NOT RECOMMENDED FOR PUBLICATION

File Name: 16a0429n.06

No. 16-5016

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JAY SHRI GANESH; HITESHKUMAR PATEL,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF KENTUCKY

BEFORE: SUHRHEINRICH, ROGERS, and GRIFFIN, Circuit Judges. 

GRIFFIN, Circuit Judge. 

The Department of Agriculture permanently disqualified plaintiffs from participating in 

the Food Stamp Program after finding evidence of trafficking in such benefits at their 

convenience store. Plaintiffs unsuccessfully sought review of this decision in district court. On 

appeal, they argue the district court improperly granted summary judgment in favor of the 

government because it relied upon unauthenticated documents and found no genuine issue of 

material fact, despite plaintiffs’ protestations to the contrary. We disagree and affirm. 

I.

The district court aptly described the pertinent facts, to which the parties do not take 

issue: 

Jay Shri Ganesh and Hiteshkumar Patel own and operate a small convenience 

store in Inez, Kentucky. On October 28, 2014, they received a letter from the 
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United States Department of Agriculture’s Food and Nutrition Service 

(“FNS”) stating that the FNS believed that they had violated the terms and 

provisions of the Food Stamp Program. After investigating further, the FNS 

determined that the plaintiffs had trafficked in Supplemental Nutrition 

Assistance Program (“SNAP”) benefits, so the FNS permanently disqualified 

the plaintiffs from participating in the SNAP program. This disqualification 

means that the plaintiffs cannot accept SNAP benefits as payment for goods, 

thus eliminating some of the store’s customer base. 

The FNS’s decision to disqualify the plaintiffs from the SNAP program was 

largely based on an analysis of electronic benefit transfers (“EBT”) at the 

store. The FNS identified several types of suspicious transfers that regularly 

occurred at the plaintiffs’ store. First, the FNS found 118 transfers in which 

the same EBT card was used at the store within a 24-hour period. Many of 

these charges were for the same amount. Second, the FNS identified many 

transactions where a customer would spend nearly all of his or her monthly 

SNAP allotment within a very short timeframe, a pattern that is inconsistent 

with typical SNAP recipient behavior. Third, the FNS identified 275 

transactions that it described as “excessively large”—while the average SNAP 

purchase at a Kentucky convenience store is $7.09, the plaintiffs’ store 

handled transactions of amounts up to $253.98. Finally, after visiting the 

plaintiffs’ store, the FNS determined that nothing about the store could 

account for these suspicious transactions. Instead, the store offered a limited 

amount of food that a customer could purchase with SNAP benefits, the 

counter space was small and not conducive to large transactions, and the store 

did not offer grocery carts or shopping baskets. Based on the electronic data 

and the in-store visit, the FNS determined that SNAP-benefit trafficking 

provided the best explanation for the unusual transactions. Thus, the FNS 

permanently disqualified the plaintiffs from the SNAP program. 

The plaintiffs appealed the FNS’s decision. The Administrative Review 

Branch of the FNS reviewed the decision and determined that the FNS had 

established a prima facie case for SNAP trafficking by a preponderance of the 

evidence. The Review Branch also determined that the defendant had failed to 

offer any “reasonable explanations” for the suspicious transaction data. 

Because SNAP regulations mandate permanent disqualification as the 

punishment for SNAP trafficking, the Review Branch held that the imposed 

sanction was appropriate. 

Plaintiffs sought review of this decision in district court pursuant to 7 U.S.C. § 2023(a). 

In a well-reasoned opinion, the district court concluded that “[t]he record contains an abundance 
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of evidence to support the SNAP-trafficking determination” and granted summary judgment in 

favor of the United States. Ganesh and Patel appeal. 

II.

The Secretary of Agriculture may permanently disqualify any approved retail food store 

from participation in the SNAP program upon “the first occasion or any subsequent occasion of a 

disqualification based on the purchase of coupons or trafficking in coupons or authorization 

cards by a retail food store.” 7 U.S.C. § 2021(b)(3)(B). Upon disqualification, a retail food store 

operator may obtain judicial review by way of a “trial de novo.” § 2023(a)(13), (15). This trial 

“is limited to determining the validity of the administrative action; the severity of the sanction is 

not open to review.” Goldstein v. United States, 9 F.3d 521, 523 (6th Cir. 1993). 

“The burden of proof in the judicial review proceeding is upon the aggrieved store to 

establish the invalidity of the administrative action by a preponderance of the evidence.” Warren 

v. United States, 932 F.2d 582, 586 (6th Cir. 1991). “To survive summary judgment, a plaintiff 

in a Food Stamp Program disqualification case must raise material issues of fact as to each

alleged violation.” McClain’s Mkt. v. United States, 214 F. App’x 502, 505 (6th Cir. 2006). 

Accordingly, “our task on appellate review is to determine whether [the FNS] ‘acted within its 

authority in permanently disqualifying [plaintiffs] from the food stamp program.’” Bakal Bros.

v. United States, 105 F.3d 1085, 1088 (6th Cir. 1997) (citation omitted). 

III.

Preliminarily, plaintiffs argue the district court erred in entering summary judgment by 

relying upon “unverified and unsworn” documents in contradiction to our holding in Saunders v. 

United States, 507 F.2d 33 (6th Cir. 1974). In Saunders, we found summary judgment to be 

improper in a Food Stamp Act disqualification case because “none of the supporting documents 
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[were] sworn to” in compliance with then-Federal Rule of Civil Procedure 56(e)’s strict 

authentication requirement. Id. at 35; see also Alexander v. CareSource, 576 F.3d 551, 558–59 

(6th Cir. 2009) (noting our “court’s repeated emphasis that unauthenticated documents do not 

meet the requirements of Rule 56(e)”). Given this failure, we found that the unauthenticated 

documents “were of no greater dignity” than “unsworn denials” by the plaintiff’s attorney, and 

therefore the government did not meet its summary judgment burden. Saunders, 507 F.2d at 35–

37. 

In the present case, this argument faces the insurmountable obstacle of not having been 

raised below. It is well-established that “[i]f a party fails to object before the district court to the 

affidavits or evidentiary materials submitted by the other party in support of its position on 

summary judgment, any objections to the district court’s consideration of such materials are 

deemed to have been waived, and we will review such objections only to avoid a gross 

miscarriage of justice.” Wiley v. United States, 20 F.3d 222, 226 (6th Cir. 1994). In response to 

the government’s dispositive motion below, Ganesh and Patel neither cited Saunders, nor 

objected to the authenticity of the government’s supporting materials. Instead, and as admitted

on appeal, they focused exclusively on the sufficiency of the evidence contained within these 

materials. Thus, their newly found evidentiary objection is not presented and is deemed waived.

Nor is it a gross miscarriage of justice not to address the merits of their objection. 

Amended in 2010, Rule 56 now provides that parties asserting no genuine issue of material fact 

need only “cit[e] to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). It 

then permits a party to “object that the material cited to support or dispute a fact cannot be 

presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2) (emphasis 

added). Correspondingly, the amended rule specifically “omit[s] as unnecessary” “[t]he 
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requirement that a sworn or certified copy of a paper referred to in an affidavit or declaration be 

attached to the affidavit or declaration.” Fed. R. Civ. P. 56(c) advisory committee’s note to 2010 

amendment. Given that Rule 56 no longer draws such a bright line between authenticated and 

unauthenticated evidence for purposes of summary judgment and that Ganesh and Patel made no 

objection below that the documentary evidence could not “be presented in a form that would be 

admissible in evidence,” passing on plaintiffs’ technical objection to the form of the 

government’s evidence does not constitute a gross miscarriage of justice. 

IV.

On the merits, plaintiffs’ argument boils down to the following: (1) the government’s 

proofs were circumstantial and thus did not “conclusively” prove a trafficking pattern; 

(2) plaintiffs lacked the ability to uncover abuse because SNAP regulations prohibit them from 

identifying particular card users; (3) Patel’s affidavit attesting that “to the best of my knowledge, 

. . . [plaintiffs did not] exchange SNAP benefits for cash []or participate in a fraudulent SNAP 

transaction” shows there is a genuine dispute of material facts; and (4) plaintiffs maintain a 

market advantage over their competitors—lower prices—with respect to soft drinks and other 

SNAP-qualifying beverages due to a contract with a local Coca-Cola distributor, thus explaining 

large and multiple purchases. Plaintiffs advanced these arguments below. In dismissing these 

arguments, the district court’s opinion more than adequately shows Ganesh and Patel

misunderstand their burden. 

Take the district court’s conclusion regarding multiple transactions by a single 

beneficiary within a short period of time. In crediting plaintiffs’ argument “that it would be 

possible for someone to come into the store, make a purchase, then give his card to someone else 

to make a purchase,” the district court noted that “this explanation could account for some of the 
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suspicious transactions. But this explanation fails to account for all of the suspicious 

transactions.” (Emphasis added.) The district court then highlighted two particularly 

problematic and unexplained transactions of $63.49 and $107.94 in less than two minutes on the 

same account.1 Plaintiffs make no rebuttal to these transactions on appeal, and instead focus on 

other transactions that occurred between thirty minutes and six hours apart. From these, they 

contend “one could conclude that eligible food sales occurred as opposed to trafficking SNAP 

benefits.” One could conclude this. But that is not the standard—it was their burden to raise 

material issues of fact as to each alleged violation, and having failed to do so, summary 

judgment was warranted. 

The district court’s conclusions as to the other categories of violations are equally wellreasoned, and we find no reason to disturb them.

V.

We therefore affirm the district court’s grant of summary judgment in favor of the 

government.

 

1

In total, the FNS documented 118 sets of similar violations by 29 households, including 

times in which the same household had two transactions of over fifty dollars each within two to 

three minutes of each other.