State of La. v. Mathews

Decision Date04 February 1977
Docket NumberCiv. A. No. 75-1941.
Citation427 F. Supp. 174
CourtU.S. District Court — Eastern District of Louisiana
PartiesSTATE OF LOUISIANA et al. v. David MATHEWS, Secretary of Health, Education & Welfare, et al.

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 § 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. § 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. §§ 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 . . . or is otherwise legally assailable, involve matters of law." Bank of Commerce of Laredo v. City National Bank of Laredo, 484 F.2d 284, 289 (5th Cir. 1973).

I.

Plaintiffs have contended that the ban on the commercial sale of small turtles exceeds the defendants' authority under 42 U.S.C. § 264. Particularly plaintiffs argue that only those individual lots of small turtles infected with Salmonella and Arizona organisms and which have been shown to be health hazards may be banned; that the questioned regulation exceeds the authority granted because it authorizes the apprehension and detention, by penal sanctions, of individuals; and that defendants are authorized to prohibit only the interstate shipment of turtles which may spread communicable disease.

Congress has granted broad, flexible powers to federal health authorities who must use their judgment in attempting to protect the public against the spread of communicable disease. Studies show that a large percentage of turtles certified as organism-free are eventually recontaminated. One survey showed a 54% recontamination rate; other figures suggest incidence of recontamination which is higher. 40 Fed. Reg. at 22543. Under these circumstances, it is clear that the law does not require the adoption of an onerous testing scheme under which every turtle, or lot of turtles, is to be tested every week so as to find that percent which becomes reinfected. Such a testing alternative is patently unreasonable, and a total ban is permissible as necessary to prevent the spread of communicable disease.

Plaintiff's contention that the provisions of the questioned regulation violate 42 U.S.C. § 264(b) because it authorizes the apprehension and detention of individuals is incorrect. The regulation does not authorize the apprehension and detention of individuals; neither does it set criminal penalties for those who violate the provisions of the regulation. Section 368(a) of the Public Health Service Act, 42 U.S.C. § 271(a), makes any violation of a regulation issued under 42 U.S.C. § 264 a crime. The regulation's provisions discussing penal sanctions are not substantive, but are designed only to give those affected by the regulation notice that sanctions may be imposed in the case of violation.

Plaintiffs also contend that defendants exceeded their authority under 42 U.S.C. § 264 by restricting commercial activity with respect to small turtles and turtle eggs. It has long been established that businesses which affect interstate commerce may have their intrastate activities regulated. Willis v. Pickrick Restaurant, 231 F.Supp. 396 (N.D.Ga.1964). Reference to subsection (d) of 42 U.S.C. § 264 confirms the defendants' authority to regulate intrastate activity. The ban on intrastate commerce in small turtles was based on the following rationale 40 Fed.Reg. at 22545:

"The Commissioner concludes that the interstate spread of disease through Salmonella and Arizona contaminated turtles cannot be fully controlled without extending the ban to intrastate sales."
* * * * * *
"Contaminated turtles may be purchased in one State for use as a pet in another. In addition, the existence of lawful business operations selling turtles in one State creates the possibility of unlawful interstate sales that are difficult or impossible to detect and stop."

Thus, the intrastate ban is not only authorized by the law, but, under modern conditions of transportation and commerce is clearly reasonable to prevent the interstate spread of disease.

II.

Plaintiffs contend that the questioned regulation is arbitrary, capricious, and lacking a rational basis because, in their view, there is evidence in the administrative...

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    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
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    • United States
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    • 29 July 1996
    ...Laboratories, Inc., 300 F.2d 550 (7th Cir.1962), cert. denied, 370 U.S. 918, 82 S.Ct. 1558, 8 L.Ed.2d 499 (1962); State of Louisiana v. Mathews, 427 F.Supp. 174 (E.D.La. 1977), and Congress may not abrogate Eleventh Amendment immunity pursuant to an exercise of its power under the Commerce ......
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