Arkansas Dairy Cooperative Ass'n v. United States Department of Agriculture

this. Thе district court would be to avoid This is another instance in which the accept within bounds to reasonable sim- limited resources of the historical account- plification accounting for administrative ing project may be better spent else- fees, possibly extending sampling Accounting accounts, where. for closed even exclusions. As the case of escheat- dealing probate with and probate regula- ments, these modifications and exclusions tions, and considering impact considering be made whether the should IIM trust on host of heirs and creditors potential to account cost exceeds recov- needlessly could further complicate an al- ery for the class. ready complicated process. The purpose equity Just as affects the substance of equitable of an accounting, as we have it accounting, so affects which accounts articulate, tried to is for Interior to con- First, subject accounting. are to the we picking centrate on the low-hanging fruit. legal only consider the case: The 1994 Act We must not allow theoretically per- requires accounting of “funds held in trust fect to render impossible the achievable ... the United States for the benefit of good. deposited an individual Indian which are pursuant or Act invested to the of June III. Conclusion (25 162a).” U.S.C. We vacate the orders of the district 4011(a). The district court ordered ac- court and remand for proceedings further counting even for accounts closed before opinion.1 consistent with this XX, Act passed. the 1994 was See Cobell F.Supp.2d at 98. Its “rationale for It is so ordered. including predecessor accounts in the his- process”

torical “that accounting was bene-

ficiaries are entitled to know where their

money true, came from.” Id. This is held, probate

district court because “the

process produce accounting.” does not recognized Id. The district court that Inte- DAIRY ARKANSAS COOPERATIVE duty “every rior’s did not extend to benefi- ASSOCIATION, INC., al., et ciary who ever walked the earth.” But Appellants by including it erred plaintiff within the money class heirs from closed accounts. accounting The statute calls for an of “the UNITED STATES DEPARTMENT OF daily and annual balance of all funds held AGRICULTURE, al., Appellees. et deposited trust” that “are or invested” by the United States for the Indians. 25 No. 08-5406. 4011(a) added). (emphasis U.S.C. Closed United States Court of Appeals, longer daily accounts no have or annual District of Columbia Circuit. balances, nor deposited or invest- And, government ed. as the rightly points Argued April 2009. out, very point probate “the is to July Decided duce a determination of the assets of final estate, so that may the assets be dis- among tributed heirs and creditors.” hearing interlocutory

1. We are this Osage yet case on raised intervenor ripe Nation are appeal. aрpear It does not that the issues for review.

Opinion by Judge Circuit GRIFFITH dissenting part concurring judgment in part.

ROGERS, Judge: Circuit Secretary Agriculture estab- minimum, lishes formulas to calculate the prices dairy (processors, handlers distributors) manufacturers, and pay must (farmers) dairy producers for milk. 7 608c(5). part U.S.C. As of those for- mulas, Secretary sets “make allow- ances,” represent which the costs to han- making dlers in certain dairy forms of products. July the Secretary promulgated an interim rule amending milk marketing orders to increase make allowances, thereby reducing the mini- mum price paid producers. Several cooperatives chal- lenged the principally increases on the ground that the Secretary had failed to determine and consider their food and costs, fuel maintain was re- quired by Agricultural Marketing (“AMAA”), Agreement Act 7 U.S.C. §§ seq. et The district court ruled standing lacked for want of Benjamin argued F. Yale the cause for and, a cause of action alternatively, de- him appellants. With on the briefs was their preliminary nied motion for a in- Ryan K. Miltner. junction. We hold H. John Vetne and Steven J. Rosen- standing have to challenge the interim argued appellees Agri- baum the cause for rule under the Administrative Procedure Inc., Mark, Dairy et al. and International Act Secretary and that obliged was Foods Associаtion. Susan en- C. Silber under the AMAA to consider their feed appearance. tered an and fuel costs. Because the obligation, however, met that Corkran, produc- Attorney, Kelsi Brown Justice, Department argued ers fail to the cause show likelihood of success on appellee. for federal merits, With her on the brief affirm and we the denial of Katsas, Gregory were G. Assistant Attor- injunctive Furthermore, relief. in reach- General, Raab, ney and Michael S. Attor- decision, ing that we hold certain of their ney. claims must be dismissed. ROGERS, Before: TATEL and I.

GRIFFITH, Judges. Circuit milk industry highly regulated by Agriculture pursuant Opinion Judge for the Court Circuit Agricultural Marketing ROGERS. Agreement Act month. previous from the seq. §§ et wholesale States, 1000.50; in the (“AMAA”). Milk Hettinga United See C.F.R. See (D.C.Cir.2009). Areas; At least Marketing and Other Northeast supply variations Rulemaking factors create and Ten- Proposed two Notice of First, mar- dairy milk. Decision, and demand Fed.Reg. Final tative Partial sold in highly milk more when 2008) (“Tentative ket values (June 35,308 35,306, dairy prod- than when used for fluid form Decision”). III The formulas Class cheese, or which would like butter ucts milk are based on the nationwide and IV unregulated in an encourage dairy farmers butter, milk, dry average prices for nonfat premium their milk for the market to sell cheese, dry whey, a set dollar and minus Allen, v. 396 U.S. prices. fluid See Zuber products, each of those multi- amount fоr 168, 172-73, 24 L.Ed.2d 345 90 S.Ct. “yield factor.” 7 C.F.R. plied by (1969). Second, naturally produce cows 1000.50(i)-(o). prices § I and II are Class summer, spring and such more milk prices III from the Class and IV derived generate an that a herd size sufficient adjusted I are for the prices but Class fall and winter supply during the adequate of the handler so handlers location during spring and surpluses generates prices geographic in different pay different summer, fur- leading potential to the 1000.50, §§ 7 C.F.R. 1000.52. areas. See mar- price swings unregulated an ther average from the The amounts subtracted “destabilizing prevent ket. See id. To products, III prices sale of Class and IV among dairy farmers as a competition” industry in the milk as “make al- known result, enacted the AMAA. Block allowances,” “manufacturing lowances” or Inst., Cmty. Nutrition to the represent are intended to the costs 270 81 L.Ed.2d dairy products making handlers of the end (1984). purpose [of “The ‘essential Decision, raw milk. Tentative 73 from put place by the AMAA to is] scheme 35,308. essence, Fed.Reg. at In handlers prices,’ thereby and to en- raise average price retain from the wholesale that the and burdens of the sure benefits the amount set the make allowance and fairly proportionately milk market are producers. transfer the balance to dairy (quoting shared all farmers.” Id. major component dairy of The second (1935)). 74-1011, at Rep. 3 S. No. regulation payment pooling. market is implementing regu- The AMAA and its system, pay prices this handlers Under regulatory two mechanisms: lations use milk, all according to the end use of but fixing payment pooling. price geographic in a area receive producers pay prices minimum that handlers must monthly average the same or “blended” milk, vary use of the according to the end sold, regardless unit milk price per categorized in four classes. 7 See 7 put. the use to which their milk is See 608c(5)(A); § § 7 U.S.C. C.F.R. 1000.40 608(c)(5)(B); § U.S.C. C.F.R. (Class form, I milk II is sold fluid Class 1000.70, payment equali- §§ 1000.76. This cream, milk used to make ice soft chees- is accomplished through “pro- zation is es, products, III milk is and related Class fund” into which handlers ducer settlement cheeses, and produce used to harder Class withdraw, ac- pay, or from which handlers IV milk is used to make butter and related cording blend-price pay- to whether their products.). setting specific Instead of greater are less or ments Class, prices paid to be for each the Secre- they of the milk than the end-use-value tary has established a formula which 1000.70, §§ purchased. have C.F.R. for each determined Class is regime is monthly average Again, on the nationwide 1000.76. the effect this based vary Hearing Proposed on Amendments payments handlers make milk market value of the according Marketing Agreements to the Tentative and Or- (as (Jan. prices), ders, 2006). in minimum use reflected Fed.Reg. in an area receive the all while a hearing December after and the blended, price per unit of average, or same required producer approval, milk. an promulgated interim final rule increas- ing make allowances. See Milk in the areas of the United geographic

Different Areas; Marketing and Other Northeast regulated slightly under differ- are States Orders, conditions, Amending Interim Order although the formulas used ent (Dec. 2006). 78,333 III and IV A prices Fed.Reg. to set Class num- in all areas. See 7 C.F.R. the same injunction sought ber areas, generally Each 1000.50. of eleven court for district the Northern District “marketing area” or “milk known as a Ohio, ground on the that the area,” by a differ- governed had failed to consider their feed See, Secretary. e.g., ent “Order” supplies adjusting feed when the make 608c(5)(A); 7 C.F.R. 1001.2. U.S.C. allowance, they argued required by as was effect, Secretary’s into the going Before AMAA, 608c(18), § the U.S.C. note infra approved orders must be two-thirds 7. The court conflicting district set forth of two- or interpretations, noting, for example, that in the affected thirds of the milk volume the Sixth Circuit had held in Lansing area, major- of a as well as the handlers 1339, Dairy, Espy, Inc. v. milk in the area ity of the volume covered (6th Cir.1994), legisla- that the statute and order, although Sеcretary can by the history ambiguous. tive were The district an order into effect without handler put unnecessary court found it to decide only practical if the order is “the approval 608e(18) § required Secretary whether the interests of the advancing means of amending to consider such feed costs when 608c(8)-(9). § producers.” U.S.C. make allowances because the allowances, Make unlike the wholesale had, fact, “giv- final decision showed he in in the minimum formulas prices used appropriate en [these factors] consider- products, vary for Class III and IV do not ation” product-price under the formulas. They with market conditions. are set as Bridgewater Dairy, LLC v. USD No. A can.only in a constants formula and be 3:07-cv-104, 634059, 2007 WL at *4-6 through a rulemaking. raised or lowered (N.D.Ohio 2007). 22, Feb. Decision, 35,323. Fed.Reg. Tentative Second, Congress in 2008 amended the converged shape Several events the is- require Secretary, “part AMAA to First, in in January sues the instant case. any hearing” adjust allowances, make Secretary issued notice of a hear- producers’ to “determine” and “consider” ing proposal on a which the handler Act, feed and fuel costs.1 See 2008 Pub.L. Agri-Mark advocated an increase make (codi- 110-246, 1504, § 122 Stat at 1721-72 allowances. See Milk in the Northeast Areas; 608c(17)(G)), Notice fied at 7 Marketing page and Other U.S.C. see 18, 2008, case, May 1. and June became On effective on the earlier of its statutes, together enacted two known as the enactment or the enactment of "H.R. 2419 of Food, Conservation, Energy Act of 4(b), Congress.” the 110th See 2008 Act 923; 110-234, Pub.L. 122 Stat. Pub.L. No. 122 Stat. at 1664. H.R. became 110-246, ("2008 Act”). 122 Stat. 1651 Sec- 110-234, earlier, Pub.L. ‍‌​‌‌‌​​‌​‌​‌‌​‌​‌​‌​‌‌​‌​​‌‌​‌​‌​‌​​‌‌​‌​​​​​‌​​‍No. was enacted on tion 1504 of Pub.L. No. which con- Act, May 2008. See 2008 122 Stat. at 923. requirement tains the relevant in the instant objections based on ambigui- responded addressed The amendment 608c(18) arguments the district costs “are not valid noted ducer ties Under make allowance should be Bridgewater Dairy. opposing how court amendment, to consider allow- requirement or what levels make determined applied be,” when explicitly costs current make producers’ ances need to allow- adjusting make was not reflective of handlers’ allowances were required to ances, Secretary was costs, and the and, unlike could costs determining pro- price in consider recent in the Id. recaptured marketplace. not be market area. monthly costs in the ducers’ approval of the Tentative After 20, 2008, Third, Secretary, on June Decision, Secretary promulgated an further hearings, proposed after series amending marketing or- interim rule changes allowances and increases mаke make allowances. See ders to increase the yield factor used in Class fat butter Market- Milk in the Northeast and Other formulas on product-price III and Class IV Areas; Amending the ing Interim Order Decision, Tentative an interim basis. 2008) Orders, 44,617 Fed.Reg. (July relevant, 35,323.2 the Secre- Fed.Reg. As ”). majority required Rule {“Interim had in- tary found that handlers’ costs the Secre- approve, of handlers did not but were the make allowances creased since authority on tary exercised his override 35,324. last set. the Interim Rule was ground make allowances pointed out that “because AMAA necessary policy to effect the manufacturing costs account for advancing producer interests. Id. at formulas but III and Class IV Class 44,618. the Tentative Decision Neither change, in- change not as those costs do addressed explicitly nor the Intenm Rule only is the rea- creasing make allowances Act. requirements of the 2008 way by which those increased sonable later, appellant-producers weeks Two 35,323. recovered,” The can id. at costs be seek- Department Agriculture, sued the testimony indicating Secretary also cited injunctive on the ing declaratory and relief study attempted that a 2006 had to correct arbi- ground that the Intenm Rule was costs processing the understatement of law, trary, contrary and not capricious, study previous rulemak- used evidence, and supported substantial the need to ing, study and the 2006 showed a denial of substantive due constituted changes to reflect update make allowances producers premised The the district cess. 35,309. at manufacturing costs. Id. AMAA, includ- jurisdiction court’s on the increased make Secretary proposed Act, and ing the amendment the 2008 III and based on allowances for Classes IV Procedure Act the Administrative manufacturing averages. cost Id. national (“APA”), They seq. et 35,325-26. In the course of the rule- have alleged that the Interim Rule would Secretary addressed a number making, the “direct, im- penny penny, an adverse producers, including objections from producers would re- pact prices” on the already that were set too make allowances milk, it specifically for their ceive seen high producers and that have also of in- “permanent would lead to a loss and higher energy due to increased costs ¶¶ 15-17, Among oth- 35,324. Secretary Compl. come.” feed costs. providing a cost add-on feature to Secretary explained promulgating an tor and 2. The product-pricing IV formu- separate Class III and Class [will interim rule that decision ''[a] Decision, Fed.Reg. at manufacturing cost las.....” Tentative the collection of address] 35,306. information, еnergy adjus- an cost the use of deciding grant had whether to grounds, they argued pre er and consider their feed to determine failed liminary injunction, the district court must required by the AMAA and fuel costs as (1) plaintiff evaluate whether: has a 608c(17)(G) 608c(18). They §§ under substantial likelihood of success on the temporary a motion for a re- also filed (2) merits; plaintiff would suffer irrep injunc- preliminary order straining and/or injury injunction an grant arable were not tion. (3) ed; injunction would substantially court ruled the The district (4) injure parties; other interested impli- the AMAA standing lacked because grant injunction of an would further the review, APA and thus edly precluded Labs., public interest. Inc. v. Serono Sha Dairy Coop., Ark. had no cause of action. lala, (D.C.Cir.1998). USDA, F.Supp.2d Inc. v. This court “review[s] district court’s (D.D.C.2008). Alternatively, the district weighing preliminary injunction fac preliminary their motion for a court denied tors under the abuse of discretion stan injunction, assuming prop- the motion was dard, and its of fact findings under the it, erly grounds on the before clearly erroneous standard. To the extent little chance of success on producers had 608c(18) did not re- hinges ques the merits the district court’s decision on Secretary to consider feed and quire the however, law, tions of this court’s review is a make adjusting fuel costs when allow- (citations essentially de novo.” Id. at 1318 608c(17)(G) ance; §in requiremеnt did omitted). quotations and internal There hearing until go not into effect after on (1) questions are three such here: whether proposals resulting Ten- have a cause of action under concluded; tative Decision had and the (2) so, the APA and thus have if standing; Secretary had in fact determined and con- Secretary’s statutory whether obli by using product- sidered costs contend; gations that accounted for pricing formulas those (3) so, if whether the complied factors. Id. at 156-60. obligations promulgating with those in the II. Interim Rule. producers appeal, The see 28 U.S.C. whether the pro- The threshold issue is 1292(a)(1), they § contending have demon- ducers have a cause of action which a preliminary strated their entitlement to they challenge can the Rule Interim injunction They of the Interim Rule. con- amending Secretary’s marketing the they judicially protectable tend have a orders to increase make allowances. Our right guaranteed by in the benefits the inquiry here is not whether the and that the failed to

AMAA III standing have under Article of the 608c(17)(G) mandating comply with Constitution, undisputed which determination and consideration of their clear, provided but whether has adjusting in make feed and fuel costs al- lowances, 608c(18) mandating judicial for or review. precluded See Steel consideration of the enumerated economic Env’t, a 523 Co. Citizens Better U.S. for They in area. fur- marketing factors each 83, 96-97, 118 S.Ct. 140 L.Ed.2d 210 ir- ther contend have demonstrated (1998). in reparable injunction harm and that an provides pe- AMAA for handlers to The interest in public

their favor is judicial tition for review of the preventing unauthorized administrative ac- their injury exhausting to them. orders after administra- tion and direct judicial review in favor of presumption of the provision No tive remedies.3 lan- “may specific be overcome judicial by pro- review which provides AMAA legislative history that is However, guage specific also or ducers. in- APA, congressional which a reliable indicator claims under the bring their tent,” Employ- at 104 S.Ct. 2450. persons “suf- id. judicial review provides analysis, the Court fo- ing this structural wrong agen- fering legal [final] explicitly fact that the AMAA cused on the action, ag- or adversely or affected cy handlers, consumers, a but not provides action within the grieved by agency [final] for review court. The statute,” right petition a relevant meaning of “statutory ... [thus] AMAA’s scheme 702, 704, except §§ where such review ... intention to Congress’ makes clear 701(a)(1). statute, The precluded id participate entitled to limit the classes produc- intervenor Department and some development of market orders.” Id. maintain the AMAA is such a er-handlers 346,104 S.Ct. 2450. statute, Community relying on Block v. Institute,

Nutrition pro Becausе the AMAA does not (1984). L.Ed.2d 270 S.Ct. judicial producers, right vide a review agreed. Dairy, court Ark. district pre seizes on Block as Department F.Supp.2d approach, at 154-55. Such standing in a cause of cluding producer however, broadly reads Block too However, under the APA as well. action Wickard, Stark v. broadly, for approach this reads Block too (1944), on 88 L.Ed. 733 Supreme did not concentrate Court narrowly, too and thus producers rely, presence or absence of an simply on precedent to conform to this court’s fails AMAA, but explicit right appeal standing. on “complex instead noted AMAA, Block, provi there was no individual milk consumers scheme” participation any sion for consumer challenged milk order provi Id. “The omission of such a raising consum- kind. had the effect to believe that sion is sufficient reason milk. Id. pay ers would reconstituted Congress intended to foreclose consumer 343-44, 2450. The Supreme participation regulatory process.” standing the consumers lacked Court held Importantly, the Court contrasted this challenge the order. Id. at producers: the role of handlers and with S.Ct. 2450. The Court instructed that “precludes determining coopera whether statute contemplates [AMAA] review,” Secretary, judicial among a court must not tive venture han examine dlers, only statutory text, producers principal pur ... the the “but also scheme, of statutory poses of the its ob- of which are to raise the structure an jectives, legislative history, agricultural products its and the na- and to establish involved,” orderly system marketing for them. ture of the administrative action 346, 2450, not con- general id. at under a Handlers and S.Ct. —but 608(c)(15) provides: upon prayer petition which shall 3. Section of final, (A) be if in accordance with law. subject may Any to an order handler (B) any ... dis- petition Court[s] file a written with the of The District Agriculture, stating that such order ... handled is an inhabit- trict in which such praying business, law and for ant, not in accordance with principal place or has his of exempted a modification thereof or to be hereby jurisdiction equity are vested with given thereupon therefrom. He shall be ruling.... such to review hearing.... opportunity for a After such 608(c)(15). hearing, ruling shall make a participate entirely sumers —are entitled ance is derivative of han [that of dlers,] of market adoption and retention then the provision review provides for suggest [AMAA] orders. does that the more group remote agreements among Secretary, pro- sue.”). was not meant to have standing to handlers, ducers, hearings judicial right “The is ordinarily review them, by produc- and for votes among congressional inferred where pro intent tо handlers. ers and tect the interests of the class of which the found; plaintiff is a member can be such short, In Id. at S.Ct. cases, protected unless members of the indicates th[e] [AMAA] structure “[t]he judicial may class have review the statuto only producers intended ry objectives might not be realized.” Bar handlers, consumers, and not to ensure Collins, 159, 167, v. low statutory objectives that the would be real- (1970). 25 L.Ed.2d 192 Unlike the 347,104 ized.” Id. at S.Ct. 2450. Because consumers whose interests were coexten contemplates the AMAA this active role Block, sive with those of handlers in producers during rulemaking pro- U.S. at cess, S.Ct. they occupy a different status under only are the party AMAA from that of with an interest consumers. ensuring that the price paid them is not Supreme analysis Court’s large reduced too a make allowance of the AMAA is also instruc purpose paid to handlers. “preclusion tive. It observed that of con Admittedly, will not threaten realization sumer suits some discussion in Block objectives sweep broadly of the seems to ‍‌​‌‌‌​​‌​‌​‌‌​‌​‌​‌​‌‌​‌​​‌‌​‌​‌​‌​​‌‌​‌​​​​​‌​​‍enough the fundamental statute” to exclude “[h]andlers, consumers, producer challenges like are to milk marketing or- stated, obtaining supplies Supreme interested in reliable of ders. The Court for ex- cheapest possible prices.” ample, milk at the Id. think it clear that Congress “[W]e judicial 2450. It contrasted this intended that review of mar- alignment keting] of consumer and handlers inter orders issued under the [AMAA] producers, ordinarily ests with the interests of be confined to suits brought represented by would not be handlers. handlers in accordance with 7 U.S.C. 608c(15).” producer Because interests would other Id. at 104 S.Ct. 2450 added). unvindicated, noted, context, go (emphasis wise Court the Court’s concern by producers primary courts have found suits “nec seems to have been that essary allowing permit ensure achievement consumer suits would objectives— bring most fundamental handler to [AMAA]’s suit—either its own wit, protection capacity through consumer or other milk products.” milk and Id. See also consumers with whom its interests were Block, Cmty. aligned exhausting Nutrition Inst. first the ad- —without (D.C.Cir.1983) (Scalia, J., remedy ministrative required dis (“The 608c(15). senting) direct beneficiaries of milk See id. Because normally orders under the and handler interests are [AMAA] ad- verse, however, milk producers. adoption objection Even before of there is no such APA, congressional producer the courts found a to suits because handlers “ordi- where, permit narily” producers to But not intent to them sue. could induce to sue case, present griev- as on their behalf.4 [consumers’] dler,” fact, anticipated bringing 4. In this court has and re- it must exhaust before suit in handler, any single entity capacity bring- a solved such risk. Where its аs a but not when vertically-integrated “producer-han- ing capacity producer. a acts as suit in its as a See particular, In the Court Furthermore, broadly to 64 S.Ct. 559. reading Block a producers the instant one that the had “defi- suits like concluded producer bar Supreme room for the and claim” because the personal leave no nite would Stark, 302, at holding prices” “minimum AMAA assured them Court’s 559, court 311, that the district milk, in this instance the set challenge jurisdiction over had without sub- computations the use value to ex- marketing order claimed to a milk 305, cooperatives. at tractions for Id. Like the Secretary’s powers. ceed the words, in milk In other a mar- S.Ct. 559. Rule, the milk order Interim underly- like the one keting order scheme the blend computed in Stark challenged case, ing challenged the rule the instant comput- first price producers owed to judicial standing had to obtain producers purchased of milk ing the use value of an order reduced the review (based price minimum handlers on the receive for their milk. amount would used), milk quantity for the classes of standing This court reaffirmed the a computing price blend and then milk mar- producers challenge to certain average of that use value. Id. weighted Freeman, keting orders in Blair v. 300, directed at 64 S.Ct. 559. The order (D.C.Cir.1966). Blair, group F.2d 229 “adjustments” that certain be deducted Pennsylvania producers who sold milk computing use value before from the Jersey Milk Mar- into the New York-New 559. All price. blend S.Ct. keting challenged Area an order that eventually adjustments paid were of these producers increase for locat- price vided producers, except “cooperative for a ad- to City, ed close to New York but not for justment,” per which was a set amount away. Id. at 234. those located farther hundredweight paid to paid out price This selective increase was adjustment Because this cooperatives. Id. fund, producer settlement and had of the was deducted from the total use value reducing pool money the effect of price computed, was before the blend price paid to all be divided as the blend adjustment pro tanto the “reduce[d] 15; producers. Id. at 234 n. see also Milk by the actually amount received Marketing Metropolitan in New York their milk.” Id. at 64 S.Ct. 559. Jersey: Area and in Northern New Deci- co- Producers who were not members of Amend- Respect Proposed sion with operatives challenged the order on the Marketing Agreement to Tentative ments grounds that the AMAA did not authorize Order, 4212-14 Fed.Reg. from the to deduct sum (June 1957). practice, Because this only coopera- paid minimum to be Stark, challengеd “pro like that reduced Although tives. Id. at actually by the tanto the amount received” provided explicit no statute cause of suit, brought who this court yet action the APA had not been “standing held the had to invoke enacted, Supreme held that Court equity to insure that their protection authority judicial for a examination “[t]he statutory right price protec- to minimum validity Secretary’s action of the being improperly diminished” tion is not and the found the existence of courts by an order which “exceeded intent of as deduced from the Blair, Secretary.” 370 F.2d precedents.” power statutes and Id. at 504; 2007). Dairy, Hettinga, Edaleen 560 F.3d Johanns, LLC, (D.C.Cir. Stark, handlers, by pay at before the handlers

at 234 & (citing n. 15 the 559). producers producer or the settlement fund. 64 S.Ct. difference, importance The this are to the instant case parallels The emphasized, court also the district eludes Blair, As in Stark and the apparent. Blair, Stark producers us. in the As deducting rule funds challenge a ducers prices” they claim that the “minimum are calculating milk the value of before from owed, i.e., milk, being the value of the is producers, to price guaranteed the blend the Interim unlawfully reduced under dollar,” for the mini- reducing, thus “dollar Rule. It is this interest which the Supreme guaranteed are price producers mum Court in Stark held sufficiently “definite products. produc- Also like the their personal” permit рroducers the to Blair, al- Stark producers in the ers challenge its diminution. 321 misjudged that the has lege not Although 64 S.Ct. 559. the in appropriate, are but rather what Stark and Blair complained of diminution Interim Rule deducts Secretary’s that the price through of the blend deductions from funds, price, and thus reduces the blend fund, producer the settlement there is no not authorized to way the is that either opinion hinged indication on do, reducing price the blend namely by Certainly that fact. there is no indication factors as he was stat- considering without that a diminution at a point different utorily obliged to address. As the Su- payment-calculation chain would be al- Stark, “It Court stated is be- preme leged wrong that the APA could not ad- every cause dollar of deduction comes from impliedly because the AMAA had dress may challenge the producer that he precluded such suit. [producers’] com- use of the fund. price unavailing hot that their blended is too It is also for the plaint is intervenor low, price dissenting colleague but that the blended has been handlers and our money by misapplication suggest requires reduced de- because the AMAA minimum approval majority ducted from the be- i.e., effect, price computed Secretary’s go from the based fore the orders into price,” impliedly pre- the use value of the milk sold. 321 U.S. the AMAA must be read on redress, clude all other avenues of includ- ing alleging suits an order not in is accor- intervenor Department, and some dance law. with handlers, suggest that Stark and Blair as here the [W]here issue is distinguishable money because the power required make the deduction instant case is diverted from the Order, hearing ... a mere or payment point at a different stream opportunity protect to vote cannot mi- Stark and Blair. than occurred nority producers against exac- unlawful cases, money was diverted from those might voted upon tions which be them producer settlement fund after the val- by majorities. hardly It can be said that ue of milk was calculated and after the opportunity to be heard on matters it, but before the paid handlers had within discretion would Here, price was calculated. blend foreclose an attack on the inclusion in deducted before the blend funds are also provisions entirely the Order outside calculated, but, contrast, price under Secretary’s delegated powers. Rule the deduction occurs in Interim Stark, calculating owed 321 U.S. at 64 S.Ct. 559.5 process pre- explicitly that do 5. The dissent would read the AMAAto elude all suits not 826 1063, Bergland, v. 591 F.2d 1067 ap- Dairy

All one of the circuit courts of but (5th Cir.1979); Minn. Milk Producers As the issue have also peal to have considered (8th 816, Madigan, v. 956 F.2d sоc. 818 can producers challenge concluded that Cir.1992).6 Only the Ninth Circuit has APA, under marketing milk orders broadly Department read Block as as the challenge premised even where the is not Block, urges, stating in Pescosolido v. 765 producer from the settle- on a deduction (9th Cir.1985), F.2d 831 that “We reasoned ment fund. Sixth Circuit interpreted believe that can be [Block] purpose that “[T]he generally judicial to foreclose review raising pro- that scheme — sought anyone other than han milk —would ducers receive for their be addressing dlers ....” In two recent cases producers if could not chal- undermined handler exhaustion of administrative reme regulations type of this in federal lenge dies, assumed, arguably this court has Mktg. court....” Farmers Union Milk issue, directly addressing without that (6th Yeutter, v. 930 F.2d 467 Coop. producers bring challenging can suits Cir.1991). Similarly, the Seventh Circuit Hettinga, orders. See 560 producers, very group held that as “the 503-504; at Dairy, F.3d Edaleen 467 F.3d marketing protect,” the milk law seeks to 783; supra at note 4. judicial “can of milk seek review them,” pinch Dairy orders that Alto true, Department It is as the inter- (7th Venenan, 560, 566, out, 336 F.3d 569 Cir. point venor handlers that a decade 2003). Butz, Blair, Dairylea Coop., See Inc. v. Schofield, before in Benson v. 236 (2d Cir.1974); (D.C.Cir.1956), 504 F.2d F.2d 719 court af- Suntex this allege unfairly advantages jority producers. that an order some of other This limitation is others, producers expense Op. at the on the read into Block the dissent. Dis. theory producers’ right to vote 834-35. on orders adequately protects them in other situations. regime Block, The effect of this would be that when 6. As with Stark and the dissent limits producers approve two-thirds of an order that holdings of other circuits to fit a new line contrary producers to law but treats all Daily, example, in the sand. In Alto a alike, remaining producers third of must group producers made the choice not to judicial submit to that order without participate redress. rulemaking in a and later com- evidence plained promulgated There is no intended such that the rule differed so regime, greatly a court a proposal no has advanced such from the did not Instead, theory quotation adequate before. from receive notice. 336 F.3d at 570. Stark, especially They alleged systemic the conclusion in the final no failure in the refer- sentence, ensuring process oppression by producer evidences a focus on a endum nor judicial producers allege they majority, only procedural shortcoming. forum for who order, illegal regardless disputes among are harmed those cases that did involve right producers, nothing opinions their to vote on that order. See Alto in the courts' Veneman, (7th Dairy v. indicates that the determination of whether Cir.2003) (describing holding produc- producers hinged Stark as had a cause of action on See, Producers, challenge issuing e.g., ers "could ... an order if in that fact. Minn. Milk Agriculture Department (finding standing it the had exceeded F.2d at 817 authority delegated by Congress alleging Secretary’s obligation to it violation of the AMAA); Union, doing infringed right had so definite under Farmers 930 F.2d at ("The producer”). Similarly, purpose strongly in Block the Su- of the AMAA fa- preme judicial judicial aspects Court states that review of vors review of market or- necessary suits is to ensure the ders that concern in lawsuits objectives” by producers.”); brought Dairylea Coop., AMAA’s"fundamental of "the (“The producers,” Supreme tection of 467 U.S. at F.2d Court ... has held limiting protec- judicial without this to the that this silence does [as remedies] producers....”). tion of some from an ma- abusive not bar complaint by challenging a beyond the dismissal of ers orders as the firmed Sec- retary’s power, easily a milk is dairy challenging Benson distin- producer-handlers guishable. the limits marketing order that extended case, In that marketing a milk area. of Accordingly, we hold that the the merits of the the court addressed bring can suit under the APA challenge to procedur- rulemaking that the was ‍‌​‌‌‌​​‌​‌​‌‌​‌​‌​‌​‌‌​‌​​‌‌​‌​‌​‌​​‌‌​‌​​​​​‌​​‍claims Rule, directly the Interim which affects produc- for lack of notice to аlly defective prices through their blend increased make to attend opportunity and an for them ers allowances, though even the milk market- at but further con- hearings, id. ing directly orders will not affect the seeking to vindicate cluded were not ducer settlement The fund. by judicial statutory privilege protected

“a aggrieved, meaning APA, within the remedies,” legal and thus a “lack[ed] alleged personal the diminution of their Stark, (citing at right.” Id. AMAA, rights secured under the the In- 559). inapposite at Benson is they challenge terim Rule constitutes final First, in action, a of reasons. Benson agency for number and they non-monetary seek a addressing injunctive §§ the court was not diminution relief. 5 U.S.C. 704. statutorily-guaranteed blend We therefore turn to the of producers’ of merits Stark, Blair, producers’ contention that prices, Secretary as in and the instant statutorily was case, required to determine that increased but rather order consider feed and fuel costs a area to the boundaries of seeking change to a make allowance and handlers, an greater cover a number of failed to do so. infringe any action the court held did not statutory right possessed III. affected, only handlers were id. enjoin In seeking to the Interim Rule on Second, 723. the suit in Benson was not ground Secretary failed to APA, brought and the court did under carry оut responsibilities, mandated impliedly preclud- not hold that the AMAA producers rely 608e(18), §§ on AMAA en- suits, only ed that the AMAA did 608c(17)(G), acted in and on of action for the provide not itself cause Act amendment to the AMAA. grievance regarding marketing claimed Blair, 608c(18) pre- area. Given also requires Section the Secretary, analogous initially sented situation more to the setting dairy prices, to ensure case, instant was after Benson and that prices variety decided those reflect a of fac- 608c(18).7 acknowledged action for produc- parties a cause of tors. 7 U.S.C. 608(c)(18), ment, or, prices,” provides "Milk Section or amendment relates. Whenever finds, part: upon in relevant the basis of the hearing required evidence adduced Secretary Agriculture, prior pre- to parity prices section 608b ... that the scribing any any marketing agree- term in order, thereto, such commodities are not reasonable in ment or or amendment re- feeds, price view of the the available lating products, if to or its such term feeds, supplies of and other economic con- prices paid produc- fix to minimum to be ..., supply ditions which affect market and de- prior modifying price or ers terms, products mand for milk and its in the mar- any fixed in such shall ascertain the keting contemplated area to which the parity prices of such commodities. The order, relates, agreement, adjusted or amendment prices ... ... be he shall to reflect feeds, shall fix supplies the available such as he finds will reflect feeds, conditions, factors, quantity such insure a sufficient and other economic milk, supply pure which affect market and demand for and wholesome and be in the products public Thereafter, in the market milk or its area interest. as the contemplated marketing agree- necessary changed which the finds on account of cir- 608c(18)’s earlier, July on 2007. Because year re- which of disagree about this rulemakings effect, like quirements apply not then in the 2008 Act was readjusts rath- one, Secretary in which Secretary concludes the was Department initially prices. need not er than sets We to con- obligation under no determine and if all of even decide the issue because part costs “as of’ that producers’ sider 608c(18)’s they im- apply, § requirements if, hearing. only This is true as the De- beyond here obligation no relevant pose maintains, meaning of the partment 608c(17)(G). § imposed by 608c(17)(G) “hearing” only §in can word 608e(17)(G) provides: Section part proceeding refer to “that of the which for make Monthly feed and fuel costs evidence,” of the submission involves allowanсes Department’s regulations effect now adjust make part any hearing As of to and at the time of enactment of the 2008 marketing orders com- allowances under 900.2(h). § provide. Act See 7 C.F.R. 30, 2012, mencing prior September to definition, however, incompatible Such a Secretary shall— 608c(17)(G), § text of which plain with the (i) average monthly determine Secretary requires part any “as by dairy fuel incurred prices of feed and to “determine” feed fuel hearing” the relevant costs and to “consider” those costs when area; changing make allowances. If the word (ii) monthly recent consider the most “hearing” only proceeding referred to the available; feed and fuel data Judge Administrative Law (iii) determining consider those (“ALJ”) evidence, Congress’ receives then adjust make allow- whether or not to Secretary directions to the would make no ances. Secretary only sense. The can “deter- added). 608c(17)(G) (emphasis § 7 U.S.C. mine” costs after the evidence has been The 2008 amendment to the AMAA thus then, By according received. to the De- Secretary, adjusting plainly requires the Act, partment’s reading of the 2008 it is allowances, make to consider “hearing” already too late because the has prices, feed and fuel and thus there is no Likewise, Secretary concluded. could 608c(18) impos- § if also occasion decide part not “consider” costs “as hear- [the] obligations. es such ing” Department as the defines it because Department The maintains the 2008 Act yet those costs would not have been deter- apply did not to the Interim Rule because impossible comply mined. It would be the amendment to the AMAA took effect Secretary with the 2008 Act because the Act into too late. The 2008 went effect steps logical- would need to do once 22, 2008, May supra see note and directs ly sequentially. Depart- must follow The Secretary determine consider regulations ment’s also make clear that the part any hearing certain “[a]s costs Secretary reaches decisions on the basis of allowances,” adjust make 7 U.S.C. 608(c)(17)(G). completed evidentiary record. See public hearing § final (“After § place on the order took almost a 900.13a due consideration proposed C.F.R. cumstances, 1301(a)(1). efficiency after due notice and cal and factors. he shall opportunity hearing, adjust- for a make Secretary In the Interim Rule the found that prices. ments in such parity prices were not in view reasonable 608(c)(18) added). (emphasis 44,613 Fed.Reg. at factors. 73 "parity price" of commodities is a statistical 122/2], [JA prices adjusted measurе of for certain histori- purpose render a the obvious of the shall thwart stat of the record decision.”). ....’” In Pipeline ute re Trans Alaska Cases, 631, 643, Rate S.Ct. context, “hearing” the term (1978) 2053, 56 L.Ed.2d 591 (quoting 608c(17)(G) mean more than the must Brown, 563, 571, Comm’r is sub during which evidence proceeding (1965)); 14 L.Ed.2d 75 see Sec It must also Secretary. to the mitted Labor, retary Safety Mine & Health rulemaking pro portions include Cal., Admin. v. National Cement Co. analyzes during which the cess Inc., 1066, (D.C.Cir.2007); 494 F.3d 1069 rulemaking evidence in the record and the 1075, conclusions, Engine Ass’n v. only then can 88 F.3d reaches because EPA Mfrs. (D.C.Cir.1996). reason, Secretary the “determine” and “consider” For the same Indeed, provision another the costs. Depart the court owes no deference to the Act amendment to the AMAA seems 608c(17)(G) § interpretation ment’s in understanding a contemplate to broader litigation; this even had it forth been set including “Hearing time- “hearing,” within Secretary part the rulemak place that take after the frames” events ing, it at step Applying fails Chevron one. evidentiary hearing, of an such as the close “traditional tools of construction” post-hearing briefs. See 7 submission reject the court must the construction as 608c(17)(C). interpretation § This U.S.C. contrary congressional to clear intent. “hearing” admittedly is at odds with the Chevron, 104 S.Ct. regulation, see 7 C.F.R. Department’s 2778. 900.2(h), “generally presume § and courts In order to avoid the absurd result Congress knowledgeable that is about ex of an impossible instruction to the Secre it isting pertinent legislation law to the 608c(17)(G) Miller, enacts,” tary, § must Goodyear Corp. Atomic be read allow 1704, Secretary an opportunity to determine (1988); L.Ed.2d 158 see United States v. producers’ and consider feed and fuel costs (D.C.Cir.2002). Wilson, 347, 357 evidentiary after the record is The closed. However, Supreme as the Court observed rulemaking record for the Interim Rule a canon of regard in Block different does not indicate when the re construction, presumption that Con took place, view and deliberation but for background law “is gress was aware 608c(17)(G) implemented to be a rea which,] just presumption!, that —a like all manner, “hearing” soned a would be tied statutes, presumptions interpreting used rulemaking, to the conclusion of the may by specific language overcome ... be publication marked here June congressional indicator of is reliable understood, of the Tentative Decision. So intent.” 467 U.S. Secretary had not concluded because Here, was presumption Rule rulemaking for Interim when incorporated Depart aware of and May the 2008 Act went into effect on “hearing” ment’s definition of would lead Secretary obligated was to fоllow that Congress to the absurd result intend 608c(17)(G). §of requirements impose requirement with which the ed to Courts, Secretary comply. “in could not IV. statute, interpreting the words of a [have] The 2008 amendment to the AMAA re- rath scope adopting ‘some restricted (i) Secretary determine the quires meaning than a literal or usual of its er monthly and fuel costs of average feed acceptance meaning where of that words dairy marketing ... “in the relevant lead to absurd results or would would (ii) Secretary complied as well with his area;” the most recent “consider obligation and fuel data available” to determine those costs “the monthly feed (iii) determination; 608c(17)(G)(i). area,” arriving at that marketing relevant determining “consider those it provision ambiguous That adjust not make allowances.” whether or Depart- does not define “relevant.” The 608c(17)(G)(i)-(iii). Here, we average the nationwide ment determines Their con- ways producers. with the part monthly feed and fuel costs producers’ carry that the failed to tention Agricultural reports. Prices by the rule- obligations out these is belied satisfy contend that cannot making record. Secretary’s obligations to determine costs area,” marketing “in relevant and the shows that the Sec A. The record compute separate must instead monthly feed fuel retary determines each national area as costs for (as costs) major costs well other in Department those areas are defined During as a matter of course. the eviden See, § regulations. e.g., 7 C.F.R. 1001.1 tiary hearing, the ALJ took official notice (2008) (defining Marketing “Northeast reports stretching Agricultural of Prices Area” to include certain states and coun- years up and to the date of back several states). However, hearing. monthly and annual other the the These ties of Department’s out, the reports, prepared Secretary Department points the de- Service, Agricultural National Statistics III years ago termined that Class and IV compute the na sampling use extensive “dairy products compete can and do on a paid by average prices tionwide and to basis,” national market and the value of inputs outputs farmers for the and of III products milk used for Class and IV is See, Agric. farming. e.g., Nat’l Statistics thus driven this national market. Milk Dept, Agric. Serv., Agric., Prices England Marketing in the New and Other 2008).8 (May prices are the paid Included Decision, Amplified Fed.Reg. Areas: feed, fuel, variety inputs and a of other 1994). 42,422, 42,424 (Aug. In the Ten- rent, machinery such as as well as a Decision, Secretary tative the reiterated ratio of the cost of feed to milk. Id. at 28. products “compete those in a because are broken into categories These down marketplace,” national the data considered subcategories compared to previous in setting make allowances must likewise months, years, parity and baseline and 35,- in scope. Fed.Reg. be nationwide costs. Id. at 28-29. Given these extensive using 325. In the term “relevant market- Department computations the the area,” ing Congress did not indicate an record, rulemaking can no there be doubt long-standing prac- intention to forbid that Secretary the determined feed tice, but instead to invoke the costs, though proposed and fuel even expertise. the broad Given explicitly purport rule did not to do so in Secretary it phrase, was reasonable for the requirements fulfillment to determine costs on a nation- 608c(17)(G)(i), § or indeed mention that basis, wide where he has determined the Rule, at all. provision See also Interim market nationwide is relevant area. 35,307 Agric. Mktg. Serv., Fed.Reg. (citing 608c(18) § Dep’t very The text of differs Analysis: Agric., Economic (2008)). Pricing slightly point III and IV in structure on this from that Class Formulas = 8. Available at http://usda.mannlib.cornell.edu/ ID 1002.

MannUsda/viewDocumentlnfo.doPdocument 608c(17)(G). Secretary to consider “the most recent ... provides It the Secre- §of proposed as of the time the data available” fix to reflect сosts tary must (here, published rule is the Tentative Deci- to which “in the market area conditions 2008). June But sion or amend- ... order [milk 608c(17)(G)(ii) consideration requires note 7. Assum- supra See relates.” ment] “available,” not the most recent data to this rule- obligation extends ing that conceivable, most recent data and at some complied has for the making, Secretary point stop receiving must complied with reasons he has same new and review the rulemaking evidence 608(17)(G)(i). required record. Time also to draft and his Secretary also met obli- B. The publish proposed rule. This is true consider “the most recent” gation to producers point even out that though determining available when data Secretary accepted report from the 608e(17)(G)(ii). costs. 7 U.S.C. ducers’ state of California November after monthly notice of the The ALJ took official the record had closed. Tentative De- See through reports Prices either Agricultural cision, 35,324 Fed.Reg. n. 1. That through the date of up of 2007 or the end reopen chose to the record either event post-hearing briefing- —-in accept single new evidence on a point evidentiary up past to or the close obliged does not indicate that he would be contend this data record. The 608c(17)(G)(ii) §by to do so order to qualify as “the most reсent was too old to have the recent data most “available.” available,” id., ... monthly data Nothing in the Act indicates Con- about evidentiary hearing concluded the gress impose intended to an unworkable the Tentative Decision year one before obligation Secretary reopen on the to the 608c(17)(G)(ii) However, § published. was repeatedly record to receive new data dur- monthly feed not define “most recent does ing process “determining]” the and available.” The court price and fuel data “considering].” As there must a cut- be defi- normally would defer to reasonable off, the court has no basis on this record to Chevron, Secretary, see nition the fault a cutoff date of the close of the 2778, but the Secre- record, evidentiary year one before the in tary interpretation not advance an did Although it Interim Rule was issued. in nor address the issue rulemaking, the delay publishing conceivable that in may The court his brief to this court. long rule until after the record posed conclude, upon reading readily with the re- closed could be inconsistent 608c(17)(G) whole, supra § see at [24— quirement the “most recent to consider 25], interpreta- the most reasonable that available,” producers show no data the “determining” that when feed and tion is Secretary’s prejudice as a result of the costs, Secretary the must use the most fuel failure to consider cost data available on as of the close of the recent data available City Portland v. June 2008. See read, the evidentiary record. So Secre- (D.C.Cir.2007); EPA in by using up-to-date data tary complied U.S.C. figures Agricultural the in compiling regard Secretary’s to the obli- C. With Agric. Prices, see, (May Prices e.g., [producers’ feed and gation to “consider 2008), notice of the taking and in official or not prices determining in whether fuel] report as of the most recent issue of allowances,” adjust make evidentiary period. close of the 608c(17)(G)(iii), Secretary explicitly the reading promulgating a different these costs in the The offer addressed Rule: require would the Interim of the statute which recouped through costs could market producing the costs of be aggregate, the allowances, in supply milk reflected are mechanisms. The make dairy prod- for the contrast, demand conditions represent the costs of handlers of milk is insuffi- supply ucts. When only through and are mechanism III for Class cient to meet the demand recouped manufacturers’ can be un- costs prices products, IV Class Secretary pricing der the formulas. The regulated as do products increase these necessary conсluded it was to increase paid dairy farm- prices milk minimum make allowances to reflect in- handlers’ milk is more valuable ers because Although creased costs. in- captured milk value is greater and this thereby creased make allowances and de- Dairy formulas. farmers pricing by producers creased the amount received in regulatory mínimums their face no given price, for a market his well-reasoned regulated face no minimum costs and analysis in rulemaking record consti- way regu- obligation payment “considering producers’ tutes feed and pay dairy lated handlers must farmers determining whether or not fuel] for milk. allowances,” adjust make 35,324. Fed.Reg. con- 608c(17)(G)(iii). costs, trasted these reflected pricing, market with handlers’ costs V. manufacturing: Although we hold that ability of a manufacturer to offset may challenge decision level of cost increases are limited the Interim Rule to increase make allow III and make allowances the Class APA, under they correctly ances Manufacturing formulas. price Class IV contend the Secretary required was to con processors charged [Federal sider their costs for feed and fuel decid Marketing Milk minimum Order] ing whether or not to amend make allow produce used Class ances, for the reasons set forth in Part IV However, products. III and Class IV they have shown no likelihood of success plant manufacturing may cost increases on the merits of their contention the Sec not III be recovered because Class and retary powers by failing exceeded his to product-price Class IV formulas use Thus, consider those costs. this court regard- make allowances are fixed proceed need not to review the other three change less of market and conditions preliminary injunction factors and the dis only by regulatory Simply put, action. balancing Apo trict of court’s factors. See manufacturing when cost increases re- tex, FDA, 1249, Inc. v. F.3d 1253-54 449 higher provided sult in costs than those (D.C.Cir.2006). prelimi The denial of the factors, by the formula make allowance injunction nary is therefore affirmed. the value of milk to make used those products may be over-valued. interlocutory petitions On review of 35,323. at Id. concluded relief, injunctive may this court reach necessary that it was therefore to increase “inextricably the merits of a claim bound make in allowances reflect increases up” appeal. with the issues on Hartman manufacturing costs incurred handlers (D.C.Cir. 1459, Duffey, v. 1464 as shown in the record evidence. Id. 1994) (quoting 16 Charles A. Wright, Ar 35,323^1. R. Miller. H. Cooper, thur Edward Feder sum, § considered the 3921 17 al p. Practice and Procedure (1977)). to producers, Supreme costs but reasoned that those As the has Court ob-

833 wrong agency of injunc suffering legal served, preliminary a “Review of granting action, aggrieved adversely to the act of affected or ‘is not confined or tion injunctio[n], but extends denying] the of a meaning action within the by agency [or there is determining (2006). whether as well relevant statute.” U.S.C. juris objection, point insuperable any that cause of action “to the It withdraws merits, maintenance of to the diction or preclude judicial ... extent that statutes so, bill, if to direct a final decree and [the] 701(a)(1). ‍‌​‌‌‌​​‌​‌​‌‌​‌​‌​‌​‌‌​‌​​‌‌​‌​‌​‌​​‌‌​‌​​​​​‌​​‍may Preclusion review.” ” —Geren, U.S. it.’ dismissing Munaf v. a express language in the be found 2219, 2207, —, 171 L.Ed.2d 128 S.Ct. in “the structure of the statuto statute or (2008) County Denver (quoting City and scheme, objectives, legislative its its ry 136, Co., N.Y. 229 U.S. Trust history, the nature of the administra (1913)) (all but L.Ed. 1101 Cmty. Block v. Nu tive action involved.” see also Dec original); alterations first Inst., 340, 345, 104 S.Ct. trition Independence Corp., Shares kert v. (1984). a 81 L.Ed.2d 270 “[W]hen 282, 287, L.Ed. 189 provides statute a detailed mechanism for (1940). “insuperable there is an Because judicial particular issues consideration predi claims objection” producers’ to the persons, judicial particular at the behest of Secretary’s alleged failure to on the cated review of those issues the behest under the feed and fuel costs consider persons may impli be found to be other 608e(17)(G) AMAA, §§ edly Id. at 349. precluded.” 608c(18), complaint in their those claims for failure to state must be dismissed expressly provides only The Act to han- 128 S.Ct. at We claim. Munaf dlers, else, right petition and no one court for the case to the district remand Secretary Agriculture for review of consistent with this proceedings further judicial order and to obtain opinion. Secretary’s ruling review of the re- GRIFFITH, Judge, dissenting Circuit 608c(15) (2006). sponse. 7 U.S.C. judgment part concurring majority concludes nevertheless part: right judicial ducers have a review be- because I believe the separately Block, I write cause, unlike the consumers Marketing Agreement Act of Agricultural during an “active role ... the rule- play pre- No. 50 Stat. Pub.L. Maj. Op. at 823. But making process,” judicial review of the cludes intended that does not mean claims. judicial producers to be afforded review any they might have with a complaint Procedure Act

The Administrative contrary, their person marketing to order.1 To grants “[a] a cause of action 559, (1944) ("[Ejven majority purports grant 88 L.Ed. 733 where a to limit its 1. The possesses complainant a claim to executive judicial producers where review to cases ... it does not neces- action beneficial to him person- claim a violation of their definite and sarily follow that actions of administrative 824, Maj. Op. rights. 827. But al See officials, right by to deemed the owner of per- producers have a "definite and fact that claim, upon place unlawful his restrictions order, right in the contested as sonal” at stake cognizable appropriate federal courts case, only they no doubt have in this tells us 351, Block, instance.”); 467 U.S. at of first (as they have well as constitu- that (explaining 2450 that the Stark 104 S.Ct. tional) standing. It tell us whether does not gave personal rights” ducers' "definite and enforcing precluded them from has object "standing to the administra- them to fund,” personal right in court. See this definite and that this the settlement but tion of Wickard, judicial “standing ensure could not itself U.S. Stark v. explains majority producers exploit that the will important agency role at the level why Congress judicial withheld review process approve referendum to measures marketing order or from them. No that discriminate orders may approv- amendment issue without the in- against minority producers. In these affected al of two-thirds of the stances, judicial review is available for the (measured byor volume either number minority producers. example, For the mi- 608c(8)- produced). of milk 7 U.S.C. See nority producers challenged a Stark (9). proposed can a Producers veto order provision required that the market admin- reason; only any a court can overturn to amount from istrator deduct certain an order if the has acted arbi- money paid by milk handlers before law, trarily, capriciously, contrary or to see distributing it to producers. deducted producer 706. The referendum paid only produc- amount would then be to powerful challenge is a far more tool to cooperatives. ers who were members of Secretary than the action deferen- By See id. at 64 S.Ct. 559. sanc- judicial Ordinarily, tial of a forum. review tioning higher payments producer coop- to not, producer majority as the interests will payments indepen- eratives and lower fears, “go unvindicated” without the avail- provision producers, dent this threatened review, judicial Maj. ability Op. at 823. statutory objective producer equali- contrast, By Congress gave ju- handlers a ty. producer cooperatives Because on, remedy dicial vote may voting power had sufficient to control the block, marketing but cannot An order. outcome of the regardless referendum may fifty order or amendment issue if provision, the lawfulness of the there was percent of the affected handlers vote to adequate minority no forum in which the But if approve it. the handler referendum challenge provision could fails, Secretary can nonetheless issue judicial unlаwful. And without review for the order if he determines that the han- claim, group their no could upon be “relied disapproval prevents dlers’ the effectuation law,” challenge agency disregard of the policy Act’s the order is Block, 467 U.S. at 104 S.Ct. 2450. necessary implement policy. 7See 608c(8)-(9). majority require ju- reads U.S.C. No similar override Stark is available if the vote by producers. down the dicial review of all claims proposed order. But emphasized Block that the structure of Congress’s the Act demonstrates intent cases, however, some judicial “that review of market orders is- adequate referendum is not an forum Act ordinarily sued under the be confined challenge which to unlawful actions of the handlers,” brought by to suits 467 U.S. at Secretary. As the noted in Court Stark v. 348, 104 S.Ct. 2450. The Court viewed the Wickard, result in exception appli- Stark as limited (1944), L.Ed. pow- veto cases, in “certain” cable id. at protect minority producers er “cannot 2450, judicial S.Ct. when review is “neces- against unlawful exactions which might be sary to ensure achievement of the Act’s upon by majorities.” voted them objectives,” most fundamental id. at 351- Secretary’s pro- 64 S.Ct. 559. If the posed action 104 producers divergent pro- would benefit some S.Ct. 2450. When others, expense at the of ability there is a risk ducer threaten the mi- interests Secretary's statutory "standing judicial review of the hest”); action at their be- issues” because (finding id. at 353 n. 104 S.Ct. 2450 precluded). review was no need to address the constitutional and

835 Block, provided City); to use forum Pescosolido v. nority producers cf. (9th Cir.1985) -judicial re- judicial Act—the (prohibiting re- 827 referendum— primary permitted safeguard view is orange growers’ claim that Secre- view of objective: that “to ensure tary ensuring parity prices, was not milk market and burdens of the benefits to all growers). interest common fairly proportionately and shared The difference this case between and farmers,” 342, 104 S.Ct. dairy id. at all majority, that those—the one “eludes” the (declaration 2450; also 7 U.S.C. see Maj. Op. producers at 825—is that statutory policy). review Judicial adequate had an forum which here and amendments that discriminate orders challenge actions because desta- ensures that the producers between produc- make treat all the new allowances competition targeted bilizing producer uniformly. in- producers’ ers Because Block, Act, see are all aligned terests here same milk mar- does not infect the direction, the risk that existed Stark ‍‌​‌‌‌​​‌​‌​‌‌​‌​‌​‌​‌‌​‌​​‌‌​‌​‌​‌​​‌‌​‌​​​​​‌​​‍of keting orders themselves. larger producers capturing the referendum judicial producers’ Permitting review unlawfully mi- disadvantage process narrow circumstances claims in this set of nority present. is not refer- our and that precedent is with consistent purpose thus served as a check endum its by the circuits. The eases cited of other Secretary’s statutory authority. on majority support general of a more necessary review is to vindi- Judicial not review each grant judicial Act, objectives cate the we divergent producer interests com involved to the congressional prefer- See defer parable to the circumstances Stark. should (7th Veneman, v. F.3d 560 Dairy expressed Alto Act’s structure —to ence— Cir.2003) (Wisconsin producers sold who that I would affirm preclude review. region challenged milk in Mideast amend ruling judicial court’s review district adopted pooling provision ment of Mideast precluded remand with direction to them); Pro without notice to Minn. Milk dismiss the claims. v. 956 F.2d 816 Madigan,

ducers Ass’n

(8th Cir.1992) market (producers outside area, chal could not vote on the

ing who order, argued

lenged it stimulated areas); in other Farmers

overproduction OVEISSI, Appellant Amir Reza Yeutter, Mktg. Coop. Union Milk v. (6th Cir.1991) (rural producers F.2d v. adjustments location that fa challenged IRAN and ISLAMIC REPUBLIC OF cities); vored closest to Suntex Ministry Iranian of Information (5th Dairy Bergland, v. 591 F.2d 1063 Security, Appellees. Cir.1979) (independent challenged voting by large producer bloc No. 07-7132. Butz, Dairylea Coop., Inc. v. cooperative); Appeals, United States Court (2d Cir.1974) (recent market 504 F.2d 80 District of Columbia Circuit. challenged provision resulting entrant newly entering produc lower 12, 2009. Argued March ers); Freeman, F.2d 229 Blair July Decided (D.C.Cir.1966) (distant producers chal “nearby differential” in lenged York

advantaged producers closest to New

Case Details

Case Name: Arkansas Dairy Cooperative Ass'n v. United States Department of Agriculture

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 24, 2009

Citation: 573 F.3d 815

Docket Number: 08-5406

Court Abbreviation: D.C. Cir.