*1 grounds alleging substantially same COMPANY, Appellant, ARMOUR AND alleged motion his as were first motion this section. second Judge July 5, 1960. denied Morris Agri- FREEMAN, Orville L. culture, al., Appellees. et 30,1961, appellant in the filed On June withdraw his No. 16723. motion District Court his plea guilty, pursuant Fed.R.Crim.P. Appeals United States Court trial, 32(d), a new and for U.S.C. District of Columbia Circuit. appeal un- prosecute his and for leave Argued 15, Dec. proceed 2255 and der 28 U.S.C. 8, under 28 U.S.C. 1915. Decided Feb. 1962. August 16, present coun- On his Certiorari Denied June appeal, represents See 82 S.Ct. him this
sel, who ap- his appointed first that was Thereafter, on pearance in case. hearing August 17, was held hearing At District Walsh. stand
appellant to take declined relying prior motion, support his motion, proceedings in case. This third, appellant’s Dis- was denied appeal followed.
trict Court of the record and
Our examination ren- service
consideration the effective ap- argument by present dered and
pointed counsel error disclose no part follows of the District Court. judgment Court the District be affirmed.
must presents example another This case maligned being vilified and
able counsel rendering service after as effective rendered the circumstances commented We
the case. have heretofore
on this situation as follows: charge assis- of ineffective “The appointed leveled so often
tance is convicted defendants counsel many lawyers accept as- dislike to indigents. signments in behalf of charge sus- not be should Such very clearly appears unless tained grounded. Here, be well charge bor- ineffective assistance Gray v. frivolous.” dered on the States, U.S.App.D.C.
United F.2d charge present case also
In the of counsel “bor- assistance
ineffective on the frivolous.”
dered
Affirmed.
Attys., ap- appearances for also entered pellees. Harry Inman, Washington, Mr. D. A. gwift behal{
c filed a & brief on > al., urging Company, curiae, as amici et reversal. Before Chief Miller, Wilbur K. Prettyman
Judge, Danaher, Judges. Judge. MILLER, WILBUR K. Chief Company Armour and filed suit No 6, 1961, vember in United States against District Court man, Secretary L. Free Orville Agriculture,1 asking enjoin the court to enforcing, invalid, and to declare amendment his issued Oc 13, 1961, tober November effective Admittedly, the amendment has requiring effect of Armour and Com pany packers process and other who meats federally inspected plants to affix label Imitation Ham hams con to smoked taining up added moisture content to 10 per “green” cent of their or uncured weight,2 although the addition of mois permitted, ture that extent is if the charged ham is so labeled. Armour capricious was arbitrary and Daly, Mr. Thomas F. City, New York promulgating the amended of the bar of Appeals the Court of that, alia, thereby required inter he York, pro New vice, special hac leave Inspection violate the Meat Act3 which court, whom Harry with Mr. A. In- provides that “[N]o such meat meat man, Washington, C.,D. brief, was on the products shall sold or food for оffered appellant. by any person, corporation firm, sale foreign in interstate or commerce under Laughlin, Jr., Mr. Department John G. e * any false or nam Justice, Atty. Gen., whom Asst. Orrick, Jr., William H. for a David Armour moved in- C. Acheson, Atty., junction U. S. appellees brief, were on and the moved for hearing appellees. summary judgment. Messrs. Nathan J. At the Paul- Leban, son and A. appear Abbott Asst. motions it was U. S. Clnrkson, Acting immediately preceding M. R. word ‘imitation’ Administrator Department’s Agricultural imitated and in the Research the name food Service, style lettering was also sued. same size immediately name and thereafter regulation concerning 2. the use ‘ingredients’ the names of the labeling word imitation of food ingredients arranged in order of products, challenged which the amend- predominance.” applicable hams, ment made to moist 17.8(b) 4, 1907, C.F.R. If is as fol- 3.Act of March ch. Stat. lows: lan- §§ 75. The U.S.C.A. “(b) guage quoted A label which is above imitation of another food shall bear only process the Armour’s other involves alternative —would the modern profits pork prod- of course cause loss of smoked addition moisture recaptured. whole- never so treated that hams ucts and *3 having higher and food healthful some nothing We see in the record before us to the which than those nutritional value public to the indicate interest be has not been added. solution adversely grant by pre- affected of a findings fact, making the Dis- injunction. liminary requirements After The 5 genu- Virginia “There concluded is a trict Court Jobbers case Petroleum as whether fact to preliminary injunction of material respect ine issue to a Agriculture by fully Upon or not met Armour. re- * * * arbitrary ca- mand, injunction an and acted such an should en- adopting the amend- pricious manner in Thereupon, appellees tered. ofwill also concluded issue.” It opportunity plead ments here in have an to course irreparable in- suffer justification position, would not Armour of their and to in- for jury by of its motion denial proof from troduce on the formed issues injunction and that preliminary pleadings. a adversely af- would be public interest Reversed and remanded. grant- injunction were if fected Appellees’ Banc On Motion for an En Consequently, an order was entered ed. Rehearing of Motion to Extend Time to Secretary’s sum- for denying motion Rehearing. File Petition for judgment Ar- mary also and Jr., Laughlin, injunc- Atty., Dept, John G. Mr. for mour’s motion Justice, appel- for was oh motion appeals. Armour tion. lees. On consideration Harry Washington, Inman, Mr. A. us, clearly error think it was we opposition appel- C., for D. was prelimin deny for motion Armour’s lant. Secretary’s ary injunction.4 amend (cid:127) K. Before Wilbur Chief Miller, regulation attack, . atory is under Judge, and Edgerton, Prettyman, arbitrаry Baze- capricious in re on its face and lon, Fahy, Washington, Danaher, Bas- quiring packer to label a Judges, and Burger, tían forcing him into as thus Ham, Chambers. violating which forbids mis the statute nothing branding; record as April ORDER—Filed jus supports presently constituted an enforced tifies such distortion easily PER
truth. The CURIAM. litigation unnecessary by mere This cause came for consideration ly requiring moist hams appellees' for motion en banc rehear- of ing legend showing the nature and bear motion time- extend the Instead, added moisture. extent U.S.C.A., within fixed our Rule decep he chose they might petition file for re- tive label. having Ham hearing, extension theretofore injury from the Chief Irreparable to Armour the been denied after appar- appel- of the motion and consideration enforcement demonstration, opposition appearing thereto. for at- lant’s ent without marketing no valid reаson meat court that has been tempted grossly sought, officially extension and that misbrand- shown damage good ap- would be name. unfair fail an extension pellant, ed could the interstate market— it is Withdrawal Committee, Virginia v. Federal Central Pet. Jobbers Ass’n v. Democratic 4. Cox U.S.App.D.C. Comm’n, U.S.App.D.C. F.2d Power (1958). 259 F.2d
4Q7 Judge, motion said As mo- Ordered court that Chief considered be, opposition and it for en banc reconsideration exten- denied sion, hereby, denied. because was there convinced inaction, excuse for Feb- down was handed delay further would be unfair ruary 8, 1962, rehear- petition Armour, preliminary in- and that lodged 9— March with the Clerk junction February we ordered should filing about two after the time weeks be made effective. Although tardily expired. ten- had petition being received dered matter now before us filing, it and court has examined *4 Secretary’s the motion for en banc recon thаt, found it merit. It follows application sideration of the exten for rehearing petition sea- had the sonably for been peti sion time within a of file filed, formally tendered and rehearing, tion for and we have denied would have been denied. foregoing mem order. As four Motion denied. overruling my bers of court favor enlargement time, denial of of have and EDGERTON, BAZELON, FAHY and order, filed a dissent from the above WASHINGTON, Judges, dissent. why proper think it to state I denied place. in the first extension MILLER, WILBUR K. Chief grave departmental The notion that foregoing order). (in support of the precede deliberation had a decision originally us on This case came before rehearing course, is, seek in this case of interlocutory appeal of from absurd. The decision could been— have mo- Armour’s the District Court probability and in all within was—made Secretary Agriculture that of tion thirty reading opin- after minutes our enforcing enjoined preliminarily be simple, opinion ion. case and our regulation his Imitation and, reasonably I think, is brief clear. hams which Ham must attached to petition rehearing easily A for could percentage added contain a certain prepared have been in two or three process. In moisture due hours. opinion Feb- down unanimous handed a suggestion Any our ruary preliminary a in- we held February 8 decided the case on junction issued. should been merits without foundation. We care- fully deciding we were stated as we did U.S.C.A., pro Rule Our on the basis record as then con- petition rehearing may for vides that said, We inter stituted. alia: judg days within be filed fifteen after decision, time or ment “unless “On consideration enlarged by us, clearly court shortened we think it was judge applies deny thereof.” to all liti error Armour’s motion gants, provide does injunction. and exten for a automatically time amendatory regulation, shall be sions granted requested. when thir attack, capricious On the day fifteen-day period, arbitrary of his requir- teenth and on its face in Agriculture Secretary ing packer for an moved to label might within forcing time which he as Imitation extension him Ham, rehearing. violating petition is a into file statute which for- weighty matter, effect, misbranding; nothing he said in to de bids and regula presently whether cide his Imitation the record as constituted Ham suspended 'pendente lite, justifies supports should be such an en- days needed more than and he fifteen al forced distortion of the truth. prepare Secretary present easily Rule lowed have made unnecessary .his argument rehearing. mere- litigation hams bear a formed phasis added.) ture. course an Thereupon, Ham label. ture Iy requiring to introduce “ [******] justification * injunction Instead, have an * * extent legend showing that Jabela proof Upon deceptive opportunity to he chose should be pleadings.” appellees will remand, such position, and added entered. issues moist mois- plead (Em- na- more lodged petition easily Clerk on reflect accepted gested In it was due. showing added moisture. fact, spite require time, changed from the bench that March in oral disposed of the denial of his motion for facts; Ham suggestion. the false Although nature 9—some argument, label.” of if the Instead, rehearing manner it has not been two weeks after extent of the it was Agriculture he chose case could with the so as to sug- *5 considered, filed, we on the basis have it de- examined and have we Of course record, changing whether cided it present states ho reason then of the prevail on conclusion we probably reached our Armour foregoing say February Hence, was of Surely nobody that will merits. being considering papers is entered. improper. After probably us, Armour decided we Judges before would Pretty- I am authorized one of prevail, and that was man, Danaher, Burger Bastían and con- directing preliminary in- a reasons cur in the order and in this statement. leg pig is a natural junction. of a The Judge Prettyman concurring will a file part of a a is still product, a ham opinion at a later date. though leg with a treated pig’s even Prettyman’s (Judge concurring opin- injection mois- curing The solution. April 13, 19C2,follows.) ion, filed an imita- it into transform ture cannot ham. a real tion of PRETTYMAN, Judge. indicating may that be cases There agree opin- I with Chief Miller’s should manufactured ion, view of but the Government’s conform not if it does “imitation” position vehement insistence product; or accepted for that standards further add some comments. approxi- synthetic product which that a my out, points As brother Bazelon our prod- properties natural of a mates reviewing function in the denial of product, uct, in fact is but injunction by preliminary the District But “imitation.” the label should bear Court to determine whether the trial apply natural here: a cannot such cases judge discretion, his abused and one fac- a manufactured into is not made tor in that consideration the likelihood ham because synthetic real of a imitation ultimately prevail movant will that the subjected process ato it has been words, on the merits.1 In other one con- of moisture. residue leaves trolling question before us in this matter opin- from our repeat sentences these plaintiff’s was: Was the chance suc- ion: great judge so that the trial cess abused “ * * * injunction? his discretion The litigation un- We considered that easily decided made this our necessary by merely requiring up- Of course it. consideration was legend papers before us. We did not bear cn moist hams 364, 367, (D.C.Cir. F.2d 43 v. C. 211 Virginia Ass'n Federal Petroleum Job. 1954) ; Perry Perry, 106, 110, U.S.App.D.C. U.S.App.D.C. Comm., v. Power 337, 338, ; (D.C.Cir. (D.C.Cir.1958) F.2d Em F.2d 250 bassy 1951). Camalier, U.S.App.D. Dairy against preliminary injunction case, because decide the merits merits. enforcement an amendment tried on case not been reg- evaluate, inspection certain federal meat But we appel- present- promulgated by ulations far of the basis appel- requiring lees ed, plaintiff’s success that certain chances of any ap- pork products, lant’s smoked the merits. This a feature pork injunctive peal different its other smoked relief than except from denial up stage. they Perhaps, contain shocked grossness decep- moisture, label bear more consumer 10% other rather than some embodied directive ‘Imitation’ Government, ‘Containing employ we failed the cir- More Not customary cumlocution matters. in suсh Mois- Than 10 Per Cent Added produced appellant’s when ture’ the founda- federally inspected plants?” weight tion of lawsuit deals with pre- products. questions hams pro- and similar statement of the weight prod- sented, vides that the of a smoked do the defendant officials uct such as ham shall not exceed the we found mention the label. However fresh, uncured article. the label record before us Secretary’s authority issue such issue one conse- real of considerable a directive is claimed under the federal quence. did, to, and therefore We had Inspection complaint Meat Act.3 al- posed deal in so far as it was leges proposed requirement that this *6 far. in the record thus arbitrary capricious is and and allegation, therefore void. This weight problem respect to hams The genu- correctly poses District held, Court Hams, moisture content. involves their of ine issues of material fact and therefore course, pork. are cured must be tried. process is to the meat. water added require this extra would presently controversy, acute how- product be- dried out of moisture be ever, upon arises a collateral result of the regulation proposed fore sale. The foregoing basic pro- mandate. If the require packers proclaim that a posed regulation promulgated, say is containing was in ham more than water officials, defendant all offered hams original, article, is “im- uncured sale weighing original, more than their label, says the itation ham”. Such weight, uncured must bear label Imita- false, plaintiff, deceptive, unauthorized is Clarkson, tion Ham. Defendant Admin- by statute, requirement is and Agricultural istrator of the Research arbitrary, capricious il- therefore legal. Service, states affidavit the rec- ord, regulations “The amended pro- will tect labeling by authority providing consumer re- for their As meeting point quirement not officials the moisture re- the defendant quirements regulation long-established of another, shall be identified as ‘Imitation’.” Defendant reads: repeat officials that assertion in their “(b) product which is A label for brief here. On the fore-page of its of food shall in imitation another brief, where our rules that the immedi- word ‘imitation’ bear the questions presented by appeal ately preceding of the food the name stated, appellant question only. states one size and in the same imitated and is: lettering style name as in that of immediately “Did District Court abuse thereafter its ‘ingredients’ discretion appellant and the names 17.8(c) (49), (54) (Supp. C.F.R. 21 U.S.C.A. Stat. 19C2). ingredients arranged Hastie stated the rule predominance.” fashion: “The correct standard was the re- regulation quoted of a label treats оrdinary action un- consumer “product is imitation for a der such as attended circumstances validity of the
another proposed food". So product. retail distribution of this authority regulation, When a statute leaves such a matter just depends quoted, specification, as this without weighing more than whether a ham legisla- normal inference that the initial, weight by add- reason of uncured contemplated ture reaction ed water is in imitation some ordinary person who is neither not. other Everybody than ham. Of course dolt, special savant nor who lacks knows ham that a competency reference to thigh hog un- cured of a and otherwise matter hand has and exer- but of a bit altered save the addition lay- cises normal measure of the prod- an imitation some water not judg- man’s common sense and may more other uct than ham. ment." meat, but pork the unwetted moist than ordinary “Ham" “imitation” are thigh. hog if it is it is still ham cured meanings. words with well-established plain fact, ham such a As a matter They contradictory An im- words. real ham. It is a imitation even an not ham, genuine; itation two cannot be a univer- definition terms are Water and other antithetical. acceptance. When a house- common sal similar do transform inert additives not ham, wife, dry presented soaks awith into an imitation in article adding it, mois- in water or boils understanding common in scientific —or knows, everyone knows, ture, she understanding either, for that matter. thereby transmuted that she drugs Real bottled with water are This an imitation ham into real .ham. drugs. “imitations” of the Boric acid knowledge. understanding If is common eyewash sold in as an not im- solution ham, prod- *7 other you what to a add water Whiskey-and-water itation boric is acid. Obviously you no other imitate? uct do Judge whiskey. not imitation As Chief up- relied product. Since out, points peaches Miller syrup in real canned by an validates Imita- The are not Imitation Peaches. product only is for a label per addition of 10 cent content water product, of another imitation (which here) is what is issue does at foregoing mat- plain end the facts should change I a ham into an imitation. think ter. the label here the Govern- ment is a false label. provi another conclusive there is But prohibits statute itself. It in other word the statute sion critical governing any “deceptive”. any product “under This labels is meat sale reg according means, deceptive And to the au- name”.5 unanimous provides thorities, deceptive of the consumers to section under that ulation thereof, whom the is offered sale. product, and no container “No consumers, major decep measure false or These with shall be hams, respect to are the measure whether a To housewives name”.6 tive country. ordinary No is com article of food more employing words of staple not, usage This is a familiar to them. the words is false mon eggs meaning. ordinary American table—ham and taken must Cases, Less, 17.8(b) (1959). States More or 7.United C.F.R. § (3d Cir.), Etc., 187 F.2d cert. (1907), 21 U.S.C.A. Stat. 5. 34 denied, 72 S.Ct. U.S. (1951). 17.8(a) L.Ed. 6. 9 C.F.R.
4H
lunch,
breakfast,
sandwiches
upon
ham
our citizens live and
which the
The housewife
baked ham for dinner.
Government exists would
mak-
ing.
start,
is
“imitation”
The word
It would
ham.
not in some cloister-
knows
ed,
perfectly
contemplative
her.
atmosphere,
well known to
likewise
but
“something
counterfeit,
fake,
shelves of
people
means a
markets where
something
not,”
look like
mass
made to
come into
direct contact
Dictionary puts
it.8 So
operation.
Government
the Oxford
and its
genuine
government
plus
Faith in
point,
is:
If a
this
faith
veracity,
objectiveness,
water is labeled Imitation
Ham,
accuracy
government agencies
made to
hоusewife
she
deceived?
Is
at this
level,
package
these,
some-
think
in affairs
contains
are the
thing
genuine
priceless,
ingredients
ham,
irreplaceable
other than
government.
it democratic
meat?
think
manufactured luncheon
We should
perfectly
handling
who brook no
obvious that a housewife
loose
in these mun-
dane
would think
but
labels
delicate
believes Government
executive
matters.
If
package
here,
grow
does officials
ham”
fail
autocratic,
labeled “imitation
judicial
government
moist
not contain
ham more
branch of
must
bring
me
than it was in
raw.
them within
seems
of their
confines
duty.10
this label is
the consumers
concerning
for whose benefit the statute
I return to the
statement
Chief
labels is addressed.9
controversy
Miller. This
could be
avoided if the
brings
to the serious
me close
And this
simply that ham with water be labeled
are,
sup-
phase
There
of this aifair.
water,
ham with
indicating
its true
truly
posе, packaged foods which are
nature and content.11 The vice
diffi-
containing
hams”,
foodstuffs
“imitation
culty
taking
arise when he insists
leg
pig.
of a
than
cured hind
other
ordinary
perfectly
well-known
Suppose
packages
sit side
side
two
usage “imitation”—,
in common
—
grocer’s
contains a real
shelf. One
giving
byit Government fiat an artificial
ham,
with a
water added.
bit of
meaning wholly at variance with its com-
substance,
composite
other contains a
meaning,
requiring
mon
and then
pork,
up
cured
resemble ham.
using
synthetic
this
To
nomenclature.
Both
are labeled
Ham.
Is
me
is bureaucratic absolutism run
my
shopping
To
housewife deceived?
“bureaucracy
rampant”,
run
wild—
borrow a
way
thinking,
fraud
an unconscionable
phrase.
proposed require-
being
perpetrated
on her
ment of Ham these hams
*8
suggest
when
the Government.
dangerous
consequences.
in its obvious
genuine and
she realizes that
ersatz are
reasoning
required
I now examine the
alike
to be labeled “imitation”
official
supporting
requirement.
processes
of
Govern-
The
her faith
say
protect
purchases of defendant officials
her in her
that “As far back
ment
1, 1925,
family
surely
October
for her
will
the word
food
dissolve
as
‘Imitation’
required by
had been
rawest
A
into disbelief of the
sort.
seri-
applied
infraction of
faith
meat food
ous
simulat-
etc.,
Cases,
(1924) ;
L.Ed.
v.
States
See
of Jam
United
United
States,
599,
593,
Lexington
Co.,
399,
515,
409,
v.
Mill
340 U.S.
232 U.S.
S.Ct.
337,
(1914).
branded.14
profits.
gestion
in
noted
must be
content
that water
must,
drug plus water
that
on label or
summary my
In
is:
view
could,
“imitation”.
(1)
of-
support
is
No authoritative
in
used once
is
“imitation”
word
fered,
exists,
proposed
label
drug is
provides
section,
that
where it
regulation,
presently
far
sо
as
imitation
it
“if
is
misbranded
deemed
concerned;
file
on
drug”.
use
This
another
false;
(2)
proposed label
is
uses
the act
indicate that
seems to
(3)
proposed
deceptive to
label is
meaning.15 The act16
established
its
consumers;
must
which
list
additives
describes a
(4)
illegal;
proposed label
including
is
al
label,
be mentioned
ether,
bromides,
drugs
(5)
as
up-
cohol and
arsenic, digitalis,
no excuse
exists
insistence
not
It does
men
label,
recognizable
etc.
pur-
on this
all
as
must be
easily
poses
water
an additive
as
a sim-
be achieved
misbranding. So far
labeling,
indicating
mentioned to avoid
ple, accurate
Drug Act
find,
proportion
the Food and
can
of water
in these
content
proposition
support
hams;
contains no
pure
plus
water could
(6)
proposed
contrary
is
required by it to be labeled
would be
public
interest
most
serious
sense; and
Imitation Ham.
Secretary’s
My
оpinion
(7)
own
is
judge,
applicable
the trial
illegal
legal
as mat-
its face
idiom,
abused his discretion
authority
His
preliminary injunction.
ter of law.
prescribe
which are
labels
statute
seriously
tried to treat
He
to consumers.
not
power
soberly the Government's
contentions
decep-
require
a label which
respect
although
label,
to this
much
usage
common
in its use of words of
tive
argument
seems to me
border
meaning.
the fantastic.
at such
I would not have written
length
BAZELON,
so
Judge,
had not the defendant officials
Circuit
with whom
vigorously
upon'
to EDGERTON,
what seems
insisted
FAHY and WASHING-
wholly
position,
untenable
TON,
Judges,
to be a
(dissent-
me
concur
gross
position
ing).
involved a
had
me)
(or
plain,
deception
so seems to
today is
latest
action
The Court’s
ordinary people
in the mass.
If
controversy
over the
phase in a
case,
in this
can do this
Government
regulations governing
Agriculture’s
using
it not
can
case
what
labеling
prod
of smoked
content
opposite
assumed sense
words
moving in interstate
commerce.
ucts
meaning?
ordinary
Secretary’s regu
1952-60,
period
required
that the
my
which,
lations had
second factor
On the
including hams,
products,
out,
points
cured
smoked
BAZELON
must
brother
weight of
un
us,
the fresh
plain-
exceed
we concludedthat
irreparable
considered
Non-conforming prod
article.1
suffering
cured
harm. We
tiff is
every
to be labeled Imita
day
were
ucts
conforming
products not
compelled
all
tion —as are
plaintiff
Government
regulations.2
pur
genuine products
as imita-
edict to sell
prevent
suffering injury
was to
pose
tions,
reputa-
to its
it Fed.Reg.
(1952) ;
Fed.Reg.
1. 17
14. Id.
352.
Cases, etc., of Jam
Unite
See
States, supra note 8.
d
Fed.Reg.
C.F.R.
17.8
(b).
352(e).
21 U.S.C.A.
*11
marketing
rehearing
as a
ham of
of
banc
that denial.
had
substan
vote
petition
whose
been
to allow the
to file the
tially
injecting
rehearing
water and
increased
for
of this Court’s de-
thought
granting
other fluids.
that con cision
preliminary
was
relief.
pay
water
sumers
for
should not
support
In
of its
an
motion for
exten-
prices.
at ham
time,
sion
alleges
the Government
in De-
were amended
substance that the Court’s characteriza-
permit
cember 1960 to
weigh
cured hams
tion of the
“arbitrary
as
fresh,
percent
ten
than the
capricious
more
“forcing
face” and
Following
product.3
opposition
uncured
by
packers to
violate
statute”
virtual-
groups,
ly
a series
some consumer
adjudication
a conclusive
of the merits
hearings
held
which the Secre-
was
after
controversy.4
of the
Because that ad-
tary
regulations.
prior
judication
reinstated the
far-reaching implications
weighed
consequence,
As a
hams which
for the administration and enforcement
before
once
more after
than
Inspection
Meat
Act and the Fed-
аgain required
Food, Drug,
eral
Act,
“Imitation.’'
and Cosmetic
Government faced the
whether
Secretary’s order rein-
Just
before
rehearing
to seek a
in banc. We under-
stating
regulations became
the earlier
stand from the Government’s motion that
attacking
brought
effective, Armour
suit
departmental procedures required con-
seeking
validity
permanent
among attorneys
sultations
partment
for the De-
injunction against
their enforcement.
Justice,
per-
administrative
preliminary in-
Ai’mour also
junction pendente
for a
moved
attorneys
sonnel and
Department
for the
District
lite. The
Agriculture,
approval by
the So-
motion,
ap-
Court denied
Armour
licitor
Moreover,
General.
additional
rejected
pealed.
applica-
We
Armour’s
time
preparation
was
stay
the effective date
petition
present
in order to
regulations pending appeal. Thereaftеr
controversy,
merits of the
which were
appeal
and this
re-
was heard
Court
opinion
reached in the Court’s
but were
versed
District Court
primary
parties
not the
focus of the
terms,
which, in
held
that’
appeal
from the District Court's de-
labeling requirement
imitation
“ar-
preliminary
nial of
relief.
bitrary
capricious
on its face.” The
validity
requirement
litigant’s
had not
Our
records show
first
challenged
complaint
request
been
below:
for a reasonable extension of
challenged
petition
rehearing
what
been
time
had
Secre-
to file a
for
tary’s
ordinarily granted
mov-
directive that
meats
smoked
a matter of
course.
Moreover,
processed
compelling
interstate
commerce
there
reasons
“green” (i. e.,
weight.
granting
uncured)
for
extension here.
expiration
period
injury
for
hardly
to Armour is
suffi
Before
seeking
rehearing,
extraordinary
re-
cient
to warrant our
haste.
questеd
opinion says injury
an extension
time in which to The
apparent
“is
rehearing
petition
file a
in banc.
demonstration” because Ar
good
request was
mour’s
That
denied
the Chief
name will be besmirched if
filing
period
timely
compelled
market
its watered
after
expired.
petition
is now ham': under
had
The case
the label Imitation.
Secretary’s petition
agree.
us on
District
Court did not
Nor do I.
Fed.Reg.
appeal
3. 25
be set aside on
unless the Dis-
trict Court’s action constitutes clear er-
Young
Ass’n,
discretion,
Motion Picture
ror or abuse of
U.
and that ordi-
-,
S.App.D.C.
narily
416
implement
statute,
packers
including
der
of
Armour
to
the
Hundreds
the Secre-
—
Agriculture
long
tary
Imitation,
products
specified
of
has
labeled
the
—market
ingredients
years.
may
many
And
which
so for
be
and have done
included
products.
compelled
market
power
to
certain
His
to do so
Armour
upheld
impact of was
in Houston
if it
v. St. Louis Pack-
watered hams
fears
ing Co.,
479,
332,
Armour submit
249 U.S.
39
L.
label.
S.Ct.
“Imitation”
(1919),
showing
packer
“there
Ed. 717
where a meat
ted affidavits
protested
Secretary’s
or
equipment
no
to use different
determination
be
need
to
be able
any
retool so
water or ice must not
three
to in
sense
exceed
percent
percent
a finished
production
of the
hams with
cereal two
product
shift
fresh,
weight
“sausage.”
weight
uncured
of the
labeled
in excess
weighing
weight
than
more
The issue
Secre-
hams
there
whether the
* *
tary
stamp
product
fresh,
could refuse to
uncured
“inspected
passed”
either
did not
think that
which
reason to
Nor
there
comply
regulation.
or
alternative,
with
The Court
of the
use
water,
could, pursuant
that he
would held
the sec-
the excess
elimination of
profits.
just
In
seriously
which
Armour’s
statute
we
affect
sold
profitably
Indeed,
referred.
years,
Court
prior
Armour has
said:
hams
both watered
term ‘sau-
“Whether
not the
complying
the Sec
hams
and dried
retary’s
sage,’
applied
product
when
to the
Moreover,
regulations.
the Gov
appellee,
than
which more
earn
points out that Armour's
ernment
permitted
amount of cereal and
January
ending
ings
quarter
regulations
for the
used,
deceptive
water is
false
effect,
1962,
were
when
fact,
is a
determina-
pe
year-earlier
greater
than
tion of
which is committed
permitted
riod when the
marketing
Agricul-
Secretary of
decision
hams
watered
given
by
authority
ture
him to
of these
In view
label.5
“Imitation”
regulations.for giv-
make
rules
significant
facts,
reason
fear
see no
act,
effect to the
and the law is
addi
of an
Armour
the face
harm to
that thе conclusion of the head
delay.
fifteen-day
it must be
And
tional
department
executive
on such a
singling out
is no
there
remembered
question will
reviewed
packers
All
covered
Armour.
fairly
courts where it is
arrived at
the same standards
meet
Act must
support
with substantial evidence to
compete
basis.
on the same
it.”
[249 U.S. at
S.Ct. at
334.]
strong
moreover,
are
there
think,
appear
It would
support
arguments
of the
challenged
specifying
may
which
the water
be added
regula-
authority
to issue
may
product
labeled “ham”
be valid
Inspection Act of
the Meat
Under
tions.
authority
Houston case.
es-
empowered to
1907,6
Brougham
Mfg. Co.,
See also
v. Blanton
of meat
definitions
standard
tablish
495, 39
63 L.Ed.
U.S.
S.Ct.
prohibits the
statute
That
products.7
(1919).
commerce
offering
interstate
sale
authority
products "under
There
also
food
Secre-
meat
of meat or
names;
tary’s
es-
but
use
“imitation”
to de-
names
scribe a
whiсh does not conform
names
trade
tablished
*
* *
to the standards he
established—al-
to such
usual
though
approved
this Court’s
seems
shall
usage
misbranding.
or-
permitted.”8
that such
is itself
Agriculture are
19, 1962,
Journal,
Packing Co.,
Feb.
7. Houston
St. Louis
249 U.
Wall Street
(1919).
S.
39 S.Ct.
Not opinion in is warranted. Court's this case banc