United States v. Shock
Decision Date | 19 June 1967 |
Docket Number | No. 18616.,18616. |
Citation | 379 F.2d 29 |
Parties | UNITED STATES of America, Appellant, v. Harold M. SHOCK, Sr., Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
Robert E. Johnson, Asst. U. S. Atty., Fort Smith, Ark., and Arthur A. Dickerman, Atty., Dept. of Health, Education and Welfare, Los Angeles, Cal., for appellant; Charles M. Conway, U. S. Atty., Fort Smith, Ark. and William W. Goodrich, Asst. Gen. Counsel, Dept. of Health, Education and Welfare, Washington, D. C., on the brief.
Fenton Stanley, Malvern, Ark., for appellee.
Before VAN OOSTERHOUT, BLACKMUN and LAY, Circuit Judges.
This action involves a Libel of Information praying seizure and condemnation of two devices in the possession of appellee commonly known as ultrasonic machines shipped by the R. J. Lindquist Co., Los Angeles, California, to Harold Shock, Sr., a chiropractor, living in Malvern, Arkansas. The machines were condemned under the Federal Food, Drug and Cosmetic Act, Tit. 21 U.S.C. § 301 et seq., as being shipped in interstate commerce, "misbranded" under Tit. 21 U.S.C. § 352(f) (1)1 as not bearing adequate directions for use, and as not otherwise exempt from the Act.
Harold M. Shock, the appellee herein, intervened alleging that the machines were at all times exempt from Tit. 21 U.S.C. § 352(f) (1) since shipment and possession of the devices met all the requirements and conditions set out in 21 CFR 1.106(d). The latter regulation provides:
Trial was held before the district court. Chief Judge John Miller dismissed the Libel of Information and ordered the devices restored to the appellee. United States v. Article Consisting of 2 Devices, More or Less Labeled in Part: "Lindquist Chronosonic Ultrasound Model 401 B, etc.,2 255 F.Supp. 374. We reverse and remand to the district court for further findings in accordance with this opinion.
The lower court focuses his opinion upon the following discussion: "The libelant * * * is a licensed chiropractor, and the ultimate question here is whether this court should determine that he is not `a practitioner licensed by law of the state in which he practices to use or order the use of the device.'"
The trial judge then states:
(Our emphasis.) 255 F.Supp. 381-382.
The government concludes that the trial court is asserting the doctrine of abstention in refusing to pass upon state law. If this were true, we would agree with the government that this case does not present facts under which a federal district court should exercise abstention. "* * * Where Congress creates a head of federal jurisdiction which entails a responsibility to adjudicate the claim on the basis of state law * * * we hold that difficulties and perplexities of state law are no reason for referral of the problem to the state court * *." McNeese v. Board of Education, 373 U.S. 668 at 673, n. 5, 83 S.Ct. 1433, 1436, 10 L.Ed.2d 622. See also Meredith v. City of Winter Haven, 320 U.S. 228, 234, 235, 64 S.Ct. 7, 88 L.Ed. 9; Propper v. Clark, 337 U.S. 472, 490, 69 S.Ct. 1333, 93 L. Ed. 1480; Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 12 L.Ed.2d 377; Company of Allegheny v. Mashuda Co., 360 U.S. 185, 196, 79 S.Ct. 1060, 3 L.Ed. 2d 1163.
But we interpret the trial court's opinion differently. The doctrine of abstention does not deal with the power or authority of the court to decide local law. The doctrine of abstention is related to principles of federalism, comity and convenience. When a court abstains, it defers or postpones, it does not deny jurisdiction. Railroad Comm'n. of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971; Harrison v. N. A. A. C. P., 360 U.S. 167, 177, 79 S.Ct. 1025, 3 L.Ed.2d 1152; See also discussion in Wright, Federal Courts, § 52, p. 169-177. Kurland, Toward a Co-operative Judicial Federalism: The Federal Court Abstention Doctrine, 24 F.R.D. 481. The lower court's opinion is concerned with the lack of "jurisdiction" of the Federal Food, Drug and Cosmetic Act to regulate the practice of medicine and chiropractic within a state. The court states that the Act does not correspondingly "authorize" a federal district court to pass upon the "ultimate" question of state law involved. The effect of the trial judge's opinion is to deny the court's jurisdiction to make an adjudication under the facts presented. The trial court we feel erred in assuming he lacked authority to decide state law under the existing facts. The lower court relied upon Schlessing v. United States, 9 Cir., 239 F.2d 885, where the Court of Appeals said:
(Our emphasis.) 239 F.2d at 886.
But this language must be read in context with the facts of the case. The case involved a shipper who had agreed to a consent decree allowing shipment of ultrasonic devices only under the "conditions" and "approval" of the Food and Drug Administration. At this juncture of the case whether a chiropractor was exempt under the regulations was a "mooted" question. As such and under the state of the record, the stipulated issue was only hypothetical and appropriately at that time "one for the courts and agencies of California to regulate."
But the issue is not moot in the facts before us. As the trial judge pointed out "the ultimate question" concerns the Arkansas law and whether appellee thereunder is "a practitioner licensed by law to * * * use or direct the use of the device."
The lower court further relies upon a comparison of the district court opinion in England v. Louisiana State Board of Medical Examiners, D.C., 246 F.Supp. 993, affirmed 384 U.S. 885, 86 S.Ct. 1924, 16 L.Ed.2d 998. However, we fail to find justification for dismissal under the long history of this case. (See J. Douglas's concurrence in 375 U.S. 411, at 423, 84 S.Ct. 461, 11 L.Ed.2d 440.) There, appellants were chiropractors seeking to practice in Louisiana without complying with the educational requirements of the Louisiana Medical Practice Act, alleging it was unconstitutional. The district court originally abstained (180 F.Supp. 121, 124) on the theory that the state court might find that the Act did not apply to chiropractors and the constitutional issue might be avoided. However,...
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