The Honorable James M. Moody, United States District Judge

1

for the Eastern District of Arkansas. 

 After conducting a bench trial, the district court determined 2

that--as the evidence was equally balanced--Haynes had failed to

carry this burden. The district court also vacated the DOA's

disqualification decision; remanded for further administrative

proceedings addressing Haynes's request for an alternative monetary

sanction under 7 U.S.C. § 2021(a); and determined that the DOA

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Agriculture, Food & Nutrition * [UNPUBLISHED]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.

James Haynes, a retail store owner, appeals the district court's1

conclusion that he bore the burden of proof in his challenge under 7 U.S.C.

§ 2023(a) to the Department of Agriculture's Food and Nutrition Service's

(DOA) decision to disqualify his store from participating in the food stamp

program.2
-2-

This circuit has not yet ruled on this precise issue. In agreement with

the Fifth Circuit, we now hold that aggrieved store owners bear the burden

of proof in section 2023(a) challenges. 

Previously, we have recognized that section 2023(a) provides

aggrieved store owners the right to de novo review of DOA disqualification

decisions. See Ghattas v. United States, 40 F.3d 281, 286 (8th Cir. 1994)

("De novo review was part of the statute as initially enacted.") The Fifth

Circuit has determined that aggrieved store owners bear the burden of proof

in section 2023(a) challenges. See Redmond v. United States, 507 F.2d

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 aggrieved store [owner] to file a complaint

in the district court requesting the court to set aside the

agency determination, the [Food Stamp] Act casts the burden of

being the plaintiff on the 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 show

that he is entitled to relief. In other words, the agency

action stands, unless the plaintiff proves that it should be

set aside.

Redmond, 507 F.2d at 1011-12. In reaching this conclusion, the court noted

that the normal review of administrative determinations under the

Administrative Procedures Act, 5 U.S.C. § 706(2)(E), requires the

application of the substantial evidence test. Redmond, 507 F.2d at 1011.

The court reasoned that, by (implicitly) rejecting this standard of

judicial review in the Food Stamp Act, Congress simply intended that

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 should

proceed with the agency as the plaintiff and as if no agency action had

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 plaintiff 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 the

judgment of the district court.

A true copy.

Attest:

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