ARCY PON, DBA Francys Fish Mart v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARCY PON, DBA Francys Fish Mart,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
No. 20-17153
D.C. No. 1:17-cv-00086
MEMORANDUM*
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge, Presiding
Submitted October 12, 2021**
Honolulu, Hawaii
Before: O’SCANNLAIN, MILLER, and LEE, Circuit Judges.
Arcy Pon appeals from the district court’s grant of summary judgment for
the Government in Pon’s challenge to the decision to disqualify her store from
participating in the Supplemental Nutrition Assistance Program (“SNAP”). As the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
OCT 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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facts are known to the parties, we repeat them only as necessary to explain our
decision.
In her application to accept SNAP payments at her store, Pon agreed “to
comply with all statutory and regulatory requirements associated with participation
in the” SNAP. Those statutory and regulatory requirements demonstrate that
SNAP “trafficking”—that is, exchanging SNAP funds “for cash or consideration
other than eligible food”—is strongly disfavored. See 7 C.F.R. § 271.2. Indeed, a
store is permanently disqualified from participating in the SNAP if it commits even
a single “trafficking” violation. 7 U.S.C. § 2021(b)(3)(B); 7 C.F.R.
§ 278.6(e)(1)(i). Moreover, the Food and Nutrition Service, which administers the
SNAP, is entitled to rely on “evidence obtained through a transaction report” in
identifying potential trafficking and determining whether to disqualify a store.1
7 U.S.C. § 2021(a)(2).
To that end, to support its summary judgment motion, the Government
presented evidence regarding hundreds of transactions, alleging trafficking at
Pon’s store. The Food and Nutrition Service agent who investigated Pon’s store
explained in detail how the agency determined these transactions indicated
1 Accordingly, although a store is entitled to respond to the agency’s initial
allegations, see 7 C.F.R. § 278.6(b)(1), the SNAP’s statutory and regulatory
framework allows the agency to make circumstantial allegations that may result in
a store’s disqualification without the due process protections available in the
criminal context.

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trafficking, including the presence of transactions in rapid succession, multiple
transactions using the same EBT account, and unusually large transactions.
Pon attempted to create a genuine dispute of material fact as to the agency’s
determination using only her own page-and-a-half declaration—even though she
was free to introduce evidence beyond the administrative record, see 7 U.S.C.
§ 2023(a)(15), and even though she bore the burden of proving “that the violations
did not occur,” see Kim v. United States, 121 F.3d 1269, 1272 (9th Cir. 1997).
Pon’s declaration, “lacking detailed facts and any supporting evidence, is
insufficient to create a genuine issue of material fact.” See Fed. Trade Comm’n v.
Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997).
Because Pon “failed to make a sufficient showing on an essential element of
her case,” the Government was entitled to summary judgment. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986).
AFFIRMED.

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