427 F.Supp. 174 (E.D.La. 1977), Civ. A. 75-1941, State of Louisiana v. Mathews

Docket Nº:Civ. A. 75-1941
Citation:427 F.Supp. 174
Party Name:State of Louisiana v. Mathews
Case Date:February 04, 1977
Court:United States District Courts, 5th Circuit, Eastern District of Louisiana
 
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Page 174

427 F.Supp. 174 (E.D.La. 1977)

STATE OF LOUISIANA et al.

v.

David MATHEWS, Secretary of Health, Education & Welfare, et al.

Civ. A. No. 75-1941.

United States District Court, E.D. Louisiana.

Feb. 4, 1977.

Page 175

Stephen Caire, Metairie, La., for State of La., et. al.

John R. Schupp, Asst. U. S. Atty., New Orleans, La., for defendants.

CHARLES SCHWARTZ, District Judge.

This matter came on for hearing on a former day on motion of the defendants to dismiss the complaint for failure to state a claim upon which relief can be granted or for summary judgment, at which time the Court took the matter under advisement. After due consideration of the argument and memoranda of counsel, the record, and the law, the Court finds as follows:

This is an action for review of the final regulation of the Food and Drug Administration (42 CFR s 1240.62) banning the sale and distribution of small turtles pursuant to authority conferred by Section 361 of the Public Health Service Act, 42 U.S.C. s 264. Plaintiffs, the State of Louisiana, for and on behalf of the National Turtle Farmers and Shippers Association, Inc., the president of the association and two turtle farmers, seek a declaratory judgment and injunctive relief with respect to the regulation.

Plaintiffs contend that the regulation in question exceeds the authority granted to defendants by Section 361 of the Public Health Service Act; that it was arbitrary and capricious; that it was issued in violation of the provisions of the Administrative Procedures Act; and that it denies plaintiffs equal protection of the laws. Each of these contentions will be discussed in turn.

Judicial review of this action is made pursuant to Section 10 of the Administrative Procedure Act, 5 U.S.C. ss 701-706. Under that statute, the scope of judicial review is limited to whether the defendants have acted arbitrarily, capriciously, in abuse of their discretion or otherwise unlawfully. In applying this standard, it is the function of the Court to look only at the administrative record upon which the defendants made their decision. Camp v. Pitts, 411 U.S. 138, 141, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). As stated by the Court in Bradley v. Weinberger, 483 F.2d 410, 415 (1st Cir. 1973): ". . . it is a re-view, a second look at the same material, not a re-doing." Moreover, it is clear that the questioned regulation "is ripe for summary disposition, for whether the order is supported by sufficient evidence...

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