Finer Foods Inc v. AGRI ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-4024
Finer Foods, Inc.,
Petitioner,
v.
United States Department of Agriculture,
Respondent.
Petition for Review of an Order of the
Department of Agriculture Under the Perishable
Agricultural Commodities Act
Submitted December 7, 2001--Decided December 11, 2001
Before Bauer, Easterbrook, and Williams,
Circuit Judges.
Easterbrook, Circuit Judge. Finer Foods,
Inc., seeks a stay pending judicial
review of an administrative order
suspending its license to operate as a
dealer under the Perishable Agricultural
Commodities Act, 7 U.S.C. sec.sec. 499a-
499s.
The Department of Agriculture offers two
jurisdictional defenses. First, it
contends, the court lacks personal juris
diction over the Department because the
petition for review was forwarded to
federal officials in Washington, D.C., by
fax rather than by mail, as the Hobbs Act
requires. See 28 U.S.C. sec.2344. Second,
it asserts, the court lacks subject-
matter jurisdiction because there is no
"final" administrative order. See 28
U.S.C. sec.2342(2). Both of these
contentions are frivolous. We are
surprised and disappointed that they have
been advanced by counsel for the federal
government. (We add for the sake of
completeness that all three lawyers whose
names appear on the papers work for the
Department of Agriculture; the Department
of Justice apparently has allowed the
agency to represent itself.)
Once a private party files a petition
for review, this court’s Clerk must serve
the federal agency by registered mail
(return receipt requested). In light of
the disruptions to the postal system
caused by terrorist activity in recent
months, the Clerk has begun to forward
papers by fax in addition to mail.
Naturally the fax copy arrives first, for
it is not delayed by any security
screening procedures. Why should this
step deprive the court of personal
jurisdiction over the Department? In this
case, notice was sent by mail to the
Department and the Attorney General on
November 21, the day after Finer Foods
filed its petition for review. In light
of the Department’s complaint and the
possibility that the initial mailed
notice is stuck somewhere awaiting
security screening, the Clerk has sent a
second postal notice as well. The Hobbs
Act has been followed--and an extra,
speedier, more secure, and safer method
of notice has been added.
If the Attorney General, who
superintends the federal government’s
interests in litigation, believes that
immediate electronic notification is an
impediment to his work, he should so
notify this court, and we will stop
providing courtesy copies. But on no
account does the provision of electronic
notice deprive private parties such as
Finer Foods-- which lack influence over
either the postal system or the Clerk’s
Office--of their judicial remedy.
As for the supposed lack of a final
decision: The order in question, which
suspends Finer Foods’ license with
immediate and indefinite effect (as of
3:00 p.m. on November 16, 2001), is final
not only because of that ongoing effect
but also because no further
administrative review is available. See
FTC v. Standard Oil Co. of California,
449 U.S. 232 (1980) (defining "final"
order for the purpose of a similar
provision in 5 U.S.C. sec.704). The
Perishable Agricultural Commodities Act
allows the Department, "by order," 7
U.S.C. sec.499m(a), to suspend a license
until required information has been
provided--and the Administrative
Procedure Act, 5 U.S.C. sec.551(6), tells
us that an administrative "order" is a
final decision. An "order" is the
conclusion of an administrative
proceeding--as distinguished from, say, a
subpoena or other interim step.
Nonetheless, the Department contends,
Finer Foods must wait until the
Department chooses to commence an
administrative proceeding alleging a
substantive violation of the Act, and
then seek review of the final decision in
that proceeding. Yet this proposed method
leaves the licensee at the Department’s
mercy. Now that Finer Foods’ license has
been suspended, the Department may never
institute such a proceeding; and if it
does institute one, it is not clear how
or when the discovery dispute that has
led to the current suspension would be
adjudicated. The prospect that some
future administrative case may (or may
not) begin does not make the ongoing
suspension any the less final.
So we are entitled to reach the merits
of Finer Foods’ motion. But the
Department insists that we stop at the
threshold: the need to show irreparable
harm. According to the Department, Finer
Foods went out of business before
November 16 and thus cannot suffer harm
from the order suspending its license.
The support for this statement is a
declaration (attached to the Department’s
response) of Joan Colson, one of the
Department’s auditors, who asserts that
in October 2001 she visited Finer Foods’
business premises and found them locked
and abandoned, and that Finer Foods’
former customers and suppliers say that
they are now doing business with Mid West
Institutional Food Distributors.
Finer Foods’ response accuses Colson of
perjury and the Department of fraud on
the court. According to an affidavit of
Mary Ann Fitzgerald, Finer Foods’
corporate secretary, Finer Foods had
operated without interruption and
employed 18 persons until November 16,
when the Department suspended its
license. According to Fitzgerald, the
place Colson visited and found locked in
early October 2001 was Finer Foods’
former business premises; the firm moved
in late August 2001. What is more,
according to Fitzgerald, Colson knows of
the move and has visited Finer Foods’ new
location, vital facts omitted from
Colson’s declaration. Fitzgerald added
that Finer Foods has notified the
Department formally and that Wes Hammond,
one of the Department’s investigators,
has spent more than 30 days at Finer
Foods’ new location reviewing records.
Someone is not telling this court the
truth. Who is trying to deceive the court
we do not know--though the fact that
Finer Foods is paying counsel in an
effort to have its license reinstated
supports an inference that the status of
the license matters (which it does only
if Finer Foods remains in business).
Going deeper into this dispute requires a
factual inquiry that appellate courts are
not set up to conduct. Perhaps it will
prove necessary for this court to appoint
a special master to hold an evidentiary
hearing, or refer the dispute to the
United States Attorney for a criminal
perjury investigation. For now, however,
the Fitzgerald affidavit supplies an
adequate basis to adjudicate the current
request on the merits. If as the
Department believes Finer Foods is
defunct, then an order restoring its
license will have no effect and cannot
harm the public interest. But if the
Department is wrong, and Finer Foods
remains a viable concern, then allowing
the suspension to continue may kill it--
and the United States does not afford a
damages remedy to firms put out of
business by administrative
highhandedness.
So does 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. See Pension Benefit Guaranty
Corp. v. LTV Corp., 496 U.S. 633 (1990);
5 U.S.C. sec.555. According to
sec.499m(a) "the Secretary may, after
thirty 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" (emphasis
added). 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. See sec.499m(a); Gilbert v.
Homar, 520 U.S. 924 (1997).
Finer Foods’ motion for a stay of the
Department’s order, pending plenary
adjudication in this court, is granted.