Marshall Chernin v. Richard E. Lyng, Secretary, United States Department of Agriculture , 874 F.2d 501 ( 1989 )

FAGG, Circuit Judge,

dissenting.

The Secretary of Agriculture (Secretary) may find a meat-packing business unfit if a person “responsibly connected with the [business] * * * has been convicted * * * of * * * any felony.” 21 U.S.C. § 671(a) (Supp. IV 1986). Here, the Secretary found Marshall Chernin’s employer, Federal Beef Processors, Inc. (Federal Beef), unfit under section 671(a). In making this determination, the Secretary did not affect due process rights personal to Chernin. Because the court’s decision serves only to frustrate the Secretary’s efforts to enforce congressional will under section 671(a), I respectfully dissent.

I agree with the court’s conclusion the Secretary cannot arbitrarily interfere with Chernin’s continuing employment relationship with Federal Beef. The Secretary, however, has not done so. Chernin concedes he is a convicted felon and thus resolves the statutory issue personal to him. As the district court aptly observed, “[t]here is no due process mechanism required to afford fairness to Chernin regarding those convictions.”

Two factual issues remain under section 671(a): whether Chernin is “responsibly connected” with Federal Beef; and if so, whether Federal Beef is “unfit to engage in [the meat-packing business].” These issues focus exclusively on Chernin’s employer. I therefore disagree with the court’s conclusion that because Chemin’s job is affected by the Secretary’s determination his employer is unfit, Chernin is entitled to a due process right to be heard on these factual issues. Instead, I agree with the district court that “Chernin’s due process rights end with the determinations [that] are personal to [him].”

Undoubtedly, Chemin’s felony convictions involve dishonesty, and their taint impacts adversely on Federal Beef. To prevent an unfitness determination against the employer, however, Federal Beef, not Chernin, must convince the Secretary that a felon’s continued service will not hinder the legislative intent: honesty in management and public confidence in the meatpacking industry. Thus, although Cher-nin’s job is necessarily affected, I do not believe Chernin has a constitutionally protected interest in the contest between his employer and the Secretary concerning the ultimate unfitness determination.

Accordingly, I dissent.