Plaintiff, president of The Brothers Supermarket, Inc., challenges his store's one-year disqualification from participation in the food stamp program. Disqualification resulted from the Department of Agriculture's determination that non-food items had been purchased with food stamps in violation of the Food Stamp Act. Pursuant to 7 U.S.C. § 2023 (Supp. I 1977), plaintiff brought a complaint in the district court seeking a trial de novo.1 The court granted the government's motion for summary judgment, and plaintiff appealed. Plaintiff now argues that the court should not have granted summary judgment because there were disputed material facts both as to the existence of the alleged violations and as to the propriety of the penalty imposed.

In support of its motion for summary judgment, the government submitted an affidavit from a Food and Nutrition ServiceS compliance officer. The officer stated that he had visited The Brothers Supermarket on six occasions from March 27, 1978 to April 18, 1978, each time exchanging food stamps for non-food items. On two of the six visits, the ineligible articles were purchased from Mr. Sam Kulkin, the plaintiffs's brother. The other four times the cashier was Ms. Knight. The ineligible articles were enumerated and included bleach, detergent, bathroom tissue, cigarettes, and floor wax. At no time, the officer stated, did either cashier challenge his improper use of food stamps.

Plaintiff filed a counter-affidavit, but did not therein deny that any of the alleged purchases had taken place. Rather, he sought to exonerate himself personally from complicity in any illegal actions. He stated he had read all directives issued by the Department of Agriculture and had instructed all three of his employees (i. e., his wife, his brother, and Ms. Knight) what items could and could not be bought with food stamps. He had been convalescing at the time of the alleged violations and hence not in the store, but had "at no time . . . personally violated (the Act) . . . authorize(d) or consent(ed) to or acquiesce(d) in any violation of the terms of the Food Stamp Program," and "was not aware that this conduct of the employees was going on."

Plaintiff's response was insufficient to withstand the government's motion for summary judgment. Plaintiff did not, as is required under Fed.R.Civ.P. 56(e),2 "set forth specific facts showing that there is a genuine issue for trial." Missing is any adequate contradiction of the violations attested to by the compliance officer. While plaintiff denied having personally violated the Act, there were no affidavits of denial from the store personnel identified in the government's affidavit.3 Plaintiff's personal non-involvement would not prevent his store's disqualification. The disqualification section, 7 U.S.C. § 2021 (Supp. I 1977), requires only "a finding . . . that such store . . . has violated any of the provisions of (the Food Stamp Act) or the regulations issued pursuant to (the Act)." (Emphasis added.) An improper sale by a cashier is sufficient to establish a violation. See J.C.B. Super Markets, Inc. v. United States, 530 F.2d 1119 (2d Cir. 1976); Save More of Gary, Inc. v. United States, 442 F.2d 36 (7th Cir.), cert. dismissed, 404 U.S. 987, 92 S. Ct. 535, 30 L. Ed. 2d 549 (1971). Summary judgment was properly entered on the merits.

The district court took the view that once having upheld the agency's findings on the issue of violation, it had no authority to review the sanction imposed. The court observed that the one-year disqualification was within limits allowed under the regulation. It went on to state that were it entitled to review the sanction, it would conclude that "the one-year disqualification, though possibly burdensome, did not amount to an abuse of administrative discretion." Plaintiff contends that under 7 U.S.C. § 2023 (Supp. I 1977), the court should have invited him to develop the record, and then, applying FNS Instruction 744-9 and the Department's regulations, should have determined whether, on the record as a whole, the agency had abused its discretion in determining the penalty. While we agree with plaintiff that a district court should review the sanction to the extent explained infra at pp. 184-186, we are satisfied this was properly done here and that summary judgment was appropriate on the record before the court.

Generally, administrative remedies or sanctions are subject to a very limited judicial review. Review must be in accordance with " 'the fundamental principle . . . that where Congress has entrusted an administrative agency with the responsibility of selecting the means of achieving the statutory policy " the relation of remedy to policy is peculiarly a matter for administrative competence." ' " Butz v. Glover Livestock Commission Co., Inc., 411 U.S. 182, 185, 93 S. Ct. 1455, 1458, 36 L. Ed. 2d 142 (1973) (quoting from American Power Co. v. SEC, 329 U.S. 90, 112, 67 S. Ct. 133, 145, 91 L. Ed. 103 (1946). An agency's choice of sanction is not to be overturned unless the reviewing court determines it is " 'unwarranted in law . . . or without justification in fact . . .' " Id., 411 U.S. 185-86, 93 S. Ct. 1458.4 "The court may decide only whether, under the pertinent statute and relevant facts, the (agency) made 'an allowable judgment in (its) choice of the remedy.' " Id., 189, 93 S.Ct. 1459 (quoting from Jacob Siegel Co. v. FTC, 327 U.S. 608, 612, 66 S. Ct. 758, 760, 90 L. Ed. 888 (1946)).

While the de novo provision of the Food Stamp Act raises certain problems, it does not, in our view, call for a departure from the usual standard of review concerning sanctions. The Secretary of Agriculture, not the courts, is charged under the statute with effecting an efficient enforcement scheme. 7 U.S.C. § 2021 (Supp. I 1977); 7 U.S.C. § 2013(c) (Supp. I 1977).5 To be sure, the judicial review section of the Food Stamp Act, 7 U.S.C. § 2023 (Supp. I 1977), authorizes the reviewing court to conduct a "trial de novo" to "determine the validity of the questioned administrative action in issue."6 We read this language as including some review of the "validity" of the sanction, but believe the court must still be guided by the concepts implicit in the Butz v. Glover Livestock Commission Co. standard. Accord Studt v. United States, 607 F.2d 1216, 1218 (8th Cir. 1978); Nowicki v. United States, 536 F.2d 1171, 1177-78 (7th Cir. 1976), cert. denied, 429 U.S. 1092, 97 S. Ct. 1103, 51 L. Ed. 2d 537 (1977); Goodman v. United States, 518 F.2d 505, 511-12 (5th Cir. 1975); Cross v. United States, 512 F.2d 1212, 1217-18 (4th Cir. 1975) (en banc); Martin v. United States, 459 F.2d 300 (6th Cir.), cert. denied, 409 U.S. 878, 93 S. Ct. 129, 34 L. Ed. 2d 131 (1972).7

There are, of course, two components to an administrative decision such as the one challenged here a "determination that a store has violated the law or the regulations" and "a determination of a period during which the store will be disqualified." Goodman v. United States, 518 F.2d 505, 509 (5th Cir. 1975). While the former component is mainly factual, the latter involves not only an ascertainment of the factual circumstances surrounding the violations but also the application of administrative judgment and discretion. We think the de novo judicial review provision, a procedure for determining facts, is not aimed at displacing the agency's role regarding the policy components of the latter.8 But see Cross v. United States, 512 F.2d 1212, 1219-21 (4th Cir. 1975) (Widener, J., concurring) (court is to make its own independent judgment as to the term of disqualification); Martin v. United States, 459 F.2d 300, 302 (6th Cir. 1972) (Edwards, J., dissenting). From a practical standpoint, it would not make sense for a court to substitute its judgment for that of the agency charged with administering the food stamp program as to the appropriate penalty for a given violation. The agency, in contrast to a court, deals with the relationship of penalty to violation on a frequent basis. If the myriad federal and state9 courts were to determine the penalty, uniformity and coherence of administration would be difficult to achieve. We find nothing in section 2023 or its legislative history indicating a departure from the usual allocation of functions between court and agency vis-a-vis the assessment of sanctions was intended. Hence, we conclude the Butz v. Glover Livestock Commission Co. standard controls.10

In the present case, the court determined that the one-year disqualification, "though possibly burdensome, did not amount to an abuse of administrative discretion." Since this is not a case where the factual underpinnings upon which the administrative choice of sanction rests were significantly controverted, cf. Cross v. United States, 512 F.2d at 1218; but see Cross, 512 F.2d at 1227 (Russell, J., dissenting), we see no triable issue of fact concerning the sanction on which plaintiff was entitled to an evidentiary hearing. The only issue was whether the penalty imposed by the agency was unwarranted; even taking plaintiff's affidavit and such of the administrative record as was before the court at face value, we think the district court could conclude, as it in essence did, that these facts would not warrant overturning the agency's choice of sanction.

Plaintiff's next contention is that a civil money penalty rather than a period of disqualification should have been imposed. He bases this argument upon the rather tortuous history of certain food stamp regulations which were promulgated in furtherance of the 1977 amendments to the Food Stamp Act. Prior to 1977, the penalty section of the Act provided only for disqualification and not for money fines. Food Stamp Act of 1964, Pub.L. No. 88-525, § 11, 78 Stat. 707 (1964) (prior to 1977 amendment). The 1977 amendment added a provision for money penalties as an alternative in certain instances. The disqualification section now reads

"Any approved retail food store or wholesale food concern may be disqualified for a specified period of time from further participation in the food stamp program, or subjected to a civil money penalty of up to $5,000 for each violation if the Secretary determines that its disqualification would cause hardship to food stamp households, on a finding, made as specified in the regulations, that such store or concern has violated any of the provisions of this chapter or the regulations issued pursuant to this chapter. Such disqualification shall be for such period of time as may be determined in accordance with regulations issued pursuant to this chapter. The action of disqualification or the imposition of a civil money penalty shall be subject to review as provided in section 2023 of this title."

7 U.S.C. § 2021 (Supp. I 1977). Regulations to implement this section were promulgated effective January 1, 1979. 43 Fed.Reg. 43277-43279 (Sept. 22, 1978); 7 C.F.R. § 278.6 (1979).11

Plaintiff argues he should be accorded an opportunity to show his store's disqualification "would cause hardship to food stamp households." The government takes the position that because the violations and most of the administrative proceedings occurred before the promulgation of the implementing regulation, 7 C.F.R. § 278.6 (1979) which established the criteria for civil penalties, money penalties should not be considered in this case.

The pertinent chronology is as follows. The violations occurred in March and April 1978. The initial administrative decision to disqualify plaintiff's store was made in September 1978. Plaintiff immediately appealed that decision to the Food Stamp Review Officer. Thus, the violations and initial administrative decision to disqualify took place before the January 1, 1979 effective date of 7 C.F.R. § 278.6. The Food Stamp Review Officer, however, did not render his decision denying plaintiff's appeal until January 24, 1979.

The Department of Agriculture has taken the position that because application of the money penalty regulation to cases already in progress as of January 1, 1979 would entail much delay and redetermination while the agency collected the information necessary for a proper application of the regulation a comparison of the line of goods and prices at redemption outlets near the violator's store the regulation will only be applied to violations occurring after January 1, 1979.

We hold that the Department did not act improperly in refusing to apply to plaintiff the money penalty provision in lieu of disqualification. The Secretary of Agriculture was authorized to implement the money penalty provision in an orderly fashion. The implementation section of the Food Stamp Act of 1977, Pub.L. No. 95-113, § 1303, 91 Stat. 979 (1977), provides, in material part,

"SEC. 1303. (a) The Secretary of Agriculture shall implement the Food Stamp Act of 1977 as expeditiously as possible consistent with the efficient and effective administration of the food stamp program. The provisions of the Food Stamp Act of 1964, as amended, which are relevant to current regulations of the Secretary governing the food stamp program, shall remain in effect until such regulations are revoked, superseded, amended, or modified by regulations issued pursuant to the Food Stamp Act of 1977. Coupons issued pursuant to the Food Stamp Act of 1964, as amended, and in general use as of the effective date of the Food Stamp Act of 1977, shall continue to be usable to purchase food, and all other liabilities of the Secretary, States, and applicant or participating households, under the Food Stamp Act of 1964, as amended, shall continue in force until finally resolved or terminated by administrative or judicial action, or otherwise.

(b) Pending proceedings under the Food Stamp Act of 1964, as amended, shall not be abated by reason of any provision of the Food Stamp Act of 1977, but shall be disposed of pursuant to the applicable provisions of the Food Stamp Act of 1964, as amended, in effect prior to the effective date of the Food Stamp Act of 1977."

From the second quoted sentence, it would follow that the old penalty section which did not provide for a monetary fine as an alternative to disqualification was to remain in effect until the Secretary promulgated regulations to implement the new penalty provisions. The latter event did not occur until January 1, 1979, after the violation involved herein had taken place. The Secretary's decision, in the interest of orderly and efficient administration of the food stamp program, to apply the regulation to violations occurring subsequent to January 1, 1979 was not inconsistent with section 1303, and we conclude, therefore, that the civil penalty provision is not applicable to plaintiff.

Affirmed.