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SALSBURG'S MEATS, INC. v. SHULTZ

August 30, 1973

SALSBURG'S MEATS, INC. and others similarly situated
v.
George P. SHULTZ, Individually and as Chairman of the Cost of Living Council


Bechtle, District Judge.


The opinion of the court was delivered by: BECHTLE

Bechtle, District Judge.

 Plaintiff, Salsburg's Meats of Shillington, Pennsylvania, processor and retailer of meat products, moves this Court to issue an order preliminarily restraining the Cost of Living Council, through its director, John T. Dunlop, *fn1" from enforcing the price ceiling imposed on the retail sale of beef. Plaintiff contends that certain provisions of the Economic Stabilization Act ("Act"), 12 U.S.C. § 1904, namely Stage "A" of Executive Order No. 11730, are repugnant to the due process clause of the Fifth Amendment and the equal protection clause of the Fourteenth Amendment of the United States Constitution.

 Jurisdiction is invoked pursuant to Section 211 of the Act. This section confers upon the District Courts of the United States exclusive jurisdiction of cases or controversies emanating from the Act or regulations or orders promulgated thereunder.

 The Court is aware of and convinced of the financial distress that has been experienced by the plaintiff and the distress that the plaintiff expects to encounter hereafter if the present program continues in effect. A price ceiling imposed on the retail sale of beef, which is the business of the plaintiff, while the price exacted by farmers and wholesalers remains unrestrained and unregulated, unquestionably creates a financial predicament that is not easily resolved. However, this Court is without authority to grant the relief sought by the plaintiff and, for the reasons hereafter stated, the motion for preliminary injunction must be denied.

 Actually, plaintiff seeks two distinct forms of relief. As discussed above, the first form of relief requested is a preliminary injunction restraining the Cost of Living Council ("Council") from enforcing the price ceiling imposed on the retail sale of beef, which restraint is prayed for against the defendant on behalf of the plaintiff and others similarly situated.

 In addition, plaintiff petitions the Court to certify the constitutional issues presented in this litigation to the Temporary Emergency Court of Appeals for resolution in accordance with Sections 211(c) and 211(g) of the Act. Section 211(c) of the Act provides, in relevant part, that this Court must certify any constitutional issues which are determined to be substantial in nature to that specifically convened Emergency Court of Appeals. Since the allegations raised by the plaintiffs do not present substantial constitutional issues, none will be certified to the higher tribunal.

 Motion for Preliminary Injunction

 It is well settled that the granting of preliminary injunctive relief is dependent upon the satisfaction by the moving party of the following three requirements: (1) that irreparable harm will result to plaintiff from the denial of injunctive relief; (2) a demonstration of a substantial likelihood of success on the merits; and, (3) a showing that the public interest will not be impaired by the granting of such relief. Berrigan v. Norton, 451 F.2d 790 (2d Cir. 1971); Hamlin Testing Labs, Inc. v. A.E.C., 337 F.2d 221 (6th Cir. 1964); Midland-Ross Corporation v. Sunbeam Equipment Corporation, 316 F. Supp. 171 (W.D. Pa. 1970).

 Plaintiff has failed to show that it will suffer irreparable harm, as defined by the law, from the denial of injunctive relief. Viewing the evidence in the light most favorable to the plaintiff, the harm suffered can only be characterized as economic. Specifically, the harm alleged by the plaintiff consists in the reduction of business activity and the consequent loss of profits from reduced sales of meat. In view of the nature of the harm suffered by the plaintiff, the well-established legal principle that monetary loss alone does not constitute that kind of injury essential to the granting of a preliminary injunction necessitates the denial of plaintiff's motion. See, Tele Controls, Inc. v. Ford Industries, Inc., 388 F.2d 48 (7th Cir. 1967); Virginia Petroleum Jobbers Ass'n v. Federal Power Commission, 104 U.S. App. D.C. 106, 259 F.2d 921 (D.C. Cir. 1958); Radio Hanover, Inc. v. United Utilities, 273 F. Supp. 709 (M.D. Pa. 1957).

 Let it not be understood that the Court deems the claims of the plaintiff frivolous or its plight insignificant. What has been decided is that there is no irreparable harm from the viewpoint of the equity jurisdiction of this Court to issue an injunction. In this particular case, the financial loss has been suffered over a relatively short period of time -- approximately two or three months -- and the Court is of the opinion that this does not constitute irreparable injury as a matter of law. The injury complained of is not sufficient to justify or warrant this Court in overturning the system of controls that have been promulgated by a special agency (Council) duly created and functioning pursuant to a lawful legislative enactment (Act) of the United States Congress.

 In regard to the second requirement that the moving party must demonstrate a substantial likelihood of success on the merits, the issue presented is whether or not there is a substantial likelihood that the plaintiff's allegations of constitutional infirmities would be upheld by the Temporary Emergency Court of Appeals if those issues were referred to that court. In other words, is there a substantial likelihood that the Court of Appeals will decide that certain provisions of the Act are violative of the Constitution?

 The Supreme Court, in Richardson v. Belcher, 404 U.S. 78, 92 S. Ct. 254, 30 L. Ed. 2d 231 (1971), held that Federal regulatory statutes are consistent with the due process clause if they are "rationally based and free from invidious discrimination." In affirming the constitutionality of Section 224 of the Social Security Act, 42 U.S.C. § 424a the Court in Richardson relied on the rational basis test first enunciated in Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 1161, 25 L. Ed. 2d 491 (1970), which states:

 
"In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality' . . . 'A statutory ...

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