### The Honorable James M. Moody, United States District Judg e 1 

### for the Eastern District of Arkansas. After conducting a bench trial, the distr ict court determined 2 

### that-- as the evidence was equally balanced--Haynes had failed t o carry this burden. The district court also vacated the DOA' s disqualification decision; remanded for further administrativ e proceedings addressing Haynes's request for an alternative m onetary sanction under 7 U.S.C. § 2021(a); and determined that the DO A should not recover on its False Claims Act counterclaim. ___________ No. 96-1468

___________ James Haynes, doing business * as Greg & Jim's Mercantile, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. United States Department of * Agriculture, Food & Nutrition * [UNPUBLISHED] Service, * * Appellee. *

___________ Submitted: December 2, 1996 Filed: January 29, 1997

___________ Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ PER CURIAM.

Ja mes Haynes, a retail store owner, appeals the district court's 1 conclusion that he bore the burden of proof in his challenge under 7 U.S.C

. § 2023(a) to the Depa rtment of Agriculture's Food and Nutrition Service's (DOA) decision to disqualify his store from participating in the food stam p program. 2

### -2-

This circuit has not yet ruled on this precise issue. In agreement with the Fifth Circuit, we now hold that aggrieved st ore owners bear the burden of proof in section 2023(a) challenges.

Previ ously, we have recognized that section 2023(a) provide s aggrieved store owners the right to de novo revi ew of DOA disqualification decisions. See Ghattas v. United States , 40 F.3 d 281, 286 (8th Cir. 1994) ("De novo review was part of the statute as initially enacted.") The Fift h Circuit has determined that aggrieved store owners bear the burden of proo f in se ction 2023(a) challenges. See Redmond v. United States , 507 F.2 d 1007, 1011-12 (5th Cir. 1975) (construing former § 2022, now § 2023(a ) (1977)); see also Warren v. United States , 932 F.2d 582, 586 (6th Cir

. 1991).

In Redmond , the court concluded that:
[B]y requiring the aggri eved store [owner] to file a complaint in the district court requesting the court to set aside th e agency determination, th e [Food Stamp] Act casts the burden of being the plaintiff on t he aggrieved store [owner] with all of the usual responsibilities of a plaintiff in obtaining relief from a court, including the burden of proving facts to sho w that he is entitled to relief. In other words, the agenc y act ion stands, unless the plaintiff proves that it should b e set aside.

Redmond , 507 F.2d at 1011-12. In reaching this conclusion, the court note d tha t the normal review of administrative determinations under th e Adm inistrative Procedures Act, 5 U.S.C. § 706(2)(E), requires th e application of the su bstantial evidence test. Redmond , 507 F.2d at 1011. The co urt reasoned that, by (implicitly) rejecting this standard o f judi cial review in the Food Stamp Act, Congress simply intended tha t district courts not be bound by the administrative record, and that both parties be allowed to introduce evidence not previously submitted to the agency. Id. at 1011-12.

### -3- The Fifth Circuit rejected the arguments that the trial shoul d proceed with the agency as the plaintiff and as if no agency action ha d been taken, concluding those approaches imputed to Congress the "`terrible intention'" that the administrative procedure be "`simply a roadblock to get to the District Court.'" Id. at 1012 (quoting district court). The Fifth Circuit determined that, although the district court was not bound by the administrative record, the record was entitled to some weight; and that, if the plaintif f did not put on any evidence, the record was enough to justify the district court in upholding the agency's action. Id.

We find this reasoning persuasive. Accordingly, we affirm th e judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.