Advance Mach. Co. v. Consumer Product Safety Commission, 81-1509
| Decision Date | 14 December 1981 |
| Docket Number | No. 81-1509,81-1509 |
| Citation | 666 F.2d 1166 |
| Parties | ADVANCE MACHINE COMPANY and Robert J. Pond, Appellants, v. CONSUMER PRODUCT SAFETY COMMISSION, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Dorsey, Windhorst, Hannaford, Whitney & Halladay, Edward J. Schwartzbauer, argued James B. Lynch, Minneapolis, Minn., for plaintiffs-appellants Advance Mach. Co. and Robert J. Pond.
Margaret A. Freeston, Acting Gen. Counsel, Susan E. Birenbaum, Atty., Consumer Product Safety Commission, Washington, D.C., William F. Baxter, Asst. Atty. Gen., John J. Powers, III, Nancy C. Garrison, argued, Attys., Dept. of Justice, Washington, D.C., for appellee.
Before HEANEY and STEPHENSON, Circuit Judges, and DAVIES, Senior District Judge. *
This is an appeal from a judgment of the district court 1 holding 2 that the Consumer Product Safety Commission (Commission) possessed authority under the Consumer Product Safety Act (Act), 15 U.S.C. § 2051 et seq., to proceed administratively to assess civil penalties for an alleged violation of the Act; that the penalties are civil, not criminal, in nature; and that the administrative proceedings were not barred by the statute of limitation or the doctrine of res judicata.
At the time the district court considered the Act, 15 U.S.C. § 2069 read as follows:
(a)(1) Any person who knowingly violates section 2068 of this title shall be subject to a civil penalty not to exceed $2,000 for each such violation (and) ... $500,000 for any related series of violations....
(b) Any civil penalty under this section may be compromised by the Commission. In determining the amount of such penalty or whether it should be remitted or mitigated and in what amount, the appropriateness of such penalty to the size of the business of the person charged and the gravity of the violation shall be considered. The amount of such penalty when finally determined, or the amount agreed on compromise, may be deducted from any sums owing by the United States to the person charged.
(c) As used in the first sentence of subsection (a)(1) of this section, the term "knowingly" means (1) the having of actual knowledge, or (2) the presumed having of knowledge deemed to be possessed by a reasonable man who acts in the circumstances, including knowledge obtainable upon the exercise of due care to ascertain the truth of representations.
The court below, in analyzing the Act, reasoned that because subsection (b) gave the Commission power to determine the amount of a civil penalty; stated the factors to be applied in reaching that determination; and contained no language indicating that the penalty was to be recovered in a civil action, Congress implied that it expected the Commission would assess the penalty.
The Act has since been amended, the Omnibus Budget Reconciliation Act of 1981, Title XII, Consumer Product Safety and Communications, Public Law 97-35, 95 Stat. 357 (August 13, 1981), the applicable changes being:
(c)(1) Section 20 (15 U.S.C. § 2069) is amended by-
(A) redesignating subsection (b) and (c) as subsections (c) and (d), respectively; and
(B) by inserting after subsection (a) the following:
(b) In determining the amount of any penalty to be sought upon commencing an action seeking to assess a penalty for a violation of section (2068(a)), the Commission shall consider the nature of the product defect, the severity of the risk of injury, the occurrence or absence of injury, the number of defective products distributed, and the appropriateness of such penalty in relation to the size of the business of the person charged.
Former subsection (b), now subsection (c), was also amended:
(c) Any civil penalty under this section may be compromised by the Commission. In determining the amount of such penalty or whether it should be remitted or mitigated and in what amount, the Commission shall consider the appropriateness of such penalty to the size of the business of the person charged, the nature of the product defect, the severity of the risk of injury, the occurrence or absence of injury, and the number of defective products distributed. The amount of such penalty when finally determined, or the amount agreed on compromise, may be deducted from any sums owing by the...
To continue reading
Request your trial
-
U.S. v. Shelton Wholesale, Inc.
...upon the exercise of due care."); Young v. Robertshaw Controls Co., 560 F.Supp. 288 (N.D.N.Y.1983); Advance Machine Co. v. Consumer Product Safety Comm'n, 666 F.2d 1166 (8th Cir.1981), reversing 510 F.Supp. 360 31. Shelton argues that because "[t]he all-important disjunctive `or' is not fou......
-
United States v. Advance Mach. Co.
...passed after Judge Alsop's decision, the Eighth Circuit Court of Appeals reversed that ruling. Advance Machine Co. v. Consumer Product Safety Commission, 666 F.2d 1166, 1168 (8th Cir. 1981). The Government filed this action on February 19, II. DISCUSSION For purposes of deciding a motion to......
-
Roach v. National Transp. Safety Bd.
...Machine Company v. Consumer Product Safety Commission, 510 F.Supp. 360, 366 n. 7 (D.Minn.) rev'd on other grounds and remanded, 666 F.2d 1166 (8th Cir.1981) ("Here, the only one of the seven Mendoza-Martinez factors which aids plaintiffs, the fourth (the civil penalty 'will promote the trad......
-
U.S. v. Great American Veal, Inc., CIV. 96-4110(HAA).
...Commission lacked the authority to assess civil penalties administratively under the CPSA. Id. (citing Advance Mach. Co. v. Consumer Prod. Safety Comm'n, 666 F.2d 1166 (8th Cir.1981), and Athlone Indus., Inc. v. Consumer Prod. Safety Comm'n, 707 F.2d 1485 In light of these holdings, the Com......