19-3214 Timsina v. United States

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 TO 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 17th day of November, two thousand twenty.

PRESENT: DENNIS JACOBS, GERARD E. LYNCH, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

Som N. Timsina, an individual, Bhakti R. Adhikari, an individual, Central Market Winooski, LLC, Vermont Limited Liability Company,

Plaintiffs-Appellants,

v. No. 19-3214

United States of America,

Defendant-Appellee. _____________________________________ For Plaintiffs-Appellants: ANDREW Z. TAPP, Metropolitan Law Group, PLLC, Brandon, FL.

For Defendant-Appellee: MELISSA A.D. RANALDO (Julia L. Torti, Gregory L. Waples, on the brief), Assistant United States Attorneys, for Christina E. Nolan, United States Attorney for the District of Vermont, Burlington, VT.

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

of Vermont (Christina Reiss, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Plaintiffs-Appellants Som N. Timsina, Bhakti R. Adhikari, and their store,

Central Market Winooski, LLC (“Central Market”) (collectively, “the Market”),

appeal from the district court’s order denying the Market’s request for additional

discovery and granting summary judgment in favor of the government in

connection with an administrative decision by the Food and Nutrition Service

(“FNS”) to disqualify their store from participating in the Supplemental Nutrition

Assistance Program (“SNAP”). On appeal, the Market contends that the district

2 court (1) abused its discretion by denying the Market’s request to depose FNS

officials and to probe their investigative protocol for potential SNAP violations;

and (2) erred in granting summary judgment to the government because the court

misconstrued the Market’s burden to raise genuine disputes of material facts

regarding the suspicious SNAP transactions. We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on

appeal.

I. The district court did not abuse its discretion by denying the Market’s request for additional discovery.

We review a district court’s denial of a Rule 56(d) motion for additional

discovery for abuse of discretion. See Alphonse Hotel Corp. v. Tran,

(2d Cir. 2016). “A party seeking to delay resolution of a summary judgment

motion on grounds that he has been deprived of certain discovery materials must

show that the material sought is germane to the defense, and that it is neither

cumulative nor speculative, and a bare assertion that the evidence supporting a

plaintiff’s allegation is in the hands of the defendant is insufficient.”

(internal

quotation marks omitted).

3 The Market asserts that the district court abused its discretion when it

denied the Market’s requests for discovery, including depositions, regarding the

FNS’s investigative protocol for detecting potential SNAP violations. But that

evidence would not have been “germane to” the Market’s opposition to the

government’s motion for summary judgment.

The Market’s burden in

overcoming the government’s motion was to raise a genuine issue of material fact

regarding whether it had engaged in SNAP benefits trafficking – a not uncommon

form of fraud whereby SNAP recipients sell their benefits for cash, typically at a

deep discount, to food retailers who camouflage the transaction to look like

legitimate food purchases. See, e.g., Irobe v. U.S. Dep’t of Agric.,

(1st Cir. 2018); see also

(defining SNAP “[t]rafficking” as including

“[t]he buying, selling, stealing or otherwise effecting an exchange of SNAP

benefits . . . for cash or consideration other than eligible food”). Depositions

directed toward uncovering the FNS’s internal procedures and decision-making

were simply not relevant to meeting that burden, since the district court was

required to conduct its own independent review of the underlying data. See

(a)(15). Accordingly, the district court did not abuse its discretion

by denying the Market’s request for additional discovery.

4 II. The district court properly granted summary judgment to the government.

“We review a grant of summary judgment de novo, examining the evidence

in the light most favorable to, and drawing all inferences in favor of, the non-

movant.” Sullivan-Mestecky v. Verizon Commc’ns Inc.,

(2d Cir. 2020)

(internal quotation marks omitted). Under the Food and Nutrition Act of 2008

(“FNA”), judicial review of the FNS’s decision to disqualify an entity from

participating in SNAP is “a trial de novo . . . in which the court shall determine the

validity of the questioned administrative action in issue.”

(a)(15). 1

This review “requires the district court to reexamine the agency’s decision on a

fresh record, rather than determining whether the administrative decision was

supported by substantial evidence.” Ibrahim v. United States,

(2d

Cir. 1987). 2

1The FNA’s judicial review provision was originally enacted as part of the Food Stamp Act of 1964. See

,

, 708 (1964). 2 This Court has not yet decided which party bears the burden of proof at a trial under § 2023(a)(15) – i.e., whether the Market must prove by a preponderance of the evidence that the disqualification decision “is invalid,”

(a)(16), or the government must prove “the validity of the questioned administrative action,”

§ 2023(a)(15). On the one hand, the disqualified store is cast as the plaintiff or claimant in the action, and thus the party that more naturally bears the burden of proving that (in this case) it was wrongly disqualified. See Irobe,

. On the other, the governing statute providing for judicial review,

(a)(15), somewhat unusually provides for a “trial de novo” in the district court, and directs that “the court shall determine the validity of the questioned administrative action in issue,” thus appearing to contemplate a do-over of sorts in the district court, in which the government would have to prove a violation. Cf. Spano v. Western Fruit Growers,

(10th Cir. 1936) (“‘Trial de novo’ is generally held to mean a trial anew of the entire controversy, including the hearing of evidence

5 The Market claims that the district court erred by granting summary

judgment to the government because the Market’s burden should not have been

“to prove each and every transaction to be legitimate, but rather to provide

evidentiarily supported explanations that could legitimately account for the

presence of the transaction patterns cited by the [FNS].” Market’s Br. at 12.

Under the FNA, the FNS may permanently disqualify a store “upon . . . the first

occasion” of SNAP benefits trafficking.

(b)(3)(B). Thus, on the

assumption that the Market bore the burden of proof in this action, it faced the

difficult burden of establishing that it had not engaged in any such transactions.

And in this case, the government presented the district court with a considerable

body of circumstantial evidence demonstrating that the Market had engaged in

SNAP benefits trafficking, including 515 transactions that were flagged as

suspicious by the FNS’s national electronic database because they (1) were

processed in unusually short time-frames, (2) depleted the majority of a

as though no previous action had been taken.”). The Market, however, does not challenge the district court’s determination that the burden rests with the Market. See Timsina v. United States, No. 17-cv-00126 (CR),

, at *8 (D. Vt. July 19, 2019). The Market has therefore waived this argument on appeal. See Norton v. Sam’s Club,

(2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”). Accordingly, we assume, without deciding, that the district court correctly placed the burden of proof on the Market.

6 household’s monthly benefits in one or two transactions, or (3) were excessively

large in comparison to other Vermont grocery stores of a similar size.

In an attempt to rebut this overwhelming circumstantial evidence, the

Market offered several general explanations for the suspicious transactions,

including that Central Market regularly sold a number of expensive SNAP-eligible

items, that its customers frequently shopped together in large groups, and that

many of its customers were from large refugee households that purchased large

amounts of food in a single transaction. But even after considering these

conclusory rationalizations, the district court determined that many of the

transactions could not be explained or justified. In one particularly noteworthy

example cited by the district court, a household “spent $159.77 at Costco,” the

retail warehouse giant, “approximately one hour before spending $411.00 at

Central Market,” a store with about 1,500 square feet of shopping space, only one

cash register, one two-foot-by-three-foot checkout counter, and one optical

scanner. Timsina v. United States, No. 17-cv-00126,

, at *4 & n.4,

*7 (D. Vt. July 19, 2019). Similarly, the district court considered other suspicious

transactions and found that there was “no plausible way” that Central Market

could have processed “$292.90 worth of eligible food items in two minutes and

7 forty-eight seconds” or “$278.06 worth of eligible food items in one minute and

forty-four seconds.” 3

at *10–11. And “[a]lthough Central Market’s inventory

reveals ten products that were priced between $20.00 and $45.00,” the district court

found that these few high-dollar items “[did] not explain why customers

frequently made purchases worth hundreds of dollars.”

. Indeed,

there were at least four SNAP-authorized stores located near Central Market that

offered similar specialty food products and were frequented by the Market’s

customers, and yet none of them displayed the same types of suspicious

transactions. App’x at 774; see also Irobe,

(“[T]he factfinder may

reasonably infer trafficking when the redemption data shows that a store regularly

processes purported SNAP transactions for significantly higher per-transaction

amounts than nearby stores offering similar wares.”).

So even if the Market’s proffered explanations could account for some of the

suspicious transactions, there still remained ample circumstantial evidence to

support the inference that the Market had trafficked in SNAP benefits. The

3 The record reveals a host of even more suspicious transactions not explicitly cited in the district court’s decision. In one such example, exactly $150.00 worth of food items was processed in thirty seconds. App’x at 155. In another, the same household made one purchase followed by a second purchase one minute and twenty-seven seconds later for exactly $100.00. Id. at 158. These transactions are doubly suspicious due to their unusually short processing times and round-number totals.

8 district court’s reliance on this circumstantial evidence was not improper. As we

have emphasized time and again, “[c]ircumstantial evidence . . . is of no lesser

probative value than direct evidence,” United States v. Casamento,

(2d Cir. 1989), particularly when, as here, it is the only proof likely to be

available, see, e.g., New York v. United Parcel Serv., Inc.,

(2d Cir.

2019), cert. denied, --- S. Ct. ----, No. 19-1306,

(Oct. 5, 2020); see also

(a)(2) (authorizing FNS to disqualify a store on the basis of

“inconsistent redemption data” and SNAP “transaction report[s]”).

Accordingly, the district court properly granted summary judgment in favor of

the government because no reasonable factfinder could conclude that the Market

established that it had not engaged in any transactions in violation of the

regulations governing the SNAP program.

* * *

We have considered the Market’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

9