FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. D. Brock Hornby, U.S. District Judge]
A. Churchill, with whom Nichols & Churchill, P.A. was on
brief, for appellants.
G. Osborn, Assistant United States Attorney, with whom Halsey
B. Frank, United States Attorney, and Sheila W. Sawyer,
Assistant United States Attorney, were on brief, for
Torruella, Selya and Kayatta, Circuit Judges.
appeal challenges a finding by the United States Department
of Agriculture (USDA), echoed on de novo review by the
district court, that a grocery store unlawfully trafficked in
Supplemental Nutrition Assistance Program (SNAP) benefits.
See 7 U.S.C. § 2023(a)(13), (15). Our task
requires us to decide, among other things, the allocation of
the burden of proof in a civil action brought pursuant to 7
U.S.C. § 2023(a)(13) - a question of first impression in
this circuit. After careful consideration, we hold that the
district court properly placed the burden of proof on the
grocer. See Suuqa Bakaro Grocery v. Dep't of
Agric., No. 2:16-cv-254, 2017 WL 3141919, at *5 (D. Me.
July 24, 2017). We further hold that the court, acting at the
summary judgment stage, supportably determined that the
grocer had failed to carry this burden. See id.
Consequently, we affirm the judgment below.
plaintiffs are Mahdi Irobe and Suuqa Bakaro Grocery (a
grocery store in Lewiston, Maine, catering principally to
that community's sizeable Somali immigrant population).
For ease in exposition, we refer to the plaintiffs,
collectively, as the "Store."
we are tasked with reviewing the district court's entry
of summary judgment, we take the facts in the light most
congenial to the nonmovant (the Store). See McKenney v.
Mangino, 873 F.3d 75, 78 (1st Cir. 2017), cert.
denied, 138 S.Ct. 1311 (2018). The Store is diminutive:
it is only about 800 square feet in size, lacks shopping
baskets or carts, and contains a single 2.5-by-1.5-foot-long
checkout counter. It carries minimal amounts of fresh produce
and frozen foods and does not offer many of the staples
commonly found in markets (such as baby food, eggs, and fresh
bread). In lieu of such staples, the Store offers Somali
delicacies like goat and camel meat, along with certain
nonperishables like sugar, flour, rice, pasta, and cooking
oil. The Store operates in what might be called a "no
frills" fashion: it does not have any optical scanning
equipment, and it does not use a cash register in processing
SNAP transactions. Instead, Irobe - the Store's owner and
lone full-time employee - ordinarily computes each
customer's purchases using a calculator. When Irobe
cannot be at the Store, his brother-in-law pinch-hits for
20, 2015, the USDA authorized the Store to deal in SNAP
benefits (commonly known as "food stamps"). Because
this authorization proved to be the first step down the road
that led to this litigation, we pause to acquaint the reader
with the SNAP framework.
established SNAP "to safeguard the health and well-being
of the Nation's population by raising levels of nutrition
among low-income households." 7 U.S.C. § 2011;
see 7 C.F.R. § 271.1. Authorized merchants may
accept SNAP benefits in payment for certain food items.
See 7 U.S.C. § 2013(a). The USDA then redeems
those benefits (as described below). See id.
households receive electronic benefit transfer cards (EBT
cards), which are similar to debit cards and may be used to
purchase eligible foodstuffs at authorized stores. In a
typical SNAP transaction, a cashier rings up the total food
purchases, a household member pays using her EBT card through
a point-of-sale device, and the funds in the household's
SNAP account are electronically transferred to the
store's bank account.
may use their monthly SNAP allotments to procure food items
that are suitable for "home consumption." 7 U.S.C.
§ 2012(k). They may not use their allotments to procure
cash, hot foods, or non-food items, even though such items
may frequently be available at grocery stores. See
id. These proscribed items include, for example, lottery
tickets, alcoholic beverages, tobacco, vitamins, toothpaste,
and cosmetics. See 7 C.F.R. §§ 271.2,
in SNAP benefits is unlawful, see 7 C.F.R. §
278.2(a); see also 7 U.S.C. § 2021(a)(1),
(b)(3)(B), and a store engages in trafficking by accepting
SNAP benefits in exchange for cash or other proscribed items,
see 7 C.F.R. § 271.2. For instance, a store
trafficks when it "accept[s] food stamps for sales that
never took place, " allowing its customers to receive
"cash rather than merchandise." Idias v. United
States, 359 F.3d 695, 698-99 (4th Cir. 2004).
Food and Nutrition Service (FNS) is the bureau within the
USDA charged with administering the SNAP regime. This bureau
maintains a searchable database containing the household,
store, date, time, and amount involved in each and every SNAP
transaction. If the FNS detects a statistically unusual
pattern of SNAP transactions at a SNAP-authorized store, it
typically refers the matter to a program specialist who
arranges for a contractor to visit the store and conduct an
on-site investigation. After completing her review of the
relevant EBT data and whatever reports emerge from the
on-site investigation, the program specialist makes a
recommendation to the FNS section chief. If this
recommendation is for further action, the section chief sends
a charge letter detailing the allegations to the store and
affords the store an opportunity to respond. See 7
C.F.R. § 278.6(b). Thereafter, the FNS issues its
determination. See id. § 278.6(c).
the FNS has issued its determination, an aggrieved store may
prosecute an appeal to an administrative review officer.
See 7 U.S.C. § 2023(a)(3); 7 C.F.R.
§§ 279.1(a)(2), 279.5. Upon completion of his work,
the review officer issues the final agency decision.
See 7 U.S.C. § 2023(a)(5); 7 C.F.R. §
279.5. The governing statute empowers the USDA to impose a
lifetime program-participation ban on "the first
occasion or any subsequent occasion" of trafficking, but
such a ban is not an automatic response to a program
violation; rather, the USDA has ...