12-1873-cv
El Tepeyac Grocery Inc. v. United States of America


                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th
day of March, two thousand thirteen.

PRESENT:
                    JOSÉ A. CABRANES,
                    DEBRA A. LIVINGSTON,
                                 Circuit Judges,
                    JESSE M. FURMAN,
                                 District Judge.

_____________________________________

EL TEPEYAC GROCERY, INC., MARINA GARCIA,

                    Plaintiffs-Appellants,

                               v.                                                 No. 12-1873-cv

UNITED STATES OF AMERICA,

            Defendant-Appellee.**
_____________________________________

FOR PLAINTIFF-APPELLANT:                                       J.A. Sanchez-Dorta, the Law Offices of J.A.
                                                               Sanchez, P.C., New York, NY.




  The Honorable Jesse M. Furman, of the United States District Court for the Southern District of New York, sitting by
designation.
** The Clerk of the Court is directed to amend the caption as set forth above.
FOR DEFENDANT-APPELLEE:                                      Louis A. Pelligrino, Sarah S. Normand
                                                             (Assistant United States Attorneys) for Preet
                                                             Bharara, United States Attorney for the
                                                             Southern District of New York, New York,
                                                             NY.

        Appeal from judgment of the United States District Court for the Southern District of New

York (Andrew L. Carter, Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the April 12, 2012 judgment of the District Court granting

summary judgment for defendant-appellee is AFFIRMED.

        This action arose following a determination by the United States Department of

Agriculture’s Food and Nutrition Services agency (the “FNS”) that El Tepeyac, a grocery store

located in the East Harlem neighborhood of New York City which participates in the Supplemental

Nutrition Assistance Program (the “SNAP”), 1 violated SNAP regulations by allowing customers to

use government-issued benefits to purchase ineligible, non-food items. As a result of these

infractions—which plaintiffs-appellants El Tepeyac Grocery and its owner Marina Garcia (jointly

“plaintiffs”) did not contest—the FNS penalized El Tepeyac with a six-month disqualification from

the SNAP pursuant to 7 C.F.R. 278.6 § (e)(5). Following an administrative review process within

the FNS, including an appeal to its Administrative Review Branch, plaintiffs commenced this action

against the United States of America (“defendant”) in the District Court. Before the District Court,

plaintiffs again did not contest the underlying SNAP violations, but requested de novo review of the

entire matter, seeking a judgment declaring the six-month disqualification invalid. Defendant moved

for summary judgment.




1 The program was originally named the “food stamp program.” See The Food Stamp Act of 1964, Pub. L. No. 88-525

§ 3(k), 78 Stat. 703-04. In 2008, Congress replaced the phrase “food stamp program,” with “Supplemental Nutrition
Assistance Program.” See Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-246 § 4001, 122 Stat. 1651.
                                                        2
        On April 12, 2012, the District Court granted defendant’s motion for summary judgment,

and entered judgment dismissing plaintiff’s complaint in its entirety. This timely appeal followed.

We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

        We “review de novo a district court’s grant of summary judgment.” See Tepperwien v. Entergy

Nuclear Operations, Inc., 663 F.3d 556, 567 (2d Cir. 2011). On appeal, plaintiffs argue that the District

Court erred by reviewing the FNS six-month disqualification under an “arbitrary and capricious”

standard, instead of conducting a trial de novo; that the six-month disqualification was arbitrary and

capricious; and that the administrative review process violated plaintiffs’ procedural and substantive

due process rights.

        Plaintiffs’ standard-of-review claim is without merit. “The standard of review for the

imposition of a [food stamp program] sanction is a determination whether the Secretary’s action was

arbitrary or capricious, i.e., whether it was unwarranted in law or without justification in fact.”

Willy’s Grocery v. United States, 656 F.2d 24, 26 (2d Cir. 1981) (internal quotation marks omitted); see

also Lawrence v. United States, 693 F.2d 274, 276 (2d Cir. 1982) (“Lawrence conceded that the

violations had taken place as alleged. The sole issue before the District Court, therefore, was

whether the FNS imposition of a one-year suspension as a penalty was arbitrary and capricious.”);

Affum v. United States, 566 F.3d 1150, 1161 (D.C. Cir. 2009) (“The Secretary abuses his discretion in

his choice of a penalty if his decision is either ‘unwarranted in law’ or ‘without justification in fact,’

or is ‘arbitrary’ or ‘capricious.’”); id. at 1162 (collecting authorities for the proposition that “judicial

review of the agency’s choice of penalty is focused on whether the Secretary has abused his

discretion”). Accordingly, we conclude that the District Court did not err by reviewing the FNS

penalty on an arbitrary and capricious standard.



                                                      3
        Having conducted an independent and de novo review of the record, we likewise find no merit

to plaintiffs’ claims that the administrative process violated their substantive and procedural due

process rights or that the FNS penalty was arbitrary and capricious. Accordingly, we affirm the

District Court’s summary judgment, substantially for the reasons stated in Judge Carter’s

Memorandum and Order of April 10, 2010.

                                          CONCLUSION

        We have considered all of plaintiffs’ arguments on appeal and find them to be without merit.

Accordingly, we AFFIRM the April 12, 2012 judgment of the District Court.



                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




                                                   4
