James A. Wilson, Sr., D/b/a Modern Locker Plant And/orcattlemen's Co-op; Yellowstone Meat Co.; Rudolphg. Stanko A/k/a "butch Stanko", Petitioners, v. United States Department of Agriculture, Respondent, 104 F.3d 366 (9th Cir. 1996)

James A. Wilson, Sr., d/b/a Modern Locker Plant and/or Cattlemen's Co-op, Yellowstone Meat Company and Rudolph Stanko, all pro se, petition for review of an order of the Secretary of the United States Department of Agriculture ("Secretary") withdrawing Wilson's meat inspection services under the Federal Meat Inspection Act ("FMIA"), 21 U.S.C. §§ 601-680, and Wilson's poultry inspection services under the Poultry Products Inspection Act ("PPIA"), 21 U.S.C. §§ 451-470. We have jurisdiction over the portion of the Secretary's order withdrawing poultry inspection services pursuant to 21 U.S.C. § 467(c), and exercise pendent appellate jurisdiction over the portion of the order withdrawing meat inspection services.¹  We deny the petition for review.

As an initial matter, Yellowstone Meat Company and Rudolph Stanko are not proper parties to this appeal. Under the FMIA and PPIA, only the recipient of inspection services may file a petition for judicial review of an order withdrawing inspection services. See 21 U.S.C. §§ 467(c), 671. James Wilson, the owner of Modern Locker Plant, was the recipient of the inspection services that were withdrawn in this case and, as such, is the only party authorized by statute to petition for review of the Secretary's order.²  Accordingly, we address only the issues raised by Wilson.

We will uphold the decision of the Secretary unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See Farley and Calfee, Inc. v. United States Dep't of Agric., 941 F.2d 964, 966 (9th Cir. 1991). The findings of the Secretary must be affirmed if supported by substantial evidence in the record. See Spencer Livestock Comm'n Co. v. Department of Agric., 841 F.2d 1451, 1454 (9th Cir. 1988).

Wilson first contends that the Secretary erred by finding that Rudolph Stanko, a person who has been convicted on two occasions of violating, or conspiring to violate, the FMIA, among other crimes, is "responsibly connected" to Wilson. We disagree.

Both the FMIA and PPIA allow for the withdrawal of inspection services when the recipient of inspection services, or anyone "responsibly connected" with the recipient, has been convicted of certain offenses. See 21 U.S.C. §§ 467(a), 671. Under both acts, a person is "responsibly connected" with the recipient if he or she: (1) is a partner, officer, director, holder, or owner of ten percent or more of the business's voting stock; or (2) is an employee in a managerial or executive capacity. See 21 U.S.C. §§ 467(a), 671.

Although Wilson maintains that Stanko is merely a "consultant" for Yellowstone Meat Company, a slaughtering and meat packing business that leases Modern Locker Plant from Wilson, substantial evidence supports the Secretary's finding that Stanko is an employee in a managerial or executive capacity at Modern Locker Plant. A review of the record reveals that Stanko hires workers, determines their pay, buys and sells cattle, negotiates agreements, arranges for meat product transportation, sells Modern Locker Plant's meat products, and directs operations at Modern Locker Plant. As stated by the Secretary, these are the actions of a manager, not a consultant.

Wilson next contends that the Secretary failed to consider "mitigating circumstances" prior to withdrawing meat inspection services. This argument fails. First, nothing in the FMIA requires the Secretary to consider mitigating circumstances prior to withdrawing meat inspection services. Under 21 U.S.C. § 671, the Secretary may withdraw meat inspection services solely on the basis that a person responsibly connected to the recipient of inspection services has been convicted of a felony. Second, assuming arguendo that the Secretary had an obligation to consider mitigating circumstances, the Secretary did so in this case. The Secretary noted that Yellowstone Meat Company and Stanko have operated Modern Locker Plant in compliance with the agency's inspection standards, but determined that this single mitigating factor did not outweigh "the many negative factors militating against awarding any of the respondents a grant of inspection."

Wilson also argues that the FMIA violates the Commerce Clause and the Tenth Amendment to the United States Constitution. However, the validity of the FMIA was upheld by the United States Supreme Court in Pittsburgh Melting Co. v. Totten, 248 U.S. 1, 8 (1918) ("The enactment of the statute was within the power of Congress in order to prevent interstate and foreign shipment of impure or adulterated meat-food products").

Wilson's bill of attainder and double jeopardy arguments are without merit. The FMIA does not inflict punishment; it is a remedial statute designed to protect the health and welfare of consumers by assuring that the meat and poultry products distributed to them are wholesome and properly marked, labeled and packaged. See 21 U.S.C. §§ 451, 602. The FMIA's provision barring convicted felons from further responsible connection to recipients of grants of inspection services serves as an important enforcement mechanism. See, e.g., Siegel v. Lyng, 851 F.2d 412, 417-18 (D.C. Cir. 1988).

PETITION FOR REVIEW DENIED.