Schuck v. Butz, 72-1973
| Decision Date | 23 August 1974 |
| Docket Number | No. 72-1973,72-1973 |
| Parties | Marcy SCHUCK, Individually and on behalf of her infant son, et al., Appellants, v. Earl L. BUTZ, Secretary of Agriculture. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Alan B. Morrison, Washington, D.C., with whom Peter H. Schuck, Washington, D.C., was on the brief, for appellants.
James F. McMullin, Asst. U.S. Atty., for appellee. Harold H. Titus, Jr., U.S. Atty. at the time the brief was filed, John A. Terry, Robert S. Rankin, Jr., and Gregory C. Brady, Asst. U.S. Attys., were on the brief for appellee. Garey G. Stark, Asst. U.S. Atty., entered an appearance for appellee.
Before BAZELON, Chief Judge, and McGOWAN and MacKINNON, Circuit judges.
On February 9, 1972, appellants filed a petition with the Secretary of Agriculture, pursuant to 7 C.F.R. 1.28, asking him to impose an immediate ban on the addition of sodium nitrates and sodium nitrites (hereinafter referred to as nitrites) to meat products. Appellants further requested that the Secretary appoint a panel of 'distinguished scientists' to determine the usefulness of nitrites in preventing botulism in meat products. 1
On March 16, 1972, Assistant Secretary Richard Lyng responded to the petition in a letter which stated that the Department would not immediately prohibit all use of nitrites in meat. He asserted that there was no convincing evidence that the addition of nitrites to meat would result in an 'adulterated' product. 2 He also pointed to evidence that the addition of nitrites may reduce the dangers of botulism in meat products, and suggested that a ban on nitrites would eliminate this benefit, perhaps unnecessarily. The letter concluded:
A research effort to develop more information on nitrite is being carried out by the American Meat Institute Foundation representing principal members of the meat industry. The U.S. Department of Agriculture and the Food and Drug Administration are cooperating in that effort. 3
We recognize the extreme importance and the seriousness of the problem at hand and are giving it priority attention. We believe that any action we take must be based on sound, scientific knowledge.
On May 3, 1972, appellants filed a complaint in the District Court, requesting 'an order directing the defendant to repeal that portion of Regulations 318.7 ((c))(4) 4 which authorizes the use of nitrites in meat products . . .' The Department responded with a Statement of Reasons in which it said that the petition was denied because there was 'no convincing evidence presented which indicated that the use of sodium nitrite or sodium nitrate, within the limits specified by the regulations, would result in a product that is hazardous to human health.' 5 The Department offered studies in support of its position and responded to particular points and authorities raised in appellants' petition. The Statement of Reasons, including the studies and the responses to particular points raised by appellants, formed the basis for the Department's motion for summary judgment. A cross-motion for summary judgment was filed by appellants and, after a hearing, summary judgment was granted in favor of
the Department.
On appeal, appellants have recognized for the first time that the relief sought by them at the administrative and trial court levels, namely, a ban on nitrites, is legally available only through a rule-making proceeding, held in accordance with 5 U.S.C. 553 and 7 C.F.R. 1.27, to repeal the departmental regulation that permits the addition of nitrites to fix color. Appellants have accordingly modified their request for relief 'to ask only that the Secretary be required to hold a rule making proceeding under the Administrative Procedure Act . . . and his own regulations . . . with regard to the matters raised in the petition.'
Appellants' petition for a ban focused the Department's response on the ultimate validity of the rule permitting use of nitrites to fix color. Thus, the Department asserted in its Statement of Reasons that the petition did not present 'the sound, scientific, and convincing evidence needed to make a final determination.' A petition for rule making, involving public inquiry into the issues, may raise different questions and elicit different responses...
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