Kulkin v. Bergland

Decision Date15 July 1980
Docket NumberNo. 80-1093,80-1093
PartiesDonald KULKIN, etc., Plaintiff, Appellant, v. Robert BERGLAND et al., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Constance A. Fitzgerald, Boston, Mass., with whom DiMento & Sullivan, Boston, Mass., was on brief, for plaintiff, appellant.

Charles K. Mone, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for defendants, appellees.

Before CAMPBELL and BOWNES, Circuit Judges, and DAVIS, * Judge, U.S. Court of Claims.

LEVIN H. CAMPBELL, Circuit Judge.

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.

1. The Violations

In support of its motion for summary judgment, the government submitted an affidavit from a Food and Nutrition Service S 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.

2. The Sanction

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 state 9 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...

To continue reading

Request your trial
107 cases
  • Huggins v. United States
    • United States
    • U.S. District Court — Northern District of Mississippi
    • March 14, 2012
    ...United States, 442 F.3d 580, 585 (7th Cir.2006); Woodard v. United States, 725 F.2d 1072, 1077 (6th Cir.1984) (citing Kulkin v. Bergland, 626 F.2d 181, 184 (1st Cir.1980)); Cross v. United States, 512 F.2d 1212, 1218 (4th Cir.1975) (en banc).2 The district court decides only whether the age......
  • Doaa S. Madi & Hma, Inc. v. United States, Civil Action No. 3:16-cv-30064-KAR
    • United States
    • U.S. District Court — District of Massachusetts
    • June 26, 2018
    ...2000) (citing Broad St. Food Mkt., Inc., 720 F.2d at 220; Collazo v. United States, 668 F.2d 60, 65 (1st Cir. 1981); Kulkin v. Bergland, 626 F.2d 181, 184 (1st Cir. 1980)). See Irobe, 890 F.3d at 377. The First Circuit recently held that in an action commenced pursuant to 7 U.S.C. § 2023(a)......
  • Anton v. U.S.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • September 30, 2002
    ...is subject to very limited judicial review." Woodard v. United States, 725 F.2d 1072, 1077 (6th Cir.1984) (citing Kulkin v. Bergland, 626 F.2d 181, 184 (1st Cir. 1980)); Martin v. United States, 459 F.2d 300, 301-02 (6th Cir.), cert. denied, 409 U.S. 878, 93 S.Ct. 129, 34 L.Ed.2d 131 (1972)......
  • Huggins v. United States, CIVIL ACTION NO.: 1:10-CV-00274-GHD-DAS
    • United States
    • U.S. District Court — Northern District of Mississippi
    • March 13, 2012
    ...States, 442 F.3d 580, 585 (7th Cir. 2006); Woodard v. United States, 725 F.2d 1072, 1077 (6th Cir. 1984) (citing Kulkin v. Gergland, 626 F.2d 181, 184: (1st Cir. 1980)); Cross v. United States, 512 F.2d 1212, 1218 (4th Cir. 1975) (en banc).2 the district court decides only whether the agenc......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT