Opinion
No. 75-1244.
April 15, 1975.
Stephen L. Muehlberg, Asst. U.S. Atty., Omaha, Neb., for appellants.
Ben E. Kaslow and Frank F. Pospishil, Abrahams, Kaslow Cassman, Omaha, Neb., for appellee.
Appeal from the United States District Court for the District of Nebraska.
Before LAY, BRIGHT and STEPHENSON, Circuit Judges.
ORDER
This matter comes before the court on appeal from a preliminary injunction issued by the United States District Court for the District of Nebraska, the Honorable Robert V. Denney presiding. On April 11, 1975, the district court enjoined the defendants from implementing and enforcing the new quality and yield grading standards for beef cattle, contained in regulations promulgated by the United States Department of Agriculture, which were to take effect on April 14, 1975. 40 Federal Register 11535 et seq., 7 C.F.R., Chap. 1, Part 53, dated March 12, 1975.
This court, after hearing oral arguments and considering briefs on the matter, finds the district court did not abuse its discretion by enjoining the implementation of the new standards until a full hearing could be held on the plaintiff's complaint. In making this decision the court reminds the parties that our review does not go to the merits of the complaint; the only question before this court is whether the district court abused its discretion in granting plaintiff's preliminary injunction, and we find that it did not.
The court finds, based upon the record before us, that serious questions are raised as to both the sufficiency of the inflationary impact statement made pursuant to Executive Order No. 11821 issued by President Ford on November 27, 1974, and whether the regulations are arbitrary and capricious under the standards of judicial review as contained in the Administrative Procedure Act, 5 U.S.C. § 701 et seq. In finding that the district court has not abused its discretion we hold that the Independent Meat Packers Association and its members have sustained their burden of proof by showing the probability of irreparable harm in the event the preliminary injunction did not issue.
In view of the great public interest involved, this court orders that the cause shall be remanded to the district court for a plenary hearing on the request for a permanent injunction and that a final decision of the district court be rendered within 45 days of this order; the court further orders that any appeal from the issuance or denial of the injunction shall be expedited by this court. In this regard the preliminary injunction of the district court is modified so as to terminate 45 days from the order of this court unless further extended by this court. The court further finds that the adequacy of the $5,000 bond now filed by the plaintiff, as required to be filed by the district court, shall be subject to a hearing within five days of the date of this order before the district court.
Judgment of the district court granting the preliminary injunction as modified herein is affirmed.
Mandate is ordered to issue forthwith.