Armour and Company v. Freeman

• Decision Date: 08 February 1962
• Docket Number: No. 16723.,16723.
• Citation: 113 US App. DC 37,304 F.2d 404
• Parties: ARMOUR AND COMPANY, Appellant, v. Orville L. FREEMAN, Secretary of Agriculture, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

113 US App. DC 37, 304 F.2d 404 (1962)

ARMOUR AND COMPANY, Appellant, v. Orville L. FREEMAN, Secretary of Agriculture, et al., Appellees.

No. 16723.

United States Court of Appeals District of Columbia Circuit.

Argued December 15, 1961.

Decided February 8, 1962.

Certiorari Denied June 11, 1962.

Mr. Thomas F. Daly, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr. Harry A. Inman, Washington, D. C., was on the brief, for appellant.

Mr. John G. Laughlin, Jr., Department of Justice, with whom Asst. Atty. Gen., William H. Orrick, Jr., and David C. Acheson, U. S. Atty., were on the brief, for appellees. Messrs. Nathan J. Paulson and Abbott A. Leban, Asst. U. S. Attys., also entered appearances for appellees.

Mr. Harry A. Inman, Washington, D. C., filed a brief on behalf of Swift & Company, et al., as amici curiae, urging reversal.

Before WILBUR K. MILLER, Chief Judge, and PRETTYMAN and DANAHER, Circuit Judges.

Certiorari Denied June 11, 1962. See 82 S.Ct. 1559.

WILBUR K. MILLER, Chief Judge.

Armour and Company filed suit November 6, 1961, in the United States District Court against Orville L. Freeman, Secretary of Agriculture,¹ asking the court to enjoin the Secretary from enforcing, and to declare invalid, an amendment to his regulations issued October 13, 1961, effective November 17, 1961. Admittedly, the amendment has the effect of requiring Armour and Company and other packers who process meats in federally inspected plants to affix the label IMITATION HAM to smoked hams containing added moisture content up to 10 per cent of their "green" or uncured weight,² although the addition of moisture to that extent is permitted, if the ham is so labeled. Armour charged the Secretary was arbitrary and capricious in promulgating the amended regulation in that, inter alia, he thereby required it to violate the Meat Inspection Act³ which provides that "No such meat or meat food products shall be sold or offered for sale by any person, firm, or corporation in interstate or foreign commerce under any false or deceptive name * * *."

Armour moved for a preliminary injunction and the appellees moved for summary judgment. At the hearing on the motions it was made to appear that the modern curing process involves the addition of moisture to smoked pork products and that hams so treated are wholesome and healthful food having higher nutritional value than those to which the curing solution has not been added.

After making findings of fact, the District Court concluded "There is a genuine issue of material fact as to whether or not the Secretary of Agriculture * * * acted in an arbitrary and capricious manner in adopting the amendments here in issue." It also concluded Armour would not suffer irreparable injury from the denial of its motion for a preliminary injunction and that the public interest would be adversely affected if such an injunction were granted. Consequently, an order was entered denying the Secretary's motion for summary judgment and also denying Armour's motion for a preliminary injunction. Armour appeals.

On consideration of the papers before us, we think it was clearly error to deny Armour's motion for a preliminary injunction.⁴ The Secretary's amendatory regulation which is under attack, is capricious and arbitrary on its face in requiring a packer to label a genuine ham as IMITATION HAM, thus forcing him into violating the statute which forbids misbranding; and nothing in the record as presently constituted supports or justifies such an enforced distortion of the truth. The Secretary could easily have made this litigation unnecessary by merely requiring that labels on moist hams bear a legend showing the nature and extent of the added moisture. Instead, he chose to require the false and deceptive IMITATION HAM label.

Irreparable injury to Armour from the enforcement of the regulation is apparent without demonstration, for the attempted marketing of meat products thus officially required to be grossly misbranded could not fail to damage its good name. Withdrawal from the interstate market — Armour's only other alternative — would of course cause loss of profits which could never be recaptured.

We see nothing in the record before us to indicate the public interest would be adversely affected by the grant of a preliminary injunction. The requirements of the Virginia Petroleum Jobbers case⁵ with respect to a preliminary injunction were fully met by Armour. Upon remand, such an injunction should be entered. Thereupon, the appellees will of course have an opportunity to plead in justification of their position, and to introduce proof on the issues formed by the pleadings.

Reversed and remanded.

Mr. John G. Laughlin, Jr., Atty., Dept. of Justice, was on the motion for appellees.

Mr. Harry A. Inman, Washington, D. C., was on the opposition for appellant.

Before WILBUR K. MILLER, Chief Judge, and EDGERTON, PRETTYMAN, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, in Chambers.

ORDER — Filed April 2, 1962

PER CURIAM.

This cause came on for consideration of appellees' motion for en banc rehearing of their motion to extend the time fixed by our Rule 26, 28 U.S.C.A., within which they might file a petition for rehearing, an extension having theretofore been denied by the Chief Judge after consideration of the motion and appellant's opposition thereto. It appearing to the court that no valid reason has been shown for the extension sought, and that an extension would be unfair to the appellant, it is Ordered by the court that said motion for en banc reconsideration be, and it is hereby, denied.

The opinion was handed down February 8, 1962, and a petition for rehearing was lodged with the Clerk March 9 — about two weeks after the time for filing had expired. Although the tardily tendered petition is not being received for filing, the court has examined it and found it without merit. It follows that, had the petition for rehearing been seasonably tendered and formally filed, it would have been denied.

Motion denied.

EDGERTON, BAZELON, FAHY and WASHINGTON, Circuit Judges, dissent.

WILBUR K. MILLER, Chief Judge (in support of the foregoing order).

This case originally came before us on appeal from an interlocutory order of the District Court denying Armour's motion that the Secretary of Agriculture be preliminarily enjoined from enforcing his regulation that the label IMITATION HAM must be attached to hams which contain a certain percentage of added moisture due to the curing process. In a unanimous opinion handed down February 8, 1962, we held a preliminary injunction should have been issued.

Our Rule 26, 28 U.S.C.A., provides that a petition for rehearing may be filed within fifteen days after judgment or decision, "unless the time is shortened or enlarged by the court or a judge thereof." It applies to all litigants, and does not provide that extensions of time shall be automatically granted when requested. On the thirteenth day of his fifteen-day period, the Secretary of Agriculture moved for an extension of time within which he might file a petition for rehearing. It is a weighty matter, he said in effect, to decide whether his IMITATION HAM regulation should be suspended pendente lite, and he needed more than fifteen days allowed by the Rule to prepare and present his argument for rehearing.

As Chief Judge, I considered the motion and opposition and denied the extension, because I was convinced there was no excuse for the Secretary's inaction, that further delay would be unfair to Armour, and that the preliminary injunction we ordered February 8 should be made effective.

The matter is now before us on the Secretary's motion for en banc reconsideration of the application for extension of time within which to file a petition for rehearing, and we have denied it in the foregoing order. As four members of the court favor overruling my denial of enlargement of time, and have filed a dissent from the above order, I think it proper to state why I denied the extension in the first place.

The notion that grave departmental deliberation had to precede a decision to seek rehearing in this case is, of course, absurd. The decision could have been — and in all probability was — made within thirty minutes after reading our opinion. The case is simple, and our opinion is brief and, I think, reasonably clear. A petition for rehearing could easily have been prepared in two or three hours.

Any suggestion that our opinion of February 8 decided the case on the merits is without foundation. We carefully stated we were deciding as we did on the basis of the record as then constituted. We said, inter alia:

"On consideration of the papers before us, we think it was clearly error to deny Armour\'s motion for a preliminary injunction. The Secretary\'s amendatory regulation, which is under attack, is capricious and arbitrary on its face in requiring a packer to label a genuine ham as IMITATION HAM, thus forcing him into violating the statute which forbids misbranding; and nothing in the record as presently constituted supports or justifies such an enforced distortion of the truth. The Secretary could easily have made this litigation unnecessary by merely requiring that labels on moist hams bear a legend showing the nature and extent of the added moisture. Instead, he chose to require the false and deceptive IMITATION HAM label.

* * * * * *

"* * * Upon remand, such an injunction should be entered. Thereupon, the appellees will of course have an opportunity to plead in justification of their position, and to introduce proof on the issues formed by the pleadings." (Emphasis added.)

Of course we considered, on the basis of the then present record, whether Armour probably would prevail on the merits. Surely nobody will say that was improper. After considering the papers before us, we decided Armour probably would prevail, and that...