Helco Products Co. v. McNutt
Decision Date | 28 June 1943 |
Docket Number | No. 8344.,8344. |
Citation | 137 F.2d 681 |
Parties | HELCO PRODUCTS CO., Inc., v. McNUTT, Federal Security Adm'r, et al. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Louis Halle, of New York City, with whom Messrs. Harry P. Warner and Philip J. Hennessey, Jr., both of Washington, D. C., were on the brief, for appellant. Mr. David E. Tolman, of Washington, D. C., also entered an appearance for appellant.
Mr. Edward B. Williams of the Bar of the State of Arkansas, of Washington, D. C., pro hac vice by special leave of Court, with whom Messrs. Edward M. Curran, United States Attorney, Charles B. Murray, Assistant United States Attorney, and Jack B. Tate, General Counsel, Federal Security Agency, all of Washington, D. C., were on the brief, for appellees. Messrs. Bernard J. Long, Assistant United States Attorney, and John P. Burke, Assistant United States Attorney, both of Washington, D. C., also entered appearances for appellees.
Before PARKER, Circuit Judge, sitting by designation, and MILLER and VINSON, Associate Justices.
Appellant sued in the District Court for a declaratory judgment against the Federal Security Administrator and the Attorney General. The case stated in its complaint is, in substance, as follows: Appellant intends to ship in interstate commerce white poppy seeds, for use on bakery products, to which it intends to add a blue color by means of a harmless vegetable dye; the seed would be sold in bulk packages labeled with an explanation of the manner of coloring; the reason for the addition of the color is that blue poppy seeds are more in demand, but, on account of wartime restrictions of importations, are unavailable; appellant, through its attorney explained its intentions in a letter to the Food and Drug Administration of the Federal Security Agency, and explained why it did not consider its proposed business activities to be at variance with the provisions of the Federal Food, Drug, and Cosmetic Act1; it requested an expression of opinion from the Food and Drug Administration as to the legality of the interstate shipment of such a food product, and was advised by Walter G. Campbell, Commissioner of Food and Drugs, that, in the opinion of the Food and Drug Administration, such an artificially colored product would be adulterated within the meaning of Section 402(b) of the Federal Food, Drug, and Cosmetic Act.2 Appellant alleged, also, in its complaint in the District Court, that on June 3, 1942 it sent to the Attorney General of the United States, the following telegram: In reply to this telegram, the Attorney General, on June 2, 1942, informed appellant: "Liturgic white poppy seed dyed blue please be advised that the Attorney General is authorized by law to give opinions only to the President and heads of Executive Departments." Upon the basis of these allegations, appellant alleged further that in the event it ships dyed poppy seeds in interstate commerce, the Food and Drug Administration will advise the Attorney General that the shipment thereof constitutes a violation of the Federal Food, Drug, and Cosmetic Act; that the Attorney General will thereupon "effectuate the recommendation of the Food and Drug Administration," by seizing and condemning such dyed poppy seeds in interstate commerce, or, in the alternative, will bring criminal proceedings against appellant, its agents and employees; that appellant has no adequate remedy at law; wherefore, appellant demands judgment against the Federal Security Administrator and the Attorney General, declaring that the Federal Food, Drug, and Cosmetic Act does not prohibit the interstate shipment of artificially colored poppy seeds, properly labeled.
The issue which we must decide is whether there is a case of actual controversy within the meaning of the Declaratory Judgment Act;3 in other words, whether the facts alleged, under all the circumstances, show that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.4 In John P. Agnew & Co. v. Hoage5 this Court said that "mere supposition that the appellee's opinion will be erroneously and illegally applied," was not sufficient to support a complaint for a declaratory judgment. This is equally true in the present case. Here, no opinion had been expressed by either appellee named in the complaint. The Attorney General declined to answer the hypothetical question submitted to him; and it does not appear that the question was even submitted to the Federal Security Administrator. Appellant concedes that the Agnew case, and others,6 speak in terms of an official threat of enforcement, as a requisite of justiciability in declaratory judgment actions. But appellant would distinguish the present case on the theory that: "In the case at bar the Administrator has the authority and as a matter of law has officially threatened to prosecute the appellant or to seize and libel its merchandise." Italics supplied. Specifically, it argues that (1) an oral or written threat of enforcement is not an absolute condition precedent to the use of the declaratory judgment, when (2) the threat of prosecution "is implicit in the statute by reason of the civil and criminal sanctions attached to the statute"; (3) the declaration, by the Commissioner of Food and Drugs, that the interstate shipment of colored poppy seeds would constitute a violation of the Act, constitutes, as a matter of law, a threat to enforce the statute, and (4) carries with it the duty to report such violation to the Attorney General, who (5) thereupon has the mandatory duty to prosecute a violation of the statute (6) reported to him by the Federal Security Administrator. Several of these propositions, at least, if not all, are without merit; and if appellant's standing to sue depends upon establishing them, then it must fail.
Obviously, the declaration of the Commissioner is several steps removed from a threat of prosecution. Neither he nor his superior, the Federal Security Administrator, has power to prosecute or to require prosecution.7 Moreover, 1 his advisory opinion, in answer to a hypothetical question, does not foreclose a contrary conclusion, by him, upon an actual state of facts; 2 his recommendation for prosecution, assuming that he makes one, does not establish the fact that a violation has occurred; 3 nor does it require the...
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