BUTZ v. GLOVER LIVESTOCK COMM'N CO.

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Argument of Keith A. Jones

Chief Justice Warren E. Burger: We'll hear arguments next in 71-1545, Butz against Glover Livestock Commission.

Mr. Jones, you may proceed.

Mr. Keith A. Jones: Mr. Chief Justice, and may it please the Court.

This case is here on writ of certiorari to the Court of Appeals for the Eight Circuit.

The issue presented is whether the court below exceeded the permissible scope of review in setting aside the Secretary’s 20-day suspension of respondent as a registrant under the Packers and Stockyards Act of 1921.

The suspension was ordered, pursuant to the Secretary’s authority to suspend for a reasonable period any registrant committing any violation of the Act.

Respondent is a livestock broker for a market agency, who is paid a sales commission for conducting an auction of which livestock is sold on a weight basis.

Respondent has now been detected violating the Act on four separate occasions by short-weighing cattle consigned to it for sale.

On the earlier occasions, it had simply been warned against future violations.

On the fourth instance of short-weighing, which is the subject of this suit, a formal complaint against respondent was issued by the Packers and Stockyards Administration.

The case was initially tried before Department of Agriculture Hearing Examiner.

It found that respondent had intentionally short-weighed the cattle consigned to it for sale.

The Hearing Examiner recommended an appropriate cease and desist order and also a 30-day suspension.

The matter was then reviewed by a judicial officer having authority to act on behalf of the Secretary.

He found that respondent short-weighing constituted a willful violation of the Act and he issued the cease and desist order recommended by the Hearing Examiner, but he reduced respondent’s suspension to only 20 days.

Since the respondent operates its market only one day per week, this 20-day suspension will affect at most three business days.

Before discussing the disposition of this case on appeal, I think it will be helpful to describe the respondent’s brokerage function as a market agency and to explain why a market agency like the respondent might intentionally short-weigh the cattle consigned to it for sale.

The sellers at respondent’s auctions are typically livestock producers, who bring or send their cattle to the respondent for purposes of the auction.

These livestock producers rarely know the true weight of their cattle.

They typically lack the weighing facilities necessary to determine the true weight.

It is the respondent who is responsible for weighing the cattle.

The buyers at the auction frequently, perhaps usually, are representatives of meatpacking companies.

They buy the cattle at the weight given by the respondent and the cattle are then shipped to the packing plants where they are reweighed.

The sad truth of the matter is that the packers tend to patronize the auctions held by market agencies, which give them a favorable break on the weight, thus, short-weighing encourages buyers.

And this in turn stimulates an increase in sales, for the livestock producers will tend to patronize the markets which attract sufficient buyers to ensure a sale of their cattle, and since the market agencies are paid on a per head basis, they profit from this higher level of sales.

Justice William H. Rehnquist: They don't -- their commission isn't based on a percentage of the sale price?

Mr. Keith A. Jones: It's based -- and I think that in the record there is a schedule of the commission, that is based in part on the weight of the cattle.

If the cattle in question weighs 400 pounds or more, I think the sales commission is $4 and some odd cents.

If it is between 300 and 399 pounds, it is a lower figure, and so forth.

Justice William H. Rehnquist: To that extent then it would be against their interest to short-weigh?

Mr. Keith A. Jones: Only if the short-weighing brought the weight down from 100-weight category into a lower one and in fact, in this case, none of the cattle short-weighed in fact brought the weight down from 100-weight category to another, so that there was no loss in commissions resulting from the short-weighing.

Now, the Packers and Stockyards Act was of course designed to eliminate abuses such as short-weighing.

It does this by requiring the market agencies to observe a high fiduciary standard of care in dealing with both buyers and sellers.

And since negligent as well as intentional short-weighing injures the livestock producers, negligent short-weighing has long been considered to be a violation of the Act.

I turn now to the treatment of this case in the Court of Appeals.

Justice Harry A. Blackmun: Is there any concession here by Glover, however, that the short-weighed was not due to negligence in this case?

Mr. Keith A. Jones: No, I believe that they have consistently maintained that their infractions of the Act where not intentional.

On appeal, the Court of Appeals --

Justice Byron R. White: And denied that they were willful or do you distinguish between intentional and willful?

Mr. Keith A. Jones: Yes, we do distinguish between intentional and willful as did the Court of Appeals.

The Act is phrased in terms of willfulness and the negligent violations are considered willful for purposes of the Act.

Justice Byron R. White: I think you know what you are doing?

I mean, you know, what people actually are going through?

Mr. Keith A. Jones: Well, I believe that it means that if you act in careless disregard of your statutory responsibilities, that's considered to be willfulness for purposes of the Act.

It simply means that you know what your responsibilities are and you don't live up to them.

Justice Byron R. White: What is intentional?

Mr. Keith A. Jones: Well, I suppose that in this context, intentional would mean that, for example, the respondent ordered its weigh master to weigh the cattle at less then their true weight.

Justice Byron R. White: And there is no concession for it being intentional?

Mr. Keith A. Jones: That's correct.

Justice Byron R. White: Is there a concession that they were willful?

Mr. Keith A. Jones: I believe so, in the sense that the respondent has conceded that the suspension here was within the statutory authority of the Secretary, and of course, it would not be if the act where not committed willfully, in other words, not a violation of the Act.

Furthermore, the Court of Appeals upheld the finding of a violation as supported by substantial evidence, and the respondent is not crossed petitioned in this case, so that the finding of a violation of the Act is not at issue here.

However, although the Court of Appeals sustained the cease and desist order --

Chief Justice Warren E. Burger: As a matter of fact, did we limit the grant here only to the remedy?

Is this a limited grant of the writ, do you recall?

Mr. Keith A. Jones: I don't recall Mr. Chief Justice.

The only issue presented of course is whether the suspension itself was -- whether the court exceeded its permissible scope of reviewing in setting the sentence of suspension.

Chief Justice Warren E. Burger: There really is only one issue in the case?

Mr. Keith A. Jones: And that's the proper scope of reviewing how it is applied.

Well, the court did set aside the 20-day suspension here.

It is hard to determine just why the suspension was set aside however.

The court expressly held that the suspension was within the Secretary's statutory authority, and it further acknowledged that the shaping of remedies is peculiarly within the special competence of the Secretary.

Having acknowledged its narrow powers of review however, the court turned to a comparison of this case with four previous administrative decisions involving suspensions for short-weighing.

In each of those four cases, at least in the court’s view, the short-weighing had been intentional and flagrant.

The court did not view the respondent’s offense as being equally culpable, and on the basis of this comparison alone, the court concluded that the 20-day suspension here failed to achieve uniformity of sanctions for similar violations.

In so concluding, the court overlooked the fact that in those four cases with which it was comparing the present case, the suspensions there had all been for 30 days; longer than the period of suspension here.

And the court further overlooked the fact that the Secretary has frequently imposed suspensions in cases involving offenses no more culpable than those committed by the respondent.

The court then made its own independent evaluation of the proper sanction to be imposed and concluded that the cease and desist order, when coupled with the adverse publicity, which had attended the finding of a violation, would be inadequate remedy.

It is our position that the Court of Appeals merely paid lip service to the applicability of a narrow standard of review, and that it in fact substituted its own judgment for that of the Secretary with respect to the proper sanction to be employed for short-weighing under the Act.

I'll first outline our review of what constitutes the proper standard of review in cases such as this and then turn to a discussion of how that standard should be applied to the facts of this case.

This Court has repeatedly stressed that the courts exercise only a very limited power of review over orders fashioned by an administrative agency.

This limited power of review has normally been described as requiring the courts to sustain an administrative action, which is authorized by statute and which is not arbitrary capricious or an abuse of discretion.

Although, in articulating the proper standard to be applied, the Court has varied its language slightly from case to case.

The essential point has remained clear.

A reviewing court may not simply substitute its discretion for that of the administrator.

When discretionary enforcement powers are given by Congress to the administrator, who thereupon develops special expertise over the subject matter.

A reviewing court may not replace its discretion, I mean, may not replace the administrator’s discretion with its own.

And we believe that a narrow scope of review is particularly appropriate where the administrative action in question is the imposition of sanctions for statutory violations.

The determination of what sanction is necessary to ensure compliance with the Act and to deter future violations must be based upon informed judgment which can properly be made only by the administrator, who unlike the reviewing court is thoroughly familiar with both the conditions in the industry and the real significance of the particular violation, or the sanction chosen by the administrator can be shown to have some reasonable relationship to his legitimate enforcement objectives under the statute.

We contend that the sanction must be sustained.

We believe that a party attacking the sanction bears a very heavy burden of proof.

That party mush show that the sanction bears no relationship whatsoever to the effectuation of the statutory program, and is out of all proportion to the seriousness of the offense.

And when as in this case, the sanction employed is a suspension, we believe that, that sanction maybe modified or set aside only when the period of suspension is wholly lacking in reasonableness.

I turn now to --

Justice Potter Stewart: What if -- Judge Stevens in his opinion for the Court of Appeals said this was unconscionable.

If instead of using the word unconscionable, he had said arbitrary and capricious, does that satisfy the test?

Mr. Keith A. Jones: Well, I think that there must be some --

Justice Potter Stewart: Just a matter of language?

Mr. Keith A. Jones: I think there must be some reasoned elaboration.

Justice Potter Stewart: Well, he gave the reason why he thought it was unconscionable?

Mr. Keith A. Jones: Yes.

I will turn to a discussion of those reasons in a moment.

First, I would say however that I believe that the use of the word unconscionable here was not a finding of an abuse of discretion, but really only a conclusory reassertion, a conclusory description based upon a presumed lack of uniformity of sanctions.

As such, it did not constitute a finding that there was no reasonable relationship between the sanction imposed and the need to effectuate the statutory program.

Justice William H. Rehnquist: What if he had simply said that the firm had abused its discretion, that, that would be equally conclusory, wouldn't it?

Mr. Keith A. Jones: That's correct.

I believe that a reviewing court cannot simply say that this is an abuse of discretion without explaining why, and I think that the explanations in this case were inadequate.

The violation committed --

Justice Byron R. White: The statute they use is all right here?

Mr. Keith A. Jones: No.

Justice Byron R. White: Only their explanations?

Mr. Keith A. Jones: No.

I think that the court gave lip service to in their standard of review, but that it did not attempt conscientiously to apply that standard.

The violation committed by the respondent here, the short-weighing of cattle consigned to it for sale is a serious offense under the Act, and furthermore, this was not the respondent’s first violation.

It is been detected short-weighing on a total of four separate occasions.

These repeated violations may as the respondent seems to contend have been merely due to negligence, carelessness.

If so, the respondent has repeatedly been careless in the observance of its statutory responsibilities.

On the other hand, the violations may have been intentional.

The record is unclear and the Secretary’s findings are couched only in terms of willfulness, which is the statutory standard.

Whether intentional or careless, respondent’s actions thwarted the fundamental safeguard devised by Congress for the protection of livestock producers.

In contrast to the seriousness of the offense, the 20-day suspension here is relevantly mild.

It certainly cannot be said in the context of the respondent’s repeated violations that this brief suspension was arbitrary or lacking in reasonableness or an abuse of discretion.

Congress has given the Secretary wide discretion to choose the sanctions necessary to ensure compliance with the Act.

The Secretary in this case acted well within his discretion.

The court below however was concerned with whether there had been a uniformity of sanctions for similar violations.

Now, I would now -- first that we believe the court was in error in concluding that there was a lack of uniformity here.

The Department of Agriculture has provided us and opposing counsel with a comprehensive list of short-weighing cases, including 152 cases involving suspensions.

Now, these suspensions range in length from a minimum of one week to a maximum of five years.

Now, some of the violations were more obviously intentional than those involved here, but many were not, so that if the history of the enforcement of the Act is any guide, the sanctions here were if anything lenient, certainly no severe.

But more importantly, we would submit that the court fundamentally erred and inquired, at least in any strict and comprehensive way into the uniformity of sanctions at all.

The Secretary is not required to impose the same sanction for all similar violations.

In Federal Communications Commission against WOKO, which we cite in our brief, the court was once before confronted with the argument that an administrator had not applied similarly harsh sanctions to violators in the past.

In holding that this factor is not a ground for ejecting the sanction, the court replied, and I quote, on page 228 of that volume, “We cannot say that the commission is bound to deal with all cases at all times, as it dealt with some that seemed comparable.”

We believe that the same answer is appropriate here.

Even if it is assumed that respondent’s suspension was harsher than those meted out in the past, the Secretary’s action we believe should be measured not against any past leniency, but only against the need to effectuate the statutory program.

So Mr. Justice Rehnquist, I believe that is the answer to your inquiry about whether merely the verbalization of an abuse of discretion would be adequate, we believe it is necessary to show that there is no reasonable relationship between the sanction and the need to effectuate the statutory program.

The conclusion of the court’s opinion below illustrates that the court was actually substituting its own judgment for that of the Secretary in not really finding an abuse of discretion.

The court expressed its view that the cease and desist order, plus routine press releases describing the finding of the violation “would certainly seem appropriate and reasonable with respect to the practice the department seeks to eliminate.”

This statement by the court reveals at least two serious errors.

First, it is for the Secretary and not the court to determine what constitutes an appropriate and reasonable sanction for purposes of carrying out the Secretary’s enforcement obligations.

And secondly, Congress has made the legislative judgment that a suspension is appropriate and reasonable for any violation of the Act an a fortiori for the serious violation of short-weighing involved here.

Chief Justice Warren E. Burger: Now, it seems to me in your brief Mr. Jones, you emphasized that there had been prior violations and that there had been three or four occasions when the authorities of Secretary staff warned Glover about violations.

Mr. Keith A. Jones: That's correct Mr. Chief Justice, there were repeated violations.

Chief Justice Warren E. Burger: I don't find that the Court of Appeals made any mention of that or perhaps --

Mr. Keith A. Jones: I think the court overlooked that as it did I think many other things as well, relating to the seriousness of this offense and to the uniformity of the sanctions which the Secretary has implied in the past.

Now in conclusion, we submit that the decision setting aside the suspension ordered by the Secretary should be reversed and the suspension reinstated.

Justice Byron R. White: The upshot was that no punishment or remedy whatsoever was to be imposed?

Mr. Keith A. Jones: No.

A cease and desist order was sustained by the court below.

Justice Byron R. White: That's all?

Mr. Keith A. Jones: That's all.

I would like to reserve my remaining time.

Chief Justice Warren E. Burger: Very well.

Argument of R. A. Eilbott, Jr.

Mr. R. A. Eilbott, Jr.: May it please --

Chief Justice Warren E. Burger: Eilbott.

Mr. R. A. Eilbott, Jr.: -- the Chief Justice and may it please Your Honors, gentlemen of the Court.

I think we came here or I thought I did to argue some degree of law, but there have been so many statements affect given, which I do not agree with, and which can only be thought of as prejudicial to my clients, but I think I should answer just a few of those before I go into what I had intended to say to this Court.

Now, number one, we have the statement by Mr. Jones and may I say to Your Honors before I go further that I am a small country town lawyer.

Mr. Jones has been most cooperative to us and most kind to us in the preparation of our appearances before Your Honors, because I have never had that privilege before, except when I was admitted.

Justice Byron R. White: Yeah, well I used to litigate against small town lawyers (Inaudible) and it was almost (Inaudible)[Attempt to Laughter]

Mr. R. A. Eilbott, Jr.: Well, that's what I hope to do to Mr. Jones.

Justice Byron R. White: That is actually what I thought.

Mr. R. A. Eilbott, Jr.: Yes sir.[Laughter]

That's exactly what I intend to do or if I can.

Chief Justice Warren E. Burger: Small town lawyer, counsel, is like a lawyer who walks into the courtroom with just one law book, and that's the fellow that --

Mr. R. A. Eilbott, Jr.: I wish I had one law book Your Honor.[Laughter]

He first makes mention however that we had been told four times.

Now, if it please Your Honors, let me get one thing straight, because I have now lived with this case for three-and-a-half years.

We did receive three letters on the question of weighing, and the record shows that in each and every instance we immediately had weighed scale testers in to determine what the condition was of our scales and unfortunately, we got no answers on those first three occasions.

We would urge Your Honors that in -- and the transcripts so shows that this was found to be true, that if you weighed these scales as was required by the government, that is put a weight on each corner and weighed it, they found nothing wrong with our scales.

And indeed, nothing was found wrong with these scales until, at my repeated urging, they brought in a gentleman from Memphis who had been selling scales and had been using scales, Fairbanks-Morse Scales for 20 some odd years, he testified, it's part of the record.

He showed that those scales had enough wear and tear that when a cattle rushed on to the scale, not withstanding the scales would prove correct at a dead weight, but when you prodded one on with an electric prod, which is a system, that when it hit the metal of that scale, there was going to be some variant sometimes.

Now, sometimes the scales would rare -- would weigh accurately, other times, they would not.

Justice Thurgood Marshall: Did he testify it was true with scales all over the country?

Mr. R. A. Eilbott, Jr.: That is correct, Your Honor, he certainly did Justice Marshall.

Now, when we come down to the question here of how many --

Chief Justice Warren E. Burger: We will resume there after lunch, counsel.

Mr. R. A. Eilbott, Jr.: Yes sir.[Luncheon Recess]

Chief Justice Warren E. Burger: Counsel, you may continue.

Mr. R. A. Eilbott, Jr.: May it please the Chief Justice, and may it please the Court.

Truthfully gentlemen, when we get through sparring and there are several things that I would like to answer from the Solicitor General, we're here on the matter of a 20-day suspension.

We could have, if it please Your Honors, and the Court record will show, we could have taken the 30-day suspension the day they filed the complaint, or in plain language, we could have taken our medicine for 30 days and that would have been all there had been to it, it would all have been over.

Chief Justice Warren E. Burger: How many working days, business days would that actually be?

Mr. R. A. Eilbott, Jr.: Your Honor, that's about three working days.

The Government is correct on that, but they have no more conception of what those three working days are to us, to anything in this world.

What those three working days amount to, I think Chief -- Mr. Justice Leah in the Eight Circuit Court of Appeals very aptly put it.

They amount to calling us crooks, and we are not crooks and that's what we stand before this Court on today.

We did not intentionally violate any regulation.

We did not intentionally, if it please Your Honor, deliberately underweigh our overweigh cattle.

In the first place, the government says that we were warned four times, and each of those instances -- three times, and in each of those instances, we had the government’s own weighing team to check our scales, and they couldn't report anything wrong to us because there they used the four edges of balance.

That's what the record shows. It was only when we tore those scales down that we found out what was wrong with the scales, or what could have been wrong with the scales.

Now, the government says, that was not mentioned by the Eight Circuit Court of Appeals, but indeed, if it please Your Honors, it was mentioned not once but twice in their opinion, and if Your Honors look at the appendix that is on Page 16 and 19, the Eight Circuit --

Chief Justice Warren E. Burger: I think it wasn't the Solicitor General, it was my suggestion.

Mr. R. A. Eilbott, Jr.: Well then --

Chief Justice Warren E. Burger: In inquiry, I said I couldn't find it --

Mr. R. A. Eilbott, Jr.: Well --

Chief Justice Warren E. Burger: In reading it on the bench.

Mr. R. A. Eilbott, Jr.: If Your Honor would look at Appendix A to the petition for writ of certiorari, on Page 16, you would find Glover is an operator of a posted stockyard in Pine Bluff, Arkansas, registered so forth, to sell livestock, honored by June 2, 1964, July 26, 1966, and June 20, 1967, representatives of the USDA conducted investigations of so forth and so on, and it goes on.

Then on Page 19, it also points out in another place that these matters where brought to the attention of the Eight Circuit Court of Appeals, and they mentioned them in their finding and in their decree.

We would respectfully point out also that in three of those instances, there was no evidence taken, nothing, other than to say you're not weighing properly, and we called in a scale examiner, one who was approved by the Federal Government.

They could give us no answers. The Agricultural Department made no effort to give us any answers.

So consequently, when it came to the Eight Circuit Court of Appeals, we have had a situation where the Eight Circuit Court of Appeals found specifically that it was not an intentional and flagrant violation, and that also is in the Eight Circuit Court of Appeals opinion, if it please Your Honor, it's on Page 9 of our brief, but I am sure it's in the appendix.

I didn't go to that trouble to find it out, but most assuredly, they found no intentional violation.

We have had a situation that I would like to bring to the attention of this Court.

The word unconscionable has come in, and Mr. Jones states the really the Eight Circuit didn't give any reason for that word, but gentlemen, they did.

They most assuredly did, in the last paragraph of their opinion.

They pointed out exactly why they thought it was unconscionable.

I don't think there is any doubt about it.

They found out that these press releases which Mr. Jones a few moments ago says, I've forgotten what he called them, routine press releases I believe, well, we're in the unenviable position that we found out we had been charged with an offense in the newspaper.

Everything that was done in this case was in the newspaper.

Routine press releases, if they be routine, they damaged us, they damaged us to the point that truthfully and honestly, if it wasn't at my own insistence, we wouldn't be here today because we're not financially able to be here, but we're here.

We're still saying we didn't intentionally do anything.

We didn't intentionally do it and we're not crooks.

That's what it amounts to.

Now they say we short-weighed cattle.

There were 29 drafts, I believe it was proven to have been weighed, whether or not those cattle had any access to water, which would have caused them to gain weight or not, I am not in the position to say, but if it please you Justices, neither was the government, because they weren't there either.

I know one thing, of the 29 drafts weighed, nine were underweighed, nine were overweighed, and the rest were right on the spot, and I want to say to you that of the nine underweighed, two of them, two out of the nine belonged to one of my clients, who is selling his own cattle to the Livestock Commission Agency.

In other words, if anybody got cheated on those two, it was Thomas Glover who owns part of Glover Livestock Commission Agency.

Now, that doesn't make sense to me that we would intentionally cheat ourselves.

Now, the government has used the argument that I have heard since the first day we heard this before a Hearing Examiner, and let me digress just one minute and say that the way we heard this matter is simply this.

The government through the Agricultural Department charges us with an offense.

That's heard before a Hearing Examiner who is an employee of the Agricultural Department.

That's heard with two witnesses from the Agricultural Department.

That's heard with prosecutors, two of them from the Agricultural Department, and from that we had an appeal to a judicial review officer who also is an employee of the Agricultural Department.

And that was what we got in the way of a hearing until we got to the Eight Circuit Court of Appeals, and I would be the first to admit that they do have somewhat limited powers of review, but Congress never intended that the judiciary abrogate all of its powers to the regulatory commissions.

Certainly, if it did, it should have said so.

We have been told here that -- the reason that we did this, the reason we short-weighed was because if we short-weighed them when we weighed the cattle, then the buyer got more than he paid for and he was happy.

I have heard that now for three-and-a-half years, but that isn't the truth either, and I don't mean to imply that anyone is fibbing.

I mean to say that's a matter of philosophy.

The truth about the matter is, in the conduct of livestock commission agents, whoever has got the cattle to sell, the buyers will come.

You don't need to worry about getting buyers if you can get the farmer to bring you the cattle.

We don't have to underweigh the farmer’s cattle and give armor a little excess, 10 or 15 pounds.

Chief Justice Warren E. Burger: Mr. Eilbott, you were -- at least as I follow your argument, you are arguing and rearguing an element on which the Court of Appeals has found against you, and you have -- you have no cross appeal here.

For example, on Page 19 --

Mr. R. A. Eilbott, Jr.: Mr. Chief Justice --

Chief Justice Warren E. Burger: Let me read this first.

Mr. R. A. Eilbott, Jr.: Excuse me sir.

Chief Justice Warren E. Burger: All evidence considered the Hearing Examiner crediting the evidence that the cattle reweighed had no access to food and water could properly conclude that they had been underweighed by Glover, and now that's just one of several items.

The only thing in the case here on, at least so I had thought, was the appropriateness of the Court of Appeals modifying the penalty, not the fact findings?

Mr. R. A. Eilbott, Jr.: Yes sir, Mr. Chief Justice, and that was what I was prepared to argue until I came this morning, and I found that it was stated that the Court of Appeals had not considered this, that, and the other, and I knew the Court of Appeals had, because it was in their opinion.

I will gladly move along into what we are really here for.

The appellee here concedes that the judicial review by the Eight Circuit Court of Appeals; whether it be good law or bad law, is a limited review, but we say to you, in all sincerity, that there has been absolutely no proof and the Eight Circuit Court of Appeals so found that there was any intentional violation of the statute or the regulation.

As a matter of fact, there is none.

We have asked the Department of Agriculture, we have requested of the Solicitor General that they show us one case in which the department, without a finding of intentional, can say that a suspension is in order.

We didn't place into the law the requirement that these orders be uniform.

Indeed, this Court did not place that into the law.

The Secretary of Agriculture himself said that the findings of the Department of Agriculture should be uniform, because otherwise they would be discriminatory.

And that is in the much cited case of Royce versus – doing business with Madison Stockyard, which is a Department of Agriculture case.

We are here saying merely one thing.

The Department of Agriculture may have found that there was a proper reason for suspension of our license for 20 days, but if they did, they didn't set it out in their opinion and neither did the Eight Circuit Court of Appeals.

Yet as the Eight Circuit said and as the Department of Agriculture has said, these rulings must be uniform.

Mr. Jones mentioned a 150 cases, but those were not cases, that was a mere citation at the bottom of a page that merely mentioned rulings of the department; whether they were consent cases, those in which a person had consented to be suspended, which most of these cases end up being, or whether they where actually tried, or whether they were entered on an original order.

Chief Justice Warren E. Burger: What difference, I wonder, would it make whether they were tried actually, tried out on a contested basis or whether they in fact entered a guilty plea in terms of the penalty?

Mr. R. A. Eilbott, Jr.: Your Honor, we find no case, and we have asked the department to show us a case in which it has been tried or otherwise where they have made a finding that -- had not made a finding that it was intentional and suspended of business, not a one and I say to you today, standing in the Supreme Court of the United States, we have not found a single case.

Absence, the finding of intentional violation that a suspension order has been issued by the Secretary of Agriculture up to the day he issued our order and--

Justice Thurgood Marshall: Suppose the Court of Appeals sent it back for a finding?

Mr. R. A. Eilbott, Jr.: I beg your pardon?

Justice Thurgood Marshall: If the Court of Appeals sent it back for a finding?

Mr. R. A. Eilbott, Jr.: I don't think there was evidence there Justice Marshall to support such a finding.

May I quote one --

Justice Thurgood Marshall: Could they have sent it back to the administrative agency to make appropriate finding, one way or the other?

Mr. R. A. Eilbott, Jr.: Yes sir, and if they did, I think they could, yes.

And if they did --

Justice Thurgood Marshall: But instead, they took over the administrative agency’s charge?

Mr. R. A. Eilbott, Jr.: They may have taken it over only because they found --

Justice Thurgood Marshall: You called it the administrative agency’s job but do they have authority to do that?

Mr. R. A. Eilbott, Jr.: I think they do, unless you would read the Stockyard and Packers Act as a complete abrogation of judicial review.

Justice Thurgood Marshall: I am just talking about the general administrative law.

Mr. R. A. Eilbott, Jr.: I understand that.

Justice Thurgood Marshall: Wouldn't the Act makes it so different?

Mr. R. A. Eilbott, Jr.: What makes it --

Justice Thurgood Marshall: So different from the regular Administrative Procedure Act?

Mr. R. A. Eilbott, Jr.: I think the Eight Circuit could have sent it back, but they chose to say --

Justice Thurgood Marshall: Well, would you object to us suggesting that the Eight Circuit send it back?

Mr. R. A. Eilbott, Jr.: That would be just like throwing us back to the lines from which we came.

Somewhere along this line, surely, we have a right to be heard by judiciary.

We went through all of the departments --

Justice Thurgood Marshall: I am asking about what relief you're entitled to?

Mr. R. A. Eilbott, Jr.: I am entitled to a relief --

Justice Thurgood Marshall: You want this Court to say that you're just not guilty of doing anything?

Mr. R. A. Eilbott, Jr.: No sir.

If it please Your Honor, Mr. Justice Marshall, there is plenty that has already been done.

Number one, we have been dragged through the mud and mire.

Number two, there is a cease and desist order that we do not appeal from.

If we violate that cease and desist order, I am sure Your Honor knows that the penalties are rather severe.

What we are fighting and all we are fighting is what the Eight Circuit Court of Appeals said was unconscionable, and that's a 30-day suspension.

There is plenty of teeth in what they have done to us besides the 30-day suspension, they didn't need that to add to our woes, that is our point, because with the finding of that 30-day suspension, on the basis of the cases before us, they have found that we intentionally violated the Act, and we'll deny that until the day we die.

Those are our sentiments in --

Justice Byron R. White: You are saying that since there has been violation of the, what, the Secretary’s own rules?

Mr. R. A. Eilbott, Jr.: Yes sir.

Justice Byron R. White: If he for the first time imposed the suspension, was it not an intention of violation?

Mr. R. A. Eilbott, Jr.: That's correct.

Without giving a reason, and he gave no reason here.

Justice Byron R. White: Well, he imposed the penalty though?

Mr. R. A. Eilbott, Jr.: Yes sir, and his own judicial review officer reduced it to 10 days.

Justice Byron R. White: But you are saying that the -- because this is the first time the sentence (Inaudible)?

Mr. R. A. Eilbott, Jr.: Then it's discrimination, unless he gives a reason why we should be discriminated again.

Justice Byron R. White: Then you have – where you have non-intentional, non-intentional violation, you either get them both -- either suspend them both or not suspend them both?

Mr. R. A. Eilbott, Jr.: Yes sir, yes sir.

I will go a little further in --

Justice Byron R. White: He could be starting on a program of suspending everybody?

Mr. R. A. Eilbott, Jr.: What he didn't start before he got to us?

Justice Byron R. White: He might have changed his mind.

Mr. R. A. Eilbott, Jr.: Well, he may have changed his mind, then he should have given us a reason why we out of all of the world should be signaled out.

The record will show in this case that of the 50 stockyards in the State of Arkansas, only one was examined in 12 months, and that was us.

Now, is there a reason for that too?

Justice Byron R. White: Well, I don't know, that isn't an issue here right now.

Mr. R. A. Eilbott, Jr.: I know that's not the issue, but that's all part of the background.

Justice Byron R. White: I am not even sure that's part of the record.

Mr. R. A. Eilbott, Jr.: Yes, it is.

I can quote it to you verbatim from Mr. Qursbanksi's (ph) questioning.

Justice Byron R. White: But not with respect to the --

Mr. R. A. Eilbott, Jr.: No, but I can say to you, I ask -- I asked Prezel (ph), one of the two government witnesses whether or not he had any proof whatsoever that we intentionally violated this Act, and he said no.

Justice Byron R. White: What do you understand willful means in terms of that?

Mr. R. A. Eilbott, Jr.: What I understand willful means could be flagrant negligence, but that's far different from intentional.

Justice Byron R. White: Oh yes, but is that all that willful means?

Mr. R. A. Eilbott, Jr.: Yes sir.

It does not mean that we intentionally back weighed --

Justice Byron R. White: You didn't know you were short-weighing?

Mr. R. A. Eilbott, Jr.: That's correct.

Justice Byron R. White: You did one physical action of going through and you were careless, that's --

Mr. R. A. Eilbott, Jr.: We were careless, but we also, when we were careless, we took every step we knew to find out what was wrong.

We had the government’s own scale weigher to weight the scales, to check them.

Justice Byron R. White: Well, whatever the reason, but nevertheless (Inaudible)

Mr. R. A. Eilbott, Jr.: The Eight Circuit found we were careless, but the Eight Circuit refused to find that we intentionally did what we did, and the Eight Circuit pointed out that the Secretary had held that uniformity was a situation.

Justice Byron R. White: So you're saying that the Secretary may not suspend a willful violator?

Mr. R. A. Eilbott, Jr.: Unless --

Justice Byron R. White: Well --

Mr. R. A. Eilbott, Jr.: Unless he gives adequate reason, according to his own opinions.

Justice Byron R. White: That he has to put him with the negligence of violator rather than with the intentional?

Mr. R. A. Eilbott, Jr.: Yes sir, but if he puts him only with the negligent violator, then it's my position that the Department of Agriculture or the Secretary must show a reason for doing that, otherwise all others who have been found guilty only of negligence, there has been nothing, but a cease and desist order, why suddenly us?

Chief Justice Warren E. Burger: Well, on that score --

Mr. R. A. Eilbott, Jr.: And if he was going to make -- pardon, may I finish?

Chief Justice Warren E. Burger: Fine, you finish.

Mr. R. A. Eilbott, Jr.: If he was going to make a new rule, then why didn't he say so?

Chief Justice Warren E. Burger: Alright, on that point, it's a common occurrence in traffic courts, for example, where the traffic judge is confronted with hundreds and hundreds of cases, sees a mounting epidemic almost of either drunken driving or speeding or some such thing, and finally, the last straw comes, and on that day he starts imposing more severe sentences to make an example out of either a drunk driver or a speeder or what not?

Mr. R. A. Eilbott, Jr.: Now, Mr. Chief Justice --

Chief Justice Warren E. Burger: Now, do you think the judge; that's what you have here must make some explanation that this situation is getting so severe that I am tired of this underweighing and we are going to make an example out of Glover?

Mr. R. A. Eilbott, Jr.: Well --

Chief Justice Warren E. Burger: Do you think he is going to articulate that?

Mr. R. A. Eilbott, Jr.: You are getting down on my level now Mr. Chief Justice.

I know that the judge would lean back in his chair and say, Mr. Eilbott, I am tired of this.

I am tired of this continuing mounting of this type of offense and that type of offense and I am going to put a stop to it.

Chief Justice Warren E. Burger: Let's assume he didn't though, that's the assumption, let's assume he just did --

Mr. R. A. Eilbott, Jr.: I don't think he'd ever do it.

That's my --

Chief Justice Warren E. Burger: Well, they do it quite regularly.

Justice Thurgood Marshall: But assuming he did?

Mr. R. A. Eilbott, Jr.: Then assuming he did, if it was within his power, he had that right, but it would certainly be discriminatory against the first man he did it to, Mr. Marshall.

Justice Thurgood Marshall: (Inaudible)

Mr. R. A. Eilbott, Jr.: Sir?

Justice Thurgood Marshall: (Inaudible) but not necessarily.

Mr. R. A. Eilbott, Jr.: No.

If he had announced the caveat, then yes, I would say he had the power.

I would --

Justice Thurgood Marshall: (Inaudible)

Mr. R. A. Eilbott, Jr.: If he had announced the caveat, then I would say it was not discrimination, but I say in all fairness that when you, out of a great line of cases, none of which have ever imposed a suspension unless there be found an intentional violation, then suddenly you do that, you are saying to me and to my clients, you are a bunch of crooks.

Justice Thurgood Marshall: But that wouldn't go for the second?

Mr. R. A. Eilbott, Jr.: Not if I had been told why and it had been told to me, it wouldn't be a first impression.

Justice Thurgood Marshall: You take that position because they do it.

Do they take you before them next year and do the same thing to you?

Mr. R. A. Eilbott, Jr.: Yes.

Justice Thurgood Marshall: I see.

Justice Byron R. White: I never thought they could be second if you set the first one aside, it would always be a first?

Mr. R. A. Eilbott, Jr.: But Mr. Justice White, my position simply is --

Justice Byron R. White: If you set it aside and say it is unjustified, and this will again be the first?

Mr. R. A. Eilbott, Jr.: The Eight Circuit didn't say it was unjustified, they found it unconscionable.

How stronger can you get then that?

They found that the punishment meted out heretofore was ample to cover the proof.

Now, that's what they found.

Chief Justice Warren E. Burger: And the question in the case is whether Congress gave them that power really, isn't it?

Mr. R. A. Eilbott, Jr.: Yes, that is.

But the question is also in this case that the Secretary set out the original rule that it must be uniform.

And if he is going to depart from those findings, then he should say, now gentlemen, this is where we get off.

This is the first case, but we are going to depart from our rule for these reasons.

They shouldn't just single one out without any warning whatsoever and say, you little bitty outfit down there in Arkansas, now we've had packers, we've had stockyards, we've had by the thousands, but now we're going to start with you, but didn't say it.

Chief Justice Warren E. Burger: Well, would it be fair to assume that since you indicate they were news releases, the word has gotten around in the industry, among the dealers, would it be fair to assume that perhaps they're being a little more careful after the experience of Glover and the litigation that's ensued?

Mr. R. A. Eilbott, Jr.: Mr. Chief Justice, I do not propose to deal in levity with you, but it would have been easier if they just chopped off one of our hands, then maybe it might have been a better lesson.

Chief Justice Warren E. Burger: Well, I am speaking of others.

Do you think it has made other --

Mr. R. A. Eilbott, Jr.: I don't think it's had any effect on anybody besides Glover Livestock, and that's the only one that has ever been inspected as far as I know in the State of Arkansas; it certainly was up to the day we were inspected.

I think there is a little more here than is in the record, if you want to know what I think, but I have no proof of that Your Honor.

Thank you for your kindness.

Thank you gentlemen.

Chief Justice Warren E. Burger: Thank you Mr. Eilbott.

Mr. Jones, do you have anything further?

Rebuttal of Keith A. Jones

Mr. Keith A. Jones: I would just like to dispel one misimpression.

The counsel for the respondent has asserted repeatedly that the Secretary has not imposed suspensions in cases where there was no finding of intentional misconduct.

However, I would like to bring to the Court’s attention the 18 cases which we cite in our Footnote 7, page 20 of our merit’s briefs, for there were suspensions --

Chief Justice Warren E. Burger: A little -- give us a little time to find that would you Mr. Jones.

What page again?

Mr. Keith A. Jones: Page 20 of our brief, Footnote 7.

And in these cases, there was a suspension issued for short-weighing without a finding of intentional misconduct.

And I would particularly refer your attention to the Williamstown Stockyards case, where although it was a consent order as counsel for the respondent points out, the consent order was conditioned upon the assertion that the offense was not intentional.

Nevertheless, a suspension, I don't recall whether it was 20 or 30 days, but it was not less than that involved in this case, was issued.

Furthermore, the distinction between intentional and merely negligent violations of the Act is a very difficult one to make in practice.

For example, in this case, all we know for a fact is that the respondent’s scales were accurate and that the cattle was misweighed.

Respondent did not call the weigh master to testify as to why there might be a discrepancy between the true weight and the weight given by respondent.

Justice William H. Rehnquist: Were you under department procedures, would you have been entitled to call him as an adverse witness?

Mr. Keith A. Jones: I can't answer that with confidence, Mr. Justice Rehnquist, but I assume that he could have been called.

I understand it's not generally the practice to call the employees of the respondent or the person subject to sanction.

So that the distinctions made between intentional and negligent misconduct are really very difficult ones to make, and in this case, as in almost all cases, the final finding of the Secretary was simply one of willfulness and not one of intentional misconduct.

And as the willful violation, which in almost all these cases is the one which is subject to sanction.

That's all I have.

Chief Justice Warren E. Burger: Thank you.

Thank you gentlemen.

The case is --

Rebuttal of R. A. Eilbott, Jr.

Mr. R. A. Eilbott, Jr.: Can I have one minute of what you have.[Laughter]

Chief Justice Warren E. Burger: No, we don't permit a surrebuttal counsel.

Mr. R. A. Eilbott, Jr.: Thank you.

Thank you for you kindness in hearing us sir.

Chief Justice Warren E. Burger: Very well.

Mr. R. A. Eilbott, Jr.: (Voice Overlap) from the court.

Chief Justice Warren E. Burger: Case is submitted.

Mr. R. A. Eilbott, Jr.: Thank you.