United States District Court, D. Maine
DECISION AND ORDER ON DEFENDANT'S MOTION FOR
BROCK HORNBY UNITED STATES DISTRICT JUDGE.
Bakaro Grocery and Mahdi Irobe seek judicial review of the
United States Department of Agriculture (USDA)'s decision
to disqualify them from participation in the Supplemental
Nutrition Assistance Program (SNAP) due to their alleged
trafficking of SNAP benefits. The USDA has moved for summary
judgment (ECF No. 18); the Grocery and Irobe oppose it (ECF
No. 20). After hearing oral argument on July 20, 2017, I
conclude that there is no genuine issue of material fact and
therefore Grant the USDA's motion.
the facts are stipulated. Parties' Joint Factual
Stipulations (ECF No. 15) (JFS). When they are not, I take
the plaintiffs' version when properly supported by the
Irobe owns Suuqa Bakaro Grocery, a small grocery store in
Lewiston that predominantly serves Somali immigrants. JFS
¶ 12. The store carries several standard items, such as
rice, flour, oil, sugar, and pasta, in addition to fresh
camel and goat meat, frozen okra and tilapia, and a limited
selection of fresh produce. JFS ¶ 12. On May 28, 2015,
Irobe applied to become an authorized SNAP retailer, JFS
¶ 13, and the store was subsequently authorized to
participate in SNAP as a retailer on June 20, 2015, JFS
combat hunger and malnutrition among low-income households,
Congress authorized SNAP as part of the Food Stamp Act, 7
U.S.C. § 2011; JFS ¶ 1. The program allows
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. Households that
qualify for SNAP participation receive electronic benefit
transfer cards (EBTs), which effectively function as debit
cards and allow participants to purchase eligible food items
at certain stores. 7 U.S.C. § 2012(k); JFS ¶ 2.
regulations prohibit trafficking, or the exchange of SNAP
benefits for cash. To combat trafficking, the USDA employs a
variety of technological and investigatory tools.
E.g., Fraud, U.S. Dep't of Agriculture,
agency collects electronic records of each EBT transaction in
a national database, including the date, time, amount, store,
and household identification for the transactions. JFS ¶
6. This database in turn generates ALERT (Anti-Fraud Locator
using EBT Retailer Transactions) reports that monitor and
identify suspicious transactions. JFS ¶ 7. The ALERT
reports allow the USDA's Field and Nutrition Service
(FNS) field officers to identify particular retailers and
transactions with statistically unusual patterns indicative
of trafficking, such as multiple transactions made
sequentially in a short time frame, multiple withdrawals from
individual accounts at a rapid pace, transactions that
exhaust most of a household's SNAP benefits in a short
time, and high-dollar-value sales from small retailers that
have limited physical space. JFS ¶¶ 7-8.
after Suuqa Bakaro Grocery began accepting SNAP benefits, the
transaction monitoring program showed patterns consistent
with EBT trafficking violations. JFS ¶ 20. To that end,
the Field and Nutrition Service initiated an investigation,
closely reviewing the transaction history from July through
October 2015 and directing contractors to visit the store on
November 15 and December 4, 2015. JFS ¶ 20. Following
the investigation, the section chief of the Service's
Retailer Operations Division for New England sent the
plaintiffs a letter advising them of the investigation
results and the agency's conclusion to charge the store
with tracking violations, namely 509 in total. JFS ¶¶
21, 23- 26.
charge letter flagged four categories of EBT transactions,
with four corresponding attachments, suggesting trafficking
behavior: (1) numerous consecutive transactions conducted
“too rapidly to be credible, ” (2) multiple
transactions conducted from individual benefit accounts in
“unusually short time frames, ” (3) sets of
transactions where individual recipient benefits were
“exhausted in unusually short periods of time, ”
and (4) “excessively large purchase transactions made
from recipient accounts.” JFS ¶¶ 21-22; A.R.
608 (ECF No. 14). In a response letter, the plaintiffs'
counsel offered alternative explanations to account for the
alleged trafficking conduct, along with receipts for
inventory purchased from May to December 2015. JFS ¶ 33.
After reviewing the response, the Service maintained its
original conclusion from the EBT transaction data and
permanently disqualified the plaintiffs from participating in
the SNAP program. JFS ¶ 34. The plaintiffs subsequently
sought a review of the decision by the Administrative Review
Board, JFS ¶ 35, which ultimately affirmed the permanent
disqualification, JFS ¶ 37. The plaintiffs then brought
suit in this court (ECF No. 1), requesting judicial review of
the disqualification decision. 7 U.S.C. § 2023(a)(13).
reviewing the agency's decision, I conduct a de novo
review to determine whether a violation occurred. 7 U.S.C.
§ 2023(a)(15); Broad St. Food Mkt., Inc. v. United
States, 720 F.2d 217, 220 (1st Cir. 1983); Collazo
v. United States, 668 F.2d 60, 65 (1st Cir. 1981). This
means that I accept new evidence and am not bound by the
agency record. Hajifarah v. United States, 779
F.Supp.2d 191, 204 (D. Me. 2011); accord Ibrahim v.
United States, 834 F.2d 52, 53-54 (2d Cir. 1987). But
the plaintiffs must show by a preponderance of the evidence
that a violation did not occur. See 7
U.S.C. § 2023(a)(15); Ganesh v. United States,
658 F. App'x 217, 219 (6th Cir. 2016) (citing Warren
v. United States, 932 F.2d 582, 586 (6th Cir. 1991));
Nadia Int'l Mkt. v. United States, No.
16-364-cv, 2017 WL 1493687, at *2 n.1 (2d Cir. Apr. 26, 2017)
(citing Fells v. United States, 627 F.3d 1250, 1253
(7th Cir. 2010)); Hajifarah, 779 F.Supp.2d at
evaluating the defendant's motion, I note that
“Rule 56(c) mandates the entry of summary judgment . .
. against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “In such a
situation, there can be ‘no genuine issue as to any
material fact, ' since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 322-23 (quoting Fed.R.Civ.P. 56(c)).
Food Stamp Act provides for permanent disqualification upon
“the 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.” 7 U.S.C. § 2021(b)(3)(B). In other
words, “even a single incident of trafficking is enough
to justify permanent disqualification.”
RocklandConvenience Store v. United
States, No. 10-cv-260-LM, 2011 WL 5120410, at *8 (D.N.H.
Oct. 27, 2011). To survive summary judgment, the plaintiffs
“must raise material issues of fact as to each
alleged violation.” Ganesh, 658 F. App'x
at 219 (quoting McClain's Mkt. v. United States,
214 F. App'x 502, 505 (6th Cir. 2006)); see also
Eltaweel v. U.S. Dep't of Agric., No. 14-409-M-LDA,
2016 WL 1572880, at *2 (D.R.I. Apr. 18, 2016) (summary
judgment is appropriate when the plaintiff “fails to
demonstrate a material dispute of fact as to the existence of
a violation”). This is a very tall hurdle to ...