the next case on your market versus united states solace for a seat that among the dos makes the poison the alleged poison in this case is a fraud that's been alleged by the government but what we have as far as the evidence goes are just innocuous droplets of water like we're experiencing today outside the only poison is the violence if that is seven u s c twenty twenty one a two which calls which might be a content base regulation but as it's in force it's arbitrarily enforced what about the evidence be that the patterns of transactions repeat rapid transactions showing the same household the high dollar value given money market signs and inventory comparisons to similar markets in the area i can address all those questions without a problem i can tell you first and foremost it seems one of the just the you know according to minister to record the decision they were saying that this is a quote end quote a typical grocery store first and foremost they don't and present any evidence of what the typical grocery store is and this is not you know we're in vermont you know we believe in this we believe in the system of farm to table it's very important to us to be organic and this data that they keep saying is inept it's inadequate and i'll tell you  enforcement when it comes to food stamps but the problem because part of the evidence they can use is yes donna kupp waste and we don't disagree that that's what the statute says but the regulation says i'm sorry for the statute the regulation but the problem is the data is not complete so now you have a business that is catering minorities and just because they're not in a farmer's market which you know arbitrarily or not does not usually for you know support the businesses that we're supporting and then you have a data that ignores all that and then we end up with this what we consider any you know an unconstitutional to the ledge discrimination i mean you know use it but do you feel that farmers for an argument of discrimination you know this it's not about discrimination it's about the arbitrary enforcement and there is the discriminatory practice becomes we don't know you that's the problem  giving us arbitrary enforcement requires really up a much you know for us to say that they are arbitrary has to be something that makes no sense at all discrimination is something we can step into more so bad are you have a much harder time if you're just saying arbitrary force you know i agree about you know it's part of the totality of circumstances for us about wyvis administrative decision only we're only data complying with certain businesses and that's discriminatory it has a discriminatory effect that's just a reality i mean we are dealing with a situation where some businesses will get audited and some won't especially are you we do not have the burden of proof we are taking away somebody's life liberty or pursuit of happiness specifically life and you know the pursuit of happiness including the freedom to choose the way you want to spend your life trying to benefits transfer your food stamps you know we also believe that that's an expression protected under the first amendment that's another issue in itself but we should have the burden of proof that's not what that's not what seven us season yes you're more technical first  of the government's fifty six point one statement yes we did we were specifically filing objections three four and six and we can just go back to you know the government keeps claiming that there were no objections that is that is actually very inaccurate because from the beginning at the administrative level we never had they they got that they got her objections even though we were not the attorneys at the point they got the objections from the store owner saying look these are ledgers these are people that we've given these were trafficking because we keep trying to tell this was from the beginning we've always stated that these were not trafficking transactions or unusual transactions or easy explain because we were giving you lead you to dispute the accuracy of the transaction reports but this is where we were working in a vacuum we don't know the exact household and i don't know how we would go about determining exactly when these numbers came out i mean all these numbers to us i mean number what it is i mean that's part of it but i mean it's more than one as i as i said we have a discriminatory fact that we have we have a process that is not allowing someone to protect their due process rights it's shifting the burden of proof and it's asking minorities when give explanations as being completely ignored we have never had what i you know you know one thing i learned if you're ever in default you always say one thing confrontation cause you know we've never had the opportunities look at any witnesses so who had any cases that have morning your honors my name is melissa rinaldo i'm assisting united states attorney for the district of vermont this is a food stamp case now known as snap case and the decision of the district court should be a here because the district court conducted it in over a review of all the evidence including post hearing evidence submitted by not a market and properly concluded that there was no dispute as to any material fact and that it is more likely true th i do because in this case there was no dispute about the reports the trafficking evidence is strong and it's undisputed the  that may no suffice to be if it is fear but you may say that it may raise at least the question of fact if it is your burden and i'd like you to answer why that is no well first of all your honor there is no evidence in the record whatsoever there's to establish that this market acts as a farmer's market when farmers markets are dealing with local produce local food and there are tokens that when someone who has benefits purchases tokens to use at a farmer's market they do that but th is a relevant question ye that's correct and this is an urban store vermont has a lot of rural areas but this area is an urban area this is right outside the city of burlington when you ski itself is a city there are  twenty one or twenty two markets or not markets but stores in that one or two mile radius of this store where a beneficiary can use their snap benefits there are so this this is more an urban setting and when you look at the data that the government compiled with respect to the redemption behavior in other stores in comparison to not be a market not a market is off the charts there i think sixteen thousand dollars worth of redemptions as opposed to five thousand dollars at a very similar store selling similar food similar size in the same period of time so the evidence itself was which is uncontroverted is strong in this case that there was trafficking going on and the government uses the all of the e v t data that it receives from all of the households throughout the country and there are a lot of states that are similar to remonde and so you can and they all of the data that is is used compiled and analyzed and the government is allowed by statute to use this data to find and evaluate the anomalies and to find where there are unexplained patterns but that's not always and your argument is that with the store owner's son in law who was one of the tos clerks who testified that contradictory to how the owner presented his case to the to the agency the when he was interviewed the store clerk said that we don't allow people to buy things on credit and we don't round up now that's completely opposite we got a probably a fifty page ledger from the owner once he was trying to explain all of this anomalous activity we get a fifty page ledger of supposed credit transactions and so that the store owner has written the stant and supposedly knows which one of his customers is buying on credit so it's just that misstates the record to say that the store owner doesn't know who these households are at the end of their argument opposing counsel said that the procedure for government allegation below but there are at least two courts the ember him case and the redmond case that were decided i believe both were circuit court decisions and both said that the process provided here by the statute suffices for due process it and in this case the store owner clearly had numerous opportunities before the agency to present documentation and to explain if these are trafficking  opportunity for a store owner to take the deposition of yes there is that offer to it it's not before the agency but the process involved here is theirs and a process before the agency and then once the agency decision is made the store owner has the opportunity to challenge that in court by filing a complaint and that's what the plaintiffs did here the insuring court is there the ability to take up is absolutely there was was a request made here for deposition none whatsoever of the evidence and not just accept this isn't a record review case that there was a period for allow for absolutely free and government seek any discovery no we did not and neither side saw we did not seek any discovery because we felt that the i don't have that offhand i'm sorry there are no ifs or there persuasive but not bug correct and also back to your honor's point about the burden of proof that's correct the second circuit has not ruled on the issue of who has the burden of proof us case and then the just this past fall september twenty sixteen the case out of the district of connecticut those cases in addition the fifth circuit in the redmen case the seventh circuit in the fells case the ninth circuit in the kim case the sixth circuit in the warring case those cases have all held that the burden of proof the statute puts the burden of proof the burden of proof is still on the plaintiff to prove their case and every single element of its ca if the court has no further questions thank you thank you very much will your rebuttal you know they keep talking about normal nobody came in as an expert to say what a normal business is and it seems when i listen to the government once numbers tell you why i'm sitting here standing here in front of you you know what my classmate got look there's fifty of her lawyers in a block of where i work ok they chose me there's a reason i choose to go to a certain store whether i like the owner whether i like the clerk whether i like the product and sometimes maybe i want to taking taking the number and taking the numbers as a whole what i don't recall sixteen thousand versus five thousand average doesn't that tell us something you know he said the government said i don't have an expert i don't have somebody come in and say you know i've done a data analysis of all the stores and i can it's just in there too is that you're not you know like you know i just completely disagree with go around asking other grocery stores how is it a due process violation when you have the opportunity to ask for a deposition from the governments that have someone so you can question about the data and you don't do so because you're depriving me of a life liberty and pursuit of can make sure that the penalty was appropriately assigned and if you take part in that process we can then say the process was adequate or not the findings were adequate or not but  rather difficult for us to say that you were deprived something improperly when you take no advantage of a ways for our to question well i think we took the complete advantage because we repeatedly said that these ledgers explain we extend credit and that's why the numbers of transactions  so bulky because we did when we would wait till the abt cards were were really written we supplied try to find out one final argument the government talks about how they interview the clerk let's just get something straight every person that works in that store is not fluent in english the questions that were asked by this person who went on say first of all doesn't even live in vermont does not know the local businesses come from virginia and all the son is telling my iraqi client hey you know you're your answers don't match we don't even know if they understood yet they don't we don't know if they