Bub Davis Packing Co., Inc. v. United States
| Decision Date | 23 November 1977 |
| Docket Number | Civ. No. SA-76-CA-362. |
| Citation | 443 F. Supp. 589 |
| Parties | BUB DAVIS PACKING CO., INC., Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Western District of Texas |
J. P. Darrouzet, Austin, Tex., for plaintiff.
Jamie C. Boyd, U. S. Atty. by Harold O. Atkinson, Asst. U. S. Atty., San Antonio, Tex., for defendant.
This action was brought by Plaintiff, Bub Davis Packing Co., Inc., against the United States under the Tort Claims Act. The Complaint alleged that the United States Department of Agriculture wrongfully closed down Plaintiff's meat packing plant and sought damages. The action arose out of a criminal investigation conducted jointly by the United States Department of Agriculture's Office of Investigation and its Animal Plant Health and Inspection Service (A.P.H.I.S.). The Government answered, denying that the activities of the Government employees were wrongful and asserting that all the events which transpired at Plaintiff's meat packing plant resulted from the valid exercise of the power of the Department of Agriculture to regulate the process by which meat is supplied to the public. In addition, the Government filed a Motion to Dismiss, urging that the "discretionary function" exception of the Tort Claims Act, 28 U.S.C. § 2680(a), was applicable to the facts of this cause. The Government also urged that it exercised "due care" as that term applies in Section 2680(a).
As to the merits, the Government urged that the conduct of its employees was neither wrongful nor negligent, and that such acts were not the proximate cause of Plaintiff's alleged injury, and that no damages were sustained by Plaintiff.
The Court received into evidence the depositions and statements of various witnesses and also heard live testimony. The Court postponed ruling on the Government's Motion to Dismiss and proceeded to hear the cause on the merits. Accordingly, the Court has carefully reviewed and considered all the evidence submitted by the parties in order to make an independent determination of the merits of this action, and to consider the jurisdictional issues raised. Consideration, first, is given to the tort liability aspects of this action.
On February 13, 1975, Floyd E. Cotton an Investigator of the Department of Agriculture's Office of Investigation, was acting in an undercover capacity at Plaintiff's meat packing plant. Because of prior reports received by the Department of Agriculture that adulterated meat, derived from dead, dying, or diseased cattle, was being processed at the Davis plant, agent Cotton was assigned to observe the plant's operation. During this time Cotton witnessed a dead, or lifeless, cow being taken into the plant for processing.
Later that day, an employee of Bub Davis Packing Company, Augustine A. Flores, who also served as an informant for the Government, identified another animal as having died other than by slaughter. Both animals were taken into the plant by employees of the packing company for processing and shipping to the public. Based on the observations of agent Cotton, the federal inspectors assigned to the plant by A.P. H.I.S. requested that plant operations be suspended pending a determination of what had happened to the adulterated beef. Subsequently, one carcass was seized and detained, and became the subject of United States v. One Beef Carcass, Cause No. SA-75-CA-56, which suit was dismissed by the Court, after settlement, on April 6, 1976.
On December 18, 1975, Plaintiff filed an administrative claim against the Department of Agriculture under the Tort Claims Act. By letter dated June 9, 1976, the Department of Agriculture denied said administrative claim. Following the denial of Plaintiff's claim by the Department of Agriculture, this suit was instituted.
The Court finds that the Department of Agriculture initiated an investigation regarding Plaintiff's activities to determine whether dead, "downed" or dying animals were being processed into food for human consumption in violation of the Meat Inspection Act, 21 U.S.C. § 601 et seq. and to investigate possible bribery by Plaintiff of a Department of Agriculture inspector assigned to Plaintiff's meat processing plant.
The testimony of Rene Campos, Officer-in-Charge, Southwest Area of A.P.H.I.S., the testimony of Dr. W. H. Irvin, Regional Director, Southwest Region of A.P.H.I.S. and of William D. Parker, Regional Director, Region V, of the Office of Investigation of the Department of Agriculture, together with the exhibits introduced by them, established clearly to the Court that an investigation of the activities of Plaintiff's meat packing plant was initiated and conducted only after officials from A.P.H. I.S. and the Office of Investigation had considered the nature and source of the charges and had determined that the allegations were of such a serious nature as to warrant an extensive investigation. Their testimony and that of other Government witnesses further indicates that the Government took certain precautions to be certain the allegations were true. These precautions included an extensive "round-the-clock" surveillance of Plaintiff's plant for more than a week, involving Government employees from both A.P.H.I.S. and the Office of Investigation, and included daily briefings of Augustine Flores. Flores had agreed to serve as an informant for the Government after he told the Government investigators of his observations of dead or "downed" cattle being processed by the plant without prior Government inspection.
The surveillance was undertaken from a residence near the plant where the activities in the pen area of the plant could be observed. In fact, the Government employees testified to observing several apparent violations of the Meat Inspection Act.1 It appears to the Court that the Government certainly had a reasonable basis for initiating and conducting its investigation of Plaintiff's plant.
The foregoing demonstrates, and the Court finds, that the Government had a reasonable basis or probable cause to believe that violations of the Meat Inspection Act and the applicable regulations were occurring. A long line of cases, from Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035 (1878) to United States v. Tuley, 546 F.2d 1264, 1267 (5th Cir. 1977), state the classic definition of "probable cause." These cases say that probable cause exists if "the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offence has been or is being committed . . .." It appears to the Court that the Government has more than adequately met this standard.
The evidence further shows that following the Government's continuing surveillance and its interviews with informant Flores, A.P.H.I.S. and Office of Investigation officials decided to send agent Cotton to the plant in an undercover capacity so that he could more closely observe the activities of the plant. While Cotton was at the plant, he and Flores observed two cows which had died other than by slaughter being taken into the plant. Under the facts of this case, the Government had the requisite regulatory and statutory authority for the actions taken. For example, 21 U.S.C. § 604 provides in part as follows:
. . . and all carcasses and parts thereof thus inspected and condemned shall be destroyed for food purposes by the said establishment in the presence of an inspector, and the Secretary may remove inspectors from any such establishment which fails to so destroy any such condemned carcass or part thereof, . .
In addition, 9 C.F.R. 305.5(a) provides as follows:
The Administrator is authorized to withdraw inspection from an official establishment where the sanitary conditions are such that its products are rendered adulterated, or for failure of the operator to destroy condemned products as required by the Act and the regulations in this subchapter. Inspection may be withdrawn in accordance with Section 401 of the Act and the applicable rules of practice.
It appears to the Court that the introduction of a cow which is dead, "downed," or dying into a plant which processes animals for human consumption is a violation of the sanitary conditions of a meat packing plant. In addition, the failure to destroy condemned products is contemplated by 9 C.F.R. 305.5(a).
Furthermore, 21 U.S.C. § 677 provides that the Secretary of Agriculture, in person or by such agents as he may designate, may prosecute any inquiry necessary to his duties under Chapter 12 of Title 21 of the United States Code. It further provides he shall also have the powers conferred under Sections 46(a) and (b), 48, 49, and 50 of Title 15. Said Section 46(a) provides as follows:
And, Section 49 provides the Secretary shall, at all reasonable times, have access to the documentary evidence of any corporation and the power to require by subpoena the attendance and testimony of witnesses. Finally, a portion of 21 U.S.C. § 606 bears emphasis regarding the inspection powers of the Secretary of Agriculture:
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