Appellate Case: 21-2089 Document: 010110710083 Date Filed: 07/13/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 13, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
FOUR WINDS BEHAVIORAL
HEALTH, INC.,
Plaintiff - Appellant,
No. 21-2089
v. (D.C. No. 1:19-CV-00212-SCY-LF)
(D. N.M.)
UNITED STATES OF AMERICA,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, BALDOCK, and EID, Circuit Judges.
_________________________________
Four Winds Behavioral Health, Inc. (Four Winds) appeals the district
court’s rejection of its challenge to the United States Department of
Agriculture’s decision to permanently disqualify Four Winds from
participating in the government’s Supplemental Nutrition Assistance
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist in
the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be
cited, however, for its persuasive value consistent with Fed. R. App. P.
32.1 and 10th Cir. R. 32.1.
Appellate Case: 21-2089 Document: 010110710083 Date Filed: 07/13/2022 Page: 2
Program (SNAP). Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
I. Background
Four Winds operates a residential substance abuse treatment facility
in Rio Rancho, New Mexico. It sells candy bars, snacks, and drinks to
residents at a small on-campus convenience store called the cubby-hole.
In 2016, Four Winds obtained permission for the cubby-hole to
participate in SNAP. This program “provides eligible households with
monetary benefits, colloquially known as food stamps, to purchase eligible
food items at authorized retail food stores.” Aplt. App. at 131. Recipients
use Electronic Benefit Transfer (EBT) cards to make authorized purchases.
Some SNAP providers facilitate transactions that enable recipients to
bypass limitations on their authorized use of funds. For example, a SNAP
provider might swipe a recipient’s EBT card and provide the recipient with
cash instead of food. The government refers to the facilitation of
unauthorized SNAP transactions as “trafficking.” See 7 U.S.C.
§ 2021(b)(3)(B). SNAP providers that engage in trafficking can be
disqualified from participating in the program. See id. § 2021(a)(1).
To combat trafficking, the government employs an electronic
surveillance tool called ALERT. The ALERT system “identifies EBT
transactions within a given time that fall within certain patterns that are
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statistically unusual and suggest transactions that are in violation of
SNAP.” Aplt. App. at 134–35.
In 2018, the government charged Four Winds with trafficking based
on transaction data flagged by the ALERT system. The suspicious activity
included numerous transactions ending in .00 cents or .50 cents, repeat
transactions by the same customers within a set timeframe of about 24
hours, and “excessively large purchase transactions.” Id. at 136 (internal
quotation marks omitted). Four Winds responded to the charges with
explanations of its pricing structure, customer behavior, and inventory
management practices.
After reviewing the ALERT data and Four Winds’ response, the
Department of Agriculture permanently disqualified Four Winds from
participating in SNAP. Four Winds appealed the disqualification to the
agency’s Administrative Review Branch. An administrative review officer
upheld the agency’s disqualification, finding “that the transaction data and
overall firm record demonstrate the patterns of unusual, irregular, and
inexplicable SNAP activity for this firm is likely the result of trafficking,”
and “that Four Winds provided inadequate explanations for the suspicious
transactions and insufficient evidence to legitimize its transaction data.”
Aplt. App. at 134 (internal quotation marks omitted).
Four Winds then brought this action in the district court under 7
U.S.C. § 2023(a)(13), which provides for judicial review of the agency’s
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action. Its original complaint raised an Appointments Clause challenge to
the administrative review officer’s authority to adjudicate Four Winds’
administrative appeal. But Four Winds filed an amended complaint that
“affirmatively removed the Appointment[s] Clause language that was in its
original Complaint.” Aplt. App. at 155. “[O]n the eve of trial,” Four Winds
filed a motion to amend the pleadings to re-assert the Appointments Clause
challenge. Id. The district court denied the motion in part because it was
not timely and thereafter entered a pre-trial order that did not reference the
Appointments Clause issue.
The district court then conducted a bench trial and found “Four
Winds did not meet its burden to prove, by a preponderance of the
evidence, that the trafficking violations did not occur.” Id. at 154. It
therefore “affirm[ed] the agency’s disqualification decision.” Id. at 131.
II. Discussion
Rule 28(a)(8) of the Federal Rules of Appellate Procedure requires
an appellant’s brief to contain an argument section, “which must contain:
(A) appellant’s contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies; and (B)
for each issue, a concise statement of the applicable standard of review.”
In addition, Tenth Circuit Rule 28.1(A) requires, “[f]or each issue raised
on appeal,” that all briefs “cite the precise references in the record where
the issue was raised and ruled on.”
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“Under Rule 28, . . . a brief must contain more than a generalized
assertion of error, with citations to supporting authority.” Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (ellipsis and
internal quotation marks omitted). “Consistent with this requirement, we
routinely have declined to consider arguments that are not raised, or are
inadequately presented, in an appellant’s opening brief.” Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007). Indeed, to invoke appellate
review, a party “must do more than offer vague and unexplained
complaints of error.” Femedeer v. Haun, 227 F.3d 1244, 1255 (10th Cir.
2000).
Four Winds’ opening brief is inadequate to preserve any issue for
appellate review. To begin with, the opening brief has no argument section
at all. Instead, it contains “Statement of Issues Presented” and “Summary
of the Argument” sections that present Four Winds’ complaints. Aplt.
Opening Br. at 4, 16 (emphasis omitted). The issues Four Winds identifies
are the following: (1) “Unconstitutional as applied,” (2) “To investigate is
to defame and destroy,” (3) “Lucia and Bandimere,” (4) “Chilling effect of
charges and unreasonable terms,” (5) “Infirm standard of review,” (6)
“Weyerhaeuser v. United States Fish & Wildlife,” (7) “Governmental
Insensitivity, ‘The Ex-Con Population’ and Ipse Dixits,” (8) “Ex parte
communications,” and (9) “Carr v. Saul.” Id. at 4–15 (emphasis omitted).
The one-page summary-of-the-argument section contains passing
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references to the Fifth Amendment right against self-incrimination, the
Privileges and Immunities clause of the Fourteenth Amendment, the
administrative review officer’s constitutional authority to adjudicate Four
Winds’ administrative appeal, and the supposed insufficiency of the
evidence to support a finding Four Winds had engaged in trafficking.
Four Winds does not identify where in the record most of its
arguments were raised and ruled on. Indeed, we see no connection between
most of the issues Four Winds seeks to raise and the district court’s
rulings. To the extent Four Winds makes arguments that might relate to the
district court’s rulings, Four Winds does not provide us with the applicable
standards of review as required by Federal Rule of Appellate Procedure
28(a)(8)(B), and its arguments are too vague and inadequately developed to
invoke appellate review.
For example, Four Winds asserts error because something about the
administrative process or statutory scheme was “[u]nconstitutional as
applied.” Aplt. Opening Br. at 4 (emphasis omitted). But Four Winds does
not identify which constitutional provision it believes has been violated.
Nor does it tell us what portion of the administrative process or statute it
believes is unconstitutional, or why the facts in this case make the
application unconstitutional here.
Four Winds also states that some standard of review was “[i]nfirm.”
Id. at 11. But we cannot tell from its opening brief what standard of review
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it is referring to in part because the brief discusses both an unidentified
agency review provision and 7 U.S.C. § 2023, 1 which provides for judicial
review of agency actions. And Four Winds’ argument consists only of the
statements that “the standard is wrong and unconstitutionally vague,” and
“invites [administrative review officers] to render arbitrary and capricious
[decisions].” Aplt. Opening Br. at 11–12 (emphasis, ellipses, and internal
quotation marks omitted). These perfunctory attacks, which are
unaccompanied by any citation showing Four Winds made them in the
district court or any explanation of why we should accept them, do not
suffice. See, e.g., Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497
F.3d 1135, 1141 (10th Cir. 2007) (“This Court will not consider a new
theory advanced for the first time as an appellate issue, even a theory that
is related to one that was presented to the district court.”); Sawyers v.
Norton, 962 F.3d 1270, 1286 (10th Cir. 2020) (“[The] briefing-waiver rule
applies equally to arguments that are . . . presented only in a perfunctory
manner.” (brackets and internal quotation marks omitted)).
Similarly, Four Winds apparently seeks to challenge the district
court’s conclusion that Four Winds was precluded from raising an
Appointments Clause argument at trial because “the claim was not in the
1
The opening brief references 7 U.S.C. § 2022. See Aplt. Opening Br.
at 12. But the statute was renumbered, and § 2023 now contains the
language Four Winds recites.
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operative complaint, and Four Winds’ motion to amend the pleadings [to
include the Appointments Clause issue], on the eve of trial, was untimely.”
Aplt. App. at 155. Four Winds offers the undeveloped assertions that
“nothing would have changed had Four Winds re-cited [Bandimere v. SEC,
844 F.3d 1168 (10th Cir. 2016)] and [Lucia v. SEC, 138 S. Ct. 2044
(2018)] in the Amended Complaint,” Aplt. Opening Br. at 15, and that the
pre-trial order’s statement that “[t]he pleadings will be deemed merged
herein,” Aplt. App. at 96, included Four Winds’ original complaint and
various filings it made before and after the court entered the pre-trial
order. But Four Winds does not provide a record citation showing it made
these assertions in the district court. Four Winds also fails to give any
reason to credit either assertion. Cf., e.g., Aplt. App. at 155–57 (district
court “point[ing] out that when Four Winds filed its Amended Complaint,
it affirmatively removed the Appointment[s] Clause language that was in
its original Complaint,” and noting that “had the issue been in the
[amended] complaint, the United States could have moved for summary
judgment,” which “[t]he [c]ourt would have granted”); Davis v. TXO Prod.
Corp., 929 F.2d 1515, 1517 (10th Cir. 1991) (“[I]t is well established that
an amended complaint ordinarily supersedes the original and renders it of
no legal effect.” (internal quotation marks omitted)); Fed. R. Civ. P. 7(a)
(limiting “pleadings” to the seven listed types of filings). And Four Winds
does not tell us why either assertion undermines the district court’s ruling
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that Four Winds waived its Appointments Clause argument. See Nixon v.
City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (“The first
task of an appellant is to explain to us why the district court’s decision was
wrong.”).
Four Winds finally states “[t]here was no trafficking. Far less by a
convincing margin.” Aplt. Opening Br. at 16 (emphasis, ellipsis, and
internal quotation marks omitted). To the extent Four Winds intends this
statement to challenge the district court’s factual finding that Four Winds
did not meet its burden of proof, we cannot evaluate this argument because
Four Winds failed to include any evidence submitted to the district court in
its appendix. See Naimie v. Cytozyme Lab’ys, Inc., 174 F.3d 1104, 1113
(10th Cir. 1999) (“[W]here appellant fails to submit sufficient portions of
the record, an appellate court cannot review the district court’s factual
findings and must accept them as correct.” (internal quotation marks
omitted)). And the statement is insufficient for the independent reason that
Four Winds does not discuss any evidence that would support a contrary
conclusion. See Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1249 (10th
Cir. 2015) (“It is obligatory that an appellant, claiming error by the district
court as to factual determinations, provide this court with the essential
references to the record to carry his burden of proving error.”).
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III. Conclusion
We affirm the district court’s entry of final judgment.
Entered for the Court
Per Curiam
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Four Winds Behavioral v. United States
Combined Opinion