Arrow Meat Company v. Freeman, Civ. No. 65-47.

Citation261 F. Supp. 622
Decision Date18 November 1966
Docket NumberCiv. No. 65-47.
PartiesARROW MEAT COMPANY, an Oregon corporation, Plaintiff, v. Orville L. FREEMAN, Secretary of Agriculture, United States Department of Agriculture, David M. Pettus, Director, Livestock Division, United States Department of Agriculture, Agricultural Marketing Service, and the United States of America, Defendants.
CourtU.S. District Court — District of Oregon

George W. Mead, Portland, Or., for plaintiff.

Sidney I. Lezak, U. S. Atty., Victor E. Harr, Asst. U. S. Atty., Portland, Or., for defendants.

OPINION

SOLOMON, Chief Judge:

Plaintiff, Arrow Meat Company, seeks to set aside an order of the Marketing Service of the United States Department of Agriculture which suspended the benefit of Federal meat grading services at plaintiff's plant for a period of 30 days. This Court has jurisdiction to review a legal wrong suffered by a person because of agency action. 5 U.S.C.A. § 1009.

Arrow Meat Company is the owner and operator of a slaughter house and meat packing plant. Since 1945 the Marketing Service, pursuant to 7 U.S.C.A. § 1622, has furnished the plaintiff with Federal meat grading services. On February 24, 1964, the Marketing Service served upon Arrow a complaint which alleged that Arrow had violated regulation 7 C.F.R. 53.13.

Section 53.13 Denial or Withdrawal of service provides:

(a) (1) * * * the benefits of the service may be otherwise denied to, or withdrawn from, any person who, or whose employee or agent in the scope of his employment or agency * * *
(vi) has knowingly obtained or retained possession * * * of any carcass or wholesale or retail cut bearing any designation specified in subdivision (vii) of this paragraph which has not been federally graded * * *;
(vii) has applied the designation * * * "choice" * * * on any carcass which has not been federally graded.

A hearing was held on this complaint before a Hearing Examiner for the Department of Agriculture. At the hearing Arrow admitted that one of its employees without authorization from the Federal meat grader applied the USDA Choice roller marking to 79 full ribs of beef and to 17 loins of beef. Arrow also admitted that Mr. Wolf, its "working foreman" in charge of cooler work and loading of trucks, caused this meat to be delivered to Lane Meat Company, in spite of his knowledge that it contained unauthorized USDA Choice markings. Notwithstanding these admissions, Arrow asserts that the charges should be dismissed because these employees acted outside the scope of their employment.

Mr. Jacobsmuhlen, the president of Arrow, testified that he was out of the country at the time the beef was marked and that he had no knowledge of the unauthorized markings. But Mr. Stronach, the manager of Lane Meat Company from 1961 to 1963, testified that on several occasions Lane received meat from Arrow which had been marked with the USDA Choice stamp but did not bear the Federal grader's preliminary identification stamp. He also stated that he discussed the lack of the Federal grader's preliminary stamp in a general way with Mr. Jacobsmuhlen.

After a hearing, the Deputy Administrator of the Marketing Service found that Arrow's employees acted within the scope of their employment and that Arrow was guilty of violating 7 C.F.R. 53.13. He based his conclusions on his findings that: (1) the employee who placed the unauthorized mark on the beef was employed to handle and grade beef; (2) the employee who shipped the meat with knowledge that it contained unauthorized markings had authority to ship meat; (3) both of the...

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3 cases
  • CCCO-Western Region v. Fellows
    • United States
    • U.S. District Court — Northern District of California
    • December 31, 1972
    ...cited therein. A few courts seem to have found to the contrary, but without discussing the question. See, e. g., Arrow Meat Company v. Freeman, 261 F.Supp. 622, 623 (D.Or.1966). The authority in this circuit, while somewhat ambiguous, seems in accord with the majority view. Braude v. Wirtz,......
  • West v. Bergland
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • January 14, 1980
    ...necessarily held that the Secretary is authorized to withdraw them. The Secretary cites but one example, however, Arrow Meat Co. v. Freeman, 261 F.Supp. 622 (D.Ore.1966). Agency jurisdiction was not challenged in Arrow, and we are not aware of the other judicial decisions to which the Secre......
  • Couch v. Udall
    • United States
    • U.S. District Court — Western District of Oklahoma
    • March 29, 1967
    ...in this Court. In the recent cases of Sterling Davis Dairy v. Freeman, 253 F.Supp. 80 (D.New Jersey 1965), and Arrow Meat Company v. Freeman, 261 F.Supp. 622 (D.Oregon 1966), it was decided that it is not the function of a Court on review of administrative action to engage in de novo fact f......

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