*1 30S Judge (dissenting). UELMEN Milk Products Donald and Pure KILEY, Circuit Cooperative, Plaintiffs-Appellants, Secretary respectfully I dissent. The v. change Mil- if in the concedes that the FREEMAN, Secretary Agricul of
Orville
the
in-
formula
waukee Order amended
States,
turе of the United
Defendant-
purpose of
cluded in that Order for the
fixing
Appellee.
pro-
prices paid tо
minimum milk
hearing
by dairies,
required
ducers
a
was
No. 16376.
Agricultural Adjustment Act
under the
Appeals
United
Court of
States
regulations рromulgated there-
and the
Circuit.
Seventh
take
under
amendment could
before the
effect.1
21,
Dec.
1967.
originally
up
The
in the
formula
set
April 22,
Certiorari Denied
1968.
establishing the
for
Milwaukee Order
See
three district the factors summarized 842, opinion F.Supp. court in its at 267 844, as follows: George price (§ 1. basic Peter, M. The formula Lac, St. Fond Du Wis., paid 1039.50) rеsulting prices appellants. for from manufacturing for milk in Minnesota Alan S. Rosenthal and Walter H. adjusted and to Wisconsin butter- 3.5% Fleischer, Department Justice, of Civil price fat basis at the rate of the butter Division, Washington, C., appеl- D. for ; times 0.120 lee. $1.08, To this add or $.68 $.88 2. MAJOR, Before Judge, Senior Circuit depending (§ on the month involved and KILEY, CASTLE and Circuit 1039.51(a)); and Judges. 3. or the amount re- Add subtract sulting supply-demand ratio from the CASTLE, Judge. Circuit computed Chicago (7 under the Order plaintiffs-appellants brought The 1030) plus this to but exceed C.F.R. not seeking action in to (§ 1039.51(a)). the District Court 24 or 24 minus cents enjoin Secretary Agriculture of from any pricing the In the event of these fac- continuing in effect of a determination available, tors of is not then 1039.54 § equivalent relating prices pricing requires Secretary to the the the Order that of milk priсing under Milk equivalent the Milwaukee (7 shall determine an Marketing 1039). The Order price C.F.R. factor to be in the com- utilized opin- District Court in putation. a well-reasoned ion-, reported F.Supp. 842, at held 267 favorably producers of the on voted 75% plaintiffs standing (1) to main- lacked this Order. suit, (2) tain the and action the the of Chicago Secretary After thе was term-- valid Order was and authorized under by affected, Agricultural producers Marketing Agreement of the inated the vote making thereby supply-demand 1937, the ratio seq., Act of 7 U.S.C.A. 601 et § unavailable, Secretary (3) dismissing in factor the and еntered com- an order the plaint. agree reasoning issued the Milwaukee Order before us. We with the of oрinion This for the below, opin- Order flexible adopt the substituted and the we figure dependent supply-demand on our thе ion as own. plus of to ratio “not exceed 24 or minus Accordingly, appealed from the order cents,” “еquivalent” 24 the inflexible is affirmed. court “minus 24 cents.” The district Chicago Affirmed. this done because the stated was
1. Sec. 608c and 7 C.F.R. Secs. 7 U.S.C. 900.1-900.407.
309 900.8(b). cents” fоr C.F.R. More- “minus 24 7 factor had been evidence. Sec. over, any amendment, proposed years con- and have before more than five would hearing, Chicago it had Or- after a could take effect tinued at that level the justifica- by approved No to be a vote of der terminated. would have not been determining 608c(8) рroducers. “mi- that 7 tion for the U.S.C. Sec. offered is (B). Secretary’s equivalent (A) to of “not and Because the nus 24 cеnts” is the alleged pro- plus Nei- 24 minus cents.” of the Act denied or 24 violation exceed granted rights provisions Act or Or- under ther the of the the ducers which are standing give authority they non- der to substitute a Act have to assert the the аlleged illegality equivalent in formula because in courts. factor the the federal year holding the of the use without five judg- my opinion In court the district hearing required under 7 U.S.C. See. wrong. Secretary I the is think ment 608c. and exceeded his abused his discretion authority. and remand I would reverse change is not a mere The in the Order Secretary to tо directions order the with Chicago referent into of substitute the hearing the as on Order conduct a temporary Order for a the Milwaukee give producers an to the amended and by during emergency period the caused opportunity not to to on or vote whether Chicago The the Order. the rescission of I in continue effeсt Order issued. the change new of a is substitution the sought injunction grant not the would factor, e., to used i. “minus 24 cents” be Secretary I the could since believe that Chicago referent, the of the and instead including present the the Order allow permanent change the Milwau- is unless pending in to remain effect amendment hearing given producers a kee are Order hearing. of the the outcome they might opportunity at have the which part to the or in issuе rescind Order the
here. to dis- district court also decided
The ground even miss the alternative that on change an if in the formula was the hearing, required a аmendment which standing producers to ob-
milk had no Secretary ject to of to the the failure America, the of for Use UNITED STATES hearing. district court hold a The such and Benefit of PALMER ASPHALT rely Secretary v. and on Benson the COMPANY, Appellee, 424, Schofield, U.S.App.D.C. 98 236 F.2d v. 719, holding. Appellants support to this Lindsay and Inez A. DEBARDELABEN rely Wickard, 288, 321 on Stark v. U.S. Debardelaben, Individually P. and t/a 559, 733, 64 and on Blair S.Ct. 88 L.Ed. Waterproofing Company, Guaranteed 207, Freeman, U.S.App.D.C. 370 v. 125 Fidelity and United States and Guaran argument support 229, to in F.2d their Appellants. ty Company, standing. not of are favor These cases No. 11340. they point, however, in since all involve producers attempts by to attack an ac- Appeals United of States Court Sеcretary tion of the which affected the Fourth Circuit. paid price they for minimum would be 8, Argued Nov. 1967. any specific milk did not but violate right given producers the under the 10, Decided Nov. 1967. Agricultural Adjustment Act. Here allege Secretary producers that the the hearing Act failed to hold a the which holding
required Upon him the to hold. hearing producers,
of the in- such a as parties, present
terested to are entitled