           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                    2    Mich. Express Inc., et al.                 No. 03-1595
        ELECTRONIC CITATION: 2004 FED App. 0198P (6th Cir.)                v. United States
                    File Name: 04a0198p.06
                                                                                         _________________
UNITED STATES COURT OF APPEALS                                                                COUNSEL
                  FOR THE SIXTH CIRCUIT                               ARGUED: Lawrence W. Rattner, RATTNER MEDINA
                    _________________                                 PROFESSIONAL CORPORATION, Detroit, Michigan, for
                                                                      Appellants. Peter A. Caplan, ASSISTANT UNITED
 MICHIGAN EXPRESS , INC.;         X                                   STATES ATTORNEY, Detroit, Michigan, for Appellee.
 MAHMOUD ABDALLAH ;                -                                  ON BRIEF: Lawrence W. Rattner, RATTNER MEDINA
 NABIL AJAMI,                      -                                  PROFESSIONAL CORPORATION, Detroit, Michigan, for
                                   -  No. 03-1595                     Appellants. Peter A. Caplan, ASSISTANT UNITED
         Plaintiffs-Appellants, -                                     STATES ATTORNEY, Detroit, Michigan, for Appellee.
                                    >
                                   ,
           v.                                                                            _________________
                                   -
                                   -                                                         OPINION
 UNITED STATES OF AMERICA , -                                                            _________________
          Defendant-Appellee. -
                                   -                                     BOYCE F. MARTIN, JR., Circuit Judge. Michigan
                                  N                                   Express Inc., Mahmoud Abdallah, and Nabil Ajami appeal
      Appeal from the United States District Court                    from the district court's grant of summary judgment for the
     for the Eastern District of Michigan at Detroit.                 United States. The district court held that the fining of Mr.
    No. 02-71772—George E. Woods, District Judge.                     Abdallah and Mr. Ajami by the Food and Nutrition Services,
                                                                      a division of the Department of Agriculture, was proper. We
                     Argued: June 10, 2004                            AFFIRM.

               Decided and Filed: June 29, 2004                                                    I.

        Before: MARTIN and SUTTON, Circuit Judges;                      Mr. Abdallah and Mr. Ajami owned shares in Michigan
              WILLIAMS, Senior District Judge.*                       Express, Inc., a retail grocery store located in Detroit,
                                                                      Michigan. The Department of Agriculture authorized
                                                                      Michigan Express to accept food stamps.
                                                                        Between May 3, 2000, and September 8, 2000, the
                                                                      Department of Agriculture's Food and Nutrition Service
                                                                      conducted an undercover investigation of Michigan Express
                                                                      to ensure it was complying with food-stamp laws and
    *
     The Honorable Glen M. Williams, Senior United States District    regulations. On four occasions, Michigan Express personnel
Judge for the Western District of Virginia, sitting by designation.

                                1
No. 03-1595                         Mich. Express Inc., et al.            3    4     Mich. Express Inc., et al.                             No. 03-1595
                                            v. United States                         v. United States

accepted food stamps in payment for ineligible, non-food                       Express, Mr. Abdallah, and Mr. Ajami requested an
items. On three occasions, Michigan Express personnel                          administrative review, arguing that the letter from the
accepted cash in exchange for food stamps.                                     Assistant United States Attorney estopped the government
                                                                               from pursuing other penalties against them. The Department
  On November 13, 2000, the Food and Nutrition Service                         of Agriculture's Administrative Review Board sustained the
informed Mr. Abdallah that Michigan Express was                                fine. Michigan Express, Mr. Abdallah and Mr. Ajami then
disqualified from participating in the food-stamp program, the                 filed suit in the United States District Court for the Eastern
disqualification of the business did not preclude further action               District of Michigan seeking an order rescinding the fine. On
being taken by the Department of Agriculture or any other                      cross-summary-judgment motions, the district court affirmed
federal agency, and he and Mr. Ajami faced civil penalty if                    the decision of the Review Board. This appeal followed.
Michigan Express was sold or otherwise transferred. An
Assistant United States Attorney sent Mr. Abdallah and Mr.                                                          II.
Ajami a letter, dated April 24, 2001, which, in pertinent part,
reads:                                                                            We review de novo a district court's order granting
                                                                               summary judgment, Markva v. Haveman, 317 F.3d 547, 552
  I am writing to inform you that, upon further review and                     (6th Cir. 2003), and in our review, we view the evidence in
  consideration, this office has determined that it will not                   the light most favorable to the non-moving party. Williams
  pursue a False Claims Act action or other federal action                     v. Int'l Paper Co., 227 F.3d 706, 710 (6th Cir. 2000). We will
  against you for alleged food stamp trafficking at                            affirm if a party fails to make a showing sufficient to establish
  Michigan Express, Inc.                                                       the existence of an essential element on which it would bear
                                                                               the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317,
  On September 7, 2001, Mr. Abdallah and Mr. Ajami,                            322 (1986). If a party claims the government is estopped
relying on the letter, sold Michigan Express. After learning                   from making an argument, summary judgment is appropriate
of the sale, the Food and Nutrition Service informed Mr.                       in favor of the government if there is an insufficient showing
Abdallah and Mr. Ajami that they would be required to pay                      for any of the estoppel elements. Kennedy v. United States,
a $23,918 fine for selling the store after it had been                         965 F.2d 413, 417 (7th Cir. 1992).
disqualified from the food-stamp program.1 Michigan

    1
     The Food and Nutrition Service imposed the fine pu rsuant to
7 C.F.R . § 278 .6(f)(2), which read s:

    In the event any retail food store or wholesale food concern which
    has been disqualified is sold or the ownership thereof is otherwise
    transferred to a purchaser or transferee, the person or other legal            concern has been permanently disqualified, the civil money penalty
    entity who sells or otherwise transfers o wnership of the retail food          shall be double the penalty for a ten year disqualification period. The
    store or wholesale food concern shall be subjected to and liable for           disqualification shall continue in effect at the disqualified location for
    a civil money pe nalty in an amou nt to reflec t that portion of the           the person or other legal entity who tra nsfers ownership of the retail
    disqualification period that has not expired, to be calculated using the       food store or wholesale food conce rn notwithstanding the imposition
    method found at § 278.6(g). If the retail food store or wholesale food         of a civil money penalty under this paragraph.
No. 03-1595                    Mich. Express Inc., et al.     5    6     Mich. Express Inc., et al.                   No. 03-1595
                                       v. United States                  v. United States

                              III.                                    The Ninth Circuit defines "affirmative misconduct" as a
                                                                   deliberate lie or a pattern of false promises. Socop-Gonzalez
  Although separated into two parts in their brief, Michigan       v. I.N.S., 272 F.3d 1176, 1184 (9th Cir. 2001) (en banc). In
Express, Mr. Abdallah, and Mr. Ajami make one basic                an earlier case it gave a more developed definition, explaining
argument. They contend that the government, by the                 that "[n]either the failure to inform an individual of his or her
language of the Assistant United States Attorney's letter, was     legal rights nor the negligent provision of misinformation
estopped from fining or pursuing any punitive action against       constitute affirmative misconduct." Sulit v. Schiltgen, 213
them in regards to their sale of the business. They do not         F.3d 449, 454 (9th Cir. 2000). The Seventh Circuit defines
argue that the fine was illegally imposed; they argue only that    "affirmative misconduct" as "more than mere negligence . . . .
the government should have been estopped from pursuing it.         It requires an affirmative act to misrepresent or mislead."
                                                                   LaBonte, 233 F.3d at 1053. The Fifth Circuit, in almost
                              A.                                   identical language, defines "affirmative misconduct" as
                                                                   "something more than merely negligent conduct." United
  "Estoppel is an equitable doctrine which a court may             States v. Marine Shale Processors, 81 F.3d 1329, 1350 n. 12
invoke to avoid injustice in particular cases." Fisher v.          (5th Cir. 1996). Instead, "the [government] official must
Peters, 249 F.3d 433, 444 (6th Cir. 2001). "[T]he traditional      intentionally or recklessly mislead the estoppel claimant." Id.
elements of equitable estoppel are: (1) misrepresentation by       at 1350. Lastly, the Fourth Circuit defines "affirmative
the party against whom estoppel is asserted; (2) reasonable        misconduct" as lying rather than misleading and as malicious,
reliance on the misrepresentation by the party asserting           not negligent, conduct. Keener v. E. Associated Coal Corp.,
estoppel; and (3) detriment to the party asserting estoppel."      954 F.2d 209, 214 n.6 (4th Cir. 1992).
LaBonte v. United States, 233 F.3d 1049, 1053 (7th Cir.
2000). The government, however, "may not be estopped on              Finding the common approach of sister circuits prudential,
the same terms as any other litigant." Heckler v. Cmty.            we hold that "affirmative misconduct" is more than mere
Health Servs. of Crawford Cty., Inc., 467 U.S. 51, 60 (1984).      negligence. It is an act by the government that either
Instead, "[a] party attempting to estop the government bears       intentionally or recklessly misleads the claimant. The party
a very heavy burden" in sustaining its argument. Fisher, 249       asserting estoppel against the government bears the burden of
F.3d at 444. At a minimum, the party must demonstrate some         proving an intentional act by an agent of the government and
"affirmative misconduct" by the government in addition to the      the agent's requisite intent.
other estoppel elements. Ibid.
                                                                                                  B.
  Our Court has never announced the definition of
"affirmative misconduct." Although we have cases applying            The government's conduct in this case does not rise to the
the rule, see, e.g., In re Gardner, 360 F.3d 551, 559 (6th Cir.    requisite level of malfeasance to qualify as "affirmative
2004), we have not set the bounds of the concept. A review         misconduct." It is true that the government could have
of our sister circuits, however, reflects a general consensus on   worded the letter better, explaining in clearer terms that its
the definition.                                                    waiver of claims was limited to punishing past conduct and
                                                                   expressly retaining the right to pursue punishment if
No. 03-1595                   Mich. Express Inc., et al.    7
                                      v. United States

Michigan Express were sold. But, the failure to explain is at
best a negligent error, not a reckless one.
  The government was not attempting to trick Mr. Abdallah
or Mr. Ajami. Instead, the government was attempting, in
good-faith, to advise Mr. Abdallah and Mr. Ajami as to its
intended course of action based on the facts that it knew. Mr.
Abdallah or Mr. Ajami seem to admit as much in describing
the Assistant United States Attorney as "culpably negligent."
They admit that they do not believe that the attorney's loose
language was deceptively drafted with malicious intent, and
that admission defeats their argument.
  As the Supreme Court has pointed out, punishing the good-
faith and conscientious efforts of the government by an easy
rule of estoppel "might create not more reliable advice, but
less advice. . .." Office of Personnel Mgmt. v. Richmond, 496
U.S. 414, 433 (1990). We wish to avoid that consequence.
  We AFFIRM the judgment of the district court.
