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TOSCONY PROVISION CO. v. BLOCK

May 3, 1982

TOSCONY PROVISION COMPANY, INC., a New Jersey corporation, and HENRY DEI, Plaintiffs,
v.
JOHN R. BLOCK, SECRETARY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE and UNITED STATES OF AMERICA, Defendants



The opinion of the court was delivered by: WHIPPLE

 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 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 ...


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