A federal appeals court decision that upheld jail sentences for two men whose eggs caused a huge Salmonella outbreak is in conflict with the U.S. Supreme Court’s Park Doctrine, every prior decision applying the doctrine, and every prior appellate opinion on whether Due Process allows prison sentences for vicarious liability crimes, according to the egg men’s lawyer. That means a rehearing is warranted, according to Peter D. Keisler, attorney for Austin “Jack” DeCoster and Peter DeCoster the father and son who each face three months behind bars in relation to the 2010 Salmonella Enteritidis outbreak that sickened a minimum of about 1,940 people — and possibly as many as 56,000 — according to the U.S. Centers for Disease Control and Prevention. In a 22-page brief filed this week, Keisler asked for a rehearing either by a panel or the court en banc, which would involve all judges for the U.S. Court of Appeals for the 8th Circuit

“By a 2-1 vote, across three divergent opinions, the panel held that a supervisor may be imprisoned if a subordinate’s unknowing regulatory offense is imputed to the supervisor through the ‘responsible corporate officer’ doctrine. In the panel’s view, all that must be proved to justify incarceration is that the supervisor’s oversight was negligent, in the sense that it could support tort liability in a civil case,” Keisler wrote. “The panel’s analysis followed a tortured path.” His brief said the three-judge appeals panel “acknowledged that the courts have held that due process bars the government from locking up a supervisor on vicarious liability theory” because “guilt is personal” and “the uniquely personal scar of imprisonment must be reserved for those who personally committed an act prohibited by law.” Keisler, a former acting U.S. Attorney General now in private practice, said in his brief that the lead and concurring opinions from the three-judge appeals panel fail to “grapple with these principals.” He contends the appellate judges took the position that vicarious liability was not involved because the men were personally negligent in the supervision of the company. “That contention, however, flatly conflicts with established law,” Keisler wrote. He contends the U.S. Supreme Cout and lower courts have recognized that under the Park Doctrine “responsible corporate officers liable under the Food Drug and Cosmetic Act for company offenses require proof of individual fault. … Park thus imposed liability that is both strict and vicarious.” The DeCosters and their company Quality Egg LLC negotiated agreements with the government to plead guilty to settle charges stemming from the Salmonella outbreak. The implicated eggs were from two Iowa production facilities owned by the DeCosters. Federal Judge Mark W. Bennett imposed three-month jail sentences on both DeCosters in addition to the $7 million in fines they agreed to in their deal with the U.S. Justice Department. The DeCosters paid the fines, but contested the jail sentences, first at the U.S. District Court level and then with the U.S. Court of Appeals for the 8th Circuit. Whether jail time can be imposed for a “strict liability” misdemeanor is an issue generating widespread interest by the broader business community. A half dozen amicus briefs have been filed with the Eighth Circuit in support of the DeCosters. The appeal brief filed this week contends a rehearing is necessary to correct the “exceptionally important” sentencing decision. If allowed to stand, the three-month sentences would be “an unprecedented expansion of federal power to imprison,” according to the DeCosters’ lawyer. (To sign up for a free subscription to Food Safety News, click here.)