Grocery Town Market, Inc. v. U.S.

• Decision Date: 20 May 1988
• Docket Number: No. 87-1268,87-1268
• Citation: 848 F.2d 392
• Parties: GROCERY TOWN MARKET, INC. and Dorfman, Earl, v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 392

848 F.2d 392

GROCERY TOWN MARKET, INC. and Dorfman, Earl, v. UNITED STATES of America, Appellant.

No. 87-1268.

United States Court of Appeals, Third Circuit.

Argued March 8, 1988.

Decided May 20, 1988.

Richard K. Willard, Ass. Atty Gen., Edward S.G. Dennis, U.S. Atty., Leonard Schaitman, Thomas M. Bondy (argued), Appellate Staff, Dept. of Justice, Civ. Div. Washington, D.C., for appellant.

Stanley Weinberg (argued), Philadelphia, Pa. for appellees.

Before SLOVITER, BECKER and COWEN, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

This appeal arises from an order of the district court which reversed the decision of the Secretary of Agriculture ("Secretary") to permanently disqualify Grocery Town Market, Inc. and its owner, Earl Dorfman (collectively "Grocery Town"), from future participation in the Food Stamp Program based on a trafficking violation. ¹ The disqualification was based on the Secretary's regulation set forth at 7 C.F.R. Sec. 278.6(f). The district court granted judgment in favor of Grocery Town since it determined that the regulation violated 7 U.S.C. Sec. 2021. Because we hold that Congress intended to disqualify permanently participating stores for any trafficking violation, we will uphold the Secretary's regulation and reverse the district court.

I.

Grocery Town participated in the Food Stamp Program since the program's inception in 1964. In 1984, the Food and Nutrition Service ("FNS"), the agency charged with administering the program, determined that Grocery Town's rate of coupon redemption was unusually high as compared to other area stores. Because high rates of redemption indicate that a store may be violating program guidelines, FNS decided to look into Grocery Town's operation. A FNS investigator visited the store on October 17, 1984, and spoke to Dorfman. When the investigator mentioned the high rate of redemption, Dorfman attributed it to the large number of patrons who used food stamps.

On February 8, 1985, acting on an anonymous tip that the store was allowing patrons to purchase ineligible items with food stamps and was buying food stamps at a discount from drug addicts, a second FNS official visited the store. Dorfman again denied any program violations and discounted the tip as that of a competitor or a disgruntled customer. Lingering doubts about the store's compliance, however, prompted FNS to send an undercover agent to the store on several occasions during late 1985 and early 1986. On October 22, October 24, and October 29, 1985 and January 16, 1986, an agent was able to purchase ineligible items with coupons. And on February 5, 1986, an agent was again able to purchase several non-food items with food coupons, and was also able to sell $35 in food stamps for $22.50 in cash.

As a result of the investigation, FNS charged the store and its owner with both trafficking and accepting food coupons for ineligible items. After offering Dorfman the opportunity to present his case, the Secretary disqualified Grocery Town on the basis of 7 C.F.R. Sec. 278.6(e)(1)(i), which mandates automatic disqualification for any trafficking offense. ² Grocery Town appealed the decision through administrative channels, arguing that the disqualification was "drastically harsh and disproportionate punishment under the circumstances," App. at 39, and would put the store out of business and thereby impose a hardship on employees and area patrons. When the appeal was denied, Grocery Town filed an action in the United States District Court for the Eastern District of Pennsylvania, alleging that the regulation violated 7 U.S.C. Sec. 2021(a) because it did not allow the Secretary to consider a monetary penalty in lieu of disqualification.

The district court agreed that the regulation's mandatory disqualification provision violated section 2021(a) because, in its view, that section did not mandate automatic disqualification for a trafficking offense. Rather, the court determined that section 2021(a) allowed the Secretary to impose an alternative monetary penalty in lieu of disqualification where a hardship situation exists. The court concluded that the regulation violated section 2021 because its inflexible mandate impermissibly removed the Secretary's discretion under the statute to impose an alternative statutory penalty. The government appeals to this Court.

II.

The question before this Court is whether the blanket permanent disqualification required by the Secretary's regulation violates section 2021. ³ The scope of our review of the district court's interpretation of the statute is plenary. Creque v. Luis, 803 F.2d 92, 93-94 (3d Cir.1986).

A.

When presented with a challenge to an administrative agency's construction of a statute that the agency is charged with administering, the Supreme Court has stated that a court must address the following issues:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984)(footnotes omitted); see also Kean v. Heckler, 799 F.2d 895, 899 (3d Cir.1986). In our view, both the language of the statute and the legislative history clearly reflect that Congress intended to exclude first time traffickers from future participation in the Food Stamp Program.

Turning first to the language of the statute, section 2021(a) gives the Secretary the option of, but does not require, imposing a monetary penalty in lieu of a period of disqualification if hardship would result. ⁴ The operative language is "[a]ny approved retail food store ... may be disqualified ... or subjected to a civil money penalty ... if the Secretary determines that its disqualification would cause hardship...." 7 U.S.C. Sec. 2021(a) (emphasis added). In most (i.e., non-trafficking) cases, we would agree with Grocery Town that the Secretary has discretion to impose an alternative monetary penalty in lieu of a period of disqualification. However, any such discretion where a trafficking offense is involved is foreclosed by section 2021(b), ⁵ which mandates that "[d]isqualification under subsection (a) ... shall be ... permanent upon the ... first occasion of a disqualification based on trafficking." 7 U.S.C. Sec. 2021(b) (emphasis added). We read section 2021(b)(3) as removing any discretion the Secretary was granted by section 2021(a) to set a penalty in trafficking cases by requiring disqualification, even for a first trafficking offense in a hardship situation. Thus, in our opinion, the language of section 2021(b)(3) supports the Secretary's regulation.

In addition (and contrary to the view of the district court), we find in the legislative history of section 2021 an even stronger indication that Congress intended to permanently disqualify participating stores from further participation in the Food Stamp Program when they engage in any trafficking activity, even where hardship would be visited on those served by the store. Prior to 1982, the Food Stamp Act contained no provision for permanent disqualification. ⁶ However, concerned in general with the large number of reported violations by participating stores and the "high percentages of violations among stores investigated" by the Department of Agriculture, S.Rep. No. 504, 97th Cong., 2d Sess. 63 reprinted in 1982 U.S. Code Cong. & Admin. News 1641, 1701 ("Senate Report"), Congress amended the Act in 1982 to require higher monetary penalties and longer periods of disqualification than those set forth at that time in the regulations for violations of the Act. Most relevant to our inquiry, the 1982 Amendments added the sanction of permanent disqualification for trafficking and multiple non-trafficking offenses.

With respect to the amendments to the penalty provisions, the introduction to the Senate Report states that

[t]he recommendations would also set by statute the periods of disqualification applicable to retail food stores.... The retail food store would be permanently disqualified for ... trafficking in food stamps or authorization documents.

Id. at 22, reprinted in 1982 U.S. Code Cong. & Admin. News, at 1660 (emphasis added). According to the Senate Report, the penalties for trafficking were increased because the Senate Committee on Agriculture, Nutrition, and Forestry was

concerned by the increasing frequency in which trafficking cases are reported and verified.... For this reason, the Committee adopted a stringent requirement that a store would be permanently disqualified upon a disqualification based on trafficking.

Id. at 63, reprinted in 1982 U.S.Code Cong. & Admin.News, at 1701. The House-Senate Conference Committee's interpretation was no different, as noted below:

The Senate amendment also sets, by statute, the periods of disqualification applicable to [retail food stores or wholesale food concerns].... A retail food store or wholesale food concern would be permanently disqualified ... for trafficking in food stamps or authorization documents.

H.R.Conf.R. No. 759, 97th Cong., 2d Sess. 70, reprinted in 1982 U.S. Code Cong. & Admin. News 1846, 1865 (emphasis added).

Grocery Town argues that the language of section 2021(a) requires the Secretary to consider a monetary penalty in lieu of permanent disqualification. However, we find...