OPINION
RENÉE MARIE BUMBBUMB, District Judge.
The United States Department of Agriculture, Food and Nutrition Service ("FNS"), which administers SNAP1 (commonly known as the food stamp program), decided to permanently disqualify Plaintiff, Cedar Food Market 7, Inc., from participating in SNAP after finding that Cedar Food Market had trafficked in SNAP benefits.2 Pursuant to 7 U.S.C. § 2023(a)(13), Plaintiff seeks judicial review of FNS' final determination.
FNS moves for summary judgment, asserting that no reasonable factfinder could find on this record that Cedar Food Market did not traffic in SNAP benefits. Cedar Food Market has filed no opposition to the motion.3 For the reasons stated herein, the motion will be granted.
I. FACTUAL BACKGROUND
"Cedar Food Market is a small grocery store located at 1125 Arctic Avenue in Atlantic City, New Jersey." (Defendant's Statement of Material Facts4, "SMF," ¶ 4) It "became an authorized SNAP retailer on July 25, 2001." (Id., ¶ 6) "In 2017, the FNS Retailer Operations Division began an investigation into Cedar Food Market because the agency's "ALERT" System5 indicated that the store's EBT data contained patterns consistent with possible EBT trafficking violations between February 2017 and June 2017." (Id., ¶ 8)
On May 11, 2017, a FNS investigator visited Cedar Food Market and observed that it "was a moderately-stocked small grocery store with staple foods that included canned goods, rice, pasta, bread, ice cream, butter, milk, some fresh produce, deli meat & cheese sold by the pound, and eggs." (SUF, ¶¶ 9, 11)
FNS also conducted a review of Cedar Food Market's SNAP EBT data from the relevant time period which resulted in the identification of 165 "suspicious transactions." (SUF, ¶ 12) Of the 165 transactions, 17 sets of transactions were deemed suspicious because they "involved rapid and repetitive transactions in a short period of time (mostly within a 24-hour period) from the same households." (Id., ¶¶ 13-14)6 Another 119 transactions were deemed suspicious because they "were excessively large— specifically, at least 300% larger— as compared to the average convenience store transaction in New Jersey." (Id., ¶ 17-18) In addition to this data being inherently suspicious for the reasons already stated, FNS compared the data to three comparable grocery stores and found Cedar Food Market's data patterns to be "abnormal" relative to the other stores. (Id., ¶¶ 20-21)
Moreover, "FNS found that the appearance, quality and quantity of products at Cedar Food Market did not warrant SNAP recipients conducting so many transactions at the store." (SUF, ¶ 23) It "also reviewed the shopping patterns of four selected households who were involved in suspicious transactions during the period under review and found that all of these households were also shopping at larger and better-stocked stores." (Id., ¶ 24) Lastly, "FNS noted that it seemed unreasonable for a household to spend such a large amount of SNAP benefits at [Cedar Food Market], when it had access to larger, better-stocked, and presumably less expensive grocery options." (Id., ¶ 25)
Based on all of this evidence, FNS charged Cedar Food Market with trafficking in SNAP benefits on September 19, 2017. (SUF, ¶¶ 26, 28) With the assistance of an attorney retained to represent it in the matter, Cedar Food Market replied to the charge by submitting two documents to FNS: (1) a declaration of Issa Nammour, one of the store's two "corporate officers" (Id., ¶ 5); and (2) a copy of "the FNS Training Guide for Retailers," a document prepared by FNS, "which Issa claimed they `review carefully.'" (Id., ¶ 41)
Nammour's Declaration "states categorically that `at no time have we ever tolerated any kind of trafficking whatsoever.'" (SUF, ¶ 33) Notably, the Declaration does not challenge the accuracy of the transaction data; rather, it provides the following explanations for the suspicious transactions:
(a) the Store "had observed an individual attempting to purchase items for others using SNAP benefits and were also informed that another person approached customers outside the Store offering to buy food for them with his SNAP benefits in exchange for a discount," but the Store stopped them from continuing their scheme by "`asking people for their I.D. and putting them on notice.'" (SUF, ¶¶ 34, 35)
(b) "the Store had a spike in volume for the months of February, March, April, and May which was attributable to special promotions at reduced prices in order to encourage a higher volume of transactions" (Id., ¶ 36); and
(c) "the Store was the only store in the area selling a `large variety of staple foods at reasonable prices' and that many of their customers are older or disabled and shop several times per day to be able to carry their purchases home because they do not own motor vehicles" (Id., ¶ 38).7
FNS considered this evidence and determined:
(a) "that typically [individuals trying to use SNAP benefits to purchase food for others in exchange for cash] would also occur at neighboring stores, and those stores were not displaying the same transaction patterns; instead only Cedar Food Market's SNAP transactions were displaying such patterns. (SUF, ¶ 44); and "if this alleged conduct had occurred and the Store addressed it, . . . the conduct would only have caused a few days' worth of suspicious transactions, not several months, as reflected in the data." (Id., ¶ 46);
(b) "Cedar Food Market did not submit any documentary evidence supporting Issa's assertion that Cedar Food Market offered special promotions that caused a spike in transactions during the review period. Moreover, no special promotions were observed during the site visit. Without such documented evidence, including any EBT or store register receipts or promotional advertising material, FNS could not substantiate Issa's statements." (Id., ¶ 43);
(c) "the Store was located within 1/4 mile of 4 convenience stores, 2 small grocery stores, 1 medium grocery store, and 2 combination grocery stores, and within a 1 mile radius, there was 39 traditional authorized retailers where SNAP households can and did shop, but none of these displayed the same EBT transactions patterns as the Store" (Id., ¶ 45); and "the Store's EBT customers were also shopping at [these stores]— demonstrating that these customers did not have difficulty traveling to different stores." (Id., ¶ 48)
Accordingly, FNS concluded that the suspicious transactions were not "sufficiently explained" and were "indicative of trafficking." (SUF, ¶¶ 42, 51) On October 10, 2017, FNS issued a Determination Letter informing Cedar Food Market that FNS had concluded that the store had engaged in trafficking. (Id., ¶ 52)
Cedar Food Market, through its attorney, duly invoked its right to administrative review of the determination. An Administrative Review Officer "reviewed all of the information submitted by Cedar Food Market8, and on February 8, 2018, FNS issued its final agency decision, which concluded that permanent disqualification [from the SNAP program] was appropriate." (SUF, ¶ 64) This suit followed.
II. LEGAL STANDARD
When an "aggrieved" party seeks "judicial review" of an adverse "final determination" with regard to participation in SNAP, 7 U.S.C. § 2023(a)(13), "[t]he suit in the United States district court . . . shall be a trial de novo by the court in which the court shall determine the validity of the questioned administrative action in issue." § 2023(a)(15). Thus, although this Court is reviewing a final agency determination, the governing statute provides that this case shall proceed in the same manner as a typical civil action.9 Therefore, all of the procedural mechanisms under the Federal Rules of Civil Procedure are generally available, including— as relevant to the instant motion— Federal Rule of Civil Procedure 56. Freedman, 926 F.2d at 261 ("de novo review [under § 2023(a)(15)] is compatible with a summary judgment disposition if there are no material facts in dispute. . . . In reality, an ordinary private civil action is a de novo proceeding in the sense that the court makes an original determination of the law and the facts but such a case may, when appropriate, be resolved on summary judgment.").
Summary judgment shall be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it will "affect the outcome of the suit under the governing law[.]" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is "genuine" if it could lead a "reasonable jury [to] return a verdict for the nonmoving party." Id.
"[W]hen a properly supported motion for summary judgment [has been] made, the adverse party `must set forth specific facts showing that there is a genuine issue for trial.'" Anderson, 477 U.S. at 250 (citing Fed. R. Civ. P. 56(e)). In the face of a properly supported motion for summary judgment, the nonmovant's burden is rigorous: it "must point to concrete evidence in the record"; mere allegations, conclusions, conjecture, and speculation will not defeat summary judgment. Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995); accord, Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 228 (3d Cir. 2009) ("[S]peculation and conjecture may not defeat summary judgment.")). Failure to sustain this burden will result in entry of judgment for the moving party.
The same basic legal analysis applies when a summary judgment motion is unopposed, Anchorage Associates v. Virgin Islands Board of Tax Review, 922 F.2d 168 (3d Cir. 1990), however, the material facts put forth by the movant are deemed undisputed pursuant to L. Civ. R. 56.1(a) ("any material fact not disputed shall be deemed undisputed for purposes of the summary judgment motion.").
III. ANALYSIS
"It is [] well established that the plaintiff challenging the administrative action has the burden of proving by a preponderance of the evidence that the charged SNAP violation did not occur." Atl. Deli & Grocery v. United States, 2011 WL 2038758 at *4 (D.N.J. May 23, 2011) (Simandle, D.J.) (citing authorities).10 In this case, Cedar Food Market has filed no opposition to FNS' Motion for Summary Judgment, and therefore it has come forward with no particular evidence that it did not traffic in SNAP benefits.
Moreover, the evidence in the administrative record— which is undisputed here— does not support a finding by a preponderance of the evidence that Cedar Food Market did not traffic in SNAP benefits. As set forth above, the EBT data demonstrated patterns consistent with SNAP trafficking.11 Cedar Food Market's explanations for these patterns are, as FNS found, either incomplete or inconsistent with the evidence, and therefore insufficient to defeat summary judgment. See Irobe, 890 F.3d at 380 ("The large number of aberrational transactions reflected in the Store's EBT database are adequate to ground a strong inference of trafficking, especially given the Store's characteristics. While that inference is rebuttable, the allocation of the burden of proof dictates that the Store must point to some significantly probative evidence to rebut it (and, thus, fend off summary judgment).").
Cedar Food Market has failed to sustain its summary judgment burden of putting forth evidence to support its claim that FNS' determination was invalid.12 Accordingly, the Motion for Summary Judgment will be granted.
IV. CONCLUSION
For the foregoing reasons, FNS' Motion for Summary Judgment will be granted. An appropriate Order shall issue on this date.
