The Acting Solicitor General of the United States has filed “the brief of respondent United States in opposition” to any further Supreme Court review of terms of imprisonment for two egg producers under the so-called “responsible corporate officer” (RCO) doctrine—which is said to be a rare instance of strict supervisory liability in the criminal law.
The new brief filed April 12 means the U.S. Department of Justice (DOJ) is opposing the writ of certiorari filed last Jan. 10 requesting Supreme Court review by appellate attorneys for Austin (Jack) DeCosterr, 83, and son Peter DeCoster, 53.
The DeCosters were found responsible for a nationwide Salmonella outbreak in 2010 that led to the largest recall of shell eggs in U.S. history.
Jeffrey B. Wall has been serving as acting solicitor general since March 10. The solicitor general represents the government of the United States before the Supreme Court, a positions sometimes referred to as the “tenth Justice” because the office is involved in so many cases. Noel John Francisco has been nominated as Solicitor General by President Trump, and awaits Senate confirmation.
As the acting solicitor, Wall speaks for Trump’s Justice Department in opposing several prominent business organizations who want the Supreme Court to grant certiorari in DeCoster because the case could be precedent-setting for making “RCOs” do jail time.
“FDA officials give every indication that they view the draconian penalties imposed here—including the prison terms—as a model for similar cases,” said the Washington Legal Foundation’s Cory Andrews, “Either they don’t understand the limited to the “responsible corporate official” doctrine, or else they are deliberately acting contrary to Supreme Court precedent.”
WLF is among several business-leaning organizations who filed in favor of Supreme Court review of the case.
It was just a little over two years ago on April 13, 2015 that the father and son were sentenced to three months of federal confinement by U.S. District Court Judge Mark Bennett in Sioux City. The DeCosters arrived in court with a plea agreement, in which each agreed pay a $100,000 fine and the family corporation, Quality Egg LLC, accepted a $6.8 million fine.
The $100,000 fines were for guilty pleas to one misdemeanor each for allowing as a responsible corporate official the introduction of adulterated food into commerce. Quality Egg LLC pled to three offenses including a the felony of bribing a federal egg inspection.
In sentencing, Bennett broke from the agreement and added 3 months jail time to each sentence.
Upon appeal to the U.S. Court of Appeals for the Eighth Circuit, the sentence Bennett imposed was upheld on a 2-to-1 vote. Their request for rehearing was denied by the Eighth Circuit on a 6-to-3 vote last Sept.30.
Attorneys for the DeCosters then turned their attention to the Supreme Court, obtaining a stay of the Eighth Circuit ruling on Oct. 11.
Writs of certiorari are filed on behalf of more than 7,000 cases a year, and the Supreme Court accepts only 100 to 150 for review. Four of the nine Justices are required to for the Supreme Court to accept a case. Petitions for certiorari arrive weekly, they are divided among Justices participating in the “cert pool” for initial review.
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