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Affum v. United States

May 7, 2008

PHILOMENA AFFUM D/B/A ASAFO MARKET, PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL. DEFENDANTS.



MEMORANDUM OPINION

Now before the Court comes plaintiff's application [6] for stay of administrative action and for preliminary injunction. This Court held a hearing on the motion on April 18, 2008. Upon full consideration of the application, defendants' opposition brief, the reply, oral argument, the entire record herein, and applicable law, this Court finds that plaintiff's application will be DENIED for the reasons set forth below.

I. BACKGROUND

Plaintiff Philomena Affum owns and operates a small food store in the District of Columbia called Asafo Market. (See Compl. ¶ 8.)Asafo Market participates in the federal Food Stamp Program, and according to plaintiff, ninety to ninety-five percent of the store's revenues are derived from food stamp benefits. (See id. ¶ 9.) At some point, plaintiff hired a part-time employee to assist with operations at the store. (See id. ¶ 8.) On two occasions in early 2007, this employee-apparently unbeknownst to plaintiff-gave a total of $30 cash to an undercover agent in exchange for food stamps; such action constitutes the offense of "trafficking" and is sanctionable under 7 U.S.C. § 2021.(See id. ¶ 11.) Plaintiff's employee also sold ineligible items to an undercover agent in violation of 7 C.F.R. § 278.2(a) on six occasions. (See id.)

On October 10, 2007, the Food and Nutrition Service ("FNS") notified plaintiff that her store would be subject to a six-month disqualification for selling ineligible items and was being considered for permanent disqualification from the Food Stamp Program for the trafficking offense committed by her employee. (See Ltr. from FNS to Affum (Oct. 10, 2007), Ex. 2 to Application at 1, 3.) Upon receipt of this letter, plaintiff met with an FNS officer on November 5. Plaintiff informed the officer that she had provided training to her employee such that the employee knew that trafficking and accepting food stamps for ineligible items were prohibited. (See Compl.¶ 33.) On November 14, 2007, the FNS regional office decided that plaintiff would be permanently disqualified from the Food Stamp Program in accordance with section 278.6 of the food stamp regulations. (See Ltr. from FNS to Affum (Nov. 14, 2007), Ex. 4 to Application at 1.) FNS determined that plaintiff was not eligible for an alternative civil monetary penalty because she "failed to submit sufficient evidence to demonstrate that [her business] had established and implemented an effective compliance program to prevent violations of the Food Stamp Program." (Id.) Consequently, plaintiff's disqualification began on November 16, 2007. (Admin. R. at 62.)

Plaintiff requested a review of the FNS regional office's decision by the FNS Administrative Review Branch. On review, plaintiff explained by letter that the employee "who was responsible for this great error was informed from the very beginning that the [electronic food stamp benefits were] strictly for use with food items only and nothing else" and that the employee did not "truly understand the importance of adhering to this rule." (See Ltr. from Affum to FNS (Dec. 26, 2007), Ex. 7 to Application at 1.) The administrative review officer affirmed both the regional office's findings and the sanction of permanent disqualification.

(See Final Agency Decision (Jan. 22, 2008), Ex. 8 to Application)

Plaintiff now seeks injunctive relief from this Court because she contends that the FNS's action was based on regulations that are contrary to the Food Stamp Act, are arbitrary and capricious, and violate the Fifth Amendment.

II. ANALYSIS

A. Applicable Law

1. Standard of Review: Preliminary Injunction

Plaintiff asks this Court to issue a preliminary injunction pursuant to Federal Rule of Civil Procedure 65, and asks for a stay of administrative action pursuant to 7 U.S.C. § 2023(a)(17). To demonstrate entitlement to a preliminary injunction, a litigant must show: "1) a substantial likelihood of success on the merits, 2) that it would suffer irreparable injury if the injunction is not granted, 3) that an injunction would not substantially injure other interested parties, and 4) that the public interest would be furthered by the injunction." CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995); see Va. Petroleum Jobbers Ass'n v. Fed. Power Comm'n, 259 F.2d 921, 925 (D.C. Cir. 1958) (explaining the four factors). No one factor is determinative and the Court should balance a movant's showings regarding the four factors on a sliding scale. See Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998); CityFed Fin. Corp., 58 F.3d at 747 ("If the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak."). Granting injunctive relief is an "extraordinary and drastic remedy," and it is the movant's obligation to justify, "by a clear showing," the court's use of such a measure. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (citation omitted).

When considering a motion to stay agency action, courts generally employ the same four-factor standard used in motions for preliminary injunction. Compare Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998) (applying four-factor standard in a preliminary injunction case), with Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C. Cir. 1985) (per curiam) (applying same standard in a motion to stay case). However, the Food Stamp Act provides that a court may temporarily stay administrative action pending trial upon consideration of only two factors: (1) the likelihood of prevailing on the merits and (2) irreparable injury.*fn1 See 7 U.S.C. § 2023(a)(17).

2. Statutory and Regulatory Framework

Congress enacted the Food Stamp Program to "permit low-income households to obtain a more nutritious diet through normal channels of trade by increasing food purchasing power" such that participants could obtain eligible food items in exchange for food stamps at participating stores. 7 U.S.C. § 2011; see 7 U.S.C. § 2013. The Food Stamp Act prohibits stores from accepting food stamps for ineligible items and from trafficking-that is exchanging food stamp benefits for cash. See 7 U.S.C. § 2021(b)(3)(B). For a first offense of selling ineligible items by a poorly supervised employee, a store may be subject to a maximum disqualification of six months. See 7 C.F.R. § 278.6(e)(5). However, the penalty for a first trafficking offense is permanent disqualification, except that the Secretary shall have the discretion to impose a civil monetary penalty of up to $20,000 for each violation . . . in lieu of disqualification under this subparagraph, for such purchase of coupons or ...


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