UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KWANG SUK MOON, t/a Harvey's
Food Center; OK HEE MOON, t/a
Harvey's Food Center,
Plaintiffs-Appellants,
                                                                   No. 95-1797
v.

UNITED STATES OF AMERICA; UNITED
STATES DEPARTMENT OF AGRICULTURE,
Defendants-Appellees.

KWANG SUK MOON, t/a Harvey's
Food Center; OK HEE MOON, t/a
Harvey's Food Center,
Plaintiffs-Appellants,
                                                                   No. 95-2364
v.

UNITED STATES OF AMERICA; UNITED
STATES DEPARTMENT OF AGRICULTURE,
Defendants-Appellees.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CA-94-797)

Argued: May 7, 1996

Decided: June 21, 1996

Before RUSSELL and MICHAEL, Circuit Judges, and NORTON,
United States District Judge for the District of South Carolina,
sitting by designation.

_________________________________________________________________
Affirmed by unpublished per curiam opinion. Judge Norton wrote a
concurring opinion.

_________________________________________________________________

COUNSEL

ARGUED: Derrick Edward Rosser, SPINELLA, OWINGS &
SHAIA, P.C., Richmond, Virginia, for Appellants. Richard E. Garri-
ott, Student Counsel, Richmond, Virginia, for Appellee. ON BRIEF:
Helen F. Fahey, United States Attorney, Nicholas S. Altimari, Assis-
tant United States Attorney, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiffs/Appellants Kwang Suk Moon and Ok Hee Moon, hus-
band and wife and co-owners of a retail food store known as Harvey's
Food Center (Harvey's), brought suit in federal court challenging the
decision of the Food and Nutrition Service (FNS) to disqualify Har-
vey's from participation in the Federal Food Stamp Program, 7 U.S.C.
§ 2011 et seq. The district court granted summary judgment in favor
of the United States and the U.S. Department of Agriculture, of which
the FNS is a part. The district court also denied the Moons' motion
for relief from judgment. The Moons now appeal the dismissal of
their case. Finding no error, we affirm.

I.

A.

The record discloses the following. On September 17, 1990, the
Moons were approved for participation in the Federal Food Stamp

                    2
Program, which is administered by the FNS. Under this program the
Moons were entitled to accept food stamps as payment for food items.

Between April 7, 1994, and May 11, 1994, the FNS conducted an
investigation of the Moons' and Harvey's compliance with the Food
Stamp Program. During this investigation a female clerk at Harvey's
allegedly accepted $80.00 worth of food stamp coupons in exchange
for $36.00 in cash, in violation of the program. 1 Thereafter, the FNS
wrote to the Moons, informing them that they could be permanently
disqualified from the program based on the alleged violation unless
they could demonstrate that a civil money penalty should be imposed
in lieu of disqualification. The letter also advised the Moons that they
could challenge the charges against them by presenting any informa-
tion, explanation or evidence regarding the charges.

On June 16, 1994, the Moons replied by letter contending that no
violation was committed at their establishment and that the violation
occurred at another store also named Harvey's. According to Mrs.
Moon, she "was working that day and did not [accept $80.00 in food
stamps in exchange for $36.00 in cash from] anyone. I feel that a mis-
take has been made in charging this store with a violation of the Food
Stamp Program." Mrs. Moon further said that she"would like to see
and talk to the person that identified me as the one that accepted the
$80.00 in food coupons in exchange for the $36.00 in cash." The
Moons' letter was not under oath, nor was it a declaration made under
penalty of perjury.

The FNS responded, by letter dated August 9, 1994, that based
upon the evidence before it, it had determined that the violation did
in fact occur at the Moons' store and not at another store named Har-
vey's.

Subsequently, on August 16, 1994, the Moons requested adminis-
trative review. An Administrative Review Officer determined that the
alleged violation occurred and affirmed the permanent disqualifica-
tion of the Moons' establishment. The officer found that there was
_________________________________________________________________
1 The exchange of food stamps for cash is known as "trafficking," and
such practice subjects a retail food store to permanent disqualification
from the Food Stamp Program pursuant to 7 U.S.C.§ 2021(b)(3)(B).

                    3
substantial credible evidence that the violation charged occurred at
the Harvey's in question and that the Moons did not meet the require-
ments for imposition of a civil money penalty instead of disqualifica-
tion.

B.

On October 28, 1994, the Moons filed suit in the district court chal-
lenging the decision of the FNS to disqualify Harvey's. They sought
reinstatement in the Food Stamp Program and a stay of their disquali-
fication pending review by the district court.

On January 23, 1995, the district court entered a pretrial order
requiring that motions for summary judgment be filed at least 35 days
prior to trial. On February 24, 1995, the Government filed a motion
to dismiss or, in the alternative, a motion for summary judgment. The
motion was filed a day late -- 34 days before trial. The Government
attached numerous exhibits to the motion, including the investigative
reports made by the FNS and the Moons' letter of June 16, 1994, to
the FNS.2 The Moons' original attorney (the Moons have now
retained a new attorney) filed an "Answer" to the Government's
motion, but he did not include any responsive evidence (e.g., affida-
vits).

On March 23, 1995, the district court granted the Government's
motion for summary judgment, finding that the Moons produced no
evidence that the alleged Food Stamp Program violation did not take
place at their store. On April 4, 1995, the Moons filed a paper entitled
"Motion for Reconsideration of the Court's Order Entered on March
23, 1995 or in the Alternative, Notation of an Appeal of Said Order."
Accompanying this motion was an affidavit executed by Mrs. Moon,
denying responsibility for the alleged violation. On April 5, 1995, the
district court entered an order notifying the parties that it would treat
the Moons' motion as a notice of intention to appeal and would not
entertain the "Motion for Reconsideration."
_________________________________________________________________
2 The FNS investigative reports were certified declarations made under
penalty of perjury. The reports included details of the alleged "traffick-
ing" exchange of $80.00 in food stamps for $36.00 in cash.

                    4
Thereafter, the Moons filed a Rule 60(b) motion for relief from
judgment with the district court. We then entered an order suspending
briefing of the appeal pending the district court's disposition of the
Moons' Rule 60(b) motion. The Moons argued to the district court
that they were entitled to relief from judgment because their original
attorney's failure to include opposing affidavits was due to mistake,
inadvertence, or excusable neglect. In support of their argument the
Moons submitted an affidavit by their original attorney. The attorney
stated that "[he] did not file an affidavit on behalf on the plaintiffs
. . . because [he] did not believe the exhibits attached to the [Govern-
ment's] memorandum were affidavits or would be considered as
such."

On June 14, 1995, the district court denied the Moons' Rule 60(b)
motion. The district court found that the mistaken belief of their prior
attorney was not sufficient to entitle the Moons to relief from judg-
ment. The district court concluded that the Moons were provided with
ample opportunity to present their case and that they could not use
Rule 60(b) for yet another bite at the apple. This appeal followed.

II.

The Moons claim that summary judgment was improper because
the basis for the FNS's decision to disqualify Harvey's turned on
credibility determinations that could only be made at trial. That is,
according to the Moons, a trier of fact must determine whether Mrs.
Moon is to be believed when she denies accepting $80.00 in food
stamps in exchange for $36.00 in cash, or whether the FNS investiga-
tor is to be believed. The Moons also claim that the district court
abused its discretion in accepting the Government's motion for sum-
mary judgment when that motion was filed a day late. And the Moons
claim that the district court abused its discretion in denying their
motion for relief from judgment when their original attorney failed
through mistake to submit affidavits in opposition to the Govern-
ment's motion for summary judgment. We conclude, however, that
the district court committed no error.

A.

Summary judgment is appropriate when there is no genuine issue
of material fact that could lead a trier of fact to find for the nonmov-

                     5
ing party. E.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). "In determining whether to grant summary judgment, all justi-
fiable inferences must be drawn in favor of the non-movant." E.g.,
Miltier v. Beorn, 896 F.2d 848, 852 (4th Cir. 1990). This court
reviews de novo a district court's grant of summary judgment. E.g.,
Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.), cert. denied, 115 S. Ct.
68 (1994).

Here, the district court properly granted summary judgment against
the Moons because they offered no evidence in opposition to the Gov-
ernment's motion and supporting exhibits. The Government's exhib-
its, and, in particular, the sworn FNS investigative reports, set forth
facts showing that the alleged food stamp trafficking occurred. There-
fore, to defeat summary judgment, the Moons were required to set
forth specific evidentiary facts raising a genuine issue of material fact
for trial. The Moons could not merely rest on the allegations made in
their complaint. Fed. R. Civ. P. 56(e). Nor did Mrs. Moon's letter of
denial, which was not under oath or declaration, suffice. Rather, the
Moons had to submit evidence supporting their position "by affidavit
or otherwise . . . which set forth specific facts showing that there is
a genuine issue for trial." Id. The Moons (through their original attor-
ney) failed to meet this burden. Accordingly, the district court cor-
rectly granted summary judgment in favor of the Government.

B.

We review for abuse of discretion the issue of whether the district
court properly considered and decided the Government's motion for
summary judgment when that motion was filed a day late, see
American Farm Lines v. Black Ball, 397 U.S. 532, 539 (1970), and
the issue of whether the district court properly denied the Moons'
motion for relief from judgment under Rule 60(b). National Credit
Union Admin. Bd. v. Gray, 1 F.3d 262, 265 (4th Cir. 1993). In light
of that standard, we hold that the district court did not err when it
decided these issues.

When considering whether a district court properly decided to relax
or modify its local rules and procedural orders, we give the district
court broad leeway. Only if the complaining party is caused substan-
tial prejudice will we find an abuse of discretion. See Ball, 397 U.S.

                    6
at 539. In the present case, the Government filed its motion one day
after the 35-day cutoff set in the district court's pretrial order. The
Moons, however, point to no facts showing that they suffered any
prejudice from the Government's minor tardiness. Therefore, the dis-
trict court did not abuse its discretion when it allowed the Govern-
ment to file its motion a day late.

As for the Rule 60(b) motion, we recently held that a district court
acts within its discretion when it ignores new evidentiary material
submitted after the entry of summary judgment if the nonmoving
party cannot provide a "legitimate explanation" for failing to offer the
evidence while the motion was still pending. Cray Communications
v. Novatel Cmptr. Sys., Inc., 33 F.3d 390, 395 (4th Cir. 1994) (citing
RGI, Inc. v. Unified Indus., Inc., 963 F.2d 658, 662 (4th Cir. 1992)),
cert. denied, 115 S. Ct. 1254 (1995). We further held that merely
because a party, through the "mistaken understanding" of its attorney,
"`misunderstood' its burden of production under Rule 56 . . . [does]
not [provide] a legitimate justification" for failing to offer the evi-
dence while the motion was still pending. Id. Such a "mistaken under-
standing" is all the Moons have advanced here to justify their original
attorney's failure to submit evidentiary material in opposition to the
Government's motion. The district court did not, therefore, abuse its
discretion when it denied the Moons' Rule 60(b) motion.

Finally, we note that there in no unfairness visited upon the Moons
based on the district court's decision to allow the Government to file
its motion a day late and the court's refusal to accept the Moons' affi-
davit submitted after the entry of summary judgment. As we have
said, both these decisions fall within the discretion of the district
court, and here, such discretion was properly exercised. Our system
is one of representative litigation. It is thus unfortunate--but not
unfair--for the shortcomings of the Moons' original attorney to be
visited upon them. See Link v. Wabash, 370 U.S. 626, 634 & n.10
(1962).

III.

Accordingly, the judgment of the district court is

AFFIRMED.

                     7
NORTON, District Judge, concurring:

While the Appellants may not have prevailed, it is clear that if their
lawyer had filed the affidavit of Mrs. Moon in response to the Gov-
ernment's Motion for Summary Judgment, there existed a genuine
issue of material fact that would have had to be resolved by the trier
of fact. Unfortunately, the "sins" of the Appellants' lawyers have been
visited upon the Appellants and have deprived them of their day in
court. Under an abuse of discretion standard on appeal, I concur with
the judgment of the District Court.

                    8
