Case Information
‐ ‐ cv v. United States UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 stated term United States Court Appeals Second Circuit, held Thurgood Marshall Courthouse, Foley Square, City New York, th day December, thousand seventeen. PRESENT: GUIDO CALABRESI,
RICHARD C. WESLEY,
DENNY CHIN,
Circuit Judges.
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KAWRAN BAZAR, INC., MOHAMMAD ELIAS KHAN,
Plaintiffs ‐ Appellants ‐ ‐ cv
UNITED STATES OF AMERICA, SECRETARY SONNY
PERDUE,
Defendants Appellees .
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FOR PLAINTIFFS APPELLANTS: Tejinder Bains, Law Offices Ali Bains
PC, Forest Hills, York. FOR DEFENDANTS APPELLEES: Varuni Nelson, Rachel G. Balaban, Edwin R.
Cortes, Assistant Attorneys, *2 Bridget M. Rohde, Acting Attorney the Eastern District of New York, Brooklyn, New York.
Appeal from the District Court the Eastern District of New York (Garaufis, J. ).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED judgment district court AFFIRMED .
Plaintiffs appellants grocery and owner Mohammad Elias Khan (collectively, ʺ ) appeal from district court December judgment dismissing their challenge to agency sanctions decision, grant favor government. Pursuant U.S.C. 2023(a)(13), challenged and capricious Food and Nutrition Service ( ʺ ʺ ) civil monetary penalty lieu six year Supplemental Nutrition Assistance Program ( ʺ SNAP ʺ ). assume parties ʹ familiarity with underlying facts, procedural history, and issues appeal.
Kawran, serves Bangladeshi community Queens, New York, formerly participate federal government program York State Special Supplemental Nutrition Program Women, Infants Children ). Both programs provide financial assistance low income families purchase participating retail stores. §§ (SNAP); § (WIC). FNS administers SNAP York State Department of Health DOH ) administers WIC.
Under its regulations, FNS ʺ shall disqualify from SNAP ʺ any store is disqualified from WIC for WIC program violations. C.F.R. § 278.6(e)(8). The reciprocal disqualification from SNAP ʺ [s]hall be length of time as WIC disqualification ʺ [s]hall not be subject to administrative judicial review. ʺ Id. § 278.6(e)(8)(iii)(A), (C). The regulations also set forth following exception:
FNS may impose a civil money penalty a lieu of disqualification when [store] subject a disqualification is selling a substantial variety staple food items, [store s] disqualification would cause SNAP households because there no other authorized retail food store area selling variety items at comparable prices. Id. 278.6(f)(1).
In Kawran disqualified from WIC six years based on pattern WIC violations. DOH upheld administrative review 2014. After advising Kawran right reply charges, did not do, FNS notified letter on August would be disqualified six years based disqualification. letter noted considered eligibility civil monetary penalty, determined not eligible there are retail area selling at comparable prices. ʺ No. CV WL *2 *4 (E.D.N.Y. Dec. 13, 2016). Kawran sought administrative review, conceding that it violated regulations arguing that the exception should apply. argued that it sold certain ʺ ethnically assorted items, ʺ such as halal meat Bangladeshi foods, and only purveyors the area were smaller stores with higher prices. Id. On September 25, 2015, administrative review, FNS sustained disqualification, concluding was ineligible exception within a one mile radius supplied a comparable prices.
On October 2015, filed this suit pursuant 2023(a)(13), authorizes ʺ feels aggrieved ʺ final administrative determination seek judicial review. By memorandum order entered December district court granted government motion summary judgment. Judgment was entered day. This appeal followed. On appeal, district court before agency, challenges only exception. review de novo grant judgment. Mihalik Credit Agricole Cheuvreux N. Am., F.3d (2d Cir. 2013). standard review whether sanction or capricious, i.e., *5 whether it was ʹ unwarranted law without justification fact. ʹʺ Willy ʹ s Grocery v. United States , 656 F.2d 24, 26 (2d Cir. 1981) (quoting Cross v. United States , 512 F.2d 1212, 1218 (4th Cir. 1975) (en banc)). A does not violate this standard when agency properly adheres own settled policy guidelines. See Lawrence v. United States , F.2d 274, (2d Cir. 1982). contends that store qualifies exception
because halal meat food, recipients would suffer store ʹ s disqualification no local store sells halal food. But record shows that an investigator had gone store located near had photographed sign halal meat store. portrays FNS’s evidence outdated report mentioned above was dated June year disqualification. conclude exception was neither nor capricious. See Young Jin Choi v. , F. Supp. ‐ (S.D.N.Y. 1996) (rejecting challenge three year disqualification where accept stamps were located within three blocks plaintiff store); Varnadore F. Supp. (D.S.C. 1991) (rejecting challenge three year where selling wider located within one half mile plaintiff store). did not err granting favor government. have considered remaining arguments find them be
without merit. Accordingly, we AFFIRM court.
FOR THE COURT: Catherine O Hagan Wolfe, Clerk
[1] Halal ʺ refers slaughter animal preparation meat accordance with law. See Halal, Webster Third International Dictionary (3d ed. 2002).