El Tepeyac Grocery, Inc. v. United States , 515 F. App'x 55 ( 2013 )

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.
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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.
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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
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