UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

IBAY, INCORPORATED, t/a Bay

Seafood,

Plaintiff-Appellant,

No. 97-1558

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Raymond A. Jackson, District Judge.

(CA-96-908-2)

Submitted: November 18, 1997

Decided: December 2, 1997

Before MURNAGHAN, HAMILTON, and

WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

C. Jay Robbins, IV, NUNNALLY & ROBBINS, Norfolk, Virginia,

for Appellant. Anita K. Henry, Assistant United States Attorney,

UNITED STATES ATTORNEY'S OFFICE, Norfolk, Virginia, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Ibay, Inc., appeals from a district court order granting

Defendant's motion for summary judgment on its complaint seeking

review of an administrative decision by the United States Department

of Agriculture. On appeal, Ibay asserts the court erred by finding it

failed to produce sufficient evidence to establish that it was entitled

to a civil penalty in lieu of disqualification from participation in the

food stamp program and by not conducting a de novo trial on the merits. Finding no reversible error, we affirm.

Ibay operated a store ("Bay Seafood") specializing in the sale of

seafood. The store participated in the food stamp program. In March

1996, the Department of Agriculture, Food and Consumer Services

Division ("FCS"), conducted an investigation into the food stamp

practices at Bay Seafood. On two occasions, an undercover investigator sold food stamps to a store employee for cash in violation of food

stamp statutes and regulations. In his application to participate in the

food stamp program, Ibay's owner signed a certification acknowledging that he understood that his authorization to accept food stamps

could be revoked if any of his employees violated the applicable statutes and regulations.

The FCS filed a formal charge against Ibay for illegal trafficking

of food stamp coupons and gave Ibay the opportunity to submit documentation supporting its request for a civil penalty in lieu of permanent disqualification from participation in the food stamp program.

Although given a lengthy extension, Ibay failed to provide any documentation at the administrative level, and Ibay's permanent disqualification was affirmed. Ibay submitted affidavits before the district

court, but the court found the evidence insufficient to withstand summary judgment.

 2
Summary judgment is appropriate when there is "no genuine issue

of material fact," given the parties' burdens of proof at trial. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Fed. R. Civ. P.

56(c). In determining whether the moving party has shown that there

is no genuine issue of material fact, a court must assess the factual

evidence and all inferences to be drawn therefrom in the light most

favorable to the non-moving party. See Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). We review a grant of

summary judgment de novo. See Higgins v. E.I. DuPont de Nemours

& Co., 863 F.2d 1162, 1167 (4th Cir. 1988). We conclude the district

court properly granted the Defendant's motion.

The applicable statutes and regulations are clear that participants in

the food stamp program may be disqualified or fined for various violations, and when the offense involves the trafficking of food stamp

coupons, the sanction is permanent disqualification. 1 The FCS, in its

discretion, may impose a civil penalty in lieu of disqualification under

certain conditions if the store submits substantial evidence to support

its request.2 To qualify, the store must produce substantial evidence

showing that: (1) it developed an effective compliance program;

(2) both its compliance policy and program were in operation at the

location where the violations occurred prior to the offenses in question; (3) the store had an effective training program in place and that

the employee involved attended the program; and (4) neither the

owner nor manager were aware of, approved of, or benefited from the

illegal conduct.3

Ibay failed to present any evidence at the administrative level.

Moreover, we find the conclusory affidavits it submitted below were

insufficient to withstand summary judgment. Ibay did not present any

dated training materials or other documentation showing the existence

of an effective compliance program prior to the offenses or showing

that the employee involved received such training. It simply produced

affidavits stating that it had such programs and that neither the owner

nor management was aware of, approved of, or benefited from the

illegal trafficking.

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1 See 7 U.S.C. § 2021(b)(3)(B) (1994).

2 See 7 C.F.R. § 278.6 (i) (1997).

3 Id.

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We further reject Ibay's assertion that the district court erred by

granting summary judgment instead of conducting a trial on the merits. The existence of a violation was undisputed. The only issue was

the appropriate sanction. The applicable statutes and regulations give

a reviewing court authority to review only the finding of a violation

de novo; the extent of the sanction, as long as it is within the authority

of the FCS, is subject to limited review.4 We find that Ibay failed to

present substantial evidence that the FCS acted arbitrarily or capriciously in denying its request for a civil penalty in lieu of permanent

disqualification. Since there were no issues of material fact, we find

that the district court properly granted the Defendant's motion for

summary judgment.

We therefore affirm the district court's order. We dispense with

oral argument because the facts and legal contentions are adequately

presented in the material before the court and argument would not aid

the decisional process.

AFFIRMED

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4 See Goldstein v. United States , 9 F.3d 521, 523-24 (6th Cir. 1993).

 4