                                    ___________

                                    No. 96-1468
                                    ___________

James Haynes, doing business             *
as Greg & Jim's Mercantile,              *
                                         *
              Appellant,                 *
                                         *   Appeal from the United States
     v.                                  *   District Court for the
                                         *   Eastern District of Arkansas.
United States Department of              *
Agriculture, Food & Nutrition            *          [UNPUBLISHED]
Service,                                 *
                                         *
              Appellee.                  *


                                    ___________

                     Submitted:     December 2, 1996

                           Filed:   January 29, 1997
                                    ___________

Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________

PER CURIAM.


     James Haynes, a retail store owner, appeals the district court's1
conclusion that he bore the burden of proof in his challenge under 7 U.S.C.
§ 2023(a) to the Department of Agriculture's Food and Nutrition Service's
(DOA) decision to disqualify his store from participating in the food stamp
program.2




         1
      The Honorable James M. Moody, United States District Judge
for the Eastern District of Arkansas.
     2
      After conducting a bench trial, the district court determined
that--as the evidence was equally balanced--Haynes had failed to
carry this burden.     The district court also vacated the DOA's
disqualification decision; remanded for further administrative
proceedings addressing Haynes's request for an alternative monetary
sanction under 7 U.S.C. § 2021(a); and determined that the DOA
should not recover on its False Claims Act counterclaim.
This circuit has not yet ruled on this precise issue.                  In agreement with
the Fifth Circuit, we now hold that aggrieved store owners bear the burden
of proof in section 2023(a) challenges.


       Previously,    we   have    recognized     that       section   2023(a)    provides
aggrieved store owners the right to de novo review of DOA disqualification
decisions.   See Ghattas v. United States, 40 F.3d 281, 286 (8th Cir. 1994)
("De novo review was part of the statute as initially enacted.")                  The Fifth
Circuit has determined that aggrieved store owners bear the burden of proof
in section 2023(a) challenges.            See Redmond v. United States, 507 F.2d
1007, 1011-12 (5th Cir. 1975) (construing former § 2022, now § 2023(a)
(1977)); see also Warren v. United States, 932 F.2d 582, 586 (6th Cir.
1991).


       In Redmond, the court concluded that:


       [B]y requiring the aggrieved store [owner] to file a complaint
       in the district court requesting the court to set aside the
       agency determination, the [Food Stamp] Act casts the burden of
       being the plaintiff on the aggrieved store [owner] with all of
       the usual responsibilities of a plaintiff in obtaining relief
       from a court, including the burden of proving facts to show
       that he is entitled to relief.     In other words, the agency
       action stands, unless the plaintiff proves that it should be
       set aside.


Redmond, 507 F.2d at 1011-12.          In reaching this conclusion, the court noted
that   the   normal   review      of   administrative        determinations      under   the
Administrative    Procedures       Act,    5   U.S.C.    §    706(2)(E),   requires      the
application of the substantial evidence test.                Redmond, 507 F.2d at 1011.
The court reasoned that, by (implicitly) rejecting this standard of
judicial review in the Food Stamp Act, Congress simply intended that
district courts not be bound by the administrative record, and that both
parties be allowed to introduce evidence not previously submitted to the
agency.   Id. at 1011-12.




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     The Fifth Circuit rejected the arguments that the trial should
proceed with the agency as the plaintiff and as if no agency action had
been taken, concluding those approaches imputed to Congress the "`terrible
intention'" that the administrative procedure be "`simply a roadblock to
get to the District Court.'"   Id. at 1012 (quoting district court).    The
Fifth Circuit determined that, although the district court was not bound
by the administrative record, the record was entitled to some weight; and
that, if the plaintiff did not put on any evidence, the record was enough
to justify the district court in upholding the agency's action.   Id.


     We find this reasoning persuasive.      Accordingly, we affirm the
judgment of the district court.


     A true copy.


           Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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