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May 3, 1982

TOSCONY PROVISION COMPANY, INC., a New Jersey corporation, and HENRY DEI, Plaintiffs,

The opinion of the court was delivered by: WHIPPLE


This case is an appeal from a Decision and Order issued by the Secretary of Agriculture withdrawing a grant of federal meat inspection services under the Federal Meat Inspection Act, 21 U.S.C. § 601 et seq., until the president and stockholder of the plaintiff company disassociates himself from that business. This sanction is serious in nature because the company cannot operate without federal meat inspection services and Henry Dei, the president and major stockholder is sole chief operating officer of this closely held business.

 The Federal Meat Inspection Act was passed to insure a high level of cleanliness and safety of meat products. U.S. v. Mullens, 583 F.2d 134 (5th Cir. 1978), 21 U.S.C.§ 602. The Act requires inspection of meat and meat products before these products are introduced to commerce. 21 U.S.C. § 610(c).

 Pursuant to 21 U.S.C. § 671, the Secretary of Agriculture has the authority to refuse to provide or withdraw federal meat inspection services from a recipient upon a finding that the recipient is unfit to conduct any business which requires inspection. The ultimate result is that the recipient cannot operate its business.

 Title 21 U.S.C. § 671 specifically provides that a finding of unfitness can stem from a conviction either of the company itself or someone closely associated in a responsible position for 1) a felony or 2) more than one violation other than a felony based on acquiring handling or distributing unwholesome, mislabeled or deceptively packaged food or fraud in connection with transactions in food.

 Toscany and Henry Dei were convicted upon guilty pleas in 1979 of knowingly distributing sausage meat that they had treated with imidazole, a chemical that retains the meat's "fresh" appearance even after it may be unfit to eat.

 Subsequently the Department of Agriculture began this action against Toscony under § 671 which resulted in an Order of the Administrative Law Judge withdrawing inspection services from Toscany until Henry Dei disassociated himself with the company, a 30 day suspension and a two year probationary period for Toscany.

 Upon appeal to the Secretary of Agriculture the authorized judicial officer upheld the Administrative Law Judge's decision but modified the order to delete the 30 day suspension.

 Toscony and Dei were granted a stay of the order pending appeal to the United States District Court, where they filed a complaint seeking reversal of the Secretary's order as "arbitrary and capricious", "an abuse of discretion" and unnecessary to effectuate the purpose of the act, as well as violative of due process.

 Both the plaintiff and the government have moved for summary judgment and there are no genuine issue of material fact involved. The scope of review for this Court is limited under the Administrative Procedure Act, 5 U.S.C. § 706, and the Federal Meat Inspection Act, 21 U.S.C. § 671, and has been exhaustively set forth in Utica Packing Co., Inc. v. Bergland, 511 F. Supp. 655 (E.D.Mich. 1981). *fn1"

  The record is clear and simple and requires no further factual analysis to determine the basis of the Administrative Law Judge's and the Judicial Officer's decisions. The decisions were based upon the single fact of the convictions of Toscony and Henry Dei for distributing adulterated meat in violation of 21 U.S.C. § 602. Therefore, the only review that is required is whether that single factor is sufficient to support the finding that the respondent is unfit to engage in any business requiring federal meat inspection services.

 The decision of the Secretary rests upon three cases similar to the one at bar which have all been appealed to the United States District Court.

 Norwich Beef Co. Inc. v. Bergland, 38 Agric. Dec. 380 (1979), affirmed, H 79-201 (D.Conn. Feb. 6, 1981), was an action under the same statute, 21 U.S.C. 671, wherein the Secretary withdrew meat inspection services from the plaintiff because its president had been convicted of receiving and distributing stolen been. The United States District Court for the District of Connecticut ruled that although 21 U.S.C. § 671 does not automatically disenfranchise all convicted felons, a finding of unfitness to engage in this business by the Secretary is discretionary and can be based solely upon a felony conviction.

 In Utica Packing Co. v. Bergland, 511 F. Supp. 655 (E.D.Mich. 1981) the president of the Company and major stockholder had been convicted of bribing federal inspectors in order to receive a more favorable rating from the USDA. The Secretary withdrew the company's inspection services indefinitely, to be restored when the company's president disassociated himself with the company and divested himself of his 50% interest.

 The plaintiffs argued that the Secretary must allege and establish that the termination of services is necessary to insure that unwholesome meat is not introduced to the stream of commerce; the purpose of the Act. The Court rejected this argument nothing that § 671 was intended by Congress to "add new and different grounds for withdrawal of inspection services under this section and, in doing so explicitly limited the scope of ensuing administrative considerations to questions of unfitness arising from criminal convictions and not others." Id. at 659.

 Finally, the Secretary relies most heavily upon Wyszenski Provision Co., Inc. v. Bergland, 39 Agric. Dec. (Feb. 13, 1981) appeal pending, No. 81-816 (E.D.Pa. 1982) which was cited as being "on all fours" with the case at hand.

 In Wyszenski, the company's vice-president, Walter Wyszinski, pled guilty to adding a prohibited "meat freshener" to sausage. The Secretary withdrew inspection services indefinitely, to be suspended upon Mr. Wyszinski's disassociation with the firm. The Wyszinski opinion clearly stands for the proposition that although it was never Congress' intent to disenfranchise someone solely because of any felony conviction, if the felony is one that "strikes at the heart of the meat inspection program" it requires a determination of unfitness.

 Therefore, as in Wyszinski, because the nature of Mr. Dei's and Toscony's offenses is such that they clearly contravene the purposes of the Federal Meat Inspection Program, it is neither appropriate nor necessary to consider other facts and circumstances, such as the plaintiff's reputation in the community or conditions at the plant. Wyszinski at 11.

 Accordingly, the Administrative Law Judge's and Judicial Officer's reliance upon the fact of these convictions in order to find unfitness cannot be said to be arbitrary, or capricious or an abuse of discretion or in any way contrary to law. Furthermore, it cannot be said to be unsupported by substantial evidence in the record.

 Despite the seemingly severe consequences of this ruling, this court cannot set aside this agency action.

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