United States v. Bodine Produce Co.

• Decision Date: 24 May 1962
• Docket Number: No. C-15992.,C-15992.
• Citation: 206 F. Supp. 201
• Parties: UNITED STATES of America, Plaintiff, v. BODINE PRODUCE CO., Inc., a corporation, Defendant.
• Court: U.S. District Court — District of Arizona

206 F. Supp. 201

UNITED STATES of America, Plaintiff, v. BODINE PRODUCE CO., Inc., a corporation, Defendant.

No. C-15992.

United States District Court D. Arizona.

May 24, 1962.

COPYRIGHT MATERIAL OMITTED

C. A. Muecke, U. S. Atty., Sheldon Green, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff.

Jennings, Strouss, Salmon & Trask, by Ozell Trask, Phoenix, Ariz., for defendant.

BOLDT, District Judge.

At various stages in this proceeding — during the trial, after the jury's verdict of guilty, at the time of sentencing, and in considering defendant's motions subsequent to sentencing —, the Court has carefully evaluated the issues raised by the defendant. These issues merit a more extended presentation of the views of the Court than as previously stated extempore.

The case arose as a misdemeanor criminal action under the Federal Food, Drug, and Cosmetic Act. In the Amended Information filed by the United States Attorney, the defendant was charged with having violated that Act by causing adulterated lettuce to be introduced and delivered for introduction into interstate commerce at Glendale, Arizona, consigned to Milwaukee, Wisconsin. 21 U.S.C.A. § 331(a).

The lettuce was alleged to be adulterated within the meaning of 21 U.S.C.A. § 342(a) (2) (B) in that it was a raw agricultural commodity and it contained a pesticide chemical, namely DDT, which was unsafe within the meaning of 21 U.S.C.A. § 346a(a) since the quantity of such pesticide chemical on the lettuce was not within the limits of the tolerance for DDT prescribed by regulations of the Secretary of Health, Education, and Welfare.

Pertinent regulations of the Secretary, issued by statutory authority, established a tolerance or permissible limit of 7 parts per million for DDT on lettuce. 21 CFR 120.101(e) (49); 21 U.S.C.A. § 346a(e) and (k); 21 U.S.C.A. § 346; 21 U.S.C.A. § 371(a) and (e).

Upon the evidence adduced at the trial, the jury obviously concluded that the lettuce shipped by the defendant in this instance contained DDT in excess of 7 parts per million. In fact there was no substantial evidence to the contrary.

The defense attempted to introduce extraneous issues in the case which, in the opinion of the Court, would have tended to confuse the jury if evidence thereon had been admitted. These issues included (1) at collateral attack on the validity of the regulations, (2) an offer to show lack of danger to health, and (3) an assertion that defendant's shipment of lettuce came within the exemption proviso in 21 U.S.C.A. § 342(a) (2). Evidence bearing on these issues was excluded at the trial for the reasons hereinafter given.

1. Collateral Attack On The Regulations

Defendant conceded that the Secretary of Health, Education, and Welfare has the authority to establish tolerances for pesticide chemicals on raw agricultural commodities but contended that he exercised his discretion in an arbitrary and capricious manner. It was therefore defendant's intention to question the validity of the regulation and to show that a much greater tolerance should have been established for DDT on lettuce.

This Court is not the proper forum in which to raise such issues or to seek review of the merits of the regulation.

The statute prescribes a procedure to obtain direct judicial review of the merits of such regulations in a United States Court of Appeals by filing a petition within 90 days after the regulations are issued. 21 U.S.C.A. § 371(f) (1); see also 21 U.S.C.A. 346a(i) (1). The judgment of the Court of Appeals is final subject to review by the United States Supreme Court. 21 U.S.C.A. § 371(f) (4); see also 21 U.S.C.A. § 346a(i) (5).

The regulations on which this case hinges were issued by the Secretary and were published on March 11, 1955. 20 Federal Register 1473. No statutory appeal was taken by the defendant or by anyone else.

Had there been direct judicial review pursuant to the statute and had the validity of the regulations been sustained in that proceeding, there can be no doubt that the merits of the regulations would no longer be open to judicial scrutiny in a subsequent proceeding to enforce the regulations. See City of Tacoma v. The Taxpayers of Tacoma, 1958, 357 U.S. 320, 336-337, 78 S.Ct. 1209, 2 L.Ed.2d 1345.

If direct judicial review is not sought within the 90-day period allowed by the statute, the right to such review is lost and the regulations become final in the same way as they would if affirmatively upheld on direct review.

In a collateral action such as this one to enforce a regulation, it is not proper for the defendant to challenge the regulation upon any grounds other than the statutory requirements relating to notice and hearing. Byrd v. United States, 5 Cir., 1946, 154 F.2d 62, 63-64. These requirements are essentially statutory rather than constitutional because there is no fundamental right to a hearing in the rule-making¹ process. Thus in Willapoint Oysters, Inc. v. Ewing, 9 Cir., 1949, 174 F.2d 676, cert. den. 338 U.S. 860, 70 S.Ct. 101, 94 L.Ed. 527, which was a direct appeal from a rule-making regulation under the Federal Food, Drug, and Cosmetic Act, the Court said at page 694 of 174 F.2d:

"* * * * in legislation, or rule-making, there is no constitutional right to any hearing whatsoever. Thus the requirements of any hearing are to be tested solely by the statute so providing, which may or may not import constitutional concepts."

In any event, the regulation now before the Court was adopted in full compliance with the procedural requirements of notice and hearing as prescribed by the statute. 21 U.S.C.A. § 371(e). A Notice of Hearing was published in the Federal Register on September 17, 1949. 14 Federal Register 5724. It stated that a public hearing would be held commencing January 17, 1950, at a designated address, upon proposals to issue regulations limiting the quantity of poisonous or deleterious residues on fresh fruits and fresh vegetables.

Pursuant to this Notice, a lengthy public hearing ("at a cost of nearly a half-million dollars to Government, to industry, to agricultural organizations, and to the various land-grant colleges") was held which required protracted study before regulations could be issued, Senate Report No. 1635, published in U.S.Code Congressional and Administrative News, 1954, Vol. 2, pages 2626, 2627.

On October 20, 1954, the Secretary published a Notice of Proposed Rule Making stating proposed findings and proposed tolerances for a number of poisonous and deleterious substances on a number of fresh fruits and vegetables. 19 Federal Register 6738. With respect to DDT on lettuce, the proposed tolerance was 7 parts per million. 19 Federal Register 6770. Interested persons were given 60 days to file written exceptions. 19 Federal Register 6772.

On March 11, 1955, a final order² was published establishing tolerances for pesticide residues in or on fresh fruits and vegetables. 20 Federal Register 1473. The tolerance for DDT in or on lettuce is 7 parts per million. 20 Federal Register 1506. No direct judicial review was sought within the 90-day period permitted by 21 U.S.C.A. § 371 (f) (1).

For these reasons, the statutory requirements relating to notice and hearing were fully met. There is no basis for challenging the validity of the regulations on procedural grounds and no other grounds may properly be urged in this Court.

The statute and regulations provide a procedure to amend or repeal the regulations. 21 U.S.C.A. § 346a(a); 21 CFR 120.32; 21 U.S.C.A. § 346a(e); 21 U.S. C.A. § 371(e). The Court is not advised, however, of any attempt to amend or repeal the regulations establishing a tolerance of 7 parts per million for DDT on lettuce. If there are sound reasons for changing the regulations, those reasons should be urged before the Secretary in conformity with the procedure prescribed for that very purpose. The Secretary's action (or inaction) will then be subject to direct judicial review under 21 U.S.C.A. § 371(f) (1), 21 U.S.C.A. § 346a(e), (d) (5), and (i) (1).

Defendant relied upon United States v. Lord-Mott Co., D.C.D.Md.1944, 57 F. Supp. 128, as authority for the proposition that regulations such as these may be collaterally attacked in an enforcement action. There the defendant was charged with the interstate shipment of canned peals which, by reason of excessive mealiness, did not conform to a standard of quality established by regulation 4 years earlier. No one had sought direct judicial review of that regulation within 90 days after its issuance, through the procedure authorized by 21 U.S.C.A. § 371 (f). At the trial, the District Court permitted defense witnesses to testify in effect that the regulation did not permit enough mealiness. The Court then concurred in this view and concluded that the regulation was too rigid and was invalid. Speaking of a critical administrative finding of fact in the regulation, the District Court said at page 133 of 57 F.Supp.:

"Whether this finding is actually supported by the weight of the credible testimony at the hearing which led up to the promulgation of the regulation, we do not purport to determine. It is not necessary to do so, because, * * * defendant is not controlled by what was proved or decided by that hearing, but has a right to have this Court decide the question of the regulation's validity upon the evidence produced before it."

This Court does not agree that defendant is entitled to a de novo hearing in a District Court on the merits of such a regulation in an action brought to enforce that regulation. Under the Lord-Mott case, a person need not exhaust his administrative remedies in seeking modification of a regulation nor need he follow the statutory procedure for exhausting his remedy at law by seeking direct judicial review. Whenever an enforcement action is brought against him he could ask the District Court to disregard the regulation and to sit as a super-administrative body to hear voluminous testimony de...