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THABIT v. UNITED STATES DEPT.

April 3, 2003

MOHAMED MOHAMED THABIT AND AMIRAH ATTAYED THABIT, PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, FOOD AND NUTRITION SERVICE, DEFENDANT.



The opinion of the court was delivered by: Samuel Conti, United States District Judge.

JUDGMENT

For the reasons stated in the Court's Order Re: Defendant's Motion for Summary Judgment, judgment is entered in favor of Defendant.

IT IS SO ORDERED.

ORDER RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

On January 17, 2002, the United States Department of Agriculture's Food and Nutrition Service ("FNS" or "Defendant") disqualified Cilles Liquor, a food and convenience store owned by plaintiffs Mohamed Mohamed Thabit and Amirah Attayed Thabit ("Plaintiffs"), from participation in the food stamp program. After an unsuccessful administrative appeal, Plaintiffs appealed the disqualification to this Court. For the following reasons, the Court now grants Defendant's motion seeking summary judgment upholding the disqualification.

II. BACKGROUND

In 1998, Plaintiffs purchased Cilles Liquors, a liquor and convenience store in Oakland. The previous store owners had participated in the food stamp program, and Plaintiffs applied to accept food stamps. In June 1998, FNS approved their application. Originally Mohamed Thabit and his brother Ahmed Attayib operated Cilles Liquors alone, but in January 1999, according to Mohamed Thabit, his son Mutahar began working with Ahmed Attayib on afternoon/evening shifts.

From October 11, 2000 until April 4, 2001, an FNS investigator made ten visits to Cilles Liquors. Her reports state that during those visits she attempted to buy ineligible items and/or traffic in food stamps with the store clerks. On the first two visits, Mutahar Thabit allowed the investigator to purchase both eligible and ineligible items using food stamps. AR at 109-14. On the third visit, Mohamed Thabit refused to sell ineligible items. AR at 115-17. On subsequent visits, the investigator again purchased ineligible items, including liquor, from Mutahar Thabit, and on the last three visits Mutahar Thabit allowed her to exchange food stamps for cash. AR at 118-40. According to the investigator, another clerk was present during two of these trafficking incidents.

The investigator's reports do not state that Mohamed Thabit ever sold ineligible items or trafficked. Likewise, they do not state that trafficking or ineligible sales ever occurred while Mohamed Thabit was in the store. They do state that Mutahar Thabit never refused her requests to make ineligible purchases or sell food stamps.

On July 26, 2001, following these visits, another FNS investigator visited Cilles Liquors and introduced herself to Mohamed Thabit. Her report states that she informed him of an investigation against him and described its nature; according to Thabit, she informed him that his son had sold an ineligible item — a "wet burrito" — to a customer using food stamps. AR at 141; Thabit Decl. at 15. She then told him he would receive a letter in approximately sixty to ninety days. Mr. Thabit, according to the investigator's report, appeared to become angry with his son; according to his declaration, Mr. Thabit responded by telling his son that he could no longer work at the store or live in his house.

On November 16, 2001, FNS sent Plaintiffs a certified letter documenting the investigation and informing them that they might face permanent disqualification from participation in the food stamp program, that they had ten days to respond, and that they might, upon demonstration that they had an adequate program to prevent illegal sales involving food stamps, seek to have the penalty reduced from permanent disqualification to a monetary fine. AR at 37-38.

Plaintiffs sought and received extensions of the deadline responding to this letter, and they filed their written response on December 28, 2002. In the response, Mohamed Thabit noted that he had found no overages (excess income, which might be expected if a food stamp had been traded for less than its full value in currency) in the cash registers on the days the alleged violations occurred. He urged that a monetary penalty was appropriate because he was personally unaware of and uninvolved in the alleged misconduct, because he was not warned by FNS of the alleged misconduct, because he had fully cooperated with the investigator, and because he had an effective program in place to prevent violations. AR at 28-33. Describing the program, Thabit stated:

I have established a policy in the store regarding accepting food stamps, anybody working in the store has to have good knowledge about food stamp regulations. I do a walkthru with any new clerk pointing out all the items and whether it is eligible or not, and after a complete walkthru, I test the individual making sure that he knows all the regulations he is supposed to know. No one works the cash register without this training.
AR at 33. Thabit did not, however, submit any ...

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