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WYSZYNSKI PROVISION CO. v. SECRETARY OF AGRIC.

May 10, 1982

WYSZYNSKI PROVISION COMPANY, INC.
v.
SECRETARY OF AGRICULTURE, United States Department of Agriculture



The opinion of the court was delivered by: SHAPIRO

INTRODUCTION

 Plaintiff Wyszynski Provision Company, Inc. (the "Company") appeals the final decision and order of the United States Department of Agriculture ("USDA") withdrawing meat inspection services from it but suspending that withdrawal on the condition that Walter J. Wyszynski ("Wyszynski"), the Company Vice-President, is not associated with the Company in any way and the Company does not violate any provision of the Federal Meat Inspection Act for a period of three years. This court has jurisdiction under 21 U.S.C. § 674 and 28 U.S.C. § 1331. Before us are cross-motions for summary judgment on undisputed facts. For the reasons discussed below, defendant's motion will be granted and plaintiff's motion will be denied.

 FACTS

 In a separate criminal action, the Company entered guilty pleas to eight counts of preparation, sale and transportation of adulterated meat, and Wyszynski entered guilty pleas to three counts of selling and transporting adulterated or misbranded meat products with intent to defraud. *fn1" The crimes are felonies; 21 U.S.C. § 610(a), (b)(1) and § 676. The Company was fined $ 8,000; Wyszynski was sentenced to three years' probation and fined $ 2,000.

 This action seeks review of an administrative decision under the Federal Meat Inspection Act (the "Act"), 21 U.S.C. § 601 et seq., which requires inspection of meat processing establishments in order to prevent commerce in unwholesome, adulterated, mislabeled or deceptively packaged products. Inspection service may be withdrawn as a sanction for violating the Act. The statute, 21 U.S.C. § 671, provides in relevant part:

 
The Secretary may (for such period, or indefinitely, as he deems necessary to effectuate the purposes of this Act...) refuse to provide, or withdraw, inspection service... with respect to any establishment if he determines, after opportunity for a hearing is accorded to the applicant for, or recipient of, such service, that such applicant or recipient is unfit to engage in any business requiring inspection... because the applicant or recipient, or anyone responsibly connected with the applicant or recipient, has been convicted, in any Federal or State court, of (1) any felony, or (2) more than one violation of any law, other than a felony, based upon the acquiring, handling, or distributing of unwholesome, mislabeled, or deceptively packaged food or upon fraud in connection with transactions in food.... (citations omitted)

 The Administrative Law Judge ("ALJ") held the required hearing on complaint of the United States Department of Agriculture ("USDA") and found Wyszynski and the Company unfit within the meaning of the Act because of their felony convictions; FMIA Docket No. 41, Paper 13, P13. She granted the request of the USDA that inspection services be indefinitely withdrawn and denied to the Company provided that such withdrawal and denial would cease for so long as Wyszynski is not associated with the Company, its successors or assigns, directly or indirectly, as partner, officer, director, shareholder or employee and does not control it in any way, and the Company does not violate any provision of the Act within three years. However, the decision and order made clear that the ALJ, citing In Re Norwich Beef Co., 38 Agric. Dec. 380 (1979), deemed she had no discretion upon establishing the felony convictions for violating the Act other than to find respondent unfit notwithstanding the discretionary authority invested in the Secretary by the Act. However, in the event on appeal it were decided that discretion did lie with the ALJ, she found various mitigating factors *fn2" on account of which she stated she would have otherwise recommended suspension of the indefinite withdrawal and denial of services so long as the Company and Wyszynski did not violate the Act individually or collectively.

 The Company appealed the ALJ's decision to the Judicial Officer ("JO") of the USDA. He affirmed the ALJ and held that in view of the felony convictions, mitigating circumstances could not be considered in a determination of fitness. He concluded in the alternative that even if the mitigating circumstances were relevant, they would not change his final determination on the facts of this case; *fn3" FMIA Docket No. 41, Paper 19.

 DISCUSSION

 This court has jurisdiction of plaintiff's appeal from the administrative decision under 21 U.S.C. § 674. Judicial review of an inspection service withdrawal order is to be made on the record upon which the determination and order was based; 21 U.S.C. § 671.

 The standard of review is provided by the Administrative Procedure Act, 5 U.S.C. § 706:

 
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of ...

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