01-4024 Finer Foods, Inc. v. U.S. Department of Agriculture

Listen to this article

“[D]oes Finer Foods have a decent chance of success on the merits? You bet it does. The suspension order, by the Chief of the Fruit and Vegetables Program Branch, apparently was issued without an opportunity for a hearing. The order itself gives no elaboration (beyond saying that Finer Foods has not turned over everything the Department demanded) and does not tell Finer Foods what it must do concretely to have its trading rights reinstated. The Fruit and Vegetables Program Branch appears to be a principal in the dispute, not a neutral arbiter; and although this is not a formal hearing on the record subject to sec.4 of the Administrative Procedure Act, 5 U.S.C. sec.554, it is certainly an informal adjudication in which the decision should have been made after a hearing by someone without a stake in the outcome. … According to sec.499m(a) ‘the Secretary may, after 30 days’ notice and an opportunity for a hearing, publish the facts and circumstances and/or, by order, suspend the license of the offender for a period not to exceed ninety days’. Yet the Department of Agriculture did not offer a hearing to Finer Foods — either before or after the issuance of the order–to test the correctness of the staff’s belief that required records have not been forthcoming. And the order purports to be perpetual, though the statute sets a cap of 90 days. The Department claims an unfettered (and unreviewable) right to shut down any middleman in the produce business that does not knuckle under to an administrative request for records, no matter how burdensome the compliance and no matter how slight the governmental interest in conducting the investigation. It is discovery run riot, with no judicial supervision or even the protections offered by an administrative law judge. Finer Foods was entitled to some hearing before its license was yanked.”

Stay granted.

Petition for Review of an Order of the Department of Agriculture Under the Perishable Agricultural Commodities Act, Easterbrook, J.