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READE v. EWING (06/23/53)

UNITED STATES COURT OF APPEALS SECOND CIRCUIT.


decided.: June 23, 1953.

READE
v.
EWING, FEDERAL SECURITY ADM'R.

Author: Frank

Before CHASE, CLARK and FRANK, Circuit Judges.

FRANK, Circuit Judge.

Petitioner, a dealer in fish oils which are a natural source of vitamin A, seeks judicial review*fn1 and the setting aside of an order*fn2 of the Federal Security Administrator*fn3 (promulgated after hearings), allowing the optional vitamin content of oleomargarine to be supplied by synthetic as well as natural sources without indicating the source on the label, but containing merely the designation, "Vitamin A added."

Petitioner challenges the validity of the respondent's order, asserting that it is not supported by sufficient evidence to show that it "will promote honestly and fair dealing in the interest of consumers" of oleomargarine: he contends that he is "adversely affected" in his capacity as a producer of an ingredient used in oleomargarine fortified by vitamin A, and also as a consumer of such oleomargarine.

A motion by respondent to dismiss the petition for lack of jurisdiction*fn4 was denied by this court without prejudice to its renewal at the argument of the petition, and respondent has now renewed its motion.

1. We need not consider whether, in the light of our previous decisions,*fn5 the allegations of petitioner's interest as a producer suffice to meet the jurisdictional requirements. For the allegations of interest as consumer*fn6 do meet them: (a) The allegation that the order violates the statute discloses a "case of actual controversy." (b) The asserted consumer interest constitutes him a person "adversely affected." As we have elsewhere said, if Congress authorized the Attorney General to bring suit to restrain a federal officer from exceeding his statutory authority, such a suit would be a "case or controversy" satisfying the constitutional provision; it would therefore satisfy the first statutory provision before us here. As we have also said elsewhere, Congress, by authorizing certain persons within a described class - here those "adversely affected" - to bring actions to restrain such officers from transcending their statutory authority, validly creates a class of "private Attorney Generals" to vindicate the right of the United States against its wrongdoing officer. Associated Industries v. Ickes, 2 Cir., 134 F.2d 694, 704; Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470, 642, 60 S. Ct. 693, 84 L. Ed. 869, 1037; Scripps-Howard Radio, Inc., v. Federal Communications Commission, 316 U.S. 4, 62 S. Ct. 875, 86 L. Ed. 1229.*fn7 With respect to the issue of jurisdiction, as distinguished from the merits, it suffices that the jurisdictional allegations are in good faith and substantial, i.e., not frivolous.*fn7a

2. On the merits, however, petitioner must lose, since there was substantial evidence to support the Administrator's findings and conclusions, and therefore we cannot set the order aside.

Petitioner asks that, pursuant to 21 U.S.C.A. ยง 371(f)(2),*fn8 we stay the operation of the order and require the Administrator to reopen the hearing for the introduction by the petitioner of new evidence. The Administrator has already written petitioner a letter (which is of record) discussing that proposed evidence, and indicating that the Administrator would not change his decision on account of that evidence. We have considered the case as if the record contained that evidence and also a formal ruling thereon by the Administrator along the lines of his letter. On that basis, we see no grounds for disturbing the order.

Petition dismissed on the merits.


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