* Pursuant to 5 TH C IR

. R. 47.5, the Court has det ermined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 98-30583

Summary Calendar

___________________________

PHILLIP ARNOLD, doing business as ARNOLD’S DIXIE DANDY,

Plaintiff - Counter-Defendant - Appellant,

VERSUS

UNITED STATES OF AMERICA, on behalf of UNITED STATES

DEPARTMENT OF AGRICULTURE, FOOD & NUTRITION SERVICES

Defendant - Counter-Claimant - Appellee.

___________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

(97-CV-1109)

___________________________________________________

May 6, 1999

Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

PER CURIAM: *

This case concerns a series of violations arising out of

Appellant Phillip Arnold’s participation in the federal Food Stamp

Program. Arnold appeals two judgments by the district court. First,

he appeals the di strict court’s Memorandum Ruling and Judgment

granting summary judgment in favor of the United States on its

decision to disqualify Arnold permanently from participating in the

Food Stamp Program. Second, he ap peals the district court’s

judgment in favor of the United States on its False Claims Act2

counterclaim. For reasons that follow, we affirm both judgments.

I.

Arnold is the sole proprietor of Arnold’s Dixie Dandy ("ADD"),

a retail grocery store located in Newellton, Louisi ana. ADD was

authorized to accept food stamps under the federal Food S tamp

Program from 1967 until 1997, when the Food and Nutrition Service

("FNS") permanently disqualified ADD from participating in the

program for trafficking in food stamp s. FNS based this

disqualification on seven viol ations of the Food Stamp Act in

January 1996 and February 1996. On five occasions, ADD, through an

employee, accepted food stamp cou pons in exchange for ineligible

merchandise. On two occasions, a n employee of ADD accepted food

stamp coupons in exchange for cash. Arnold concedes the first five

violations, but denies the last two. He argues that the two couponfor-cash exchange s were committed by an employee, Billy Lee, as

part of a scheme to defraud ADD.

The FNS informed Arnold of th e seven violations in October

1996, and notified him of his disqualification from the Food Stamp

P rogram in January 1997. Arnold filed a timely Request for

Administrative Review with the United States Department of

Agriculture ("USDA"), and the USDA upheld the disqualification. In

April 1997, Arnold filed a Petition to Request Judicial Review in

Louisiana state court. In June 1997, the United States removed the

action to federal court. In July 1997, the United States filed its

answer and a counterclaim under the False Claims Act ("FCA"), 31

U.S.C. §§ 3729 et seq. In May 1998, the United States filed a

Motion for Summary Judgment. The district court issued a Memorandum3

Ruling and Judgment gra nting summary judgment on the issue of

permanent disqualification, but denying summary judgment on the

issue of the FCA counterclaim. The court held a bench trial on the

counterclaim, at the conclusion of which the court found in favor

of the United States and awarded $70,953.41 in damages and

penalties under the FCA. This appeal followed.

II.

Arnold first contests the district court’s Memorandum Ruling

and Judgment granting summary judgment on the issue of permanent

disqualification. "Cases arising under the Food Stamp Act, 7 U.S.C.

§§ 2011 et seq. , may be resolved in the district court by summary

judgment where there are no genuine issues of material fact."

Cullen Drive-In Grocery v. Block

, 778 F.2d 1141, 1142 (5th Cir.

1985). Summary judgment is only appropriate where "the pleadings,

depositions, answers to interrogatories, and admi ssions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law." Fed. R. Civ. P. 56(c).

Arnold contends that there was a genuine issue of material

fact as to whether ADD ever engaged in food stamp trafficking. In

support of this contention, he points to evidence that: (1) Arnold

was not in the store on February 10, 1996 and February 12, 1996,

the dates on which the coupon-for-cash transactions occurred; (2)

Arnold’s office does not match th e description provided by

undercover operative Franklin Washington; (3) Arnold does not match

descriptions of the trafficker provided by Washington and another

undercover operative ; and (4) the person who exchanged cash for4

food stamp coupons placed the food stamp coupons in his pocket, not

in the store’s cash register. Related to this last point, Arnold

points out the absence of any evidence showing that ADD ever

received the food stamps for which cash was exchanged. Because

there is a genuine issue of material fact as to whether ADD ever

received the food stamps, Arnold argues, there is also a genuine

issue of material fact as to whether ADD ever engaged in food stamp

trafficking.

These arguments are unpersuasive. Arnold does not dispute, and

has never disputed, that ADD employees accepted food stamps in

exchange for ineligible merchandise. He only denies involvement in

the two coupon-for-cash transactions. The regulations define

trafficking of food stamps as "the buying or selling of coupons .

. . for cash or consideration other than eligible food [items] ." 7

C.F.R. § 271.2 (emphasis added). Thus, even if there were some

genuine issue as to t he coupon-for-cash transactions, that would

have no effect on the conclusion that ADD trafficked in food stamps

when it accepted coupons for ineligib le merchandise. The

regulations mandate permanent disqualification from the Food Stamp

Program under such circumstances. S ee 7 C.F.R. § 278.6(e)(1)(i)

("The FNS shall take action as follows against any firm determined

to have violated the Act or regulations. The FNS regional office

shall: (1) disqualify a firm permanently if: (i) personnel of the

firm have trafficked as defined in § 271.2."). Consequently, there

is not even a disputed issue of fact, much less a genuine issue of

fact, as to any matter material to ADD’s permanent disqualification

from the Food Stamp Program. The district court correctly granted5

summary judgm ent in favor of the United States on the issue of

permanent disqualification.

III.

Arnold next challenges the district court’s judgment in favor

of the United States on the FCA counterclaim. To establish a claim

under the FCA, the United States must establish four essential

elements: (1) the defendant presented or caused to be presented to

an officer or employee of the United States Government a claim for

payment or approval; (2) the claim was false or fraudulent; (3) the

defendant acted knowingly or with deliberate ignorance or in

reckless disregard concerning the truth of the information

contained in the claim presented; and (4) the United States

suffered damages as a result of the false claim. See 31 U.S.C.A. §

3729(a) (Supp. 1998).

Arnold’s challenge centers on the first element--presentation

of a claim. He points out that mere redemption of food stamps for

ineligible merchandise, or even for money, does not const itute a

claim under the FCA absent evidence of presentation for payment. He

a rgues that the record contains no evidence that any of the food

stamps allegedly received by ADD in violation of the Food Stamp

Program were ever presented to the United States for false payment.

In the case of the coupon-for-cash transactions, he notes, the

record indicates that the individual buying the food stamps did not

even place them in the register, but instead placed them into his

own pocket. Moreover, Arnold observes that each of the food stamps

used in the alleged violations had serial numbers and that the

serial numbers were recorded prior to use. Arnold contends that6

the re is "not one thread of evidence" that ADD presented any of

those food stamps--identifiable by their serial numbers--to the

United States for payment.

Whatever the merits of this argument, it is severely

compromised by Arnold's failure to raise it at trial. It is wellaccepted in this court that "[a]s a general principle of appellate

review, we refuse to consider issues not raised below." C oastal

States Marketing, Inc. v. Hunt

, 694 F.2d 1358, 1364 (5th Cir.

1983). "Judicial economy is served and prejudice avoi ded 'by

binding the parties to the facts presented and the theories argued

below.'" Id. ( quoting Payne v. McLemore's Wholesale & Retail

Stores

, 654 F.2d 1130, 1144 (5th Cir. 1981)). Thus, "[a]n appellate

court will not review actions of omission or commission by a trial

court unless the defendant makes known to the court the action

which he desires the court to take or his objection to the action

taken by the court and the grounds therefor." United States v.

Thomas , 429 F.2d 407, 408 (5th Cir. 1970). The only exception to

this rule is "where refusal to consider the issue would result in

a miscarriage of justice" or "where there is no opportunity to make

a timely objection." Delesdernier v. Porterie , 666 F.2d 116, 125

(5th Cir. 1982).

At the beginning of trial, the district court stated:

The Court has already, by ruling on the summary judgment,

found that the plaintiff engaged in seven violations of the

Food Stamp Act, including trafficking violations. The

regulations provide that these violations constitute false or

fraudulent claims for the purpose of the False Claim Act.

Therefore, the only issue remaining for trial is whether

Plaintiff, Phillip Arnold, knowingly violated the Food Stamp

Act. Knowingly is defined a s actual knowledge, deliberate

ignorance or reckless disregard of truth or falsity of

information without the necessity of specific intent. Now I7

would ask, starting with Mr. Smith, do all the lawyers agree

that that is the only issue that I have to decide here in this

case as we sit here this evening?

At no time during the lengthy discussion following this statement

did Arnold's counsel suggest that there was an issue of fact as to

whether Arnold presented the food stamps to the United States for

payment. Indeed, the only additional issue th at Arnold's counsel

sought to raise was "whether it was actually Mr. Arnold or another

individual at the store who engaged in the trafficking violations."

I f Arnold wished for the trial court to hear evidence on the

presentation issue, he certainly failed to make that desire known

to the court. We do not find that refusal to consider this issue on

appeal would result in a miscarriage of justice, and Arnold clearly

had ample opportunity to object. Therefore, we refuse to consider

Arnold's challenge to the district court's judgment on the

counterclaim.

AFFIRMED.