The Supreme Court has granted the government an extra 30 days to respond to request that the high court review a ruling by the 8th U.S. Circuit Court of Appeals that upheld three-month sentences for two former egg executives who were linked to a massive Salmonella outbreak. The new deadline for the Office of the Solicitor General to respond is March 13.

The reason for the extension isn’t stated, but it could be to give more time to the new U.S. solicitor general, who is expected to be Washington D.C. lawyer Charles Cooper. Naming the new solicitor general, who represents the United States before the Supreme Court, was waiting on the Senate’s confirmation vote on Attorney General Jeff Sessions.

OutsideCourt_406x250The Washington Legal Foundation (WLF) took advantage of the extra time by filing a s0-called Friend of the Court brief. It takes aim at the policy first announced in 2010 by former U.S. Food and Drug Administration Commissioner Margaret Hamburg to jail corporate officials under the “responsible corporate officer doctrine” also referred to as the Park Doctrine.

“FDA officials give every indication they view the draconian penalties imposed here —including the prison terms — as a model for similar cases,” said Cory Andrews, senior litigation counsel for the Washington Legal Foundation (WLF). “Either they don’t understand the limits of the ‘responsible corporate officer’ doctrine, or else they are deliberately acting contrary to Supreme Court precedent.”

WLF filed briefs supporting the high court review and reversal of the 8th Circuit ruling.

Prison sentences of two executives of Quality Egg LLC — Austin “Jack” DeCoster and Peter DeCoster — were upheld by a U.S. circuit court under the “responsible corporate officer” (RCO) doctrine. The WLF brief called it “a rare instance of strict supervisory liability in the criminal law.”

In the “friend” brief filed in United States v. DeCoster, WLF argues that by depriving the defendants of their liberty based on employee misconduct of which defendants were unaware, the decision expands the RCO doctrine far beyond what Supreme Court precedent or the Due Process Clause of the Constitution permits.

The case arises from the sentencing appeals of Austin and Peter DeCoster, the former CEO and COO, respectively, of Iowa-based Quality Egg. After a nationwide Salmonella  outbreak  traced to the company’s facilities in 2010, Quality Egg voluntarily recalled a half billion shell eggs.

“Despite their cooperating fully with the Food and Drug Administration’s investigation, the government charged both DeCosters with criminally violating the Food, Drug, and Cosmetic Act (FDCA),” WLF argues. “They (pleaded) guilty to one count each of introducing adulterated foods into interstate commerce, but because they had no knowledge of the statutory violation or the conduct that led to it, they (pleaded) guilty based solely on their status as ‘responsible corporate officers’ at the time of the offense.”

Urging review, WLF’s brief argues that although the Supreme Court has permitted criminal liability in the absence of “mens rea,” or intent, in the narrow category of public welfare offenses. It has done so, WLF states, on the understanding that penalties imposed in such cases will be relatively small and conviction will not gravely damage offenders’ reputations. If the 8th Circuit’s holding in this case is allowed to stand, WLF contends, it would expand the RCO doctrine far beyond the constitutional bounds the Supreme Court first articulated when adopting it more than 70 years ago.

WLF is a 40-year-old public interest law firm and policy center with interests including  the “criminalization of ordinary business conduct better left to civil proceedings and the erosion of the traditional mens rea requirement,” according to firm statements.

Each of the DeCosters was sentenced to three months in federal prison and fined $100,000. Their company, Quality Egg LLC, was fined $6.8 million. All the fines were paid, and the two men remain free pending the outcome of their appeals.

In addition to WLF, a half dozen other major business organizations have filed “friend of the court” briefs supporting the DeCosters’ legal arguments and opposing the three-month sentences.

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