Harry Sugarman v. Jack B. Forbragd

Appellant seeks by suit for injunction to review an order of the Food and Drug Administration excluding from import as adulterated certain damaged coffee beans.

In entering its order the Food and Drug Administration was acting for the Secretary of Health, Education and Welfare pursuant to the terms of the Food, Drug and Cosmetic Act, 21 U.S.C. § 381 (a). The question presented is whether (absent arbitrary or capricious action which clearly is lacking here) such an order excluding material from import under § 381(a) is subject to judicial review. The District Court held that it was not. We agree.

Appellant contends that the Administrative Procedure Act, 5 U.S.C. §§ 551-558 , 701-706, applies to require agency notice and hearing and provide judicial review. By the terms of that Act, § 701(a) (2), it is not to apply where “agency action is committed to agency discretion by law.”

In our judgment that is the situation here; by 21 U.S.C. § 381 (a) exclusion from import as there provided is committed to the discretion of the Secretary of Health, Education and Welfare.

We note that the prescribed procedure suggests final discretionary authority in the Secretary. His judgment must be…