made since the Summer of 1961, the 2,400 separate sales thereof
by plaintiff would be seized.
The Government's brief indicates some thirty seizure suits are
pending, and to contest the seizures and seek consolidation of
the many suits plaintiff would have to purchase the respective
dealers' interests by reimbursing them.
Plaintiff contends that to require it to comply retroactively
is "an unjust, arbitrary and illegal exercise of the powers
granted" the Department. It also maintains that it is unnecessary
to make the United States a party, nor is it an indispensable
party because the official's act here complained of was so
clearly in excess of his statutory authority that the suit can be
against him alone.
Exhibit A to defendant's motion for summary judgment presents
the contents of a label he would consider adequate compliance. It
sounds a "minimum warning" on the main panel, disclosing danger,
that the product was extremely flammable, the vapors highly
explosive, and harmful or fatal if swallowed. It alerts the user
to read the additional warning on the side panel before using the
product, and further instructs as to safety procedure to be
followed in its use.
Plaintiff did not offer to recall the previously sold product
now deemed by defendant inadequately labeled. As defendant points
out, the letters written by his Department do not constitute
rules or regulations so as to be administrative action reviewable
by a court.
The September 27, 1963, seven-page letter of the Director of
the Bureau of Enforcement was equivalent to a proffer of further
basis for negotiation, not a final order which this Court should
review in a declaratory judgment suit. Alternative courses were
offered to plaintiff therein as to previously sold cans, i.e.,
recall thereof for relabeling or requesting the dealers in
possession of such "misbranded" stock to hold the same for
relabeling when the proper label should be determined.
Following the September letter a label was submitted to the
Department, together with a letter commenting on the necessary
inclusion of additional warning on the label because of injuries
of another type which had come to the Department's notice in the
Plaintiff's attorneys seemingly tired of the negotiation and
wrote their client on October 22, 1963, that "after an
interminable discussion with the Food & Drug Administration" they
caused the instant suit to be filed.
Appended to the Government's motion to dismiss and for summary
judgment are a number of affidavits of victims of explosive
occurrences following use of the X-33 product, despite their
following the instructions on the label for the use of the
Defendant's memorandum further states that two informal
meetings were held to work out a voluntary program for the
plaintiff to withdraw X-33 from sale as a means of precluding
seizure actions, but the program was not effective and a number
of seizures were necessary to apprehend the hazardous substance.
Defendant's summary judgment motion is supported by affidavits
and exhibits which he claims plainly show that the product X-33
is not labeled in conformity with the Act.
Irrespective of the very cogent technical objections of the
defendant to plaintiff's maintenance of this suit against the
named defendant, the Court has concluded to proceed directly to
the propriety of permitting the maintenance, in any event, of a
declaratory judgment suit to decide the issues here raised.
The Court concludes that the motion to dismiss should be
granted on the ground that its discretion should be exercised
adversely to assuming jurisdiction to pass upon the alleged
arbitrariness of defendant's action in respect to the offending
While it is understandable that plaintiff complains of
defendant's retroactive change of position in respect to
plaintiff's label, to its detriment, the Court believes that if
the label theretofore permitted is insufficient to warn future
users, it is just as inadequate, as well as dangerously
insufficient, to warn users of cans previously marketed.
If the prime purpose of the Statute is to protect the public,
that protection is the paramount consideration, and it is
defendant's duty to do a complete job of protection and not trust
to luck that purchasers of the cans theretofore sold to dealers
will be aware enough to understand the previously approved but
inadequately specific label.
The Court is also loath to substitute its judgment for the
expertise of the administrative official charged with the duty of
passing upon the subject. It has been held that the Declaratory
Judgment Act does not confer jurisdiction to review
administrative action, not final, so as to be reviewable under
the Administrative Procedure Act. Continental Bank and Trust
Company v. Martin, 112 U.S.App.D.C. 354, 303 F.2d 214 (1962).
In the case of Miles Laboratories, Inc. v. Federal Trade
Commission, et al., 78 U.S.App.D.C. 326, 140 F.2d 683 (1944),
declaratory relief was sought to delimit the Commission's
authority to dictate and control the contents of the plaintiff's
label and advertising and it was held that under that Act the
administrative remedy must be exhausted before resort could be
had to the courts, and the Declaratory Judgment Act does not
create new rights or increase or extend the jurisdiction of the
Court, and the District Court was therefore correct in holding
that it lacked jurisdiction of the subject matter of the
Furthermore, as defendant points out, the validity of the label
on products theretofore sold is the issue to be determined in all
the seizure suits presently pending.
The reasons which impel the Court's present action are well
expressed in the Second Circuit Court of Appeals' decision in
Certified Color Industry Committee v. Secretary of Health,
Education, and Welfare, 283 F.2d 622 (2nd Cir. 1960), which arose
in a proceeding for review of the Secretary of Health, Education,
and Welfare's revoking certificates on batches of certain coal
tar colors. There the petitioners did not challenge the
Secretary's right to change his ruling to operate prospectively
but contended that to make it operate retroactively would deprive
them of property without due process of law. The Court there
said, 283 F.2d at p. 625:
"Acceptance of what we understand to be the suggested
construction — that a batch may be decertified only
if it fails to conform to regulations in effect at
the time it was certified — would mean that a
certificate given in the correct belief that the
batch is harmless may in certain cases be withdrawn,
but a certificate which is inaccurate from the
beginning and given in the mistaken belief that the
batch is harmless may not be withdrawn. Such a result
would make little sense. The purpose of the Act is to
prevent other than harmless colors from being used in
food, drugs and cosmetics. If this purpose is to be
effectuated, withdrawal of a certificate in one case
is obviously quite as important as withdrawal in the
"When it is discovered this representation is
inaccurate the mistake may be corrected. Just as the
respondent has power to certify only harmless
batches, we think he has the concomitant power to
decertify those which are found not to be harmless."
A similar holding is found in United States v. 60 28-Capsule
Bottles, More or Less Etc., D.C., 211 F. Supp. 207 (1962). A
further holding that is in point is in United States v. Kordel,
164 F.2d 913 (7th Cir. 1948).
The Court's discretion to entertain a declaratory judgment suit
must be exercised reasonably and not arbitrarily
(Cyclopedia of Federal Procedure, Section 90.10). This Circuit's
Court of Appeals' decision in Allstate Insurance Company v.
Charneski, 7 Cir., 286 F.2d 238 (1960), states the principle, at
"[R]elief under the Federal act is expressly
discretionary. Such relief is permissive and not
absolute. Declaratory relief `may' be granted, and
need not be when it would create an unnecessary
To the same effect is A.L. Mechling Barge Lines, Inc., v.
United States, et al.,