Koretoff v. Vilsack

(D.C.Cir. Cоlumbia, 1202, Babbitt, 442, (D.C.Cir.1994) 702 F.2d 40 F.3d 1983) curiam)). remand, (per (Wald, J., On the dis- dissenting), but it “involves more trict court should consider Menominee’s lapse than the mere depends time and arguments good reason for not Wright largely upon questions of fact.” & presenting its claims to the contracting complaint 643. “[A] Miller officer sooner. seldom will undisputed disclose facts clear- ly establishing the defense.” Id. at Third, 643- provided the district court inade- 44. quate concluding reasons for that Menomi- delay prejudiced government.

nee’s

The court offered the terse observa- IV. “[fjunding tion that for the 1995 contract The dismissal of Menominee’s claims is Menominee, year long expired.” has since reversed and the case is remanded for F.Supp.2d at 154. This ap- statement further proceedings consistent with this pears to be an endorsement govern- opinion. ment’s assertion its motion to dismiss “economically it was So ordered. prejudiced” by delay appropriations because “the long lapsed.” 1995 have since Mot. to

Dismiss at 9. In support position, of that government cited

the Interior Agencies and Related Appro- Act, 1995,

priations 103-332, Pub.L. No. (1994),

108 Stat. provided which part appropriation “[n]o contained KORETOFF, Nick doing business in this Act shall remain available for obli- Ranches, as Nick Koretoff et gation beyond the current year fiscal un- al., Appellants expressly herein,” less provided so id. 108 Stat. at 2536. The 1995 fiscal VILSACK, Tom United States

year September ended on 1995. Id. Agriculture, pmbl., 108 Stat. at 2499. Because Menom- Appellee. claim inee’s for 1995 did not accrue until later, several months appro- the relevant No. 09-5286. priations already would have expirеd had United States Appeals, the tribe filed Court of day suit on the its claim accrued. fail District of We to see Columbia Circuit. how the tribe’s delay prejudiced government. Argued April 2010. We by noting close that “a motion to Decided Aug. dismiss generally is not a useful vehicle for raising the issue [of laches].” 5 Charles Wright & Arthur R. Miller,

Alan Federal (3d at 644

Practice and Procedure

ed.2004). see, Stevens, But e.g., Love v. (D.C.Cir.1953) curiam) (per

(affirming a dismissal “upon plain- based laches”).

tiffs Laches “legal be the

cousin” of limitations, the statute of

Daingerfield Island Soc’y Protective argued H. the cause for

John Vetne him the were appellants. With on briefs Sigman. Kenneth Susan Silber and Abate, Attorney, P. De- Michael Justice, argued cause for partment him on brief were appellee. With West, General, Tony Attorney Assistant Channing Acting D. United States Phillips, Raab, Attorney, Attorney. and Michael S. HENDERSON, GRIFFITH, Before: KAVANAUGH, Judges. Circuit filed Opinion the Court Circuit KAVANAUGH, with Judge whom Circuit Judge joins. GRIFFITH dissenting part Opinion filed Judge HENDERSON. Circuit KAVANAUGH, Judge: Circuit Agriculture rule Department A 2007 in the produced that almonds mandates chemically pasteurized United States be prevent salmonella outbreaks. treated to eliminates largely requirement That almond ability of California harms raw therefore sell almonds—and At well-being. producers’ economic those time, of what the Cali- because the same loop- plaintiffs raising fornia view as a from claims such but does hole, almond foreign still require exhaust adminis- raw in the United able to sell almonds trative remedies with the California almond States. Several Agriculture before the bringing claims to They the argue ers filed suit. 2007 court. We therefore the affirm District arbitrary and under capricious rule is the judgment Court’s as to those claims. Act, Administrative Procedure exceeds the agency’s statutory authority, and violates I procedural various APA requirements. A

The not on responds Government the merits, the This case is contending but Cali- about the almond market. (whom producers fornia should be not even al- That market growers consists of we lowed into court to advance their claims. handlers, will to “producers”), refer as re- deny The does Government not tailers, and consumers of almonds. Pro- an injury-in-fact suffered and grow the ducers almonds and sell them to standing have under III of Article buy handlers. Handlers the almonds from Rather, according to Constitution. process the producers, package and Government, the Agricultural Marketing almonds, and then sell them to retailers. Agreement Act of рrecludes almond Retailers sell to almonds consumers. obtaining judicial from review directly Some also sell to con- of rule. with disagree the 2007 We sumers, bypassing the intermediaries. The AMAA Government. does ex- Agricultural case This involves the Mar- pressly And in producers’ light bar suits. Agreement keting Act of a landmark of the Supreme of the decisions Court and of piece legislation that arose out of the Court, this we AMAA conclude that farming catastrophe during the Great De- implicitly does not bar pression. The AMAA authorizes the Sec- Community claims. Block v. See Nutri Agriculture of retary promulgate to mar- Institute, tion keting regulate production orders that (1984); 81 L.Ed.2d agricultural and of sale commodities. 7 Wickard, U.S. §§ 601-674. It U.S.C. seeks “avoid un- (1944); Dairy Coop L.Ed. 733 Arkansаs supplies reasonable fluctuations and erative Department Association of prices” various farm commodities. Id. (D.C.Cir.2009). Agriculture, 573 F.3d 815 602(4). currently applied AMAA is contrary judg We therefore reverse the to about three dozen agricultural commodi- Court, ment District of the which was is ties, milk, avocados, as oranges, such sued and thus before without the benefit peanuts. Agricultural marketing orders on-point of our recent Arkan decision quantity” dictate the “total of a regu- Dairy. sas commodity a particular lated sold in re- Three of the 10 California almond size, well gion, “grade, as as the or quality ducers are appeal involved also 608c(6)(A). §Id. thereof.” retailers who sell their own almonds di- promulgating marketing Before rectly plain- to consumers. Those three AMAA, Agri- under tiffs additional legal mount an must culture consult with separate Department Agriculture regu- commodity question. restrict handlers ‍‌​‌​​‌‌​​‌‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌‌​​​​‌​‌​​​‌‌‌‌‌‌​‌​‌‌‍lations that retail sales such producers. agree requires marketing We The AMAA that a with the District or- preclude Court that the AMAA approval does not der receive the two-thirds of (measured al- by num- astated the market for domestic raw region in a volume). For some monds, producers allege they ber of those requires ap- purposes, the AMAA also expected profits lost both their from the (measured majority of a of handlers proval premium price paid for raw almonds and volume). 608e(8)-(9). the return on investments made production equipment. At the same expressly AMAA allows handlers to time, impact the 2007 rule had no on for- obtain review of sue and orders, requires eign producers, but them first exhaust almond who not sub- specified administrative remedies. ject Agriculture regula- 608c(15)(A). § The AMAA is silent about permitted import tion and are still raw or of ad- to sue about exhaustion almonds into the United States. for producers, ministrative remedies retail- Three of the 10 are also re- ers, or consumers. directly tailers who sell almonds to con- producer-retailers sumers. These also B challenged separate Department Agri- AMAA, 1950, acting pursuant culture restrictions on how and where Secretary Agriculture promulgated could sell almonds at retail. Those restric- Order, Marketing Almond Cаlifornia Fed.Reg. tions date back to 1985. See 50 Almond pt. C.F.R. 981. The Order has (codified 1985) 30,264 (July at 7 C.F.R. years amended often in the 60 since. been 981.413). § Among things, quality other the Order sets commercially standards for sold almonds A group of California almond regulates quantity and of almonds that Court, arguing sued U.S. District given year. sold in a be aspects Secretary’s various In the wake of two salmonella outbreaks arbitrary capricious rule were under APA, statutory authority, exceeded Al- issued new almond rule under the procedural and violated certain APA re mond Order. Almonds Grown Califor- quirements. The District Court dismissed nia; Quality Outgoing Require- Control Vilsack, plaintiffs’ suit. See Koretoff v. (Mar. ments, 15,021, 15,034 Fed.Reg. (D.D.C.2009). F.Supp.2d 238 It reasoned This rule is now codified at 7 that the AMAA implicitly precludes prо 981.442(b). § C.F.R. suing ducers from challenge regulations required The new rule the use of one of issued under the AMAA. The Court ruled approved reducing several methods for sal- separate producer- claims almonds, monella bacteria in all involving were not precluded retailers but should be pasteurization either or chemical treat- for failure dismissed to exhaust adminis nearly ment of all almonds sold. 7 C.F.R. 241-44. trative remedies. See id. at 981.442(b). appeal

Plaintiffs on both issues. Our C legal questions review of the is de novo. resolving question preclu- of AMAA dispute primarily The current arises be- sion, it bears mention that the District large- cause the 2007 rule had the effect of rendered its decision before Arkan- Court ly eliminating the domestic raw almond Dairy Cоoperative sas Association market. The 10 still involved in Agriculture, F.3d 815 case California almond (D.C.Cir.2009), opinion a recent of this grew who raw almonds for domestic U.S. consumption. helps path the 2007 chart our here. Because rule dev- Court Institute,

II Nutrition 467 U.S. 104 S.Ct. (1984); 81 L.Ed.2d 270 and Arkan A Dairy Cooperative sas Association v. U.S. The Administrative Procedure Department Agriculture, 573 F.3d 815 Act establishes a cause of action for those (D.C.Cir.2009). As will explain, we those “suffering legal wrong agency- because of together cases indicate that the AMAA action, adversely aggrieved affected or not preclude producer does challeng suits 702; by agency action.” 5 U.S.C. see ing rules and orders issued under the Gardner, 136, 140, Abbott Labs. AMAA. (1967). 1507, 18L.Ed.2d 681 That 87 S.Ct. Wickard, In Stark v. the Supreme Court judicial stаtutory right to review does not held that milk could sue to chal- however, when apply, preclude “statutes lenge a milk marketing order. 321 U.S. 701(a)(1). judicial review.” 5 U.S.C. (1944). 88 L.Ed. 733 precludes judicial a statute Whether re acknowledged The Court that the AMAA action, view of granted “no direct review” to said, question congressional is a has 307-08, ducers. Id. at 64 S.Ct. 559. The intent, from the which is determined stat noted, however, Court “express language,” ute’s as well as “from in scheme, aspects “financial interest” of the mar- the structure of the its 308, keting objectives, legislative history, its and the order. Id. at 64 S.Ct. 559. nature of the action in administrative And the Court stated that it was “not to be Community volved.” Block v. Nutrition lightly assumed that the silence of the Inst., 340, 345, 2450, 104 467 U.S. S.Ct. 81 statute bars from the courts otherwise (1984); L.Ed.2d 270 see also Freе Enter. 309, justiciable issue.” Id. at 64 S.Ct. 559. Accounting Oversight v. Public Fund Co. Supreme The Court decided in —Bd., , -, 3138, 130 S.Ct. U.S.- — 1944—before the passage 1946 of the Ad- 3150, (2010); 177 L.Ed.2d 706 Thunder ministrative Procedure Act. Pub.L. No. Reich, 200, 207, Basin Co.v. 510 Coal U.S. (codified 79-404, 60 Stat. 237 at 5 U.S.C. (1994). 771, 127 L.Ed.2d 29 S.Ct. § 701 seq.). timing et The of the Stark In assessing whether a adds, however, only decision prece- to its statute, precluded by suit is we must de anything, dential force. If the subsequent “Congress pre termine not whether APA, enactment of the which created a judicial cluded all review” of the generic challenge agency cause of action to action Congress but also whether “fore action, open-the-court- fortifies Stark’s review to the class to which the closed Indeed, house-door-to-producers ruling. Block, belong[s].” at [plaintiff] U.S. passage of the APA largely resolved the 46, 104 S.Ct. 2450 Barlow v. 345— main concern that had in been articulated Collins, 159, 173, 832, 397 U.S. Justice Frankfurter’s dissent in Stark—(cid:127) (1970) (Brennan, J., concur L.Ed.2d namely, “creating] judicial remedy ring dissenting)). in result and gave when the statute none Congressional is to dislocate the scheme of B enforcement.” 321 64 S.Ct. Supreme Court this Court have (Frankfurter, J., dissenting). applied preclusion principles those three Supreme next Court addressed important arising Agricul- cases under the years AMAA preclusion some 40 later Marketing Agreement tural Act: Stark v. Wickard, Community Block v. Nutrition Institute. 321 U.S. 64 S.Ct. (1944); There, Community L.Ed. 733 Block v. the Court held that the AMAA challenges “preclusion review of suits. It found that of consum- precludes marketing or- brought by perfectly consumers er suits is consistent” with the by cоnsumers would Allowing ders. suit concerning producer Court’s “conclusion every American could chal- virtually mean challenges in Stark v. Wickard.” Id. at marketing every agricultural order. lenge In discussing 104 S.Ct. 2450. argument at oral the Block As revealed “[jjudicial the Block stated that re- case, result was of that hard-to-fathom producers’ complaint” view of the in Stark Court and great concern “necessary was to ensure achievement of in- ‍‌​‌​​‌‌​​‌‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌‌​​​​‌​‌​​​‌‌‌‌‌‌​‌​‌‌‍Congress’s its assessment of informed objectives the Act’s most fundamental —to precluded suits were tent on whether such wit, milk protection Arg. Tr. of by the AMAA. See Oral products.” and milk Id. The Block Court (raising 104 S.Ct. 2450 then-judge opinion echoed Scalia’s all the individual question whether Jus- Court, similarly he had which concluded milk). ticеs could as consumers of sue bring that consumers could not challenges addressing whether consumer opinion its agricultural marketing agreements, precluded, suits were the Block Court ex- though producers Judge even could. Sca- plained “contemplates the AMAA lia had reasoned that the “direct beneficia- cooperative among Secretary, venture ries of milk orders under the handlers, producers.” 467 U.S. at producers. [AMAA]are Even before Consumers, contrast, 104 S.Ct. 2450. APA, adoption the courts found a assigned regula- were role in the no active congressional permit intent them to 346-47, tory scheme. Community sue.” Nutrition Inst. v. 2450. The Court determined that (D.C.Cir.1983) Block, “structure of this Act indicates that Con- (Scalia, J., concurring part in and dissеnt- gress only producers intended and han- ing part). in dlers, consumers, and not to ensure that Stark, Notably, in distinguishing statutory objectives would be realized.” largely approach Block Court followed the Id. at 104 S.Ct. 2450. The also Court that the Government had advocated to the Congress required noted that had handlers Court. The that argued “pro- Government to exhaust administrative remedies before very ducers and consumers stand on dif- suing. Allowing bring consumers to suit ground” ferent and “generally antag- have exhausting without administrative reme- 31, Block, onistic” Br. at interests. Gov’t provide dies “would handlers with a conve- 104 S.Ct. 2450. The Govern- evading” nient device for that exhaustion ment that “it requirement by recruiting either a con- added would be anomalous to or, partner litigation Congress sumer as a in conclude that meant to foreclose consumers, case of handlers who producer challenges were also all to the market or- suing in their capacity indeed, as consumers. Id. program; Congress der appears to at 104 S.Ct. 2450. The rea- Court contemplated producer have suits....” Id. Congress likely soned that would have at argument, 31-32. At oral the Govern- easy to intended allow such circumvention ment further stated that “this statute was requirement, the exhaustion and thus passed expressly for the benefit of likely did not intend for consumers to be Block, Arg. ers.” Tr. of at Oral to challenge agricultural marketing able 340, 104 U.S. S.Ct. 2450. Govern- in court. orders far suggest ment’s counsel went so as to barring producer might suits be un- suits, Impоrtantly, barring consumer difference, other the Block constitutional: “One Jus- expressly Court reaffirmed White, holding respect Stark’s with tice between consumers and basically Dairy the market orders ducers is and the relevant Court government-ordered contracts between precedents, the Government’s intimation is producers; handlers and and would be incorrect. As explained we in Arkansas unfair quite perhaps even unconstitu- Dairy, some minority of producers by— contract, say party that one definition, tional up to one-third of all producers handler, sue, party can but the other to in region against vote the pro- —could contract, personal proprietary whose mulgation of a marketing order but nonе- affected, rights are can’t sue because Con- theless would prevent be unable to gress didn’t mention them. The same Secretary from promulgating the order. thing is not true of consumers.” at 15.1 Id. rejected argument We therefore opportunity participate precludes our recently explained,

As Court has Stark, ruling, suit. so quoted we which together Block indicate that had stated: “a mere hearing opportuni- producers can challenge agricultural sue to ty to vote cannot protect minority produc- orders, marketing but consumers cannot. against ers unlawful might exactions which Dairy, See Arkansas 573 F.3d 815 upon by majorities.” be voted them Id. at (D.C.Cir.2009). Dairy, Arkansas we (majority opinion) relied heavily permitting on Stark at We аdded that bring to a milk Stark “evidences a ensuring focus on promulgated under the judicial forum for producers who allege AMAA. distinguished We reiterat- illegal order, are harmed re- ing producers “occupy a different sta- gardless to vote on that tus under the AMAA from that of consum- ” added).2 (emphasis order. 826 n. 5 ers.” Id. at 823. We said that the Block “contrasted” the role of consum- To legislative history the extent is rele- ers scheme “with the role here, vant legislative during debates 822; producers.” of handlers and passage of the precursor AMAA’s sup- also (Griffith, J., dissenting see also id. port analysis our Dairy. Arkansas in part concurring judgment in in Representative Minnesota, Andresen of a (“The part) majority reads Stark to re- member of the House Committеe Agri- on quire judicial review of all pro- claims culture, pointed judicial review as the ducers.”). remedy minority for the vindication of pro- The Government seems to suggest ducer interests: “Mr. DONDERO. The statutorily required approval point of two- I make is whether or not the minori- thirds of for a in ty that kind of a case would have congressional evinces a intent all protest to bar voice of in get order to them from light In agreement suits. of Arkansas under the they in which did not Judge highlights 1. Henderson's dissent a 2. suggestion sen- We note that the Government’s judi- tence in Block where the said that contrary argument here is to its Su- “ordinarily cial review would be confined to preme explaining why Court in Block. In brought by Dissenting Op. suits handlers.” allowed, were suits the Government Block, 467 U.S. аt every producer there stated that "[n]ot is al- Dairy But in Arkansas we ana- ways going happy,” acknowledging to be lyzed explained that sentence from Block and group "[a]ny would include one of the that, context, simply in the Court was distin- Arg. third who didn't vote for it.” Tr. of Oral consumers, guishing handlers from and that a 13, Block, 104 S.Ct. 2450. contrary reading require ignore would us to Dairy, Stark. See Arkansas 573 F.3d at 823- Yeutter, (6th Coop. ANDRESEN. Person- 930 F.2d join. care to Mr. Cir.1991) J.); I have the best kind ally they (Boggs, Dair'y think would see also Alto Veneman, (7th if came before the day of a court 336 F.3d 567-69 ques- of the presented court their side Cir.2003); Minn. Milk Producers Ass’n v. Cong. (1935). tion.” (8th Rec. 9479 Madigan, 956 F.2d 817-18 Cir. 1992). Only ‍‌​‌​​‌‌​​‌‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌‌​​​​‌​‌​​​‌‌‌‌‌‌​‌​‌‌‍the Ninth Circuit has reached It that the two-thirds also bears mention conclusion, a different a decision ren al- approval of neеded years ago disagreement dered 25 over the measured either mond orders be Judge Wiggins. See Pescosolido v. or volume al- number 608e(9)(B)(i)-(ii). (9th Cir.1985). 831-32 monds sold. U.S.C. a scenario in easy It is thus to envision C large ap-

which a few almond that disadvan- prove marketing order The to get Government tries around the tages relatively large group of small precedents by contending that run producers, almond either to the latter Block, Dairy and Arkansas dealt with out of the two simply business because milk, almonds, than rather and that the groups divergent interests. That ex- have industry almond raises different issues. why Congress’s ample further illustrates attempted Government’s distinction require approval decision to of two-thirds precedents goes of the as fоllows: congres- not indicate a does industry, almond unlike the milk indus- all producers’ sional intent to bar suits.3 try, handlers’ interests are identical to sum, precedents Therefore, ducers’ interests. according to Court and this Court indicate that Government, almond handlers —who preclude producer AMAA does not suits possess statutory right review challenging rules and orders issued under adequately under the AMAA—can repre- the AMAA. As we also noted in Arkansas sent the interests of almond moreover, Dairy, our Court is not alone in court. reading Stark and Block to allow argument Government’s finds no ers—but consumers'—to support precedent and is flawed at a such Three of four actions. very conceptual basic level. The usual question other cirсuits to consider the have rule of administrative ag- law is conclusion, finding reached the same grieved can party challenge agency sue to adopting the “radical inter- Government’s regardless action of whether might there pretation” precluding produc- of Block as aggrieved party be some other might who effectively ers’ suits “would undermine the raise the same or seek the same presumption in favor of review that argument relief. The Supreme consistently Court has reaf- Government’s —han- firmed.” Marketing good enough Farmers Union Milk dlers can sue and that’s for case, moreover, 981.42(b); producers § 3. In this did not and incidental.” 7 C.F.R. see promulgation California; vote on 7 C.F.R. Outgoing Almonds Grown in 981.442(b)’s Rather, salmonella rule. that Quality Requirements Request Control and regulation promulgated pursuant was Collection, Approval for of New Information authority of the California Almond Board— 70,683, 70,687 Fed.Reg. (proposed Dec. approval Secretary with the estab- —to Because such rules are not amend- quality inspection lish "such minimum and Order, ments to the no referendum requirements orderly ... as will contribute to promulgation was held before of the salmo- public or be in the interest” and to nella rule. regulations necessary "establish and rules may imposing thus inconsistent with bed disfavor such restrictions as producers —is of administrative law. We find rock tenets upon Producers, additional burdens them. Congress that intended to no indication however, might support be inclined to such principles from those when enact depart regulation Precise, in some circumstances: See 308- ing AMAA. labeling might accurate encourage repeat especially It would be orders customers. The Almond Order rely on this kind of virtual or vicari odd to imposes quality regulations also on control producers to bar from representation ous labeling, handlers. Id. 981.42.As with suing given producers primary are the easy might is to see how handlers chafe intended beneficiaries of the AMAA—a regulations, under such while point noted might appreciate any refinement 104 S.Ct. 2450 product final sold did not come at (“[jjudicial producers’ review of the com expense. direct necessary was therefore plaint [in ] achievement of the Act’s most to ensure True, there will be some cases where the wit, objectives the protec- fundamental —to interests of almond and almond tion of the of milk and milk others, handlers overlap. But This addi- conclusion finds products.”). provided won’t. And the Government has cases, support tional intervention where way us with no workable determine we have stated intervenors are diverge when interests in such a manner sufficiently protected by congru- a mere as to in precluding draw the line suit. The party litigant. ence of interests with a See theory Government’s —almond Animals, Norton, Fund Inc. v. for sometimes can sue and sometimes can- (D.C.Cir.2003). F.3d We see no produce a case-by-case not—would chaotic a reason for different result here. determination of whether event, argu- the Government’s aligned. handlers’ interests are This is a on ment is also flawed the facts. The recipe for litigation. endless satellite We makes too much of the dis- Government declined to embark on such endeavor tinction between the almond and milk in- Dairy, Arkansas we must again do so cursory dustries. Even examination of here. Marketing the Almond Order shows how the interests of almond and han- Ill diverge.

dlers can The Almond Order re- quires, example, that handlers maintain Three of the 10 still in quantity certain almonds on hand as only produce volved this case not al at all “reserves” times. See C.F.R. monds, directly but also sell them to con 981.46, §§ required quantity 981.50. The producer-retailer plaintiffs sumers. Thеse regulation. is determined argue the AMAA does not authorize 981.49(e). Almond and al- Agriculture regulate prefer- mond handlers have different regulation retail sales. The statute and may prefer ences: Almond handlers together require these to exhaust reserve, pur- smaller to avoid the cost of their administrative remedies before almonds, chasing reserve whereas almond bringing their That claims court. is producers might prefer larger reserve in requires because the statute handlers to larger mandatory to guarantee order sales. exhaust, regulations the in turn define Similarly, Marketing the Almond Order producer-retailers these as handlers be permits regulation labeling of handlers’ § Id. Handlers cause of where and how sell almonds. almond containers. 981.43.

541 tary Agriculture (Secretary) to issue regulation that the clas- Plaintiffs retort triggering agricultural marketing and amend orders as handlers—-and sifying them applicable agricul- to handlers of various inconsis- requirement the exhaustion —is commodities, words, including tural almonds. Id. In the AMAA. other tent with 608c(l)-(2). § Act expressly requires regulation im- plaintiffs argue a proposed submit order requires them to exhaust admin- properly approval by pro- for the handlers and the But this broad-based istrative remedies. producers, ducers—with the but not the challenge agency’s to the exhaustion re- handlers, wielding power veto should two- argument that quirement itself an must is (by thirds of them number or volume agency. Myers first to the v. be raised Cf duced) 608c(8)-(9). apprоve. fail to Id. Corp., Shipbuilding Bethlehem 303 U.S. veto, lacking While the handlers can 459, 41, 49-51, 82 L.Ed. 638 challenge marketing before (1938) (party challenge agency’s not Secretary and then in district court. jurisdiction exhausting over it without ad 608c(15). provides express The Act no remedies); Detroit ministrative Greater party. of review to other 317, Recovery Auth. v. 916 F.2d Res. EPA light complex of “this and delicate admin- (6th Cir.1990) (exceptions 323 to the ex scheme,” istrative the United States Su- may not haustion doctrine be “automatical preme Court clear that Con- “think[s] ly challenge invoked whenever a to the gress intended review of raised”) scope agency’s authority of an is market orders issued under the Act ordi- Andrus, Shawnee Coal Co. 661 narily brought by be confined to suits (6th Cir.1981)); F.2d 1093 Deltona handlers accordance with 7 U.S.C. Alexander, Corp. v. 893 608c(15).” Cmty. Block v. Nutrition (11th Cir.1982) (“the agency ordinarily Inst., 340, 348, S.Ct. given the first opportunity should be (1984) single L.Ed.2d ex- —with challenge jurisdiction”). consider a to its that a milk ception producer may chal- agree We therefore with the District lenge in court an infringes order that its dismissing Court’s conclusion the claims of statutory right under Act to receive producer-retailer plaintiffs the three guaranteed minimum milk price set failure to exhaust administrative Wickard, Secretary, see Stark v. respect remedies with to their 88 L.Ed. 733 Department’s retail restrictions. (1944). Nonetheless, majority main- “produc- tains that as a matter of course judgment We reverse the of the District challenge agricul- ers” as well “can sue to respect Court with to the suit of the ten orders,” Maj. Op. tural producers. go Their claims can forward. including appellant producers. almond We affirm the judgment District Court’s my I throw lot in with dismissing the claims of the three belong Court. Almonds do not on the er-retailers; those claims must be raised milk. same shelf with Agriculture. first to the observed, As the district court So ordered. exception” carved out a “a narrow rule, general noted in that ordinari HENDERSON, KAREN LECRAFT (and ly producers) may handlers Judge, dissenting Circuit in part: of a marketing seek review order. Kore Vilsack, The Agricultural Marketing Agreement F.Supp.2d toff (Act AMAA), (D.D.C.2009) §§ Act (citing U.S.C. 601 et supra). Stark, seq., permitted authorizes the United States Secre- the Court 542 narily ... brought by milk a mar- confined to suits

class required the “settlement keting order handlers in accordance with 7 U.S.C. 608e(15).” to deduct from the Block, fund” administrator 348, at U.S. paid a fee to be pooled payments fund’s acknowledged S.Ct. 2450. The Court co-operatives. The effect of producer Stark, “dairy producers under could chal- to reduce' the minimum the deduction was lenge certain administrative actions even paid to the milk price “blend” though the Act not expressly provide did that, concluded from the fund.1 Court judicial a right them review” but ex- judicial was “no direct re- although there plained challenged that the deductions by pro- for “ granted Act] the[] view [the pro tanto the amount ‘reduce[d] “authority judicial for a ex- ceedings,” the actually by received the validity Secretary’s amination of the оf the ” milk,’ thereby giving action is found the existence of courts “standing object to the administration of Congress and the intent of as deduced 351, the settlement at fund.” Id. 104 S.Ct. precedents.” from the statutes and 302, 2450 (quoting 321 U.S. at 307-08, particu- at 64 S.Ct. 559. In 559) added) (alteration (emphasis S.Ct. lar, the Court determined that stat- “[t]he Block). “Though standing right produc- ute and Order create a in the by judicial could not itself ensure review of protection er to avail himself of the of a behest, Secretary’s action at their price by minimum afforded Governmental whole, scheme as a the [Stark ] “mandatory in action”—a character concluded, implicitly Court authorized obviously capable judicial enforce- concerning ducers’ suits settlement (em- ment.” 321 U.S. S.Ct. fund ‍‌​‌​​‌‌​​‌‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌‌​​​​‌​‌​​​‌‌‌‌‌‌​‌​‌‌‍added) (emphasis administratiоn.” added). Noting that “the chal- phasis (internal omitted). citation The Block lenged pro deduction reduces tanto the court noted that “ actually amount received Stark the handlers milk,” for their id. at 64 S.Ct. question fund, the use of ‘[could not] explained every is because “[i]t Court because handlers had no financial interest ” of deduction from dollar comes so, in the fund or its use’ and unless the may challenge that he er the use of the review, granted judicial were “ fund,” id. 64 S.Ct. 559.2 there was ‘no forum’ in which aspect Secretary’s actions could or supra, as noted would 351-52, challenged.” made clear review is “ordi- be marketing regime, suggested ruling puts the milk Under the Sec- It is that such a retary fixes different minimum raw milk mercy objectors, at the since priсes depending on the end-use to which provisions of the Order be attacked as milk, cream, puts (e.g., handler fluid ice producer. unauthorized each To this cream). payments pooled are in a settle- objection adequate there are answers. The and, ment fund after certain administrative largely terms of the Order are matters of deducted, expenses average “blend administrative as to discretion which there price” price is calculated which is the each justiciable right clearly is no or are author- producer actually receives. See Edaleen ized a valid act. United States v. Rock Johanns, Dairy, LLC v. 779-80 Royal Co-op., [59 307 U.S. 533 (D.C.Cir.2006). Thus, any deduction from (1939)]. L.Ed. 1446 Technical details (such co-oрerative payment fund as the the milk business are left to the Stark) price reduces the each is and his aides. paid. U.S. at 64 S.Ct. 559. availability 2. The Court indicated that the review for orders is limited: Stark, challenge 321 U.S. at 64 ducers to reductions to the mini added) (internal 559) (alteration cita- mum price they received for milk. omitted).3

tion milk Dairy, Arkansas the chal lenged Secretary’s the interim rule that permitting decisions this Circuit’s increased the “make allowance”—an order, a challenge marketing to amount represent which is intended to the was, injury the as making costs to the handlers of the end Stark, statutory of their impairment dairy milk products from raw and which is right payment, through to full the settle- price deducted from the end-use before the fund, price of the minimum fixed ment priсe computed. Relying primari blend is products. milk In Blair the Stark, ly on pro the court held the milk Freeman, (D.C.Cir.1966), 370 F.2d 229 “bring ducers could suit under APA to price we entertained a to de- Rule, challenge the directly Interim which of a travel distance duction the form their prices through blend in affect[ed] variable on the location of the milk based allowances, though creased make even producer’s farm. We there concluded the milk marketing orders not appellant dairy producers “standing directly w[ould] present nearby their claim that the affect the differ- settlement fund.” 573 statutory F.3d at provision explained: produc ential exceeded 827. We “The power Secretary.” aggrieved, 234. We ers are within the meaning of APA, explаined: pay- “Since this differential is alleged diminution of pool, out of equalization able the de- personal their rights secured under the pro duction reduces tanto the amount actu- AMAA, they challenge the Interim Rule ally by producers for received their milk. action, constitutes final appellants in- standing thus have non-monetary injunctive seek relief.” Id. protection equity voke the to insure that 704). (citing §§ 5 U.S.C. The case minimum price Blair, paralleled majority Stark and protection being improperly is dimin- wrote, the challenged because rule “de n. (citing ished.” Id. 321 U.S. at duct[ed] funds from the value of milk be 290, 302-310, 64 S.Ct. calculating price guaranteed fore the blend producers, reducing, thus

Most ‘dollar for dol recently, Dairy Coop Arkansas lar,’ minimum price producers erative Ass’n v. United States (D.C.Cir. Agriculture, guaranteed 573 F.3d 815 for their milk products.” Id. 2009), again permitted the court pro 825.4 majority (D.C.Cir. considering Schofield, 3. The asserts Benson v. 236 F.2d 719 1956), producers' whether the and the handlers' in- precluded in which the court did find particular terests coincide in a dairy case "would suit Massachusetts chal- produce case-by-case a chaotic lenging determina- proposed expanding Maj. Op. case-by-case tion.” at 540. But Marketing subject "Greater Boston Area” to determinations are the hallmark adminis- milk from additional towns to its minimum judicial adjudications trative and and the Su- prices. Dahy points Arkansas out "in preme just inquiiy Court advocated such an addressing Benson the court was not а dimi- in Bloch In this case the interests of untreat- producers' statutorily-guaranteed nution of ed almond and of untreated al- Stark, Blair, prices, blend inas and the in- mond handlers —both of whom will lose the case, stant but rather an order that increased profits they would otherwise earn from the the boundaries of a area to cover a aligned. sale of raw almonds—are indeed handlers, greater number of an action the infringe any statutory right court held did not basis, part, possessed by It was on this han- Arkansas because Daily distinguished (citing our earlier decision in dlers were affected.” 573 F.3d (albeit nothing one), This case is like Stark or its “niche” market a “lucrative” commodity progeny. The at issue here is Appellants’ presents Br. no such com- 10— not milk—as Blair and Arkansas pelling necessity.6 Act Dairy almonds. And the confers —but reasons, foregoing For the I respectfully statutory right on a to receive no dissent.7 almonds; any payment for its nor does it Secretary price, to fix their empower expressly milk. The Act

as it does for milk Secretary regulate

authorizes the

prices alone. Pescosolido v. See (9th Cir.1985) (“Unlike

F.2d prices

fixed minimum which must be es- ...,

tablished for see U.S.C. CORPORATION, Appellant HOWMET 608c(5)(A), § empow- is not prices ered to fix for other commodi- v. Instead, covered the Act. he ties ENVIRONMENTAL PROTECTION controls, only employ market see id. Jackson, AGENCY Lisa Perez Ad- 608c(6), § in an effort to ‘effectuate the ministrator, United States Environ- Act” policy declared Agency, Appellees. mental Protection 608c(4))) ‍‌​‌​​‌‌​​‌‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌‌​​​​‌​‌​​​‌‌‌‌‌‌​‌​‌‌‍(emphasis original). U.S.C. generis respect Milk is sui as in so No. 09-5360. observed, many others.5 As Block Appeals, United States Court оf Stark, “judicial review of the District of Columbia Circuit. complaint necessary was ... to ensure achievement of the Act’s most fundamen- Argued May 2010. wit, objectives' protection tal —to Decided Aug. 2010. producers milk milk products.” (emphasis U.S. at 104 S.Ct. 2450 add-

ed). Protecting the market for raw al- by the own appellants’ admission

monds— Benson, extensively regulated 236 F.2d at 5. Benson court Milk is far more under distinguished the Act than the other covered commodities. turn Stark on a similar 608c(5) Compare 7 U.S.C. with id. ground: 608c(6). [A]ppellees standing claim to vindicate a 6. majority All of the extra-Circuit cases wrong” “legal language because of to be support position cites to its involved milk found in v. Stark Wickard. But there the prices. Maj. Op. (citing See at 539 Farmers pointed every out: "It is because Yeutter, Markеting Coop. Union Milk v. produc- dollar of deduction comes from the (6th 1991); Dairy F.2d Veneman, Cir. Alto may challenge that he er the use of the (7th 567-69 Cir. petitioners’ complaint fund. The is not that 2003); Minn. Milk Producers Ass’n Madi low, price their blended is too but that the (8th 1992)). gan, 956 F.2d 817-18 Cir. price by misap- blended has been reduced majority extra-Circuit case the cites plication money deducted from the oranges. as contra involved id. navel See price.” ducers' minimum We still come Pescosolido, 831-32.) (citing 765 F.2d at proposition, back to the as the Stark case out, points “justiciable that absent individu- majority's I concur in the affirmance of the (italics ours) rights," al the detriment com- district court's dismissal of the three plained absque injuria. of is damnum er-retailers’ claims failure to exhaust ad- 236 F.2d at 723. ministrative remedies.

Case Details

Case Name: Koretoff v. Vilsack

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

Date Published: Aug 3, 2010

Citation: 614 F.3d 532

Docket Number: 09-5286

Court Abbreviation: D.C. Cir.