3382. Suit for injunction to restrain prosecution of pending seizures of Nutrilite
Food Supplement; to enjoin institution of additional seizures; and to
test constitutionality of Section 304 (a) of the Act and administrative
action taken thereunder. Mytinger & Casselberry, Inc., v. Oscar R.
Ewing, Paul B. Dunbar, Charles W. Crawford, Louis D. Elliott, George P.
Larrick, and Tom C. Clark. Motion for dismissal denied; defendants'
petition to Supreme Court for writ of prohibition denied. Tried before
three-judge court. Decree of permanent injunction; decree reversed
upon appeal to Supreme Court.
COMPLAINT FILED: On December 30, 1948, Mytinger & Casselberry, Inc., of
Long Beach, Calif., filed in the District of Columbia a complaint for tem-
porary and permanent injunction and temporary restraining order against
Oscar B. Ewing, Administrator, Federal Security Agency; Paul B. Dunbar,
Commissioner, Charles W. Crawford, Associate Commissioner, Louis D. Elli-
ott, Assistant Commissioner, and George P. Larrick, Assistant Commissioner,
Food and Drug Administration; and Tom C. Clark, Attorney General of
the United States.
NATURE OF COMPLAINT: The complaint alleged that the plaintiff, Mytinger &
Casselberry, Inc., had established a large and lucrative buisness in the distribu-
tion of Nutrilite Food Supplement, which is an encapsulated concentrate of
alfalfa, parsley, and water cress, fortified with vitamins and minerals; that
distribution was made by direct contact with consumers through field agents
who used a sales booklet entitled "How to Get Well and Stay Well"; and that
the booklet contained a general discussion of nutrition, the need for vitamins
and minerals, and the consequences of the lack of such factors in the diet,
but contained no statements that were false, fraudulent, or misleading.
The complaint recited a history of the firm's contacts with the Food and
Drug Administration, which allegedly resulted in elimination of all false label-
ing claims, and stated that, nevertheless, an indictment had been returned
against the firm.
The complaint alleged further that the defendants had caused to be initiated
a number of libel actions against, and had been instrumental in having a
number of state and local embargoes placed upon, the products of the plain-
tiff ; that additional libel actions were in contemplation; that all such seizure
for condemnation actions involved the same issues of law and fact, and that
one such case would result in determination of the validity of the claims made
by the plaintiff; and the multiple seizure actions had tied up large amounts of
Nutrilite, which was subject to deterioration and loss of potency with the
passage of time, and would be of no value to the plaintiff when the cases
had been determined; that no necessity existed for harassing the plaintiff
with numerous actions; that the business and good will of the plaintiff were
threatened by the arbitrary and illegal actions of the several defendants: ?r
that the prosecution of such libels in various parts of the United States was
unnecessarily oppressive and expensive to the plaintiff since plaintiffs busi-
ness would be destroyed before an adjudication on the merits could be made.
The complaint alleged also that multiple seizure actions were not authorized
by Section 304 (a) of the Act because (1) there had been no prior judgment
in favor of the United States; (2) the product was not dangerous to health;
and (3) no finding had been served upon the plaintiff to the effect that the
labeling of the product was fraudulent or would be in a material respect
misleading, to the injury or damage of the purchaser or consumer. The com-
plaint alleged also that the application to its product of a finding which had
been made without hearing and which had not been served upon it would de-
prive it of property without due process of law; that the Food and Drug
Administration refused to stipulate or approve a stipulation so as to permit
removal of the libels to the Southern District of California, where witnesses
were available, thus depriving plaintiff of an opportunity adequately to defend
the case; that the defendant officials of the Federal Security Agency were
pursuing a course of enforcement over and beyond their prescribed statutory
duties, with a design to harass and ruin plaintiff prior to any adjudication on
the merits; that the Administrative Procedure Act provides for judicial review
of any finding that may have been made as a basis for multiple seizures; and
that the finding should be reviewed and set aside because it was an arbitrary,
capricious, and unreasonable exercise of discretion in that it was not founded
upon fact, and in the circumstances of the case, deprived plaintiff of property
without due process of law in violation of the Fifth Amendment.
MOTION TO DISMISS
Following the filing of the complaint, a motion for dismissal of the action
and for summary judgment was filed on behalf of the defendants. The motion
was based on the grounds that (1) the defendant officials of the Federal
Security Agency had no control over the litigation and no power to comply
with the prayers of the complaint; (2) the recommendations of multiple
seizure actions were made in accordance with Section 304 (a) of the Act,
and the findings on which the recommendations were based were not subject
to judicial review; (3) the complaint failed to state a claim upon which
relief could be granted against the Attorney General; (4) the complaint sought
relief which was beyond the Court's authority; (5) the complaint failed to
state a claim for equitable relief; and (6) the public interest precluded
temporary injunctive relief.
After consideration of the briefs and arguments of counsel, Judge Pine of
the United States District Court for the District of Columbia, on January 26,
1949, denied the motion without prejudice on the ground that since the initial
determination of probable cause had been made by the Food and Drug Ad-
ministration defendants acting under delegated authority, rather than by
the Federal Security Administrator, the determinations were improper.
On Januay 28, 1949, the Acting Federal Security Administrator, J. Donald
Kingsley, made determinations of probable cause. The defendants' motion
to dismiss was then renewed. On March 4, 1949, Judge Pine granted de-
fendants' motion to dismiss, with leave to the plaintiff to amend to attack
the constitutionality of Section 304 (a) of the Act.
AMENDED COMPLAINT
An amended complaint to present the constitutional question was thereupon
filed by the plaintiff on the same day, i. e., March 4.   The amended complaint
alleged substantially the same facts as were alleged in the original complaint,
and, in addition, alleged that Section 304 (a) was repugnant to the due process
clause, as it failed to afford plaintiff an opportunity for a hearing prior to the
determinations of probable cause.
On March 7,1949, upon plaintiff's motion for a temporary restraining order,
Judge Tamm of the United States District Court of the District of Columbia
entered such order to restrain the defendants from instituting and prosecuting
any further and additional libel for condemnation actions against plaintiff's
product, known as Nutrilite Food Supplement, based upon alleged misbranding
of the product. In addition it was ordered that the temporary restraining
order should remain in force until a hearing and determination of plaintiffs
application for an interlocutory injunction could be made by a three-judge
statutory court to be appointed to hear and determine such matters.
THEEE-JUDGE COTJBT
On March 15, 1949, Judge Bennett C. Clark of the United States Court
of Appeals for the District of Columbia and Judges T. Alan Goldsborough and
Edward A. Tamm of the United States District Court for the District of
Columbia were designated to serve as members of the three-judge statutory
court to hear and determine the action. A motion for dismissal of the action
was filed on behalf of the defendants, and on April 6, 1949, argument on the
motion was heard before the three-judge court. At this time, the court in-
formally directed counsel for the parties to stipulate that the restraining
order should be continued in effect, to prepare for a pretrial conference, and
to prepare for a trial on the merits as to whether the labeling was materially
misleading. The defendants' counsel refused to stipulate, and the court
thereupon denied the motion to dismiss. On the same day, the three-judge
court, without hearing evidence and without making findings of fact or con-
clusions of law, entered an order in the nature of a temporary injunction,
directing that the defendants be restrained and enjoined temporarily pending
final judgment, from continuing or causing to be continued the prosecution
of any of the pending libel actions referred to in the complaint, other than
the first libel action referred to therein, and from instituting and causing to
be instituted further libel actions against, or seizures of, Nutrilite Food
Supplement until final judgment in the instant case.
PBETBIAL CONFEBENCE
On April 13, 1949, a pretrial conference was held. During the course of
this conference, counsel for the defendants objected to the trial (1) because
Judge Pine's ruling was the law of the case on everything but the constitu-
tional issue and (2) because the court was without jurisdiction to go into the
question of misleading labeling in that the Act vests exclusively in the Federal
Security Administrator the function of determining "whether there is probable
cause to believe that the labeling involved in this case is materially misleading
to the injury or damage of the purchaser or consumer," as a preliminary to
the institution of multiple libel actions. Defendants' counsel also requested
the court to vacate its temporary restraining order and preliminary injunction
of April 6 for the reason that findings of fact and conclusions of law had not
been issued. The defendants' objections having been overruled, the case
was scheduled for trial on May 9, 1949. With reference to the issue to be
tried, Judge Tamm stated as follows: "The issue before the court funda-
mentally, insofar as testimony is concerned, will be the question of misleading
labeling in the use of the book 'How to Get Well and Stay Well * * *.'
There are two questions before the court, one, a question of fact as to whether
the labeling is misleading and, two, the question of whether the action which
the defendant in the case took violated the constitutional rights of the plain-
tiff." Discussion also was had at the conference in regard to the filing by
the defendants of an answer to the complaint, and, in accordance with the
understanding then reached, such answer was filed on April 21, 1949. The
answer (1) challenged the court's jurisdiction to try the issue as to whether
the labeling is materially misleading; (2) asserted that the suit was in sub-
stance and effect against the United States, which had not consented to be
sued; (3) admitted some and denied others of the allegations of the amended
complaint, the essential defense being that the defendants acted under Section
304 (a) in requesting the institution of 10 suits against 10 shipments of an
allegedly misbranded drug; and (4) denied that the defendants acted to
harass the plaintiff or that they acted in excess of their statutory authority.
SUBPOENAS  mjCES TECUM
Following the conference, the plaintiff served upon the defendant officials
of the Federal Security Agency subpoenas duces tecum calling for the pro-
duction of all records of the Federal Security Agency relating to the plaintiff.
The defendants moved to quash the subpoena with respect to defendant
Kingsley, on the ground that the subpoena was too vague, broad, and un-
reasonable, and that it constituted unauthorized probing of the Administrator's
mental processes in making his decisions. On April 19, 1949, argument on
the motion was heard before Judge Clark.
On April 29, 1949, the court entered an order denying the motion and direct-
ing the defendants to produce all records in the case insofar as they related
to the decisions of probable cause made in the case. The order excluded the
records that related to the criminal action then pending in the United States
District Court for the Southern District of California, against Lee S. Mytinger
and William S. Casselberry, secretary and president, respectively of Mytinger
& Casselberry, Inc. It was ordered also that the defendants should have
the right to inspect all documents in possession of the plaintiff or any of
its officials or employees, relating to the product involved in the case.
PETITION FOB WBITS OF PBOHIBITION AND MANDAMUS
On or about May 9,1949, a petition for writs of prohibition and/or mandamus
was filed in the Supreme Court on the ground that the three-judge court pro-
posed action in excess of its jurisdiction in undertaking a trial de novo on the
issue as to whether the plaintiff's labeling was materially misleading. The
Supreme Court heard oral argument on the petition on May 16, 1949. On the
same day, the court denied the petition.
PRETRIAL PROCEEDINGS
A motion for a pretrial order to specify the issues to be tried was filed by
the defendants with the 3-judge court. On June 14, 1949, the court entered
the following statement of the issues:
ISSUES TO BE TRIED
"1. The constitutionality, under the due process clause of the Fifth Amend-
ment to the Constitution as applied to the facts in this case, of that provision
of Section 304 (a)  of the Food, Drug, and Cosmetic Act under which the
defendants have taken the libel and seizure actions without affording to the
plaintiff a hearing for the purpose of establishing that the plaintiff's labeling
was not, in a material sense, misleading to the injury or damage of the
purchaser or consumer.
"2. Whether the defendants, in violation of the Fifth Amendment to the
Constitution, acted arbitrarily, unlawfully, oppressively, and capriciously in
determining, under Section 304 (a) of the Food, Drug, and Cosmetic Act, that
the labeling of the plaintiff's product was, in a material respect, misleading
to the injury or damage of the purchaser or consumer, without affording the
plaintiff a hearing."
Subsequent to June 14, 1949, answers were made to the plaintiff's request
for admissions, to the plaintiff's written interrogatories, and to the defend-
ants' written interrogatories.
TBIAL
Following the service of such answers, the case was tried before the three-
judge court from October 17 to 27, 1949. At the conclusion of the trial, the
court held in an oral decision that the particular provision of the law involved
in the case relating to multiple seizures was unconstitutional and that the
defendants, in initiating multiple libel proceedings against the plaintiff with-
out first affording to them a hearing upon the issue of whether the labeling
upon the plaintiff's product was misleading, acted arbitrarily, oppressively,
and capriciously; and on December 14, 1949, the court handed down findings
of fact and conclusions of law to that effect.
On the same day, December 14, the court entered a decree of permanent
injunction against the defendants, pursuant to which the defendants were
permanently enjoined from continuing or causing to continue the prosecution
of any of the libel for condemnation actions pending against Nutrilite Food
Supplement; and from instituting or causing to be instituted any further or
additional libel for condemnation actions, or any other actions against Nutrilite
Food Supplement, under the provisions of the Act which had been held to be
unconstitutional.
APPEAL
The defendants appealed directly to the United States Supreme Court from
the decision of the three-judge court. On May 29, 1950, the following opinion
reversing such decision was handed down by the Supreme Court:
Mr. JUSTICE DOUGLAS : "This is an appeal * from a three-judge District Court
specially constituted on appellee's application for an injunction to restrain
enforcement of a portion of an Act of Congress for repugnance to the Due
Process Clause of the Fifth Amendment.2
"Section 304 (a) of the Federal Food, Drug, and Cosmetic Act, 21 U. S. C.
? 334 (a), 52 Stat. 1044, as amended, 62 Stat. 382, 21 U. S. C. Supp. Ill ? 334 (a),
permits multiple seizures of misbranded articles 'when the Administrator has
probable cause to believe from facts found, without hearing, by him or any
officer or employee of the Agency that the misbranded article is dangerous to
health, or that the labeling of the misbranded article is fraudulent, or would
be in a material respect misleading to the injury or damage of the purchaser or
consumer.'3
1 28 U. S. C. ?? 1253, 2101, 62 Stat. 928, 961.
s28 U. S. C. ?? 2282, 2284, 62 Stat. 968.
3 The provision of which the quoted portion is a part reads as follows : "Any article
of food, drug, device, or cosmetic that is adulterated or misbranded when introduced
into or while in interstate commerce or while held for sale  (whether or not the first
sale) after shipment in interstate commerce, or which may not, under the provisions of
section 404 or 505, be introduced, into interstate commerce, shall be liable to be pro-    '
ceeded against while in interstate commerce, or at any time thereafter, on libel of  (
information  and  condemned  in  any  district court  of  the  United  States within  the   \
jurisdiction of which the article is found: Provided, however, That no libel for con-
demnation shall be instituted under this Act, for any alleged misbranding if there is
pending in any court a libel for condemnation proceeding under this Act based upon
"Appellee is the exclusive national distributor of Nutrilite Food Supplement,
an encapsulated concentrate of alfalfa, water cress, parsley, and synthetic
vitamins combined in a package with mineral tablets. There is no claim that
the ingredients of the preparation are harmful or dangerous to health. The
sole claim is that the labeling was, to use the statutory words, 'misleading
to the injury or damage of the purchaser or consumer' and that therefore the
preparation was 'misbranded' when introduced into interstate commerce.
"This was indeed the administrative finding behind eleven seizures result-
ing in that number of libel suits, between September and December, 1948.
The misbranding, it was found, resulted from the booklet which accompanied
the preparation.4 Shortly thereafter the present suit was instituted to have
the multiple seizure provision of ? 304 (a) declared unconstitutional and to
dismiss all libel cases except the first one instituted. The District Court held
that appellants had acted arbitrarily and capriciously in violation of the
Fifth Amendment in instituting multiple libel suits without first affording the
appellee a hearing on the probable cause issue; that the multiple seizure
provision of ? 304 (a) was unconstitutional under the Due Process Clause of
the Fifth Amendment; and that appellants should be permanently enjoined
from instituting any action raising a claim that the booklet accompanying the
preparation was a misbranding since it was not fraudulent, false, or mislead-
ing.   87 F. Supp. 650.
"First. The administrative finding of probable cause required by ?304 (a)
is merely the statutory prerequisite to the bringing of the lawsuit. When the
libels are filed the owner has an opportunity to appear as a claimant and to
have a full hearing before the court.8 This hearing, we conclude, satisfies the
requirements of due process.
"At times a preliminary decision by an agency is a step in an administrative
proceeding. We have repeatedly held that no hearing at the preliminary stage
is required by due process so long as the requisite hearing is held before the
final administrative order becomes effective. See Lichter v. United States,
334 U. S. 742; Inland Empire Council v. Millis, 325 U. S. 697; Opp Cotton Mills
v. Administrator, 312 U. S. 126.
the same alleged misbranding, and not more than one such proceeding shall be insti-
tuted if no such proceeding is so pending, except that such limitation shall not apply
(1) when such misbranding has been the basis of a prior judgment in favor of the
United States, in a criminal, injunction, or libel for condemnation proceeding under
this Act, or (2) when the Administrator has probable cause to believe from facts
found, without hearing, by him or any officer or employee of the Agency that the
misbranded article is dangerous to health, or that the labeling of the misbranded article
is fraudulent, or would be in a material respect misleading to the injury or damage
of the purchaser or consumer."
4 The booklet, How to Get Well and Stay Well, is used by salesmen in soliciting
prospective customers. A version of the booklet in use in 1947 represented that Nutri-
lite had "cured or greatly helped" such "common ailments" as "Low blood pressure,
Ulcers, Mental depression, Pyorrhea, Muscular twitching, Rickets, Worry over small
things, Tonsilitis, Hay Fever, Sensitiveness to noise, Underweight, Easily tired, Gas
in Stomach, Cuts heal slowly, Faulty vision, Headache, Constipation, Anemia, Boils,
Flabby tissues, Hysterical tendency. Eczema, Overweight, Faulty memory, Lack of
ambition, Certain bone conditions, Nervousness, Nosebleed, Insomnia (sleeplessness),
Allergies, Asthma, Restlessness, Bad skin color, Poor appetite, Biliousness, Neuritis,
Night blindness, Migraine, High blood pressure, Sinus trouble, Lack of concentration,
Dental caries, Irregular heartbeat, Colitis, Craving for sour foods, Arthritis (rheuma-
tism), Neuralgia, Deafness, Subject to colds." This version is the basis for an indict-
ment now pending in the Southern District of California charging Lee S. Mytinger
and William S. Casselberry with the misbranding of Nutrilite in violation of the
Federal Food, Drug, and Cosmetic Act.
After a hearing prior to the indictment, appellee revised the booklet. Direct curative
claims were eliminated. But pages 41-52 of the revised booklet were devoted to case
histories explaining that Nutrilite brought relief from such ailments as diabetes, feeble-
mindedness, stomach pains, sneezing and weeping. Appellant Crawford, Associate
Commissioner of Food and Drugs, concluded that there was probable cause to believe
and that he did believe that this version of the booklet was misleading. On September
28 and 30, 1948, he recommended seizures of Nutrilite shipments.
Appellee thereafter ordered its salesmen to remove pages 37-58 which contained the
case histories. The pages which remained pointed to the dangers and prevalence of
illness, described the discovery of Nutrilite, and recommended the booklet to those who
wanted to get well and stav well. On December 2, 1948, appellant Larrick, Assistant
Commissioner of Food and Drugs, made a probable cause determination on these pages
of the booklet and recommended seizure.
Six new pages were thereafter added to the booklet. On December 9. 1948. appellant
Dunbar, Commissioner of Food and Drugs, made a probable cause determination on
that version of the booklet and recommended further seizures.
? | 304 (b) provides in part: "The article shall be liable to seizure by process pur-
suant to the libel, and the procedure in cases under this section shall conform, as nearly
as may be, to the procedure in admiralty ; except that on demand of either party any
issue of fact joined in any such case shall be tried by jury."
955619-61?2
"But this case does not go as far. Here an administrative agency is merely
determining whether a judicial proceeding should be instituted. Moreover,
its finding of probable cause, while a necessary prerequisite to multiple
seizures, has no effect in and of itself. All proceedings for the enforcement
of the Act or to restrain violations of it must be brought by and in the name
of the United States. ? 307. Whether a suit will be instituted depends on the
Attorney General, not on the administrative agency. He may or may not
accept the agency's recommendation. If he does, seizures are made and libels
are instituted. But the seizures and suits are dependent on the discretion of
the Attorney General.
"It is said that these multiple seizure decisions of the administrator can
cause irreparable damage to a business. And so they can. The impact of the
initiation of judicial proceedings is often serious. Take the case of the grand
jury. It returns an indictment against a man without a hearing. It does
not determine his guilt; it only determines whether there is probable cause to
believe he is guilty. But that determination is conclusive on the issue of
probable cause. As a result the defendant can be arrested and held for trial.
See Beavers v. Henkel, 194 U. S. 73, 85; Ex parte United States, 287 U. S.
241, 250. The impact of an indictment is on the reputation or liberty of a
man. The same is true where a prosecutor flies an information charging viola-
tions of the law. The harm to property and business can also be incalculable
by the mere institution of proceedings. Yet it has never been held that the
hand of government must be stayed until the courts have an opportunity to
determine whether the government is justified in instituting suit in the courts.
Discretion of any official may be abused. Yet it is not a requirement of due
process that there be judicial inquiry before discretion can be exercised. It is
sufficient, where only property rights are concerned, that there is at some stage"
an opportunity for a hearing and a judicial determination. Phillips v. Com-
missioner, 283 U. S. 589, 596-597; Bowles v. Willingham, 321 U. S. 503, 520;
Yakus v. United States, 321 U. S. 414, 442-443.
"One of the oldest examples is the summary destruction of property without
prior notice or hearing for the protection of public health. There is no con-
stitutional reason why Congress in the interests of consumer protection may
not extend that area,of control. It may conclude, as it did here, that public
damage may result even from harmless articles if they are allowed to be
sold as panaceas for man's ills. A requirement for a hearing, as a matter of
constitutional right, does not arise merely because the danger of injury may
be more apparent or immediate in the one case than in the other. For all we
know the most damage may come from misleading or fraudulent labels. That
is a decision for Congress, not for us. The decision of Congress was that the
administrative determination to make multiple seizures should be made without
a hearing.   We cannot say that due process requires one at that stage.
"Second. The District Court had no jurisdiction to review the administrative
determination of probable cause.
"The determination of probable cause in and of itself had no binding legal
consequence any more than did the final valuation made by the Interstate
Commerce Commission in United States v. Los Angeles & S. L?. R. Co., 273 U. S.
298. It took the exercise of discretion on the part of the Attorney General,
as we have pointed out above, to bring it into play against appellee's business.
Judicial review of such a preliminary step in a judicial proceeding is so
unique that we are not willing easily to infer that it exists.
"Judicial review of this preliminary phase of the administrative procedure
does not fit the statutory scheme nor serve the policy of the Act. Congress
made numerous administrative determinations under the Act reviewable by
the courts.6 But it did not place the finding of probable cause under ? 304 (a)
in that category. This highly selective manner in which Congress has provided
for judicial review reinforces the inference that the only review of the issue
of probable cause which Congress granted was the one provided in the libel
suit.   Cf. Switchmen's Union v. Board, 320 U. S. 297, 305-306.
"The purpose of the multiple seizure provision is plain. It is to arrest the
distribution of an article that is dangerous, or whose labeling is fraudulent
6 Review of an order of the Administrator refusing to permit an application for a
new drug to become effective or suspending the effectiveness of an application is
authorized in ? 505 (h), 21 U. S. C. ? 355 (h). Orders of the Administrator in connec-
tion with issuing, amending, or repealing regulations under Si 401, 403 (j), 404 (a),
406(a) and (b), 501 (b), 502 (d), 502 (h), 504, 604 are expressly made reviewable by?S 701 (e) and (f), 21 U. S. C. ? 371 (e) and (f).
or misleading, pending a determination of the issne of adulteration or mis-
branding. The public therefore has a stake in the jurisdictional issue before
us. If the District Court can step in, stay the institution of seizures, and
bring the administrative regulation to a halt until it hears the case, the
public will be denied the speedy protection which Congress provided by mul-
tiple seizures. It is not enough to say that the vitamin preparation in the
present case is not dangerous to health. This preparation may be relatively
innocuous. But the statutory scheme treats every 'misbranded article' the
same in this respect-whether it is 'dangerous to health,' or its labeling is
'fraudulent,' or materially 'misleading to the injury or damage of the pur-
chaser or consumer.'T What we do today determines the jurisdiction of the
District Court in all the cases in that category. If the court in the present
case can halt all multiple seizures but one, so can the court in other cases. The
means which Congress provided to protect consumers against the injurious
consequences of protracted proceedings would then be seriously impaired.
Congress weighed the potential injury to the public from misbranded articles
- against the injury to the purveyor of the article from a temporary interference
with its distribution and decided in favor of the speedy, preventive device of
multiple seizures. We would impair or destroy the effectiveness of that
device if we sanctioned the interference which a grant of jurisdiction to the
District Court would entail. Multiple seizur.es are the means of protection
afforded the public. Consolidation of all the libel suits so that one trial may
be had8 is the relief afforded the distributors of the articles.9
"Reversed.
"Mr. Justice Burton concurs in the result.
"Mr. Justice Clark took no part in the consideration or decision of this case."
Mr. JUSTICE JACKSON (dissenting) : "The Court does not deal at all with
what appears to be the ultimate issue decided by the court below.
"The trial court of three judges wrote no opinion but made forty-three
detailed findings of fact which would require twenty of these printed pages
to reproduce and which summarize a 1,500-page record of a long trial. Those
findings are made largely on undisputed evidence and on evidence from gov-
ernment sources.    This Court does not criticize or reverse any of them.
"The substance of these is to find that the Government instituted a mul-
tiplicity of court actions, with seizures in widely separated parts of the
country, with a purpose to harass appellee and its dealers and intending that
these actions and the attendant publicity would injure appellee's business
before any of the issues in such cases could be tried. This, the court held,
was justified by no emergency the product being, at worst, harmless and having
been marketed for years with knowledge of the Department.
"Assuming as I do that the Act on its face is not constitutionally defective,
the question remains whether it has been so misused by refusal of administra-
tive hearing, together with such irreparable injury in anticipation of judicial
hearing, as to deny appellee due process of law or to amount to an abuse of
process of the courts.
"The Government has sought and received from this Court protection
against a multiplicity of suits under circumstances where injury was less
apparent than in this. Landis v. North American Co., 299 U. S. 248. The
holding of the court below and the contention of the appellee here that the
7?See ? 304 fa) note 3, supra.
8?Sec. 304 (b) provides in part: "When libel for condemnation proceedings under
this section, involving1 the same claimant and the same issues of adulteration or mis-
branding, are pending in two or more jurisdictions, such pending proceedings, upon
application of the claimant seasonably made to the court "of one such jurisdiction,
shall be consolidated for trial by order of such court, and tried in (1) any district
selected by the claimant where one of such proceedings is pending; or (2) a district
agreed upon by stipulation between the parties. If no order for consolidation is so
made within a reasonable time, the claimant may apply to the court of one such juris-
diction, and such court (after giving the United States attorney for such district
reasonable notice and opportunity to be heard) shall by order, unless good cause to
the contrary is shown, specify a district of reasonable proximity to the claimant's
principal place of business, in which all such pending proceedings shall be consolidated
for trial and tried. Such order of consolidation shall not apply so as to require the
removal of any case the date for trial of which has been fixed. The court granting
such order shall give prompt notification thereof to the other courts having jurisdiction
of the cases covered thereby."
?Congress has granted distributors, through the provision for consolidation of all
libel suits, the measure of relief which courts at time grant through a stay of multiple
actions.   See Landis v. North American Co., 299 U. S. 248.
designed to destroy a business before it can be heard in its own defense is
not frivolous, to say the least.
"I am constrained to withhold assent to a decision that passes in silence
what I think presents a serious issue."
Mr. JUSTICE FRANKFURTER (dissenting) : "While I agree with the Court
as to the constitutional and statutory issues canvassed in its opinion, I am
unable to answer Mr. Justice Jackson's dissent, and I must therefore yield
to it.
"Of course Congress may constitutionally vest judicially unreviewable dis-
cretion in an executive agency to initiate multiple suits in order to stop traf-
ficking in pernicious drugs or even in those that are harmless, where efficacy
is misrepresented. I agree that it has done so in the Federal Food, Drug, and
Cosmetic Act of 1938. 52 Stat. 1040, 21 U. S. C. ? 301 et seg. But it does
not at all follow that Congress has thereby cut off the right of access to the
courts to prove that the enforcing agency has not acted within the broadest
bounds of fair discretion, rare as the occasion may be for such an attempt
and however improbable its success.
"Such I understand to be the nature of the proceedings below and such the
basis of the District Court's decree. Unless we can say, as I cannot, that
the findings in support of it have no support in the evidence, we should not
hold that the court below was without jurisdiction to entertain the suit.
v "The limited claim which the District Court sustained falls precisely within
the qualification left open by this Court in a leading case sustaining the power
of Congress to vest unreviewable discretion in executive agencies. When the
Court was urged to deny this power of Congress and 'extreme cases' were
put showing 'how reckless and arbitrary might be the action of Executive
officers,' the Court made this answer:
It will be time enough to deal with such cases, as and when they arise. Suf-
fice it to say, that the courts have rarely, if ever, felt themselves so restrained
by technical rules that they could not find some remedy, consistent with the
law, for acts, whether done by government or by individual persons, that
violated natural justice or were hostile to the fundamental principles devised
for the protection of the essential rights of property. Monongahela Bridge Co.
v. United States, 216 U. S. 177,195.
Mr. Justice Harlan, speaking for the Court, cast its thought in the language
current at the time. But the thought behind the words is not outmoded and
controls, I believe, the case before us."
The plaintiff filed a petition for rehearing in the Supreme Court, together
with a motion for a stay of the mandate. On June 14, 1950, Mr. Justice
Douglas denied the motion for a stay of the mandate. A motion was filed in
the District Court on July 5,1950, to stay the entry of an order on the mandate
in that court until the Supreme Court had had an opportunity to act upon
the petition for rehearing. On July 21, 1950, Judge Tamm denied the motion
for a stay and, in compliance with the mandate of the Supreme Court, ordered
that the decree of permanent injunction of December 14, 1949, be dissolved
and vacated. A petition to the three-judge court to review Judge Tamm's
action was filed on behalf of the plaintiff on July 22, 1950. On October 16,
1950, the Supreme Court denied the petition for rehearing. On November 15,
1950, the three-judge court entered an order denying the petition for review
of Judge Tamm's action.