Irobe v. US Dept. of Agriculture , 890 F.3d 371 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1943
MAHDI IROBE and SUUQA BAKARO GROCERY,
Plaintiffs, Appellants,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Selya and Kayatta,
Circuit Judges.
Sarah A. Churchill, with whom Nichols & Churchill, P.A. was
on brief, for appellants.
John G. Osborn, Assistant United States Attorney, with whom
Halsey B. Frank, United States Attorney, and Sheila W. Sawyer,
Assistant United States Attorney, were on brief, for appellee.
May 21, 2018
SELYA, Circuit Judge. This appeal challenges a finding
by the United States Department of Agriculture (USDA), echoed on
de novo review by the district court, that a grocery store
unlawfully trafficked in Supplemental Nutrition Assistance Program
(SNAP) benefits. See 7 U.S.C. § 2023(a)(13), (15). Our task
requires us to decide, among other things, the allocation of the
burden of proof in a civil action brought pursuant to 7 U.S.C.
§ 2023(a)(13) — a question of first impression in this circuit.
After careful consideration, we hold that the district court
properly placed the burden of proof on the grocer. See Suuqa
Bakaro Grocery v. Dep't of Agric., No. 2:16-cv-254, 2017 WL
3141919, at *5 (D. Me. July 24, 2017). We further hold that the
court, acting at the summary judgment stage, supportably
determined that the grocer had failed to carry this burden. See
id. Consequently, we affirm the judgment below.
I. BACKGROUND
The plaintiffs are Mahdi Irobe and Suuqa Bakaro Grocery
(a grocery store in Lewiston, Maine, catering principally to that
community's sizeable Somali immigrant population). For ease in
exposition, we refer to the plaintiffs, collectively, as the
"Store."
Since we are tasked with reviewing the district court's
entry of summary judgment, we take the facts in the light most
congenial to the nonmovant (the Store). See McKenney v. Mangino,
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873 F.3d 75, 78 (1st Cir. 2017), cert. denied, 138 S. Ct. 1311(2018). The Store is diminutive: it is only about 800 square
feet in size, lacks shopping baskets or carts, and contains a
single 2.5-by-1.5-foot-long checkout counter. It carries minimal
amounts of fresh produce and frozen foods and does not offer many
of the staples commonly found in markets (such as baby food, eggs,
and fresh bread). In lieu of such staples, the Store offers Somali
delicacies like goat and camel meat, along with certain
nonperishables like sugar, flour, rice, pasta, and cooking oil.
The Store operates in what might be called a "no frills" fashion:
it does not have any optical scanning equipment, and it does not
use a cash register in processing SNAP transactions. Instead,
Irobe — the Store's owner and lone full-time employee — ordinarily
computes each customer's purchases using a calculator. When Irobe
cannot be at the Store, his brother-in-law pinch-hits for him.
On June 20, 2015, the USDA authorized the Store to deal
in SNAP benefits (commonly known as "food stamps"). Because this
authorization proved to be the first step down the road that led
to this litigation, we pause to acquaint the reader with the SNAP
framework.
Congress established SNAP "to safeguard the health and
well-being of the Nation's population by raising levels of
nutrition among low-income households." 7 U.S.C. § 2011; see 7
C.F.R. § 271.1. Authorized merchants may accept SNAP benefits in
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payment for certain food items. See 7 U.S.C. § 2013(a). The USDA
then redeems those benefits (as described below). See id.SNAP-qualified households receive electronic benefit
transfer cards (EBT cards), which are similar to debit cards and
may be used to purchase eligible foodstuffs at authorized stores.
In a typical SNAP transaction, a cashier rings up the total food
purchases, a household member pays using her EBT card through a
point-of-sale device, and the funds in the household's SNAP account
are electronically transferred to the store's bank account.
Households may use their monthly SNAP allotments to
procure food items that are suitable for "home consumption." 7
U.S.C. § 2012(k). They may not use their allotments to procure
cash, hot foods, or non-food items, even though such items may
frequently be available at grocery stores. See id. These
proscribed items include, for example, lottery tickets, alcoholic
beverages, tobacco, vitamins, toothpaste, and cosmetics. See 7
C.F.R. §§ 271.2, 278.2(a).
Trafficking in SNAP benefits is unlawful, see 7 C.F.R.
§ 278.2(a); see also 7 U.S.C. § 2021(a)(1), (b)(3)(B), and a store
engages in trafficking by accepting SNAP benefits in exchange for
cash or other proscribed items, see 7 C.F.R. § 271.2. For
instance, a store trafficks when it "accept[s] food stamps for
sales that never took place," allowing its customers to receive
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"cash rather than merchandise." Idias v. United States, 359 F.3d
695, 698-99 (4th Cir. 2004).
The Food and Nutrition Service (FNS) is the bureau within
the USDA charged with administering the SNAP regime. This bureau
maintains a searchable database containing the household, store,
date, time, and amount involved in each and every SNAP transaction.
If the FNS detects a statistically unusual pattern of SNAP
transactions at a SNAP-authorized store, it typically refers the
matter to a program specialist who arranges for a contractor to
visit the store and conduct an on-site investigation. After
completing her review of the relevant EBT data and whatever reports
emerge from the on-site investigation, the program specialist
makes a recommendation to the FNS section chief. If this
recommendation is for further action, the section chief sends a
charge letter detailing the allegations to the store and affords
the store an opportunity to respond. See 7 C.F.R. § 278.6(b).
Thereafter, the FNS issues its determination. See id. § 278.6(c).
Once the FNS has issued its determination, an aggrieved
store may prosecute an appeal to an administrative review officer.
See 7 U.S.C. § 2023(a)(3); 7 C.F.R. §§ 279.1(a)(2), 279.5. Upon
completion of his work, the review officer issues the final agency
decision. See 7 U.S.C. § 2023(a)(5); 7 C.F.R. § 279.5. The
governing statute empowers the USDA to impose a lifetime
program-participation ban on "the first occasion or any subsequent
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occasion" of trafficking, but such a ban is not an automatic
response to a program violation; rather, the USDA has discretion,
in lieu of such a ban, to levy civil monetary penalties under
certain circumstances. 7 U.S.C. § 2021(b)(3)(B); see 7 C.F.R. §
278.6.
With this backdrop in place, we return to the case at
hand. As of June 2015 (when the Store was first authorized to
participate in SNAP), there were approximately forty-five other
shops within a one-mile radius of the Store that accepted SNAP
benefits, including several larger ethnic Somali markets, a
Walmart Supercenter, and two chain supermarkets. In short order,
the FNS detected a suspicious pattern of transactions in the
Store's EBT database. This red flag sparked an investigation by
a program specialist, which included two on-site visits in the
fall of 2015. On December 17, the FNS sent a charge letter
detailing hundreds of sets of suspicious transactions that, in its
view, evinced trafficking.1 After receiving the Store's response,
the FNS made a determination, dated January 12, 2016, in which it
concluded that the Store had engaged in trafficking and permanently
disqualified the Store from SNAP participation.
1
We say "sets" because many (indeed, most) of the challenged
transactions comprise several items ostensibly purchased with SNAP
benefits.
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The Store seasonably requested an administrative review
of the FNS's determination. On April 22, 2016, an administrative
review officer upheld both the FNS's finding that the Store had
violated the SNAP guidelines and the order for permanent
disqualification.
The matter did not end there. The Store commenced an
action in Maine's federal district court, challenging the agency's
final decision. Following the close of discovery, the USDA moved
for summary judgment. The Store opposed the motion. The district
court heard oral argument, took the matter under advisement, and
subsequently wrote a thoughtful rescript explaining why it would
grant the motion for summary judgment. See Suuqa Bakaro, 2017 WL
3141919, at *5. This timely appeal ensued.
II. ANALYSIS
A party aggrieved by the USDA's final determination may
seek judicial review through "a trial de novo . . . in which the
court shall determine the validity of the questioned
administrative action in issue." 7 U.S.C. § 2023(a)(13), (15);
see 7 C.F.R. § 279.7. This de novo review is wider in scope than
that available under the Administrative Procedure Act. See Affum
v. United States, 566 F.3d 1150, 1160 (D.C. Cir. 2009); Ibrahim v.
United States, 834 F.2d 52, 53 (2d Cir. 1987). When a court
carries out such a review, it must reexamine "the entire matter"
instead of simply determining "whether the administrative findings
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are supported by substantial evidence." Ibrahim, 834 F.2d at 53(quoting Saunders v. United States, 507 F.2d 33, 36 (6th Cir.
1974)). The section 2023 inquiry is not restricted to the record
compiled before the agency but, rather, extends to the augmented
record compiled before the district court. See Affum, 566 F.3d at
1160; McGlory v. United States, 763 F.2d 309, 311 (7th Cir. 1985)
(per curiam).
The de novo review standard applies only to the agency's
liability determination, not to its choice of a sanction. See
Mass. Dep't of Pub. Welfare v. Sec'y of Agric., 984 F.2d 514, 520
(1st Cir. 1993). A reviewing court may disturb the agency's choice
of a sanction only if it finds that choice to be "arbitrary,
capricious, or contrary to law." Id.; see Estremera v. United
States, 442 F.3d 580, 585 (7th Cir. 2006).
When it commenced its civil action, the Store included
in its complaint a boilerplate allegation that the USDA's chosen
sanction (a lifetime program-participation ban) was arbitrary and
capricious. In proceedings before the district court, however,
the Store abandoned this allegation and challenged only the
agency's liability finding. The administrative record was
submitted to the district court, and the parties engaged in a
modicum of pretrial discovery. After the close of discovery, the
USDA moved for summary judgment. See Fed. R. Civ. P. 56(a). As
said, the district court granted that motion.
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We review an order granting summary judgment de novo.
See DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir. 2005). A
court may grant summary judgment only if the record, construed in
the light most amiable to the nonmovant, presents no "genuine issue
as to any material fact and reflects the movant's entitlement to
judgment as a matter of law." McKenney, 873 F.3d at 80; see Fed.
R. Civ. P. 56(a). A fact is "material" if it "has the capacity to
change the outcome of the [factfinder's] determination." Perez v.
Lorraine Enters., 769 F.3d 23, 29 (1st Cir. 2014). An issue is
"genuine" if the evidence would enable a reasonable factfinder to
decide the issue in favor of either party. See id.A party seeking summary judgment must, at the outset,
inform the court "of the basis for [its] motion and identif[y] the
portions of the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, if any, that
demonstrate the absence of any genuine issue of material fact."
Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir.
2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
So long as the movant crosses this modest threshold, the nonmoving
party "must, with respect to each issue on which [it] would bear
the burden of proof at trial, demonstrate that a trier of fact
could reasonably resolve that issue in [its] favor." Id. "Such
a showing 'requires more than the frenzied brandishing of a
cardboard sword.'" Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st
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Cir. 2014) (quoting Calvi v. Knox Cty., 470 F.3d 422, 426 (1st
Cir. 2006)). The nonmovant must point to materials of evidentiary
quality, see Garside v. Osco Drug, Inc., 895 F.2d 46, 49-50 (1st
Cir. 1990), and such materials must frame an issue of fact that is
"more than 'merely colorable,'" Flovac, Inc. v. Airvac, Inc., 817
F.3d 849, 853 (1st Cir. 2016) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986)). Put another way, summary judgment
is warranted if a nonmovant who bears the burden on a dispositive
issue fails to identify "significantly probative" evidence
favoring his position. Anderson, 477 U.S. at 249-50.
Of course, the summary judgment standard cannot be
applied in a vacuum. The resolution of such a motion may depend
on which party bears the burden of proof on a particular issue.
See, e.g., EEOC v. Unión Independiente de la Autoridad de
Acueductos y Alcantarillados, 279 F.3d 49, 55 (1st Cir. 2002);
Torres Vargas v. Santiago Cummings, 149 F.3d 29, 35-36 (1st Cir.
1998). Section 2023 does not indicate which party is to bear the
burden of proof. Thus, we must allocate this burden before
endeavoring to apply the summary judgment standard.
Faced with a statute that is silent about the burden of
proof, we start by recognizing that Congress legislates "against
a background of common-law adjudicatory principles." Astoria Fed.
Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108 (1991). With
this in mind, we presume — unless a contrary statutory purpose is
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apparent — that Congress has crafted a statute with the expectation
that settled common-law principles will apply. See id.In the American legal system, it is a settled principle
that the risk of failing to prove a claim ordinarily falls on the
claimant. See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56
(2005). It follows that when Congress authorizes a private right
of action without specifying which party bears the burden of proof,
the plaintiff bears that burden unless a statutory purpose to the
contrary is apparent. See Gross v. FBL Fin. Servs., 557 U.S. 167,
177 (2009). Thus, we must impose the burden of proof on the
claimant (here, the Store), unless there is sufficient evidence of
a contrary legislative intent.
We discern congressional intent by examining "the
language, structure, purpose, and history of the statute." United
States v. Gordon, 875 F.3d 26, 33 (1st Cir. 2017) (quoting McKenna
v. First Horizon Home Loan Corp., 475 F.3d 418, 423 (1st Cir.
2007)). That task is simplified in this instance, as the Store
has failed to muster even a sliver of persuasive evidence that
Congress intended to depart from the traditional rule. This
failure is unsurprising: Congress has deployed an elaborate
remedial regime to ensure that SNAP benefits "are used only to
purchase eligible food items, and are not exchanged for cash or
other things of value." Idias, 359 F.3d at 697. A store is in
the best position to show what actually happens on its premises.
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Allocating the burden of proof to the store tacitly recognizes
this reality and, in the bargain, incentivizes shopkeepers to
maintain accurate records of all SNAP transactions. A contrary
rule would have the perverse effect of rewarding businesses for
shoddy record-keeping. See generally Anderson v. Mt. Clements
Pottery Co., 328 U.S. 680, 687 (1946) (explaining, in analogous
context, that holding otherwise would "place a premium on an
employer's failure to keep records"); Crooker v. Sexton Motors,
Inc., 469 F.2d 206, 211 (1st Cir. 1972) (explaining, in labor-law
context, advantage of imposing evidentiary burden on party in the
"best position to maintain records").
Precedent bears out this intuition. All of the courts
of appeals that have addressed the burden-of-proof issue under
Section 2023 have placed the burden of proof on the party
challenging the USDA's finding of liability. See Fells v. United
States, 627 F.3d 1250, 1253 (7th Cir. 2010); Kim v. United States,
121 F.3d 1269, 1272 (9th Cir. 1997); Warren v. United States, 932
F.2d 582, 586 (6th Cir. 1991); Redmond v. United States, 507 F.2d
1007, 1011-12 (5th Cir. 1975). We join those courts and hold that
when a store challenges the USDA's determination that the store
trafficked in SNAP benefits, the store bears the burden of proving
by a preponderance of the evidence that its conduct was lawful.
In this case, the USDA submits that no genuine issue of
material fact exists with respect to the Store's liability for
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trafficking. In support, it relies primarily on transaction
reports derived from the EBT database, which analyzed all available
statistical information concerning the Store's handling of SNAP
benefits during the four-month period from July through October of
2015.
On de novo review, we give no weight to the agency's
finding that trafficking occurred. See Estrema, 442 F.3d at 585.
Even so, Congress has expressly authorized consideration of both
transaction information gleaned from EBT databases and reports of
on-site investigations as tools in the USDA's efforts to detect
fraud. See 7 U.S.C. § 2021(a)(2); see also 7 C.F.R. § 278.6(a).
As a general matter, such information and reports may be probative
of trafficking: in appropriate cases, they may be sources of
circumstantial evidence of fraud, sufficient to prove that a store
is trafficking in SNAP benefits. See Idias, 359 F.3d at 698.
Of course, common-sense inferences will almost always
play a major role in such cases. For instance, the factfinder may
reasonably infer trafficking when the redemption data shows that
a store regularly processes purported SNAP transactions for
significantly higher per-transaction amounts than nearby stores
offering similar wares. See Fells, 627 F.3d at 1254. So, too,
the factfinder may reasonably infer trafficking when the
redemption data shows that a small store with a selective inventory
and limited staffing regularly processes purported high-dollar
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SNAP transactions in rapid succession. See Idias, 359 F.3d at
698.
In the case at hand, the EBT database discloses more
than 400 sets of suspicious transactions at the Store. A
representative sampling suffices to illustrate the point:
 On 51 separate occasions, households used up
at least 90 percent of their monthly SNAP benefits
in fewer than nine hours.2 Historical data
indicates that it is markedly inconsistent with the
normal shopping behavior of SNAP-qualified
households to deplete all or most of a household's
allotment in one fell swoop. According to an
unchallenged government analysis of SNAP-related
shopping patterns, it usually takes a minimum of
two weeks for a SNAP-qualified household to deplete
80 percent of its monthly allotment and three weeks
to deplete 90 percent of that allotment.
 During the relevant period, the Store engaged
in 205 high-dollar SNAP transactions, that is,
transactions ranging from $174 to $1,050. Yet,
2
Common sense suggests it is especially unlikely that
SNAP-qualified households would exhaust their allotments so
quickly at the Store, given the Store's limited inventory, the
lack of either shopping carts or baskets, the absence of optical
scanning equipment, and the tiny checkout counter.
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historical data indicates that, during 2015, the
average SNAP transaction in the Lewiston area was
about $45.
 With respect to multiple purchases in quick
succession, 103 pairs of SNAP transactions were
made on the Store's point-of-sale device during the
relevant period in under nine minutes. These
paired transactions included 21 pairs of
transactions completed in 60 seconds or less and
four pairs of transactions completed in under 39
seconds. Given normal shopping behavior, the
practical realities of shopping at the Store, see,
e.g., supra note 2, and the availability of only a
single clerk, these paired transactions raise
obvious concerns.
To be sure, all of this evidence is circumstantial, but
its cumulative effect is powerful. Irregular patterns may emerge
in virtually any retail operation, but a drumbeat of irregularities
can be highly probative of unlawful conduct. See Idias, 359 F.3d
at 698; cf. Atieh v. Riordan, 797 F.3d 135, 140 n.4 (1st Cir. 2015)
(noting, in different context, that pattern of irregularities may
support inference of fraud). 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
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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).3 See Anderson, 477 U.S. at
249-50.
The Store has failed to carry this burden. In
particular, it has failed to challenge in any meaningful way the
agency's data-compilation methodology, the accuracy of the
compiled EBT data concerning SNAP transactions at the Store, and
the reliability of the agency's historical data.4 Nor has the
3 The district court cited with approval an unpublished Sixth
Circuit opinion stating that to thwart summary judgment, a store
"must raise material issues of fact as to each alleged violation."
Suuqa Bakaro, 2017 WL 3141919, at *3 (quoting Ganesh v. United
States, 658 F. App'x 217, 219 (6th Cir. 2016) (emphasis in
original)). We are skeptical of any interpretation of this
statement that would always require a transaction-specific
rebuttal of every transaction. One can easily imagine, for
example, that a series of transactions labeled as suspicious for
a certain reason (say, no other similar stores have transactions
that are as large) could each and all be rebutted by proof that
the reason for suspecting them is wrong (say, there are other
stores that charge as much). In either case, though, the accused
store would have to proffer competent evidence, not merely
conclusory generalizations. Here, the Store's evidence is so
unfocused and so weak that we need not delve more deeply into the
Sixth Circuit's statement.
4 This is not to say that the Store goes down without a fight:
it does argue in its appellate brief that the EBT transaction data
is "suspect." But this argument is wholly conclusory, and the
Store fails to identify any evidence supporting its conclusion.
Where, as here, the nonmoving party bears the burden of proof on
a material issue, that party cannot forestall summary judgment
simply by relying on its lawyer's unsupported arguments. See
Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991).
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Store attempted to establish the bona fides of so much as a single
transaction pinpointed by the agency (even though each of those
transactions is clearly linked to a specific household).
Indeed, the Store relies almost entirely on Irobe's
deposition testimony, in which he offered generalized,
non-specific observations about his customers' shopping habits.
He testified, for example, that his customers sometimes would
purchase expensive items (such as goat or camel meat) or buy rice
in bulk. This testimony, the Store argues, creates a genuine
dispute about whether the 205 EBT transactions exceeding $174 were
for SNAP-eligible foodstuffs. Similarly, Irobe testified that
customers sometimes arrived in large groups, due to limited means
of transportation. This testimony, the Store argues, is sufficient
to create a genuine dispute about whether the 103 pairs of
rapid-succession transactions were legitimate.
These arguments lack force in the face of the ample
transactional data. It is common ground that "[t]he mere existence
of a scintilla of evidence in support of the plaintiff's position"
is not enough to ward off summary judgment. Anderson, 477 U.S. at
252. Where the plaintiff has the burden of proof, "there must be
evidence on which the [factfinder] could reasonably find for the
plaintiff." Id. There is no such evidence here — and generalized
conclusions, such as Irobe has proffered, cannot fill the void.
See DePoutot, 424 F.3d at 117 (requiring "[f]actual specificity"
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because "a conglomeration of 'conclusory allegations, improbable
inferences, and unsupported speculation' is insufficient" to ward
off summary judgment (quoting Medina-Munoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990))).
Struggling to gain some traction, the Store cites
another passage from Irobe's deposition. There, he suggested that
"most" nearby ethnic Somali stores did not carry expensive goat or
camel meat. In the Store's view, this testimony explains why it
processed so many high-dollar transactions (each of which exceeded
the average SNAP transaction in the Lewiston area by over $125).
This explanation does not hold water. After all, Irobe
offered no foundation upon which his surmise might plausibly rest.
Nor is this gap bridged by other evidence: the record is barren
of any competent proof reflecting what inventory was carried by
these other emporia. A court need not "take at face value" a
party's "subjective beliefs," even if offered in the form of
testimony, if those subjective beliefs are "conclusory,"
"self-serving," and lack factual support in the record.
Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41, 47 n.1 (1st Cir.
2008). This is such an instance: Irobe's unsupported opinion
about the limited availability of particular merchandise in the
Lewiston area is simply not a game-changer in the summary judgment
calculus.
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Finally, the Store trumpets a series of receipts
documenting its purchase of foodstuffs from vendors between May of
2015 and December of 2015. The Store asserts that these receipts
establish a factual dispute about whether it "was legitimately
selling groceries to its customers." This assertion misses the
mark: the Store has made no showing as to how the amount of
inventory reflected by the receipts relates to the total volume of
the Store's sales during the relevant period. What is more, the
mere fact that the Store bought some SNAP-eligible foodstuffs and
sold them to SNAP-qualified households does not insulate it from
a finding of trafficking. Merchants may conduct legitimate
business side-by-side with unlawful trafficking. Nothing about
the purchases evidenced by the receipts impugns the agency's
finding that, on many occasions, the Store trafficked in SNAP
benefits.
We recognize that SNAP is an important part of the safety
net woven by Congress for persons in need. The program's efficacy,
though, depends in large measure on the good faith of both
SNAP-authorized merchants and SNAP-qualified households. The USDA
is charged with ensuring that merchants and food-stamp recipients
alike color between the lines. When the evidence suggests that
program rules are being flouted, agency action is appropriate.
So it is here: the USDA identified hundreds of sets of
suspicious transactions, strongly indicative of trafficking. By
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means of this showing, it marshalled a robust (though
circumstantial) case of trafficking. The Store has not
meaningfully rebutted the compelling inferences suggested by the
agency's mass of circumstantial evidence. Even when drawing all
reasonable inferences in favor of the Store, no rational factfinder
could conclude that the Store had demonstrated by a preponderance
of the evidence that the finding of trafficking was improvident.
It follows inexorably, as night follows day, that the district
court did not err in granting summary judgment in favor of the
USDA.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the entry of summary judgment is
Affirmed.
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