United States Court of Appeals For the First Circuit

No. 23-1990

ALAM & SARKER, LLC, a Massachusetts Limited Liability Company, d/b/a Star Market; MOHAMMAD MAHBUB ALAM, an individual; and MD MASHUM BILLAH SARKER, an individual,

Plaintiffs, Appellants,

v.

UNITED STATES,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge] [Hon. Jennifer C. Boal, U.S. Magistrate Judge]

Before

Kayatta, Selya, and Gelpí, Circuit Judges.

Andrew Z. Tapp and Metropolitan Law Group, PLLC on brief for appellants. Joshua S. Levy, Acting United States Attorney, and Michael L. Fitzgerald, Assistant United States Attorney, on brief for appellee.

August 27, 2024 SELYA, Circuit Judge. We are called upon today to

consider the participation of plaintiff-appellant Alam & Sarker,

LLC d/b/a Star Market (the Market) in the federal supplemental

nutrition assistance program (SNAP). The case comes to us after

the United States Department of Agriculture's Food and Nutrition

Service (FNS) sought to bar the Market from participating in SNAP.

The Market challenged the agency's determination but made no

headway. When the dispute reached the district court, that court

granted summary judgment in favor of the agency.1 The Market

appeals, advancing a gallimaufry of grievances. Concluding, as we

do, that these grievances are wide off the mark, we affirm the

judgment of the district court.

I

We briefly rehearse the relevant facts and travel of the

case. "Because this appeal follows the district court's entry of

summary judgment, we array those facts in the light most favorable

to the nonmoving party." AJ Mini Mkt., Inc. v. United States,

(1st Cir. 2023).

A

SNAP aims "to safeguard the health and well-being of the

Nation's population by raising levels of nutrition among

1 The named defendant in the district court proceedings is the United States. We use the term "the agency" as a shorthand to encompass the federal government, the United States Department of Agriculture (USDA), and the FNS, collectively.

- 2 - low-income households."

; see

.

Approved retailers may accept SNAP benefits (commonly known as

food stamps) in exchange for "food items that are suitable for

'home consumption.'" Irobe v. U.S. Dep't of Agric.,

(1st Cir. 2018) (quoting

(k)); see

(a). These retailers may not dispense cash, hot foods, or

non-food items in exchange for SNAP benefits. See Irobe,

;

(k). When a shopper pays with SNAP

benefits, he uses an electronic benefit transfer card — which

functions like a debit card — through a point-of-sale device to

transfer the funds from the household's SNAP account to the store's

bank account. See Irobe,

.

The FNS oversees the administration of SNAP benefits.

As part of this oversight, the FNS collects data on every SNAP

transaction to screen for illicit trafficking in benefits.2 See

When the FNS spies irregular transaction data, it customarily

assigns the matter to a program specialist, who enlists a

contractor to investigate the store in person. See

If the

resulting internal process concludes with a recommendation for

further action, the FNS issues a charge letter that explains the

allegations against the store and offers the store an opportunity

2Trafficking in SNAP benefits occurs when a store "accept[s] SNAP benefits in exchange for cash or other proscribed items." Irobe,

; see

.

- 3 - to respond. See

; see also

(b). After

the FNS makes an initial determination and reviews any response on

behalf of the store, it issues a final agency decision. See Irobe,

; see also

(a)(3), (5);

(a)(2), 279.5.

The Market is a convenience store located in New Bedford,

Massachusetts. See Alam & Sarker, LLC v. United States, No.

21-11727,

, at *3 (D. Mass. Sept. 29, 2023). The

Market occupies 1,930 square feet, has a solitary checkout counter

(which two clerks operate without the assistance of an optical

scanner for processing transactions), and has only two or three

shopping baskets (but no carts). See

The Market sells some

foods that are eligible for purchase using SNAP benefits (such as

cereal, eggs, and rice). See

It also sells items that are

ineligible for purchase using SNAP benefits (such as cosmetics,

cleaning products, and lottery tickets). See

When data submitted to the FNS indicated a series of

irregular transactions at the Market, the FNS initiated an

investigation into the Market's processing of SNAP benefits. See

We sample some of the investigation's findings. From January

to June of 2017, the Market processed thirty-three sets of

back-to-back transactions — sets of transactions that were charged

to the same SNAP account. See

The FNS refers to rapid and

repetitive transactions conducted for the same SNAP household

- 4 - account in a short period of time (e.g., two minutes) as Scan B2

transactions. For example, on one morning the Market processed a

$76.84 transaction at 10:28 a.m. followed by a $25.93 transaction

by the same account at 10:30 a.m.

The flurry of purchases stood out because the Market had

not processed any Scan B2 transactions in the corresponding

six-month period of the preceding year. See

Moreover, it had

processed only one Scan B2 transaction during the period from

August through December of 2017. See

Casting a further shadow

on the flurry of Scan B2 transactions, the investigation revealed

that two competing convenience stores located less than a mile

away processed a combined total of only two Scan B2 transactions

during the first six months of 2017. See

Indeed, the Market

— which is located in Bristol County — processed approximately

sixty percent more transactions than the county average. See

.

There was more. From January to June of 2017, the Market

processed over 100 transactions that involved unusually high

dollar amounts. See

The FNS referred to such purchases as

Scan F transactions. See

Although the average SNAP

transaction in the county during this period totaled $7.57, the

Market's average SNAP transaction totaled $8.96 — which is roughly

eighteen percent higher than the county average. See

What is

more, the Market recorded 158 transactions over $29 (which included

- 5 - ninety-two transactions over $50). See

. In sum, the

aggregate dollar amount for SNAP transactions at the Market during

this period was about ninety percent higher than the county

average. See

.

These splurges raised some eyebrows at the FNS because

the Market had processed only fourteen Scan F transactions in the

same six-month period of the preceding year. See

. By

way of comparison, two competitors located less than a mile away

processed twenty-eight and fifty-nine Scan F transactions,

respectively, during the first six months of 2017. See

.

B

After reviewing these data, the FNS retained a

contractor to conduct an in-person investigation. See

The

contractor found that the Market offered goods typical of a

convenience store in the area, had only one register, and did not

use an optical scanner. See

As a result of its further

investigation, the FNS charged the Market with trafficking. See

id.; see also

(b). The charge letter explained

that, "[i]n a series of [SNAP] transactions, multiple transactions

were made from individual benefit accounts in unusually short time

frames." The letter included a list of those transactions. It

also pointed out that "excessively large purchase transactions

were made from recipient accounts" and included a list of those

transactions. In addition, the letter warned that the Market could

- 6 - be permanently disqualified from the SNAP program if these

allegations were substantiated and advised the Market of its right

to respond. See

(a)(1)(A), (b)(3)(B);

.

The Market denied the allegations contained in the

charge letter and gathered its own evidence to rebut the charges.

See Alam & Sarker,

, at *4. It produced an

assortment of paperwork, including customer statements,

photographs, inventory invoices, receipts, and bank statements.

See

Following an administrative review, see

the FNS

issued a final agency decision finding "sufficient

evidence . . . to conclude that the questionable transactions and

patterns listed in the charge letter were more likely than not the

result of trafficking violations." As a sanction, the FNS

permanently disqualified the Market from participating in SNAP.

See

Because the Market had failed to make a timely plea that

the FNS consider imposing a monetary penalty in lieu of permanent

disqualification, the Market forfeited its right to argue for that

alternative sanction. See

(b)(1).

The Market subsequently sued the United States in the

district court.3 See

(a)(13), (15); see also 7

3The Market's owner and its previous owner (who sold his share in 2021) are also plaintiffs and appellants here. For ease in exposition, we refer to the plaintiffs, collectively, as "the Market."

- 7 - C.F.R. § 279.7. The case was subsequently referred to a magistrate

judge. See

(b)(1)(B); Fed. R. Civ. P. 72(b)(1).

Following the close of discovery, the FNS moved for summary

judgment. The Market opposed the motion. The magistrate judge

was not impressed with the Market's opposition and issued a report

and recommendation (the R&R), in which she determined that the

transaction data were indicative of trafficking and that the Market

had failed to rebut this inference. Accordingly, the magistrate

judge counseled the district court to grant summary judgment in

favor of the FNS.

The Market objected to this recommendation, see Fed. R.

Civ. P. 72(b)(2), but the district court — on de novo review —

adopted the R&R and entered summary judgment in favor of the FNS.

See Alam & Sarker,

, at *1. The court determined

that the magistrate judge had "properly found that [the] FNS ha[d]

provided the required sufficient evidence for a reasonable

factfinder to conclude that trafficking [had] occurred."

In

the court's view, the Market had "fail[ed] to identify

'significantly probative' evidence favoring [its] position."

(first alteration in original) (quoting Irobe,

).

Because the Market had not carried its burden of proof in

challenging the agency's decision, the court ruled that the agency

was entitled to summary judgment. See id.; see also Irobe,

(concluding "that[,] when a store challenges the USDA's

- 8 - determination that the store trafficked in SNAP benefits, the store

bears the burden of proving by a preponderance of the evidence

that its conduct was lawful").

This timely appeal ensued.

II

We start by rehearsing the standards of review for

summary judgment orders generally and for challenges to SNAP

disqualifications specifically.

A

Our review of an order granting summary judgment is de

novo. See Burt v. Bd. of Trs. of Univ. of R.I.,

(1st Cir. 2023). Summary judgment is appropriate if the moving

party shows that no genuine issue of material fact exists and that

it is entitled to judgment as a matter of law. See Fed R. Civ. P.

56(a); see also Burt,

. Under this standard, "[a]

fact is 'material' if it 'has the capacity to change the outcome

of the [factfinder's] determination.'" Irobe,

(second alteration in original) (quoting Perez v. Lorraine

Enters.,

(1st Cir. 2014)). Relatedly, "[a]n issue

is 'genuine' if the evidence would enable a reasonable factfinder

to decide the issue in favor of either party."

(quoting

Lorraine Enters.,

).

It is the moving party's responsibility to spell out

"the basis for [its] motion and identif[y] the portions of the

- 9 - pleadings, depositions, answers to interrogatories, admissions,

and affidavits, if any, that demonstrate the absence of any genuine

issue of material fact."

(alterations in original) (quoting

Borges ex rel. S.M.B.W. v. Serrano-Isern,

(1st Cir.

2010)). If the moving party fulfills this responsibility, the

nonmovant must then, "with respect to each issue on which [it]

would bear the burden of proof at trial, demonstrate that a trier

of fact could reasonably resolve that issue in [its] favor."

(alterations in original) (quoting Borges,

). To

make this showing, "[t]he nonmovant must point to materials of

evidentiary quality . . . and such materials must frame an issue

of fact that is 'more than "merely colorable."'"

(quoting

Flovac, Inc. v. Airvac, Inc.,

(1st Cir. 2016)).

B

Where, as here, "a store challenges the [FNS's]

determination that the store trafficked in SNAP benefits, the store

bears the burden of proving by a preponderance of the evidence

that its conduct was lawful." Id. at 378. Unlike most

administrative challengers, though, the store is entitled to "a

trial de novo . . . in which the court shall determine the validity

of the questioned administrative action in issue."

(a)(13), (15); see

(c). For the court to

conduct a trial de novo, it must be allowed to peer beyond the

agency record to any additional facts that the parties

- 10 - appropriately present to it. See Irobe,

. In

other words, the court must examine "'the entire matter' instead

of simply determining 'whether the administrative findings are

supported by substantial evidence.'"

at 376 (quoting Ibrahim

v. United States,

(2d Cir. 1987)).

III

At the outset, the Market takes umbrage with our caselaw

on SNAP disqualifications. It asks that we overrule Irobe to the

extent that Irobe permits an inference of trafficking from

transaction data. See id. at 379-81. In support, the Market

insists that our reliance on irregular transaction patterns —

"without so much as a scintilla of admissible evidence" otherwise

in support of trafficking — is problematic. The reasoning and

holding in Irobe takes center stage in our ensuing discussion.

A

In Irobe, we affirmed the district court's grant of

summary judgment in favor of the USDA after the USDA had

permanently disqualified a convenience store from participating in

SNAP benefits. See id. at 374, 376. This sanction followed the

agency's determination that the store had engaged in trafficking.

See id. at 376. In reaching this conclusion, the agency "relie[d]

primarily on transaction reports derived from the [SNAP] database,

which analyzed all available statistical information concerning

the [s]tore's handling of SNAP benefits during the [relevant]

- 11 - period." Id. at 379. We accepted the use of these transaction

reports because "Congress has expressly authorized consideration

of both transaction information gleaned from [SNAP] databases and

reports of on-site investigations as tools in the USDA's efforts

to detect fraud." Id.; see

(a)(2);

(a). And we concluded that SNAP transaction data provided

"circumstantial evidence of fraud[] sufficient to prove that a

store is trafficking in SNAP benefits." Irobe,

.

This is a common-sense proposition. When a store

frequently processes SNAP transactions for dollar amounts that are

significantly higher than those of the transactions processed by

similar stores in the same vicinity, the factfinder may reasonably

infer that trafficking has occurred. See

So, too, when a

small store with limited inventory repeatedly processes

high-dollar-amount SNAP transactions in a rapid-fire manner, the

factfinder may reasonably infer that trafficking has occurred.

See

In Irobe, the store's contrary evidence consisted mainly

of the owner's deposition testimony, which featured generalized

statements about customer behavior. See

. We deemed

that testimony insufficient to ward of the swing of the summary

judgment ax. See

. Nor did the introduction of a series

of receipts showing food purchases from vendors tip the scales.

See

"[T]he mere fact that the [s]tore bought some

- 12 - SNAP-eligible foodstuffs and sold them to SNAP-qualified

households does not insulate it from a finding of trafficking."

Based on the stockpile of data that the FNS had collected and

the store's "fail[ure] to challenge in any meaningful way the

agency's data-compilation methodology, the accuracy of the

compiled . . . data concerning SNAP transactions at the [s]tore,

[or] the reliability of the agency's historical data," we held

that summary judgment in the agency's favor was appropriate.

.

B

Here, the Market's entreaty that we scrap the Irobe

rationale presents a threshold issue. On that issue, the Market

asks too much. After all, "newly constituted panels in a

multi-panel circuit court are bound by prior panel decisions that

are closely on point." San Juan Cable LLC v. P.R. Tel. Co.,

(1st Cir. 2010). In service of this principle, "[w]e

have held, time and again, that[,] in a multi-panel circuit, prior

panel decisions are binding upon newly constituted panels in the

absence of supervening authority sufficient to warrant disregard

of established precedent." United States v. Wogan,

(1st Cir. 1991).

So it is here. The Market has not identified any such

supervening authority — no overruling caselaw, no superseding

- 13 - statute, and nothing else of consequence.4 See United States v.

Ríos-Rivera,

(1st Cir. 2019) ("Prior panel

decisions generally bind us unless a Supreme Court opinion, en

banc ruling, or statute undermines the panel decision.").

In the case at hand, the Market's arguments mirror those

of the store in Irobe. See

. It relies on a

handful of receipts and purchase orders along with its owner's

anecdotal account of shoppers' habits. Our holding in Irobe

squarely addresses such a challenge. See

There, we determined

that the agency could rely on SNAP transaction data as evidence of

trafficking. See

At the same time, we examined the store's

countervailing evidence, which comprised the store owner's

deposition testimony along with receipts showing purchases of

foodstuffs. See

. Viewed objectively, Irobe is

4 To be sure, there may be instances in which the weight of authority has shifted so dramatically that overruling a precedential opinion may be within the realm of available courses of action. See, e.g., United States v. Chhien,

(1st Cir. 2007) (recognizing "rare circumstances[] where non- controlling but persuasive case law suggests" deviating from binding circuit precedent); Williams v. Ashland Eng'g Co.,

(1st Cir. 1995) abrogated on other grounds by Carpenters Loc. Union No. 26 v. U.S. Fid. & Guar. Co.,

(1st Cir. 2000) (acknowledging "relatively rare instances in which authority that postdates the original decision, although not directly controlling, nevertheless offers a sound reason for believing that the former panel, in light of fresh developments, would change its collective mind"). The case at hand does not fit within the narrow confines of this exception.

- 14 - directly on point, and we must treat it as binding precedent. See

San Juan Cable,

.

The Market's principal rejoinder is a belated request

for a hearing en banc so as to reconsider Irobe. In this regard,

Federal Rule of Appellate Procedure 35 requires that a petition

for "an appeal [to] be heard initially en banc must be filed by

the date when the appellee's brief is due." Fed. R. App. P. 35(c).

But the Market failed to file a petition for an initial hearing en

banc before the date prescribed by Rule 35(c): it requested such

review for the first time in its reply brief. Consequently, we

must decline the Market's invitation that we sit en banc initially

in order to reconsider Irobe.

C

The Market has another blade in its scabbard. It strives

to persuade us that — in Irobe — we did not consider whether

transaction data are admissible under prevailing evidentiary

rules. We are not convinced.

The Market concedes that, if SNAP transaction data could

connect the underlying transactions to trafficking, such data

would be admissible. But in its view, these data are not probative

of trafficking and, thus, are categorically inadmissible. As the

Market tells it, any evidentiary value derives solely from an

analysis of the SNAP transaction data.

- 15 - We do not agree. In the case at hand, the FNS performed

the key analysis (which the district court confirmed in its de

novo review). The FNS defined the Scan B2 and Scan F categories

and determined when a store processed enough of these suspicious

transactions such that the factfinder could infer that trafficking

had occurred.

The Market argues that this kind of lay analysis is

insufficient evidence to support an inference of trafficking.

Instead — it theorizes — an expert witness would need to conduct

a statistical analysis in order to provide meaningful conclusions

about the SNAP transaction data. And unlike in Irobe,

, the Market challenges the FNS's methodology. In particular,

it disputes the FNS's use of the Scan B2 and Scan F categories and

the agency's selection of other stores in the area as comparators.

Given these concerns, the Market argues that the analysis in Irobe

is not dispositive of its challenge.

In one important respect, the Market reads Irobe

correctly. That case did not hold that raw numerical transactional

data without expert review is always competent to generate an

inference that will carry the day if not rebutted by competent

evidence. Rather, it held that the data compiled there were

sufficient. Those data included:

• On fifty-one separate occasions, households used

up at least ninety percent of their monthly SNAP

- 16 - benefits in fewer than nine hours. Historical

data indicates that it is markedly inconsistent

with the normal shopping behavior of SNAP-

qualified households to deplete all or most of a

household's allotment in one fell swoop.

According to an unchallenged government analysis

of SNAP-related shopping patterns, it usually

takes a minimum of two weeks for a SNAP-qualified

household to deplete eighty percent of its

monthly allotment and three weeks to deplete

ninety percent of that allotment.

• During the relevant period, the store engaged in

205 high-dollar SNAP transactions, that is,

transactions ranging from $174 to $1,050. Yet,

historical data indicates that, during 2015, the

average SNAP transaction in the Lewiston area was

about $45.

• With respect to multiple purchases in quick

succession, 103 pairs of SNAP transactions were

recorded on the store's point-of-sale device

during the relevant period in under nine minutes.

These paired transactions included twenty-

one pairs of transactions completed in

sixty seconds or less and four pairs of

- 17 - transactions completed in under thirty-

nine seconds. Given normal shopping behavior,

the practical realities of shopping at the store,

and the availability of only a single clerk, these

paired transactions raise obvious concerns.

See Irobe,

.

Those disparities were stark enough to put the ball into

the store's court — but that does not mean that a similar result

must pertain either in a case where less stark disparities exist

or where evidence suggesting stark disparities was persuasively

explained away. After all, there is a difference between a coin

that flips to heads four out of five times and a coin that flips

to heads ten out of ten times.

All that being said, we conclude that the numerical data

here is enough to generate an inference of fraud in the absence of

a statistical rebuttal or competent evidence of an alternative

explanation for the apparent disparity. A change from fourteen

scanned transactions in a six-month period to 158 in the next

period, combined with thirty-three Scan B2 transactions as

compared to two for two reasonable comparators, is stark enough to

call for an explanation founded on competent evidence. In fine,

the factual differences between this case and Irobe are not enough

to distinguish it, so as a subsequent panel, we must follow Irobe.

See San Juan Cable,

.

- 18 - IV

Battling on, the Market contends that, even if Irobe

controls, the district court erroneously entered summary judgment

because the data analysis underlying the determination that it had

trafficked in SNAP benefits presented a genuine issue of material

fact. Given that our review is de novo, we accord no deference to

the agency's finding that trafficking had occurred. See Irobe,

.

A

Our starting point is the FNS's evidentiary showing.

The party seeking summary judgment must identify the relevant

evidence and legal basis to demonstrate that the record — construed

in the light most favorable to the nonmovant — presents no genuine

issue of material fact and entitles the movant to judgment as a

matter of law. See Borges,

. Once the movant makes

such a showing, the nonmovant must adduce "significantly

probative" evidence of a genuine dispute about a dispositive issue

to avoid summary judgment. Anderson, 477 U.S. at 249-50.

Here — as in Irobe — the agency built its case on

inferences drawn from SNAP transaction data. See Alam & Sarker,

, at *6-8. The Market processed a vastly

disproportionate number of Scan F transactions relative to its

sales during the same six-month period one year earlier and

relative to other stores in the area. See

. So, too,

- 19 - the Market processed thirty-three Scan B2 transactions when it had

processed no such transactions during the same six-month period

one year earlier and two other similar stores processed a combined

two of these transactions. See

.

We agree with the district court that these facts suffice

to ground a strong inference that trafficking had occurred. See

; see also Irobe,

(concluding that "large

number of aberrational transactions reflected in the Store's

[SNAP] database [were] adequate to ground a strong inference of

trafficking"). And although "[i]rregular patterns may emerge in

virtually any retail operation, . . . a drumbeat of irregularities

can be highly probative of unlawful conduct."

Once the FNS

had cleared this hurdle, the burden shifted to the Market to rebut

the inference of trafficking. See Anderson, 477 U.S. at 249-50.

B

The Market points out that the pertinent regulations do

not specifically prohibit Scan B2 or Scan F transactions. Nor do

they prohibit large numbers of either type of transaction. Thus

— in the Market's view — the agency's case rests entirely on

comparisons to transactions from the previous year and

transactions from other stores. The Market submits that this

evidence does not meaningfully cut in the agency's favor.

To begin, the Market notes that the contractor's report

did not accurately document its inventory or its shoppers'

- 20 - purchasing habits. This, in turn, led the agency to use dissimilar

stores as comparators. The Market's fallback position is that its

higher volume of SNAP transactions relative to those of other

stores can be explained by its more copious inventory.

We turn first to the contractor's report. The Market

asserts that the report omitted images of its storeroom and failed

to mention that it sold cases of soda and frozen shrimp. The

record belies these assertions: the report included images of the

storeroom and noted that the Market sold frozen shrimp. To be

sure, the report related that the Market sold individual bottles

of soda instead of cases of soda — but this seems to be a

distinction that makes no difference. Importantly, none of this

blunts the thrust of the SNAP transaction data.

The Market's "inventory" defense simply does not move

the needle. To be specific, evidence of a larger inventory that

includes some more expensive goods does not explain why the Market

processed so many back-to-back transactions in rapid succession

for a single SNAP account. Nor does that evidence explain the

volume of high-dollar transactions that the Market processed. Put

another way, the Market failed to adduce evidence to show that it

maintained a large supply of pricey items and that it sold those

items frequently enough to explain the disproportionate number of

Scan F transactions.

- 21 - The Market also complains that the other stores to which

the agency compared it ran significantly different operations. It

suggests that it should have been characterized as an "above

average convenience store," which would distinguish it from the

comparators that the agency used. This complaint, however, was

not advanced before the district court and, thus, we deem it

waived. See Teamsters, Chauffeurs, Warehousemen & Helpers Union,

Local No. 59 v. Superline Transp. Co.,

(1st Cir.

1992) ("[A]bsent the most extraordinary circumstances, legal

theories not raised squarely in the lower court cannot be broached

for the first time on appeal.")

The Market also attempts to attach significance to a

supposed lack of local competition. That attempt is fruitless:

the lack of local competition might result in an increase in sales

and in the average sale price. But the absence of competition

fails to explain other suspicious attributes, such as the

rapid-fire nature of many of the transactions. To cinch the

matter, the Market adduced no probative evidence that its theory

of competition played out in practice. We reject the Market's

suggestion that we attach decretory significance to theoretical

economic forces, when that theorizing is contradicted by evidence

that shoppers frequented other establishments in the area.

Finally, the owners' testimony describing the nature of

the Market's business does not gain the Market any traction. As

- 22 - we previously have made clear, a store owner's unsupported

generalized, and conclusory observations about customers'

predilections are insufficient to contradict reasonable inferences

drawn from concrete SNAP transaction data. See Irobe,

.

The short of it is that the Market failed meaningfully

to rebut the strong inference of trafficking that flows from the

agency's evidence. Thus, a rational factfinder — employing a

preponderance of the evidence standard — could not reach any

conclusion except that the Market had engaged in SNAP trafficking.

It follows that the district court did not err in entering summary

judgment in favor of the agency.

V

The Market launches one last-ditch argument. It

contends that the process by which it was disqualified violated

due process because the FNS never advised it of the alleged

misconduct with sufficient particularity.5 In the Market's

estimation, the charge letter accused it of trafficking based on

irregular transaction data but failed to provide a "description or

This argument relies on a lack of proper notice and does 5

not claim that any infirmity exists with respect to the substance of any statute or regulation. Thus, we treat the challenge as one sounding in procedural due process and deem any substantive due process challenge to be waived. See United States v. Zannino,

(1st Cir. 1990) (explaining that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived").

- 23 - allegation of what specific activity . . . qualifie[d] as

trafficking." This contention lacks force.

When the government accuses a party of violating the

law, the Constitution guarantees certain procedural protections.

See In Re Gault,

(1967). As relevant here, the

government "must set forth the alleged misconduct with

particularity."

(quotation omitted). This required "notice

contemplates specifications of acts or patterns of conduct, not

general, conclusory charges unsupported by specific factual

allegations." Spinelli v. City of New York,

(2d

Cir. 2009).

We have yet to adjudicate a procedural due process

challenge in the SNAP-disqualification context. Even so, our

decision is informed by the approaches that other courts of appeals

have developed in considering procedural due process challenges in

SNAP-disqualification cases.

In Traficanti v. United States, the Fourth Circuit held

that, "[e]ven assuming arguendo that a procedural due process

violation existed at the administrative level, the de novo hearing

in the district court cured the violation."

(4th Cir. 2000) (emphases in original). To like effect, in Kim v.

United States, the Ninth Circuit held that "[a] trial de novo, in

which the existence of a violation is examined afresh, and the

parties are not limited in their arguments to the contents of the

- 24 - administrative record, satisfies the strictures of procedural due

process."

(9th Cir. 1997). And in TRM, Inc.

v. United States, the Eleventh Circuit held that "[a] de novo

hearing in the district court adequately protects an aggrieved

store owner's procedural due process rights."

(11th Cir. 1995).

We share the view of our sister circuits. Inasmuch as

the Market received a trial de novo in the district court in which

it could examine and dispute the full range of evidence against

it, we hold that it received all the process that was due.

Consequently, this claim of error founders.6

VI

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

6 In light of the foregoing, it is unnecessary for us to offer any opinion on whether the agency satisfied the strictures of due process. See, e.g., Traficanti,

.

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