked with SNAP-eligible inventory. (A.R. 111). However, instances were flagged where larger
dollar amounts were spent at Jasmin Food Mart than at the larger stores nearby in the same day.
On July 9, 2016, a household spent $339.35 at Jasmin Food Mart and $25.81 at a larger
supermarket. (A.R. 115). On June 18, 2016, a household spent $126.00 at Jasmin Food Mart and
$26.10 at a Walmart Superstore. (A.R. 116). On July 11, 2016, a household spent $125.00 at
Jasmin Food Mart and $1.79 the day before at a supermarket. (A.R. 116).
Defendant reported
the following findings over the course of the investigative period: April 2016, $40,762.11 in sales,
2,177 transactions; May 2016, $35,742.81 in sales, 2,072 transactions; June 2016, $26,201.93 in
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sales, 1,611 transactions; July 2016, $11,628.59 in sales, 967 transactions; August 2016
$24,359.96 in sales, 1,844 transactions; September 2016 $39,499.07 in sales, 3,021 transactions.
(A.R. 105, 1483-1484).
Defendant’s reporting of statistical data like that immediately above is typical of SNAP
trafficking cases. The data reported on Jasmin Food Mart is similar to the data reported of marts
in other trafficking cases. For comparison, see Sharif v. United States, a neighborhood mart was
investigated from May to October 2015. On one EBT scanner, there were 41 flagged transactions,
and each flagged transaction took place within 1:57 minutes or less of the previous transaction.
The total amount flagged was $2,714.12. The mart had one cash register, one point of sale device
for EBT benefits, an adding machine, no shopping baskets or shopping carts for customer use, and
a small service counter area to process orders. The mart did not have optical scanning equipment
which quickly adds and separates food and non-food totals and moves the items along for bagging.
A second EBT scanner registered 64 sets of violations completed by 44 different households. The
site visit did not indicate any compelling reason for customers to consider this mart a first-choice
destination to fulfill large purchases. One household visited the mart three times within less than
20 hours and spent a total of $217.15. Considering the mart had a less abundant stock than
neighboring supermarkets and super stores, it was illogical that households would spend their
benefits in the amounts registered where the quality, quantity and selection of eligible food items
was limited and prices are incomparable. A third EBT scanner recorded the largest purchase in
the time period was $96.45, and the average transaction was $13.78. Out of 8,006 transactions,
966 had an amount of or over $26.00. The households who shopped at the mart also shopped at
supermarkets or superstores around the area.
19
The Sharif court found that the permanent
disqualification for trafficking was valid, and summary judgment was granted in favor of the
United States. Sharif, at *4.
See also, Maredia v. United States, Civ. A. No. 13-1124, 2016 WL 7736585 (S.D. Tex.
Aug. 16, 2016), where the court granted summary judgment in favor of the United States on a
trafficking charge. The ALERT data showed: 18 households spent 90% of their accounts within
two days; transactions occurred between one minute and ten hours of each other; 677 transactions
were flagged from 61 households; the mart did not offer fruit or fresh meat and the inventory did
not support the large transactions; 32 pairs of transactions were within a short amount of time and
flagged; one cash register, one EBT point of sales device, limited counter space, no shopping carts
or baskets, no conveyor belts or scanners were noted; and 390 transactions exceeded the average
transaction amount. Maredia, *3-4.
See also, Tikabo v. United States, Civ. A. No. 16-2197, 2017 WL 5075275 (S.D. Tex. Aug.
21, 2017), where the United States’ motion for summary judgment was granted, supporting its
permanent disqualification of the subject grocery from SNAP. The grocery was 128 square feet,
had one cash register, no storage, no carts or baskets, no scanner, and no counter at check-out.
SNAP-eligible foods were limited. EBT analysis and an on-site investigation were conducted.
The large majority of the SNAP transactions were for an even amount (ending in zero cents “.00”),
which did not coincide with the prices and volume of offered items and appeared contrived.
Tikabo, *3.
2.
Jasmin Food Mart’s explanation
a.
FNS only relied on EBT data.
Plaintiff highlights that the FNS decision to charge Jasmin Food Mart with trafficking
appears to have been based only on EBT data analysis. (Doc. 20, p. 1). It is well-established that
20
it is sufficient for the United States to rely solely on EBT data in deciding to permanently disqualify
a firm due to trafficking. 7 U.S.C. § 2021(a)(2); 7 C.F.R. § 278.6(a); Kingway v. Supermarkets,
Inc. v. United States, 545 F.Supp.2d 613, 617 (S.D. Tex. 2008)(“Courts have upheld a store’s
disqualification from the food stamp program based on an analysis of electronic benefit transfer
system data.”); Idias, 359 F.3d at 698 (“There can also be little question that the United States was
entitled to use [electronic benefit transfer data] to prove that [the plaintiff] trafficked in food
stamps.”); Saleh v. United States, No. 02-8846, 2004 WL 549457, *1-3 (N.D. Ill. Mar. 19, 2004);
Kahin, 101 F.Supp.2d at 1303-04; Maredia, *4 (“numerous cases and circuits have upheld
disqualification based on an EBT analysis similar to the case at hand”); Young Choi, Inc., 639
F.Supp.2d at 1178 (“The law is clear that FNS may base its finding of a violation on analysis of
EBT transaction reports or on-site store surveys.”); Duchimaza v. United States, 211 F.Supp.3d
421, 432-33 (D.Conn. 2016)(“The Government may permanently disqualify a retailer on the basis
of EBT data.”); Sharif, *5.
Plaintiff did not cite to or discuss any jurisprudence denying summary judgment because
of the FNS’s reliance on EBT data. Conversely, courts have frequently granted summary
judgments disqualifying retail stores based on the statistical analysis of an EBT transaction report.
See Kingway Supermarkets, Inc, 545 F.Supp.2d at 617 (summary judgment granted – “the food
stamp regulations explicitly state that a firm may be disqualified on the basis of evidence obtained
through a transaction report); Idias, 359 F.3d at 696-97 (EBT data sufficient to establish
trafficking; summary judgment granted); African Grocery Store v. United States, 2008 WL 782731
(E.D. Mo. Mar. 20, 2008)(relying on 32 same-cents/even dollar sales, 85 sales in excess of
$200.00, and 17 sales in impossibly short period of time to grant summary judgment); Kahin, 101
F.Supp.2d at 1303-04 (relying on high value sales, multiple same-cents figures to support summary
21
judgment); see also, Sharif, 2017 WL 58837; Maredia, 2016 WL 7736585; Tikabo, 2017 WL
5075275; Jerusalem Halal Meats, 2019 WL 1026302; Tony’s Pantry Mart Inc., 2017 WL 514184;
Young Choi Inc., 639 F.Supp.2d 1169; and Rockland Convenience Store, 2011 WL 5120410, all
of which granted summary judgment based on similar evidence of trafficking.
b.
Jasmin Food Mart’s general customer habits and inventory
Plaintiff argues, generally, that its customers’ purchasing habits, its fresh seafood sales,
and the August 2016 flooding in the Baton Rouge area accounted for the higher amounts of sales
and the higher volume of transactions. (Doc. 20, p. 2 (citing A.R. 144-145)). However, Plaintiff
does not point to or provide specific evidence of a specific SNAP-eligible customer and that
individual’s purchases within the investigated time period. Plaintiff does not point to a specific
receipt evidencing the purchase of fresh or boiled seafood, the dollar amount associated with the
sale, and that it occurred in the relevant time period. Similarly, Plaintiff does not produce the same
evidence for hot food items post-flood. (Doc. 20; AR).
Plaintiff does, however, provide “supporting documentation” of its customers’ general
purchasing habits and that seafood was sold at Jasmin Food Mart, including inventory invoices
from seafood and meat distributors, purportedly demonstrating seafood sales and hot food
purchases. (A.R. 148-210). However, while relevant to its inventory and offerings to the public,
Plaintiff does not explain how these invoices support specific sales for specific amounts under
SNAP. Were SNAP benefits utilized to purchase seafood and hot food items post-flood? If so,
what seafood items were purchased and in what quantity? When? For what total amount? The
record fails to raise an issue of fact in that regard.
Plaintiff later provided EBT receipts and credit card receipts in response to the letter
advising that it had been permanently disqualified. These are the approximately 1,200 pages of
22
“additional documentation” referenced by Defendant. (A.R. 270-1463). Yet, Plaintiff fails to
point the Court to any specific record evidence challenging any of the specific transactions relied
upon by Defendant.
Plaintiff notes that “only eight sets” of EBT transactions were flagged over six months
when the transactions recorded totaled 11,692. (A.R. 105). Plaintiff explains that due to its
location, many customers visit the mart several times per week or more than once in a day. (A.R.
144). Multiple transactions are made in one visit because customers purchase items for other
neighborhood households. (Doc. 20-2). Plaintiff insists that the “excessively large” transactions
are due to the fact that Jasmin Food Mart is the only seafood vendor in the area. (Doc. 20, p. 7).
It maintains that it is faulty to compare average purchases from Jasmin Food Mart and the
surrounding markets because Jasmin Food Mart is the only mart offering fresh and boiled seafood.
(A.R. 213).
In opposing Defendant’s charge of trafficking, Plaintiff points to its convenient location
within walking distance of its customers, its long-standing relationship between the store and
customers, its “competitive pricing”, and being the go-to store for seafood purchases in the area.
(Doc. 20, p. 5). However, Plaintiff does not offer evidence that its customers, specifically SNAPbeneficiary customers, chose Jasmin Food Mart over others for these or any other reasons. Plaintiff
does not offer evidence of comparison or “competitive” pricing.
Plaintiff offers the Affidavit of Peter O. Nguyen in support of its opposition; however, Mr.
Nguyen’s affidavit only contains general observations and does not contain an attestation relevant
to any of the flagged transactions made the subject of the FNS investigation of Jasmin Food Mart.
For example, Mr. Nguyen attests: “I have observed customers walking to and from the store,”
(Doc. 20-2, p. 1, ¶ 2); “I have observed customers visiting the store several times in a single week
23
or in a single day,” (Doc. 20-2, p. 1, ¶ 4); “I have observed customers make multiple transactions
in a single visit,” (Doc. 20-2, p. 1, ¶ 5); “Jasmin Food Mart regularly sells fresh and boiled seafood
by the pound,” (Doc. 20-2, p. 2, ¶ 8); “Jasmin Food Mart does not typically post prices for seafood
items because the price fluctuates with the market,” (Doc. 20-2, p. 3, ¶ 11); and “Jasmin Food Mart
occasionally sells fresh or boiled seafood as part of a “bundle” deal to regular customers,” (Doc.
20-1, p. 3, ¶ 12). General statements about observations of customers’ shopping patterns or general
inventory offered to the public are not enough to create a triable issue of fact. Tony’s Pantry Mart
Inc., at *5 (citing Rockland, at *8)); see also, McClain’s Mkt., 411 F.Supp.2d at 777 (store owner’s
affidavit presented no explanation of any of the 149 transactions asserted against the plaintiff but
only presented general justifications for large expenditures and was insufficient). See, Tikabo, *6;
see also, Jerusalem Halal Meats, Inc. v. United States (where summary judgment was granted in
favor of the United States because the affidavits offered by the plaintiff in opposition were
“conclusory” and did not specifically deny the transactions cited in the violations).
c.
Jasmin Food Mart is the local source for seafood.
In addition to the argument above regarding the mart’s seafood inventory, Plaintiff relies,
almost entirely, on the theme that Jasmin Food Mart is a neighborhood store and the only local
source for fresh and boiled seafood. (Doc. 20, p. 4). Plaintiff claims that FNS did not obtain or
did not consider this when making its decision to permanently disqualify Plaintiff, (A.R. 66-87),
and did not inspect the walk-in cooler where the fresh seafood inventory was stored. (Doc. 20-2).
Plaintiff claims that the inventory in the cooler would support the invoices from distributors. (Doc.
20, p. 4 (citing A.R. 270-1463)). However, and key to the motion before the Court, Plaintiff does
not connect the seafood inventory to the SNAP transactions at Jasmin Food Mart during the
investigation period. Plaintiff goes on to provide evidence of general store policies regarding their
24
pricing patterns for seafood and “bundle” deals offered to SNAP customers. (Doc. 20, p. 4; Doc.
20-2). Plaintiff does not connect these prices or deals with transactions flagged for trafficking in
the relevant time period.2 While Plaintiff provides an inventory of fresh and boiled seafood and
an argument that it is the only vendor for these specialty items in the area, it does not provide
evidence that SNAP customers chose Jasmin Food Mart for these items, that these items were
purchased in EBT transactions generally or in the EBT transactions flagged by FNS, or the average
value of SNAP benefits utilized in the purchase of seafood.
Plaintiff provides an affidavit and inventory documentation as well as photographs to
support its theme of selling fresh and boiled seafood, items that are represented to be “high dollar”
items and in high demand in the relevant neighborhood. (Doc. 20-2; A.R. 151-210, 231-1463).
However, the Court finds these arguments and evidence unpersuasive.
Overall, Plaintiff’s
argument of Jasmin Food Mart’s unique seafood offerings is conclusory. Accepting the inventory
of seafood as true and the “demand” at Jasmin Food Mart as it is the only neighborhood vendor
for fresh and boiled seafood, Plaintiff has not shown a genuine issue of material fact as to how this
inventory is connected to the SNAP transactions flagged between April and September 2016.
While the Court understands that the price of seafood fluctuates based on the market and season,
Plaintiff has provided no evidence of the price per pound in the relevant six-month time period,
average sales in terms of pounds, or the average total prices of seafood purchases. There is no
evidence of such sales rising into the range of $200.00.
2
Plaintiff challenges Defendant’s chart of average sales at Jasmin Food Mart and numbers of transactions from April
2016 to September 2016 by arguing that the peak seafood season is in April and May, the inference being that it is
misleading to compare non-peak seafood months to peak seafood months of April and May. However, Plaintiff
explained the “suspicious” high dollar transactions in July ($200.00) with the mart’s seafood sales. Utilizing
Plaintiff’s own logic, if July sales should not be compared to April or May sales because July is not peak seafood
season, a general explanation of “seafood sales” is not a reliable explanation for the high dollar transactions in July.
25
3.
The undisputed summary judgment evidence raises no genuine issue of
material fact that the alleged violations did not occur.
Viewing the evidence and all reasonable inferences in Plaintiff’s favor, Plaintiff’s
explanations regarding the store’s suspicious SNAP activity are insufficiently specific to raise a
genuine factual dispute for trial because “[t]o defeat a motion for summary judgment, the
nonmoving party needs to raise material issues of fact [as] to every alleged violation charged
against it.” Tony’s Pantry Mart Inc., at *5 (citing Young Choi, 639 F.Supp.2d at 1178); see also
McClain’s Mkt., 214 Fed. Appx. at 505. The Court acknowledges that it is not confined to the
administrative record in its de novo review of the final agency action; however, Plaintiff has not
produced any evidence in opposition to the instant summary judgment motion specific to the actual
SNAP transactions that triggered the trafficking charge.
A dispute of material fact is “genuine” only “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The affidavit and seafood argument is not enough for a
reasonable jury to find, by a preponderance of the evidence, that the violations did not occur, as
Plaintiff must show. See W&H Food & Gas, Inc. v. United States, Civ. A. No. 17-11096, 2018
WL 4961531, *2 (E.D. Mich. Oct. 15, 2018)(“A mere denial of any wrongdoing does nothing to
even slightly tip the balance of evidence in Plaintiff’s favor.”); Abdelkhalik v. United States, 1996
WL 41234, *2 (N.D. Ill. Jan. 30, 1996)(“Plaintiff’s denials do not prove that the violations did not
occur.”).
Plaintiff does not rebut the specific transactions the FNS flagged. Simply put, evidence
specifically linking Plaintiff’s arguments to flagged SNAP transactions is missing. Argument
unsupported by evidence does not create a genuine issue about the legitimacy of the irregular EBT
transactions. Sharif, *5; Rodriguez Grocery & Deli v. U.S. Dep’t of Agric. Food and Nutrition
26
Serv., 2011 WL 1838290, *4 (D. Md. May 12, 2011); Hajifarah v. United States, 2011 WL
1575308, *14-15 (D. Me. Apr. 27, 2011). See, e.g., Arnold v. United States, 180 F.3d 265 (5th
Cir. 1999)(per curiam)(affirming district court’s grant of summary judgment in favor of United
States permanently disqualifying the plaintiff from participating in food stamp program); Bordelon
v. Block, 810 F.2d 468 (5th Cir. 1986)(per curiam)(affirming district court’s grant of summary
judgment in favor of United States permanently disqualifying the plaintiff from participating in
the food stamp program); and Hough v. USDA, 707 F.2d 866 (5th Cir. 1982)(affirming district
court’s grant of summary judgment in favor of FNS on the plaintiff’s three-year suspension from
participating in food stamp program for repeated violative transactions).
For the foregoing reasons, Defendant’s motion for summary judgment is granted. Because
Plaintiff has not alleged that the Defendant’s sanction of permanent disqualification was arbitrary
or capricious, (Doc. 1), and does not challenge the sanction in its opposition to Defendant’s motion
for summary judgment, (Doc. 20), the Court will not address the sanction imposed.
IV.
Conclusion
Accordingly,
IT IS ORDERED that Defendant United States of America’s Motion for Summary
Judgment, (Doc. 17) is GRANTED. This matter is dismissed with prejudice.
Signed in Baton Rouge, Louisiana, on September 23, 2019.
S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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