Harry L. Welch, T/a Harry Welch General Merchandise v. United States
464 F.2d 682
4th Cir.
1972
Check Treatment

*1 Appellant, relationship appellant. on cross-examina

however, demonstrated might perjury have well that Elvin’s appellant; moreover unrelated to been perjury clearly on the appellant relied Elvin. to discredit conviction by appellant’s review foreclosed case Judge, Butzner, concurred Circuit objection any proper be make failure opinion. and filed an Indiviglio, 352 F. low. United States denied, (2d 1965), cert. 2d Cir. 15 L.Ed.2d 86 S.Ct. U.S. (1966). is affirmed. Harry Harry WELCH, L. Welch Gen t/a Merchandise, Appellee, eral America,

UNITED STATES of Appellant. No. 71-2019. Atty., Kimmel, Dept, Michael of Jus- (L. Gray, III, Atty. tice Appeals, Patrick Asst. States Court Gen., Rosenthal, Dept, Fourth Circuit. Atty., and Alan S. Justice, Grisso, and John K. U.S. May 8, Argued brief) appellant. Atty., on the July 11, Decided Manning, S.C., Morris, M. James on brief, appellee. BOREMAN, Before Senior Circuit Judge, FIELD, and BUTZNER Cir- Judges. cuit Judge: FIELD, Circuit appeal is question this on The sole Stamp ofAct under the Food whether reduce 19641 a district court ministratively imposed for ad- sanction Act when the mitted violations of the imposed the allowa- sanction within so range implement- ble statute ing regulations. Welch, plaintiff, of a is the owner July grocery retail which participate 1968 became Although Program. Stamp the Food seq. 1. 7U.S.C. 2011 et occurred, requirements concluded tions had Welch was briefed February sixty-day period program, “[a] *2 Ag- unduly Department is for non-deliberate representative of harsh of by plain- type of violations committed observed his store and riculture visited agents.” or- ineligible tiff’s The district court re- of item.2 As a the sale an suspension warning period of reduced dered letter sult this incident a of thirty Thereafter, sixty days early in from and it is from to was sent Welch. to government appeals. year investigation this order that the of an of the 1970 on four initiated and Welch store was When the enacted the Food Department “shoppers” occasions exchanged of the Stamp Act of 1964 it vested Secre- ineligible stamps food for tary Agriculture authority of to is- with and, additionally, cash as items secured regulations might ap- sue which deem he forty-nine change in of cents.3 excess propriate for the effective administra- in Two involved clerks of were stamp program, tion of the food and 6,May By these transactions. letter Act, Section 11 of 2020 7 U.S.C. § 1970, a Welch was advised that as result provides: be of these would violations his store “Any approved food retail store or disqualified participation in the may wholesale food dis- concern be program days. period sixty for qualified participation from further right adminis- Welch exercised his stamp program in the food ing, on a find- review,4 Stamp Re- trative the Food specified made as in the regula- change view Officer found no to basis tions, such store or concern has disqualification. Thereafter, this any provisions violated of the of this action was district court filed chapter, regulations or of the issued pursuant Act, U: to 13 Section of the 7 pursuant chapter. to this dis- Such validity S.C. of the to review the qualification shall be such for for action. Counsel may of time as be determined in ac- government stipu- Welch and the filed a regulations pur- cordance with issued lation in the district court in which the chapter. suant to this action plaintiff admitted the violations and disqualification subject re- shall be to sought stated that he “on relief the sole provided view as in section 2022 ground sixty-day period of dis- this title.” qualification unduly harsh and arbi- 5 regulation implementing Section trary under facts in this matter.” part reads in as follows: testimony After plaintiff representative and “Any De- of the authorized food or retail partment, may the district court entered an authorized wholesale food concern order in which it found the viola- participa- be from further provides: 270.2(i) 2. 7 C.F.R. relevant documents and district “ ‘Eligible food’ orig- means food or records in this case to refer product consumption food for human designations, inal C.F.R. the current except beverages, tobacco, designations opin- alcoholic those will be used this pack- foods which are identified on the ion. age being imported, as and meat and 272.2(d) part: 3. 7 C.F.R. reads in products imported.” meat which are change “If in an amount less than 272.2(b) provides: 7 C.F.R.. required, eligible 50 cents is house- “Coupons accepted by shall be an change hold shall receive the in cash. retail food store may change At no time cash in excess exchange eligible foods as defined eligible cents be returned to (i) chapter.” in 270.2 of this household.” Stamp Regulations The Food were authority Stamp 4. The Re- issued as 7 C.F.R. Pt. 1600- Officer, procedures governing view They 1603. were transferred on De- his administrative are forth set 30, 1970, changes cember with certain through in C.F.R. 273.1 273.9. material, not here Pt. 7 C.F.R. 270- Fed.Reg. 272.6(a). While 5. 7 C.F.R. Program by subject Stamp] and the action which the [Food disqualifi- scrutiny cial FNS and Nutrition Service is the action [Food Agriculture] specifical- Department of Section 11 of the Act the U.S. cation. ly disqualifi- time, not states action of that “[t]he a reasonable pro- subject years, deter- cation to review as exceed mine, FNS shall be three as title.” such food store vided Section 2022 of this retail if comply (Emphasis added.) are food concern fails If the violations wholesale proven (or, here, admitted), Stamp as the Food Act as amended, particular of this the al- sanction is within ” * * * part range validity lowable then the administrative action estab- has been Judicial review of a lished. spelled Act, out in Section 13 *3 U.S.C. as follows: § Reasonably statutory construed, the “Whenever-— language does authorize not the court (b) a retail food store or a whole- go beyond validity of the issue the sale food un- concern is modify disqualification the action and der the of section 2020 of period the of the sanc this title tion. This construction of statute the by adopted in a was the Circuit Sixth * * * (c) If or con- the store strikingly case Martin similar to this. aggrieved by cern feels such final States, (6 459 300 Cir. v. United F.2d determination he obtain 1972). although viola that case the by filing cial review thereof a com- admitted, tions were the district court plaint against the United States period disqualifica had reduced the the United States district court for thirty days tion from six months to the district in which he resides or is upon ground the of the that the action engaged business, or in Secretary was too The court harsh. having of record of the State com- stating appeals reversed lower court the petent jurisdiction, thirty within that only statute authorizes a review “[t]he days delivery after the or date of case, on the and not merits of the service of the final notice of deter- disqualification.” the The upon him, requesting mination Seventh Circuit reached a similar con court to set aside such determina- Gary, clusion in Save More of Inc. ** * tion. The suit in the States, (7 Cir.1971). 442 36 F.2d United States district court or State There, rejected the district court evi by court shall abe trial de novo mitigating stating factors, dence of they that court in which the court shall deter- by were elements be considered validity questioned mine the of the the administrative officers determin administrative action in If issue. ing disqualification but the court determines that ad- such challenge were not va sufficient to ministrative action is invalid it lidity itself. judgment shall enter such or order Upon appeal plaintiff contended that as it determines is in accordance unduly the district court limited the had with the law and the evidence.” scope judicial However, review. plaintiff, course, argues that appeals court of affirmed with the ob the words de novo authorize the review- servation that statute authorizes ing only court to determine not the issue only respect trial de novo to the va alleged of lidity violations what also of the in is administrative action sanction, any, imposed. should be scope sue. This limitation of the on the judicial The reach of the judicial review, how- recognized review was also ever, unqualified is not de States, the trial Foods, Marbro 293 Inc. United novo is limited to determination the F.Supp. (N.D.Ill.1968), Far validity of action, mingdale the administrative Supermarket, v. United Inc. scope de- court. F.Supp. (D.C.N.J., States, govern- primary issue us. The 4, 1971). before cided October urges ques- it ment is limited to conclusions are in accord with We be tion whether should the merchant foregoing and hold cases reached in govern- disqualified. Adoption of the exceeded its au- district court that thority deprive ment’s any hearing will the merchant view reducing the administrative judicial —administrative sanction. important equally question of —on the Reversed. long disqualified. how he should be outset, remember: we should At (concur- Judge BUTZNER, Circuit presumption against judi- “There is no ring) : and in favor of administra- cial review court, I concur in the unless that . . . tive absolutism by but I a different reach its result fairly purpose stat- discernible interpret route. I utory of Data Association scheme.” (1970), Stamp Act, 7 U.S.C. § Organizations v. Processing Service judicial penalty authorize imposed by 150, 157, Camp, S.Ct. 397 U.S. Department on the mer- gov- (1970). The 831, 25 L.Ed.2d 184 But de- chant. since the administrative sustained, it position ernment’s can be sixty disqualifying cision days by ignoring me, seems arbitrary capricious, was not charged monition. The district court *4 Consequently, join is not reversing in invalid. I with of the “final determination” judgment the of the district disqualification.” “action of the court. de- The “final U.S.C. and 2022. §§ by important The the administrative most reason for believ- termination” made reviewing ing jurisdic- that the district deals two issues: court has officer with modify and, be, 1) if the to review need to violated whether merchant the fixing long 2) he Act; and, did, the the how administrative decision he if length participation in the of time should be denied a merchant is comprise program. stamp is the pro- the elements structure the Both disqualification,” food gram and, we itself. De- “action of The Act authorizes the teaching partment designate Agriculture Data Proc- re- are to follow essing, to the subject judicial re- qualified tailers stamps. are both who to redeem food are Nothing in Act refutes this 7 U.S.C. 2017. To view. assumption. the assure § compliance Indeed, specifically Act, with the au- Act states, Department speaking scope disqualify thorized the any in review, suit provisions. cial that “the retailer who violates its by Congress, however, shall trial de novo did not fix the maxi- be a va- disqualification. mum In- which shall determine the the court stead, questioned lidity agency administrative to do this by regulation. As 2022. action in issue.” 7 U.S.C. 7 U.S.C. 2020. § § dissenting Edwards, regulation provides Judge Martin that and (6th States, Department 300, 302 459 F.2d Nutrition may suspend Service Cir.1972), convincingly demonstrates, food for a a retail reviewing “gives to the de novo reasonable not to exceed trial time power years, the court three deter- court all the as Service including the (1971). agency possessed, 272.6(a) mine. 7 below C.F.R. § judgment disposition power to enter a government its As the concedes originally entered.” from that different regulation brief, neither the Act nor the but- grants evidentiary Judge conclusion hear- Edwards’ merchant statutory by ing direction process, either tressed the administrative initially “enter such court to or on district review. in accord- by or order as it determines allowed the Act is the district the evidence” with law and anee action it finds administrative when UNITED STATES of America ex rel. provi- This 2022. 7 U.S.C. invalid. § GOMES, Appellant, Patrick J. believe, dis- sion, mandate for I is a beyond go the threshold trict court and Howard OF NEW JERSEY STATE should question merchant of whether the Yeager, Principal Keeper of and, disqualified, be, to enter if need be judgment Jersey. Trenton, State Prison at New the reasonableness No. 72-1014. disqualification. of his duration Appeals, United States Court interpretation accords of the Act This Third Circuit. history. legislative Re- Senate its Rule Submitted Under Third Circuit Sess., 1124, re- Cong., 2d port 88th No. 12(6) June Cong. Ad.

printed & at U.S.Code July Decided News, (1964), pp. 3275, “re- states . have adminis- . . would tailers appeals judicial trative and approval re- [to . withdrawal Report Again, stamps].” deem rights states, retailers and “The guarded carefully under

wholesalers are contin- this act.” It ues, 2022] “This section N.S.C. [7 judicial provides for disqualifica- review of participating concern. tion of such a Cong. & Ad. .” . . U.S.Code linking By (1964). p. at

News judicial review without ministrative scope, they suggesting differ they Report are coexten- indicates *5 disqualifica- duration of sive. Since the administratively, may be reviewed Congress in- Report illustrates be re- penalty also tended that the judicially.

viewed language sum, of the Act legislative history, appears un- it its

likely De-

partment disqualify a merchant exceeding prede-

any period not own its

termined maximum without disqualification. the duration us, admits

In the case before intro- He

the violations of Act. has sixty day no sus-

duced evidence that

pension at is unreasonable or that suspensions meted

variance out Ac- under circumstances.

others similar

cordingly, the action I conclude that Secretary is valid.