EL TEPEYAC GROCERY, INC., Marina Garcia, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee, 515 F. App'x 55

SUMMARY ORDER 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”), 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. On April 12, 2012, the District Court granted defendant’s motion for

summary judgment, and entered judgment dismissing plaintiffs 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. 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. . 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.