United States v. L. Robert Frame, Sr. And Vintage Sales Stables, Inc.

SLOVITER, Before SCIRICA and WEIS, Judges. Circuit OF THE COURT OPINION SCIRICA, Judge. Circuit appeal This concerns constitutional Promotion statutory challenges to the Beef Act, H.R.Rep. Cong., tion No. 94th 1st Research Act U.S.C. (1975). III, 1985). Sess. 3 The Beef Promotion and (Supp. The Act re 2901-11 §§ Program Research receives no direct fund producers importers quires cattle ing government, from the federal promotional cam finance a national regard resembles a number of recent paign paying, on each head of cattle congressional designed enactments to make assessment, sold, dollar which is a one regulatory programs par various federal designat eventually statutorily remitted to tially entirely self-financing. See Skin rep organizations composed ed — Pipeline, ner Mid-America questions constitutional resentatives. The -, 104 L.Ed.2d 250 (1) the Act contravenes: are whether (1989) (characterizing 7005 of Section Con congressional power enumerated limits of Budget solidated Omnibus Act of co Constitution; (2) the Free the Federal 1682a, U.S.C.App. dified at 42 di Speech and Association clauses of the First Secretary Transportation rects to collect Amendment; Takings Clause or “pipeline safety user fees” to fund adminis guarantee of Equal Protection the Due costs, example trative as one of several of the Fifth Amendment. Process Clause self-financing measures). Currently in ex statutory questions are The whether promotion istence are other seven and re (1) creates civil cause of Act: action programs agricultural search for commodi government may which the recover uncol ties, respects identical in most to the Beef “collecting per lected assessments from Promotion Act. 7See U.S.C. 2101-18 §§ sons”; (2) government or authorizes the (1982) (cotton); (1982) 7 U.S.C. 2611-27 §§ impose payment charges. The late district (potatoes); 7 U.S.C. 2701-18 §§ Act court held that the violated no constitu (eggs); (Supp. 7 U.S.C. 4501-13 III §§ provision, tional and that the Act autho 1985)(dairy products); 7 U.S.C. 4601-12 §§ private rizes a cause of action “col (Supp. 1985) (honey); III 7 U.S.C. 4801- §§ lecting persons” for pay both uncollected (Supp. 1985) (pork); III 7 U.S.C. charges. ments and late We will affirm. 1985) (watermelon).1 (Supp. 4901-16 III §§ The Beef Promotion Act directs the Sec- I. retary Agriculture promulgate a Beef Promotion and Research Order that estab- BACKGROUND self-help program provides lishes this and Statutory Regulatory A. and Scheme financing “through for its assessments on Act, The Beef Promotion and Research all cattle sold in the United States and on XVI, No. Title Pub.L. § cattle, beef, products imported and beef (codified Stat. 1597 as amended at 7 U.S.C. into the United States.” 7 U.S.C. 2901-11), passed first in 1976 and later §§ 2901(b), 2903, 2904(8)(A)-(C). The Beef §§ designed strength- amended itself, however, Promotion Act establishes industry’s position en the beef in the mar- ($1.00) the rate of assessment at one dollar ketplace through a program coordinated cattle, per paid by head which must be promotion and research. 7 U.S.C. producers importers. cattle 7 U.S.C. 2901(b). legislation This was structured 2904(8)(C). §§ specifies The Act also most § “self-help” as a measure that would enable of the other terms that the Order must employ the beef its own re- contain, 2904(1)-(11), see 7 U.S.C. but au- § strategies sources and devise its own thorizes the “inclusion of all terms and sales, simultaneously increase beef while necessary conditions to effectuate the avoiding order,” the intrusiveness of provided they vision of the are not regulation and the cost of inconsistent with the statute. Report 2904(12). “handouts.” opportunity of Committee on After notice and § Agriculture, comment, public Beef Research and Informa- for Beef Promotion promotion program mandatory 1. A and research § also exists assessments. 7 U.S.C. 1787. wool, program provide but that does not “Federation,” which includes as its mem- effective on Order became and Research “qualified 1260.101-.217 bers State beef councils.” 7 7 C.F.R. July §§ 2904(4)(A). regula- “qualified A), rules and U.S.C. A State (Subpart while the § assessments, 7 promotion entity C.F.R. council” is a beef for collection beef tions B), statute, (Subpart Cer- 1260.301-.316 that is authorized state §§ Beef Pro- promotion for the Cattlemen’s entity tification that receives volun- Board, 7 C.F.R. Research tary motion and from cat- assessments contributions C), ef- (Subpart case, became producers; entity 1260.500-.530 in either tle §§ October “qualified” fective on unless certified the Cat- Board. 7 C.F.R. 1260.115. Fed- tlemen’s Order, as the Act man- Secretary’s The representatives eration on the Committee dates, of a provides the establishment chairperson of the Federation consist Promotion and Research Cattlemen’s Beef vice-chairperson, eight elected cattle (“Cattlemen’s Board”), and a Beef Board producers who are members of the Federa- (“Operat- Operating Promotion Committee Directors, tion Board of and are members Committee”) ing to administer the Order or ex officio members of the Board of Secretary. supervision of the under the Qualified of a Directors State beef council. specify Promotion Act and Order The Beef 1260.161(c). Secretary 7 C.F.R. membership of in which the the manner certify represent- that the must Federation First, Board is to be selected. Cattlemen’s they atives meet the above criteria and that divides the United States into the Order sufficiently any have disclosed contractual correspond primarily forty-two units that relationship repre- between the Federation 1260.141(a). For- to the States. C.F.R. § and the Committee or Board. 7 sentative pro- represent units cattle ty-one of those 2904(4)(A); 1260.161(c). U.S.C. 7 C.F.R. § § ducers, importers. represents and one unit specifies The the number of Id. Order supervision Secretary, Under the Board members allocated to Cattlemen’s finally approve budgets, all who must “Eligible organizations” each unit. Id. plans, expenditures, and contracts for them representing unit nominations each submit effective, 2904(4)(C) to 7 U.S.C. become §§ positions Secretary to the on the Cattle- (6)(A),(B), Operating and & Committee 2904(1),2905(a); men’s Board. 7 U.S.C. §§ Board take the initiative in the Cattlemen’s 1260.143(a). “Eligible organiza- 7 C.F.R. § Operating implementing program. The orga- existing those state cattle tions” are responsibility has the for devel Committee by Secretary certified nizations projects promotion and oping plans and meeting specified by the Beef Pro- criteria submitting advertising, and of to the Order, criteria which in- motion Act and Board, approval, budgets for the for its large membership, history of stabili- clude 2904(4)(A)-(C); year. fiscal 7 U.S.C. § promot- ty, “overriding purpose of and an (e). 1260.168(b),(d), Operat The C.F.R. § produc- ing economic welfare of cattle ing is also authorized to enter Committee 2905(b); 7 C.F.R. ers.” 7 U.S.C. § established national into contracts with nominations, From these 1260.530. § industry-governed organizations, nonprofit Secretary appoints the members Federation, implement the including the to 2904(1); 7 C.F.R. Board. U.S.C. § 2904(6); 7 U.S.C. Beef Promotion Act. § 1260.141(b). § 1260.168(f). powers and C.F.R. § Board, delineated Similarly, Beef Promotion Act and duties of Cattlemen’s Act, include the procedure to fill the Beef Promotion details the selection Order order; (B) (A) power administer the twenty positions Oper- on the to: available regulations to effectuate Board make rules and ating The Cattlemen’s Committee. Order; (C) provisions of the the terms and elects from its own ranks ten members Operating to serve on the 7 U.S.C. elect members serve on the Committee. Committee; (D) disapprove 2904(4)(A); approve and 1260.161. The 7 C.F.R. § §§ budgets by the Committee. are cattle submitted ten Committee members other 2904(2)(A)-(D). representatives of the U.S.C. producers who are § producers importers Cattle are re- an order to prevent restrain or person quired pay an assessment of one dollar Order, violating from the Beef and assess a ($1.00) per head cattle. 7 U.S.C. $5,000 penalty up civil for a violation 2904(8)(C); 1260.172(a)(1). 7 C.F.R. § § already 2908(a)(1) committed. 7 U.S.C. & due, calculating the amount of assessment (2). Alternatively, Secretary may re- producers partial receive credit from the quest Attorney that the General initiate a Board for Cattlemen’s contributions to a enforce, civil action to prevent and to qualified beef council. State 7 U.S.C. person restrain a violating, any order 2904(8)(A); 1260.172(a)(3). 7 C.F.R. § §§ regulation promulgated by the Secretary person making payment Each producer to a 2908(b) under the (c). Act. 7 U.S.C. & § purchased designated cattle a “col- twenty-two Within months of the is- lecting person,” 1260.311(a), 7 C.F.R. § Order, suance of required per-head Secretary collect a assessment was and remit the assessments either required to the to conduct among a referendum (which qualified State beef council in turn persons those producers who were and im- money Board), remits the or if no porters during period. the trial 7 U.S.C. State, council exists directly to 2906(a). The Order would § continue to the Cattlemen’s Board. 7 U.S.C. operate only upon approval by majori- 2904(8)(A); 1260.172(a)(5), 7 C.F.R. § §§ ty of participating those in the referendum. 1260.311(a), 1260.312(c). All “collecting referendum, Id. Prior to the any cattle persons” obligated to maintain records producer paid who an assessment and who of assessments collected payments favor of supporting pursuant Act, made to the Beef Promotion motion and program, research could have and must make these records available to demanded and received a full refund of the Secretary inspection. 7 U.S.C. paid. assessments 2907; 2904(11); 7 C.F.R. 1260.202. The Order 1260.173, C.F.R. May 1260.174. On §§ requires further collecting persons to re- 1988, the referendum was conducted and port to the specific Board information for approved Order was 70% those each calendar month at the time assess- eligible Assessments, therefore, vote. ments are remitted. C.F.R. are mandatory. now 1260.312(a)-(c). The Act does not § vide for expendi- reimbursement for such By regulation, collecting

tures. persons B. Factual and Procedural History must remit assessments not later than the The undisputed. facts are The defen- day 15th following the month the month dant-appellant Frame, L. oper- Robert Sr. in which the assessments were collected. 7 Vintage ates Sales (“Vintage”), Stables 1260.172(a),1260.312(c). C.F.R. The Or- §§ cattle auction sales business in Lancaster provides der any also overdue assess- County, Pennsylvania. Frame also raises month, ments will be increased each 2% cattle at his residence in County, Chester beginning the date after the assessments Pennsylvania. Consequently, under were due. 7 C.F.R. 1260.175. § Act, qualifies Frame as both a “collecting The Secretary is authorized to make in- person” producer; and a he must collect vestigations current, past, uncover per head of $1.00 cattle assessments future violation of the Beef Promotion Act proceeds from the derived the sale of and/or Order. 7 U.S.C. 2909. Pursuant cattle at his pay auction barn and the as- investigation, to this the Secretary has sessments on each head of cattle he sells as given been power to administer oath producer. Since the effective date of the affirmation, subpoena both witness- Act, Beef Promotion Frame has neither records, es and and to invoke the aid of the collected nor remitted required if assess- subpoenas ignored. courts Id. addition, ments, In nor required reports, filed the Act contains de- specific two spite enforcement having mechanisms. Secretary warnings The received several may, after an hearing, administrative issue noncompliance about his Pennsyl- from the Board, Council,2 judgment judgment and entered de- the Cattlemen’s vania Beef Agriculture, $66,625.11 Live- Department totalling fendant in uncollected and the Division. payment charges. stock and Seed assessments and late appeal This followed. November, 1986, the United States in the district court to brought an action money Vintage due from

recover II. LACK OF CONGRESSIONAL AU- Frame, president Vintage, as THORITY AND UNCONSTITUTION- obligations his Frame’s failure to fulfill AL DELEGATION Pro- collecting person under the Beef Order, i.e., Act and to collect assess- motion throughout Frame has maintained sold, remit those funds to ments beef litigation pow- that none of the enumerated council, qualified beef and main- State ers in Article I of the United States Consti- records of those collections.3 Frame tain upon Congress confer authority tution comply dispute did not that he had failed to program to establish the sort instituted Instead, he with the Beef Promotion Act. Following the Beef Promotion Act. oral asserted that the Beef Promotion Act argument, parties we directed the to sub- unconstitutional, and that the Act failed to supplemental discussing mit briefs Con- upon confer to gress’ delegate authority to to the mem- against collecting commence a civil action (1) industry: prerogative, bers persons to recover uncollected assess- referendum, through a to decide whether requested ments. Frame the court effect; put program into enjoin collection of assessments and the responsibility for the collection of assess- funds, and mandate the use of collected precisely ments and the decision as to how yet expended. funds not return of the spent. the funds will be We address will parties summary After both moved for these issues turn. granted the

judgment, the district court partial summary government’s motion for A. The Power Commerce judgment liability. on the issue of United parties agree that in enact now (E.D.Pa. Frame, F.Supp. States v. Act, ing Congress pre the Beef Promotion 1987). The court ordered defen thereafter exercising power sumed that it was reports required by the Act dant to file all under the Commerce Clause.4 The Act’s period provide within a reasonable and to products finding that “beef and beef move Secretary Agriculture with such ma commerce,” foreign in interstate and reasonably required terials to determine “directly burden or affect interstate com liability Af the amount of under the Act. products,” merce beef complied or ter defendant with the court’s 2901(a), ques reflects this intent. The der, summary moved for us, therefore, is whether this tion before liability. judgment on the amount of De regulation com Act is a valid under the fendant then renewed his motion for sum finding govern In for the merce clause. mary judgment, arguing that the Act did ment, pro court held that the the district government to recover not authorize the represents a valid exercise motion of beef as uncollected assessments from defendant power Congress’ to “stimulate” “collecting person,” impose or to late “broad” a F.Supp. 1482. charges. grant interstate commerce. 658 payment The district court government’s summary agree. motion for ed the We court, Council, Inc., Pennsylvania argument defen- has qualified 4.At oral before this

2. Beef been stages explained certified the Cattlemen’s Board as a that at earlier in dant’s counsel promotion council to collect beef State beef litigation argued that defendant had Pennsylvania. in 7 assessments C.F.R. “tax,” see on beef constituted a assessments 1260.315(dd). § Frame, F.Supp. at but United States v. 658 appeal. abandoned that claim on has Although producer, Frame is also a capacity his as did not sue him in App. such. See at 9. 1126 in Congress regulation A of commerce will have markets.

It is settled well in power regulate congressional attempt its cludes a to bolster validly exercised being reg activity if the commerce public image product terstate in order to commerce, if there is ulated affects past, In increase consumer demand. regulatory between the rational connection Congress permissibly regulated com has and the asserted ends. See means selected by influencing supply side of merce McClung, 379 U.S. Katzenback v. by using agricultural markets devices 377, 383-84, 13 L.Ed.2d 85 S.Ct. production quotas, as see v. Filb Wickard (1964); Virginia Hodel 290 Surface (Con urn, 317 U.S. at 63 S.Ct. at 90 Ass’n, 452 U.S. Mining Reclamation & gress may properly considered that have 2352, 2360, 264, 276, 69 L.Ed.2d grown, farm where wheat consumed on the Furthermore, (1981). reviewing court wholly regulation, if outside the scheme of there is a ration only inquire need whether would have a substantial effect defeat finding regulated that the basis for the al ing obstructing purpose to stimu activity interstate commerce. Ho affects prices), late increased trade therein at low- del, 101 S.Ct. at 2360. 452 U.S. producers, interest loans to see 7 U.S.C. Similarly, indisputable it is now that the and subsidies dictated the feder regulate in power to interstate commerce government, al see United States v. Rock power promote interstate cludes 533, 554-55, Royal Co-Op., 307 U.S. Motel, commerce. Heart Atlanta See 993, 1004-05, S.Ct. 83 L.Ed. 1446 States, 241, 258, 379 U.S. Inc. v. United (Order Agricultural Marketing No. 27 of 348, 358, (1964) (up 13 L.Ed.2d Agreement permissibly Act re holding congressional “pro decision to quired produc milk pay “handlers” to into by eradicating commerce mote” interstate er settlement fund difference between min discriminatory practices that “obstruct” price price” imum and “uniform so that commerce). “The stimulation channels of producers in all areas receive uniform regulatory is a use of the commerce has, addition, price). Congress “stabi quite definitely prohibitions as function using lized” interstate commerce direct or restrictions therein.” v. Filb Wickard price controls. See Sunshine Anthracite 82, 91, urn, Adkins, 381, 393-94, (1942). Coal Co. v. L.Ed. 122 907, 912-13, (1940). 84 L.Ed. 1263 challenge Defendant does not the ration- Congress has also stimulated the demand ality congressional finding beef agricultural by creating side of markets through moves interstate commerce and demand in the form of direct effect on com- a substantial interstate has purchases. (Supp. I Instead, disputes merce. defendant 1983)(authorizing Agriculture Secretary of “regulatory” at all. He the Act is asserts purchase producers agricultural Congress has “created a trade associa- in excess of commodities not 90% designed private tion which is to benefit parity price). enacting the Beef Pro industry,” any grant of which “exceeds Act, Congress “pro motion has chosen to regulatory power Congress.” dis-We mote” and “stimulate” the demand side of agree. Congress established the Beef Pro- Program indirectly, by influencing the market con motion and Research “strengthen expand” the nation’s sumer attitudes towards beef.5 That this fix, establish, Regulate. 5. The dissent asserts that the Beef Promotion To or control: to rule, method, "accepted meaning" adjust by Act does not conform to or established Congress regulate regulate.” op. types- power See dissent The to term "to mode.... (citing power appropri- cript to all at 2 Webster’s Third International commerce is the enact (1973)) legislation protection Dictionary ("regulate: 1: to ate ment; for its or advance- 1913 ... govern according adopt promote to rule 2a: to measures to its or direct ... order, method, foster, uniformity growth tect, control, safety; 3: to and insure its reduce to ... time, amount, of."). degree, or rate We and restrain. fix the believe, however, (5th 1979) accepted legal Dictionary defini- See Black's Law (citations omitted). 1156 ed. Therefore, employ "regulate” tion of term is more inclusive we everyday commonplace specialized, than the rather than the definition definition:

1127 only remaining inquiry rather than a “direct” form Our is an “indirect” is whether not, itself, there is a rational connection regulation between the does render it regulatory means selected and the asserted distinction between “indirect” invalid. The ends. Virginia See Hodel v. Min commerce, regulations and “direct” once Surface 276, 2360; ing, 452 U.S. at 101 S.Ct. at see analysis, at the core of commerce clause Motel, also Heart Atlanta 379 U.S. at Coal, see, 298 U.S. e.g., Carter v. Carter 261, (“How 85 S.Ct. at 359 in obstructions 855, 80 L.Ed. S.Ct. may commerce be removed—what means (legislation regulating wages maximum employed are to be within the sound —is in coal mines invalid as and minimum hours Congress.”). exclusive discretion of To only regulates production, which has an it beef, stimulate the demand for the lack of commerce), long “indirect” effect on has Congress which has harming determined is discredited, Filburn, been see Wickard v. industry, Congress the beef has chosen 128, at 90. 317 U.S. at regulatory from its arsenal of pro means research, advertising, motion and consumer part power regulate As of its industry information and information. commerce, Congress may interstate also rationally These endeavors are related to regulate affecting “activities” commerce. expansion the maintenance and of the na McClung, See Katzenbach v. 379 U.S. at tion’s beef markets. Consequently, we 301, 303-04, 383-84. Ac hold that the Beef Promotion Act is a valid Virginia Mining, cord Hodel v. Surface congressional power exercise of regulate In 452 U.S. at 101 S.Ct. at 2360. interstate commerce. urging that the Beef Promotion Act is un constitutional, defendant claims that no B. Validity Provision of Referendum “activity” being regulated. is We dis The Beef provision Promotion Act agree. Implicit argument in Frame’s is the calling for an industry referendum follow fallacy Congress particularize must ing period in promotional which the order activity being regulated. only Not has effect, 2906(a), was in is almost Frame failed to cite a case where courts identical provisions to other referendum Congress have invalidated an act of be approved by that have Supreme been specify cause of its failure to “activity” Court. As the Court in held Currin v. being regulated, suggests the case law that Wallace, 1, 15, specification unnecessary. up In (1939), 83 L.Ed. an refer holding Rights Title II of the Civil Act of any delegation endum “does not involve Supreme Court characterized the legislative authority.” upholding “activity” being regulated as “interstate Currin, provided in statute at issue travel,” accommodations,” “public and “dis upon marketing that restrictions of to criminatory practices,” sug implicitly thus only upon bacco were to become effective gesting Congress identify grow need not vote favorable two-thirds ers, explained particularity “activity” being reg Court Motel, ulated. See Heart Atlanta Congress legisla ... [had] exercise[d] 251-53, authority making regulation U.S. at 85 S.Ct. at 354-55. Like tive wise, prescribing we decline to invalidate an conditions of its otherwise application. required favorable vote power lawful exercise of the commerce upon the referendum was one of those Congress specified the basis has not wheth provisions. regulating “activity” er it is of “con purchases,”

sumer beef “interstate beef Id. at 59 S.Ct. at 387. Accord Wickard sales,” or “national beef markets.” Each Filburn, v. 317 U.S. at 63 S.Ct. at related, activity validly regulated and is (upheld validity of referendum of 85-86 by Congress. pursuant Agri- wheat farmers conducted Commissioner, (3d Cir.1980) (legal of this term. terms of art should be Cf. Holof Cir., (3d 1989) Bank, (citing interpreted specialized F.2d Mellon in accordance with their 1001, Credit, usage)).

N.A. v. Aetna Business 619 F.2d 1128 426-27, 414, 420, 1938); States, 321 U.S. Act of United Adjustment United cultural 660, 665, 668-69, Co-op., 88 L.Ed. 834 Royal 307 U.S. at 64 S.Ct. Rock v.

States (1944) delegation authority (upheld (upholding referendum 59 S.Ct. prices of Marketing Agree- Price Administrator to fix Agricultural provision of Brown, fair Act). generally 317 commodities that “will be also Parker v. ment See 307, 314, pur- 341, 352, equitable 87 L.Ed. and will effectuate 63 S.Ct. U.S. enactment); poses” congressional of the (1943) (reasoning law which be- Co., 320 only majority Hope on a vote of v. Natural Gas U.S. FCC came effective 591, 600-01, 281, 286-87, legislative power exercise of 64 S.Ct. L.Ed. producers was state, by producers). According- (upholding delegation to Federal not by the provision “just the referendum Power Commission to determine ly, hold that we rates)). here, pursuant Congress’ com- reasonable” exercised upon condition power, is a valid merce Congress delegated unlawfully Nor has of the Beef Promotion Act and application legislative authority to members of the delegation power. not an unlawful industry merely beef because the Cattle men’s Board is authorized to collect assess Spending Assessment Collection and C. planning to take the ments and initiative Proposals by Cattlemen’s Board spent. how those funds will be In Sun plain It is that the Beef Act does Adkins, shine Anthracite v. Coal Co. unlawfully delegate legislative authori Supreme U.S. 60 S.Ct. Court long ty Secretary. Congress “So upheld provision of the Bituminous Coal agency provides an administrative with assigned ofAct 1937that a similar function guiding its action such that a standards industry. to members of the coal Under court could ascertain whether will of Act, producers organized coal were delegation Congress obeyed, had no been under the Bituminous and autho Coal Code legislative power has occurred.” Skin prices fix rized to minimum for code mem — Pipeline, ner v. Mid-America U.S. in accordance with stated bers standards. -, L.Ed.2d 250 prices Id. at 60 S.Ct. at 910. The set — States, (citing v. Mistretta United upon approv the Code became effective 647, 102 (1989)). -, L.Ed.2d al or modification of the National Bitumi Act, Congress In the Beef Promotion has Commission, nous Coal provide done more than standards for the agency charged administering Act; administration of the it has set forth upholding Act. In the Act Id. specificity the of the with unusual terms challenge Congress unlawfully had implementation. importantly, Act’s Most delegated legislative authority to members Congress itself has set the amount of as industry, of the coal the Court stated: cattle, per head of sessments at $1.00 The members of the code function subor- 2904(8)(C). Congress Similarly, U.S.C. § dinately to the Commission. Com- [The procedures provided has detailed for deter authorities, not the code deter- mission] mining membership of the Cattlemen’s prices. authority mines the And it has Operating and the Committee. Board See and surveillance over the activities of 2904(4)(A). sum, under the law-making these authorities. Since Act, Congress delegat Beef has Promotion industry, not entrusted to the this statu- Secretary ed to the far less discretion than unquestionably tory scheme is valid. Supreme previously has sanc Court 399, 60 at 915. Id. at non-delegation applying tioned in doc Pipe Applying this standard to the Beef Pro- trine. Skinner Mid-America Act, line, (citing 109 S.Ct. at 1731 Lichter v. motion we find that the amount of States, 778-86, government oversight program United considerable, (1948)) 92 L.Ed. 1694 and conclude that no law- delegation authority making authority (upholding to War has been entrusted to the Department profits” industry. Both the to recover “excessive members contracts); military earned on Act and the Order render the actions of Yakus v. cally, Frame asserts that his associational subject to the Secre Board Cattlemen’s rights are violated because: authority. and pervasive surveillance tary’s by the Secre appointed are engaging Board members The Promotion [Beef Board] 2904(1); campaign designed 7 C.F.R. tary, in a nationwide media § 1260.141(b), the consumption members of both to increase national while the beef, may products. Appellants Operating Committee and beef The and the Board participate have no desire Secretary determines to “if the be removed gram, disagree message with its and continued service would person’s that the methods, part any no and want associ- purposes of the Act.” be detrimental ation, express implied[,] with this Board, as well as 1260.212. The 7 C.F.R. § government created trade association.6 Committee, give the Operating must meetings of its “in order Secretary notice Similarly, Frame that asserts Act Secretary representative or his right that breaches his constitutional to refrain meetings.” 7 C.F.R. may speaking, compels attend it him to because addition, 1260.150(m), 1260.169(h). administratively participate financially §§ (an required promotion advertising in the of a cause Board and the Committee strengthen report campaign preserve to be made “to prepare an annual 1260.150(k), 1260.169(g), products position of beef and beef in the public, 7 C.F.R. §§ (the marketplace”) message required Board is to submit to the and a con- and the “desirable, sumption healthy, Secretary period for each fiscal an audit of beef is nu- activities, 1260.150(l). tritious”) disagrees. Fur with he 7 C.F.R. which thermore, budgets, plans projects all The court determined defen- district approved by Board become effective rights dant’s first amendment had been by Secretary. only upon approval final nor The court neither burdened violated. 2904(4)(C). Similarly, no con 7 U.S.C. § speech authorized and reasoned that implementation any plans tracts for the “government the Act funded may entered into without Secre be speech,” private does coerce the 2904(6)(A) tary’s approval. 7 U.S.C. & §§ ideological posi- endorse an individual 1260.150(f) (B); (g),& 1260.- 7 C.F.R. §§ tion, merely but communicates the view- 168(e) (f).& government. point of the federal government, The F.Supp. at 1482. Therefore, Pro- we hold that the Beef concluded, “using defendants’ mon- court an unlawful motion Act does not constitute Id. ey to erect its own billboard.” delegation legislative authority. In es- policy considera- district court noted sence, Oper- the Cattlemen’s Board and the supporting tions its decision: advisory ating serve an func- Committee may disagree Many citizens tion, in the case of collection of assess- is- government’s position on controversial ments, Congress itself a ministerial one. ready stands The first amendment sues. assessments, amount of the has set right to voice their dis- protect their Secretary ultimately, it is the who while However, it would indeed be agreement. spent. how the funds will be decides strange result to invoke the same right of the to limit amendment III. THE FIRST AMENDMENT express its views re- any allow quiring Relying primarily on Abood v. Detroit govern- disagrees with individual who Education, Bd. of obligation opt out of his speech ment (1977), argues Frame 52 L.Ed.2d to the cost. to contribute his the Beef Promotion Act violates court reasoned Id. speech Similarly, the district rights and free of free association upon confers First Amendment specifi- More under the First Amendment. counterclaim, Industry state Beef Councils." and "various Frame also In his answer complains association with The Beef of coerced Virginia State Bd. ing this was West “right to refuse to ‘associate’ no citizens 624, Barnette, 319 63 According v. U.S. program.” Education awith of 1178, (1943), in “required Act 1628 which held the 87 L.Ed. court ly, Beef Pro with the children with to ‘associate’ the Court held that school [Frame] taxpay any saluting no more than Program flag religious objections to the cer- motion associate with armed required right to be emony er have the constitutional advertisements, Security, Social “compulsion forces to declare a free from ... America.” Id.7 of 633, the Voice at 63 S.Ct. at 1183. belief.” Id. private Compelled contributions and Association Speech A. Free engaging in groups first amendment activi Speech” “Government implicate have been held to these two ties on its face First Amendment While liberty. aspects of first amendment association, right of protects neither Education, 431 Abood v. Detroit Bd. of speech refrain from right nor the 209, 1782, Supreme 97 S.Ct. Court U.S. association, plainly jurisprudence has our authorizing un recognized that state laws rights. Supreme established management “agency ions and to enter into right of an has declared Court require shop” agreements, which that ev protected engage in activities individual to ery employee, employ as a condition of speech, assem- by the First Amendment — ment, pay charge equal the union a service grievances and redress of bly, petition for dues, impinge upon in amount to union religion encompasses the of the exercise — right com employee’s to be free both right to “associate with oth- corresponding pelled from com affirmation of belief and variety political, a of pursuit in of wide ers pelled expressive purposes. association for economic, educational, social, religious, and 222, (reaffirming at 97 S.Ct. at 1792 Id. Roberts v. United States ends.” cultural shop agree prior agency decisions that 609, 618, 622, 104 S.Ct. Jaycees, justified compelling ments themselves 3252, (1984) 3244, 3250, L.Ed.2d 462 82 harmony). in state interests industrial banning gender (state discrimina- statute Thereafter, Rutgers, in 772 F.2d Galda v. implicated as- public in clubs members tion II), 1060, (3d Cir.1985) (Galda 1066 cert. right rights). This of “freedom sociational denied, 1065, 1375, 89 U.S. association,” 618, expressive see id. (1986), L.Ed.2d 602 this court held that a 3250, “presup- has been held to 104 S.Ct. at funding university’s state mechanism associate.” pose right not to Id. a required every student to contribute which parallel In a line of 104 S.Ct. at 3252. outside, independent, non-profit cor to an cases, Supreme Court has held that the research, engages lobby in poration that encompasses a constitu- First Amendment change, ing, litigation for social violat right speaking.” to “refrain from tional dissenting rights the first amendment ed Maynard, 430 U.S. Wooley v. students, rights (state as those were articulated (1977) may 51 L.Ed.2d Bloustein, in Abood.8 also Galda v. dissenting citizen to state slo- See require bear (3d Cir.) (1982)(Galda I) Die,” 686 F.2d gan, Free or on automobile “Live interest, (without compelling state refund license-plate). The seminal case announc- Abood, pay argued appears compelled After it had also to the district 8. 7. The membership, impli compelled ment without Frame was not "forced" to contribute court that Compare cates the of non-association. Program Beef Promotion and Research Abood, n. 431 U.S. at 217 n. 97 S.Ct. at 1790 provi- Act had contained a refund because the (Court “agen did not find it relevant that the dissenting permitted Act that cattle sion in the “union-shop” cy-shop” agreement, unlike the during paid producer an assessment who dues, payment agreement, required only period referendum to de- before the membership) Lathrop v. Dono not formal hue, After the mand a refund. 7 U.S.C. 1826, 1838, May approved industry referendum on (associational infringement L.Ed.2d 1191 slight Program, the the Beef Promotion Research membership integrated bar associa mandatory. assessments became compulsory payment of limited to the tion dues). taxpayer’s money ery spends it time remedy constitu- failed to alone mechanism But taxpayer abhorrent. ways the finds impingement).9 tional govern- permitting the reason matter, note that initial we As an of taxes and compel payment ment to association,” protecting while “freedom projects spend money on controversial “expres engage in rights of citizens to representative government is is that the association, does not or “intimate” sive” The same cannot be said people. every form association. protect union, only representative — U.S. -, Stanglin, Dallas City of segment population, with of one (1989) 1591, 1595, 104 18 L.Ed.2d The withhold- certain common interests. patrons, as “social dance hall (activity of support fully protected is ing of financial association,” in constitu encompassed speech in this context. Therefore, rights). we tional associational Promotion aspect of Beef find the the that Abood, 97 at 431 n. U.S. 259 re imposes the assessments Act which argu- n. 13. We merit 1811-12 find neither “ex purposes qualifies as search purchase a con- Citizens’ tax dollars ment. association, and “intimate” pressive” nor “government speech.” of amount siderable implicate Frame’s first does not therefore government speak on only does the Not rights. amendment of citizens it airs advertise- behalf when dangers cigarette warning of the of ments citi government maintains that The use, smoking drug praising a career in or to refuse to not have the zens do services, offering methods armed the government programs financially support time the President prevention, each AIDS pro disagree, even if that they with which foreign a States meets with of the United expressive association. involves gram en- officials dignitary, department or state advocating the rationale addition negotiations, the arms control into ter court, govern by the district adopted expressive ac- engaging in government is in Justice relies on a footnote ment also Indeed, everyone. citi- on of tivities behalf Abood, which cau concurrence Powell’s country representative of a zens pri “[cjompelled support of a tioned agreed to elect government have fundamentally different form is association vate will, posts official who government.” individuals compelled support of must, of the entire act behalf speak n. at 1811-12 259 n. 431 atU.S. including of those on behalf J., Accordingly, population, (Powell, concurring). 13 or some disagree with all views the Cattlemen’s who programs. government’s Operating Committee and the Board entities, stressing they govern The district court federal statute pursuant to a were created con reasons for set forth sound ment have supervised by the Secre closely are fi activities expressive cluding that tary. Act consti Beef Promotion nanced Abood: Powell wrote in Cattle “government speech.” Justice tute Committee, Operating Board and the men’s support private association Compelled merely instrumen goes, argument from com- fundamentally different Secretary Clearly, created enable government. talities support of pelled message his Agriculture to communicate dem- does not need to school board local previously we have good. As ev- interest compelling state onstrate justify. decision, Id. at 443- ease failed Su- administrative Galda 1 this court’s 9. After Therefore, we note em- but preme rebate scheme S.Ct. at 1889-90. Court invalidated the 104 polit- spending dues for five of the ployed dispositive unions union the fact that do not find expenditures, invalid under the resembling which is ical the Beef Act programs agricultural Ry, Railway Brotherhood Act. Ellis producers. National 7 dissenting See provide rebates Clerks, Airline, Steamship U.S. 104 & 4906(h) (wa (cotton); § 7 U.S.C. § U.S.C. 2110 termelon); (1984). The Court 80 L.Ed.2d (eggs); 7 U.S.C. 7 U.S.C. § money temporary of this that the exaction held 4608(h) (honey). 2617(g) (potatos); § § loan, mere involuntary to an amounted slogan on bearing of the state these enti- coerced noted, between the connection belief, freedom of but The one’s car violated Secretary is a close one. ties and ob apparently acquiesced to the dissent’s members serve at Board and Committee all state was free to tax Secretary Agricul- servation that the pleasure of for erection and maintenance ap- members are citizens Board ture: Cattlemen’s Free bearing motto “Live Secretary, state U.S.C. billboards pointed by the Die,” id., 1260.141(b), 97 S.Ct. at while or see 2904(1); C.F.R. § J., dissenting). also Operat- (Rehnquist, the Board and the of both members Donohue, Lathrop “if may be removed ing Committee 1826, 1847, 6 L.Ed.2d 1191 person’s con- S.Ct. Secretary determines (Harlan, J., concurring) (analogizing inval detrimental to the would be service tinued challenge Act,” lawyer’s idity 7 C.F.R. 1260.212. first amendment purposes of integrated association to tax Moreover, Secretary makes the final to state bar of tax funds for projects payer’s objection funded under the to use on all decisions plans projects ap- school textbooks or instruction that budgets, Act. All intellectually repulsive). only taxpayer effective finds proved by the Board become by Secretary, the upon approval final situations, believe, distin These we 2904(4)(C),and no contracts for U.S.C. § guishable from the case now before us. may any plans of be implementation the right compelled Both the to be free from Secretary’s ap- the entered into without expressive association and the to be 2904(6)(A) (B);& proval, 7 U.S.C. §§ compelled free from affirmation of belief 1260.150(f) (g), 1260.168(e)& C.F.R. & §§ presuppose a coerced nexus the between (f). Thus, Board or Committee when the specific expressive and the activi individual so on behalf of the “speaks,” they do Sec- ty. government money When the allocates Agriculture government and the retary of general tax fund to from the controversial of the United States. activities, projects expressive the nexus Nevertheless, though message find issue a the and the we the between individual one, rationale the underlying Wooley Maynard, the attenuated. See v. close J., compelled speech (Rehnquist, from or U.S. at 97 S.Ct. at 1438 right to be free contrast, dissenting). govern conclude the In the association leads us to where requires publicly group compelled expressive activities mandated ment a identified to properly Beef Promotion Act are not contribute to a fund earmarked for the the particular “government speech.”10 message dissemination of a asso characterized as government sought group, concurrence ciated with that has Justice Powell’s Abood power for ex directly to ensure that “a local school board need focused its coercive I, compelling pressive purposes. state interest Galda 686 F.2d not demonstrate Cf. taxpayer’s (distinguishing every spends money time it at 165 standard “student funding system, taxpayer activity finds abhorrent.” 431 fee” from PIRG ways the segregated at 1811-12 n. 13. as PIRG fee is from other U.S. at 259 n. charges provides sup decision on students’ bill and attempt This to cabin Abood recognition port only organization). one This prior sentiments that for sort echoed scheme, right against compelled funding association of with its close nexus a broad govern- message might obstruct normal between the individual and the and belief funded, closely more resembles the Wooley Maynard, mental functions. Abood situation, unions, example, Court determined that where the as exclusive for Meese, Compare, 10. We also note the debate over whether to Block v. 793 F.2d (Scalia, J.) (First (D.C.Cir.1986) Amendment First Amendment constrains what extent the Tribe, government government generally, expression speech. See L. does not constrain Shiffrin, Law, views) political with S. Government American Constitutional 12-4 at 807-812 ed., (2d 1988) (First right against Speech, Amendment 27 U.C.L.A. L.Rev. 590-01 (author pre- attempts identify principle beyond compelled speech or association does not compulsion adding determine when vent its own voice mere financial from tolerate, might many provided government speech violate First Amend- that it must communication). ment). private it does not drown out 2905(b)(3) (4). There- & ers.” the locutors U.S.C. agents, served as bargaining although fore, the Secre- popu- we believe segment distinguishable for a Wooley passes supervision muster lation, i.e., employees, tary’s extensive doctrine, “requirefd] an indi- it does case, non-delegation where the state under the self-help program in the dissemination participate transform this vidual by displaying it on message ideological “government into an for the ex- in manner and property his speech.” read that it be observed

press purpose Incursions Constitutionality these B. U.S. at public,” 430 Rights Amendment on First state-is- regardless of whether “govern- plates constituted license sued Pro A that the Beef determination speech.”11 ment implicate Frame’s Act assessments motion not, however, rights amendment does justifica- first Furthermore, Powell’s Justice rights speech of free inquiry. our end distinguishing compelled support tion for Thus, we are not absolute. support private of a and association proper comfortably identify a must next standard fit does not association statute, though af evaluating the Beef Pro- measure like whether “self-help” Powell, rights, According fecting. to Justice first amendment Act. Frame’s motion passes muster. constitutional nevertheless govern- permitting reason compelled speech Frames concedes payment of taxes compel the ment to qualifies as “commercial issue here projects spend money on controversial Supreme held speech,” Court has representative government is is that the degree first amendment receives a said lesser cannot be people. The same speech.” “non-commercial only protection union, representative than of a Disciplinary Zauderer v. See population, with segment of the of one Office of Counsel, 471 U.S. 2265, S.Ct. 105 certain common interests. (1985). Central 2274, In L.Ed.2d 13, 1811-12 n. n. 97 S.Ct. at 431 U.S. at 259 Corp. v. Serv. & Elec. Public Hudson Gas an Board seems The be Cattlemen’s Comm’n, 557, 2343, U.S. segment of “representative of one entity (1980), Supreme set the Court L.Ed.2d 341 certain common inter- population, with the for eval protective forth this less standard Board Members of the Cattlemen’s ests.” constitutionality of commercial uating Committee, though ap- Operating and holding regulation, that Consti speech govern- Secretary, are not by the pointed (1) “as only that the state requires tution rather, officials, from individuals ment but interest”; substantial sert a pool of nominees private sector. propor in (2) technique regulatory “the be Secretary selects Board from which interest”; incursion and to that tion members, moreover, pri- by are determined careful speech “designed be on commercial organizations from the vate beef 564, goal.” Id. at ly to achieve State’s Furthermore, or- the State various states. claims, how 2350. Frame also 100 S.Ct. at in eligible participate Board ganizations ever, compelled contributions that history a that “have nominations are those implicate his Program Beef Promotion stability permanency,” and of whose association, compelled right to be free is to overriding purpose “primary or sup- already to be have held produc- a claim we of cattle economicwelfare mote the individual connection between the inforce the suggesting that the nexus not that 11. We are Board, message the mes- producer, is as close Cattlemen’s Frame and between only Wooley. as the in But sage one found offensive indicate The advertisements itself. comparing compul- Wooley Industry in Court declared they funded the "Beef were carrying “passive sory flag act” of salute to Board,” mention Beef without Council and plate, "the motto on a liscense differ- the state Agriculture, Department Secretary or the degree.” essentially 430 U.S. matter of ence is advertise- that the failing to communicate thus 715, at 97 S.Ct. at 1435. government pro- through a funded ments are Promotion Act note the Beef We also 1-3). (Exhibits gram. public actually re- shown to the advertisements ported by Abood, the Abood decision. importance See conclude that the govern- 222, S.Ct. at 1792. As we justifies mental slight interest incursion Supreme read the Court’s decision in Rob on Frame’s speech associational and free Jaycees, erts v. Unites States 468 U.S. rights.12 Frame’s assertion a free triggers higher association claim stan 1. The Government’s Interest scrutiny employed dard of than in cases Frame’s govern- characterization of the involving only regulation of commercial ment interest here as “the interest ad- speech. vertising beef,” virtually concedes the im- Roberts, Supreme portance Court by Congress: interest cast held that preventing interference with as decay further of an already de- rights justified sociational must be by teriorating industry. That the inter- interests, “compelling state unrelated to est advanced the Beef Promotion isAct ideas, suppression that cannot primarily be economic does diminish its through achieved means significantly importance. less example, For the establish- restrictive of associational freedoms.” Id. ment of industrial harmony although an — at 3252. In holding, so “economic” interest —is sufficiently impor- majority require declined to an associa justify significant tant to intrusions on the tion to establish as a threshold matter employees rights to associate. See Ellis v. expressive are primarily activities “non Clerks, Ry. Brotherhood commercial,” deserving thus 455-56, of the full 104 S.Ct. at 1895-96, 80 protection of the First Amendment. (1984). case, L.Ed.2d 428 In this the na- Id. at (O’Con 104 S.Ct. at 3257-59 tional interest in maintaining expand- nor, concurring) (maintaining J. regu ing proves beef markets similarly compel- lation commercial ling. association incurs a Widespread losses and drops severe exacting review). less standard Accord inventory the value of have driven many ingly, we will sustain constitutionality to bankruptcy, cattlemen as well as to the of the Beef only Promotion Act if the ranching abandonment of altogether. See government can demonstrate that the Act Report, Committee Beef Research and In- adopted serve compelling Act, state in H.R.Rep. formation No. 94th terests, ideologically neutral, that are Cong., (1975). 1st Sess. 2-3 A continuation that cannot through be achieved sig means of this trend endanger would only not nificantly less restrictive of speech free country’s supply, meat but the entire econ- associational Roberts, freedoms. See omy. 3; 468 See id. at Cong.Rec. 121 H31439 623, 3252; U.S. at 104 S.Ct. at Wooley (1975)(remarks v. Santini); of Rep. H.R.Rep. Maynard, 715-16, 430 at U.S. 271, 97 S.Ct. at No. Cong., 99th (1985), 1st 2 Sess. 1435-36; I, Galda 686 F.2d reprinted at 166-67. in 1985 Cong. U.S.Code & Ad- government’s While the burden heavy is a min.News 1111. The Act also fur- one, II, see 772 F.2d Galda at we important thers non-economic interests. 12. The dissent asserts that the ing upon speech Central Hudson intrudes rights and association applicable standard is claim, speech to Frame’s free no necessary than goal, more to achieve this we op. 1146-47, dissent at serves, proposi- least, find very the Act at the agree. tion By invalidating with which we interest, government "substantial” and that the basis, however, Beef Promotion Act on this "carefully designed” Act is goal, to serve that see dissent need consider not Frame’s Hudson, free associa- Central 447 100 S.Ct. at contrast, tion claims. In we must consider both 2350. aspects of Frame’s first claims. amendment addition, agree In while we with the dissent’s course, application speech Of of the observation that the commercial less restrictive cases bolsters, identify protection Central Hudson test rather than under- consumer as a mines, interest, our op. conclusion the Act state see dissent is constitu- “substantial” 1147-48, government's tional. Convinced that the we do not read these decisions inter- preventing collapse est in preclude, of expressly implicitly, vital sector of either Con- economy qualifies compelling gress national enacting legislation as a in furtherance of interest, state requiring producers qualify other sorts of interests that likewise to contribute to the cost of commercial advertis- "substantial.”

1135 industry requires tightest possible of the beef ensures which con Maintenance spending.” of the American cattlemen’s preservation H.R.Rep. straint on federal Cong.Rec. 121 way (1985), of life. Cong., traditional No. 99th 1st Sess. 2 (1975) (statement Rep. Rails- H31436 reprinted Cong. U.S.Code & Ad back). 1103, 1113. min. News In addition to these concerns, Congress intentionally economic funding The vehicle for the Beef Pro- legislation structured “self-help” as a Act, i.e., mandatory motion assessments to measure so support, as to ensure the Board, plays integral an Cattlemen’s respect the integrity, independent advancing role in both the economic and See, Cong. American cattlemen. e.g., 121 Prior to goals non-economic of the Act. 38,116 (only “self-help” legislation Rec. Act in passage of the Beef Promotion proper recipi not traditionally Promotion there had existed a Beef subsidies) government (statement ent by voluntary Board funded contributions. contrast, Hansen); Cong. 31,439 (“In Sen. Act Rec. In the Beef Promotion man- assessments, presumably keeping with prevent enterprise dates their true free na ture, receiving “free-riders” from the benefits of cattlemen asking only for en program promotion abling (statement and research with- legislation”) Rep. San- Cong.Rec. sharing tini); out the cost. 31,448 (1975) (state See Cong.Rec. 31,448 (1976) (statement Steiger) of Sen. Baucus) (Montana ment of Sen. ranchers (proposed that contributions remain volun- historically unwilling accept government tary, support). but received no also interference). handouts or 31,448 (statement Cong.Rec. Rep. (consumers Poage) do not contribute to Ideological Neutrality grams’ cost and therefore are not entitled purpose underlying the Beef Pro- Board). representation on Cattlemen’s ideologically motion Act is neutral. The Operating Board and The Cattlemen’s federal seeks to bolster the prove similarly crucial to the Committee image sales; solely of beef to increase it the Beef Act scheme. When Promotion “prescribe orthodoxy” harbors no intent to originally passed support- view,” or “communicate an official e.g., see emphasized “self-help ers that the Act is a 716-17, Wooley Maynard, v. 430 U.S. at program cost the will Government —which (state required at 1436-37 that license 38,114 (state- nothing.” Cong. Rec. plates “promote appre- bear state motto to Talmadge). ment of Sen. See also individualism, history, ciation of and state 31,439 Cong. (legislation “calling Rec. pride”); Virginia Bd. Education West (statement Sam”) subsidy for a from Uncle Barnette, 319 U.S. at 63 S.Ct. at fact, Skubitz). Rep. while the bill flag sought (compulsory salute to en- originally required the to bear gender unity”). “national program if

the costs of the referendum the 452, referendum, H.R.Rep. fails in No. see Degree Infringement on First (1975), Cong., 94th 1st Sess. it was Rights Amendment amended in committee so that the Cattle- noted, As we have in Abood v. Detroit men’s Board would reimburse the Secre- Education, Supreme Bd. Court ac- tary if for the cost of the referendum even agreements knowledged agency shop that producers ultimately reject voted significantly infringe upon associational 31,445 (1975). program. Cong. Rec. at rights: When the Beef Research and Information employee may very An well have ide- strengthened Act was revised and in 1985 variety of ological objections to a wide form, present promotion to its by the union in its activities undertaken program incorporated larger was into the 1985, representative. exclusive His role of Security Food Act of 7 U.S.C. 1985), religious or views about the desira- (Supp. III. moral seq. 1281 et §§ may square bility of abortion not with protect aimed to the farm and livestock deficit, policy negotiating in a medi- industry in “the face of the national the union’s plan. might speech One producers. cal benefits individual on behalf of beef Un- union, disagree policy negotiat- engage a union like the the Board will not in right strike, implicate activities that ing believing necessarily on the a broad limits moral, range ideological, religious, to be the road to serfdom for the eco- nomic, interests, class, political nego- and working might while another such as have increases, wage benefits, tiation of objections medical political to union- economic or and limitations on the to strike. employee might An object ism itself. wage policy guidelines it because violates Furthermore, in Ellis v. Brotherhood of inflation, designed might to limit ob- Clerks, 435, Ry. 1883, 466 U.S. 104 S.Ct. ject seeking to the union’s a clause explicitly recognized Court spend- collective-bargaining agreement proscrib- ing non-political purposes for burdens first ing racial discrimination. rights amendment significantly less than spending does purposes. 431 U.S. at for other In S.Ct. at 1792. Never- case, theless, Supreme rejected Court the Abood Court a chal- reaffirmed the lenge by employees to the Railway decision in use of union Employees’ Dept. v. Hanson, activities, finding funds for social that com- U.S. pulsory (1956), purposes L.Ed. 1112 contributions for these do International implicate greater not Street, any infringement Ass’n. Machinists v. on rights first (1961), amendment than permissi- 6 L.Ed.2d 1141 ble already contributions “agency shop” shop” required agree- “union col- bargaining. 455-57, lective ments Id. at were constitutional insofar as the at 1895-97. money spent significant We find it bargaining, for collective that the Beef Promotion expressly prohibits as the incursion had Act sufficiently justi- been spending by governmental political fied activity. interest in 2904(10) (“The moting Abood, order peace. prohibit industrial shall any 222, 224, 225, funds at collected 97 S.Ct. at the Board under the being order true, however, any 1794. This from used in was not manner as to purpose expenditures influencing governmental unrelated to “the cause which justified policy, action or bringing group exception with the together.” of rec- Id. ommending order.”).13 at amendments 97 S.Ct. at 1793. to the Accordingly, the prohibition political This expenditures Abood Court held may that dissenters avoids be forced to what the Court political contribute to has identified candi- express significant dates what would be a political views unrelated incursion on to the Frame’s rights, union’s constitutional bargain- duties as while ensur- exclusive ing ing representative. that the extent Id. interference here is no more necessary 1793-94. than to further the government’s interest. comparison with the broad constitu- tional arising incursions agency Nor have specific objections defendant’s union shop agreements and promotional countenanced activities authorized Hanson, Street, Abood, the Beef the Beef persuaded Promotion Act us that Promotion Act’s interference with significantly first the Act burdens his first rights amendment appears slight. rights. amendment The Abood Court de- Cattlemen’s Board is only authorized clared that “the individual cannot withdraw develop campaign promote product support merely his disagrees because he that the defendant himself has group’s chosen to with strategy.” 431 U.S. at Thus, market. the Cattlemen’s Board (quoting at 1793 Machinists v. only authorized engage Street, to in commercial 1805) 367 U.S. at 81 S.Ct. at mandate, 1260.169(e), 13. In accordance with this requires the Order and also State beef provides, "No funds collected the Board un- certify they councils to that have not and will subpart any der this shall in manner be used purpose not use influencing funds for the of purpose influencing governmental policy action, governmental policy or 7 C.F.R. action, except Secretary to recommend to the 1260.201(b)(7). part," amendments this 7 C.F.R. (1976) (cit Abood, 2040, 2047, 48 L.Ed.2d 597 J., concurring). In (Douglas, Sharpe, Bolling v. ing agency-shop that employees asserted (1954)). Unless the “a num 98 L.Ed. 884 to contribute to forced them clause programs suspect and a classification or variety of activities statute creates and ber economic, political, professional, constitutionally protected impinges upon a which are scientific, religious however, in nature of which only and be shown that right, it need approve....” 431 U.S. do not ra Plaintiffs treatment bears “some the differential Similarly, plain 1788. pur 97 S.Ct. at relationship legitimate state tional — protested the in Galda expressly Stanglin, tiffs pose.” City Dallas v. “ideological” activities. support of U.S. -, 1591, 1594, 104 coerced L.Ed.2d contrast, I, 163. In 686 F.2d at Galda (1989). scrutiny is “the Rational-basis vaguely that the Cattle has claimed Frame judicial relaxed tolerant form of most and specific point “promotes a men’s Board Equal Protection scrutiny under i.e., view, consumption of beef that Id. Clause.” nutritious”, he dis desirable, healthy, “message argues to this court Frame agrees with the Board’s are failed to character the Beef Promotion Act assessments Frame has methods.” him, producer, in a only the advertisements as beef objection ize his “taken reviewing advertising court allow a of the cam that would while the benefits manner dispute anything reasonably participating infer a over in the paign inure to all those Abood, See sellers, strategy. packers, pro industry, more than mere such as beef cessors, 97 S.Ct. at In his transporters, U.S. at and the like.” counterclaim, complains Frame answer and conclusion, although find that the we In Act financial burdens of this only that the implicates the first Promotion Act Beef imposed arbitrary in manner. his an obligated to rights those amendment brief, that “no fundamen Frame concedes hold that participate, we involved,” and therefore right is herein tal legislation in furtherance has enacted appropriate review is that “the concludes compelling state ideologically neutral of an test.” Ac or reasonable basis the rational interest, way in a drafted the Act and has Act “un cordingly, argues Frame that the rights infringes the contributors’ reasonably” “arbitrarily” discriminates the stat- necessary to achieve no more than process of the due against him violation goal. ed equal protection component of the clause of the Fifth Amend process clause the due AMENDMENT THE FIFTH IV. ment. Amendment forms basis The Fifth Promotion Act Having that the Beef separate challenges Frame held

two first amend- Beef Promotion with Frame’s constitutionality of the did not interfere First, govern- Act un- finances rights claims that the it Frame ment because Act. producers coercing private opposed to lawfully speech discriminates ment guarantee equal protection the Act as court viewed speech, violation the district distributing Due Process regulation Fifth Amendment’s eco- economic an Second, Thus, defendant claims that the court deter- Clause. nomic burdens. “taking” Act constitutes Beef Promotion had demon- mined that public pur- property Congress’ without private basis” a “rational strated just compensation. pose only against levy the assessment choice F.Supp. importers. producers Equal A. Protection Guarantee pos- suggested several The court at 1481. Congress’ decision: rational bases sible implic- contains an The Fifth Amendment sale first, on the initial an assessment prohib- component equal protection it administered; easily more of cattle government from discrimina- federal its the the most second, would be that ranchers groups. individuals or ting between third, Act; that ranchers by the Davis, 96 benefitted Washington v. assessment on to others in pass could Defendant’s claim that the as sessments mandated industry. Id. the Act are public purpose collected for a is without cited by For the reasons the district merit. While defendant is correct in as court, agree clearly we that a rational basis serting prohibits that the Fifth Amendment choosing producers exists for beef government taking property for activities. support support the Board’s use, private Housing Authority Hawaii v. argument Congress of the chose this 229, 241, 2321, 467 U.S. 104 S.Ct. Midkiff scheme on the basis of adminis- assessment 2329, (1984), 81 L.Ed.2d 186 the Beef Pro ease, trative we note that the bill as it clearly motion Act was public enacted for a originally emerged from committee in 1975 purpose. The public determination of ver repeatedly was criticized for the adminis- private initially belongs sus leg use tratively provi- burdensome “value added” Parker, islature. See Berman v. sion, see, 452, e.g., H.R.Rep. No. 94th 26, 32, 98, 102, (1954). 75 S.Ct. 99 L.Ed. 27 (1975); Cong., S.Rep. 1st Sess. 16 No. A court should not judg substitute its own Sess, 10, Cong., reprinted 94th 2nd in 1976 legislature ment for that of the as to what Cong. U.S.Code and & Admin.News public constitutes a use “unless the use be eventually a feature that was deleted palpably without reasonable foundation.” Act, in the 1985 version of the see 7 U.S.C. Housing Hawaii Authority, 467 U.S. at 2904(8)(C)(setting assessment at $1.00 241, 104 S.Ct. at (quoting United cattle). per head of As an additional ratio- Co., States v. Gettysburg Electric R. nale, Congress may grant have wanted to 668, 680, U.S. 40 L.Ed. producers the cattle the maximum influ- (1896)). possible shaping program, ence in this apparent It is Congress believed the imposed upon producers therefore Beef Promotion and Program Research accompanying pow- financial burdens in public be Congress interest. clearly er.14 articulated this belief the Act itself: It, therefore, is policy declared to be B. The Assessment as an Unlawful Congress public is in it in- “Taking” establishment, terest to authorize the through powers the exercise by forcing Frame claims that him of the pay herein, vided produces, orderly procedure an assessment on he an cattle financing (through assessments on engaged “taking” has in a all cattle sold in the private United State and on property “not public which is cattle, beef, products imported and beef use” and therefore unlawful. Defendant States) into the United and carrying out purpose claims that the sole of the Act “is program coordinated bolster, promoting possible, if position designed strengthen research marketplace, purely beef industry’s position in the market- private, non-governmental purpose.” The place. ... rejected claim, district holding court logic language “the and the 2901(b) (emphasis added). U.S.C. Addi- statute dictate the conclusion that the as- tionally, Congress declared in that same imposed public that, sessment is use.” 658 section products “beef and beef F.Supp. agree. at 1480. readily We should be available and marketed argued scrutiny Accordingly, Frame never that strict review. we decline to address this appropriate equal protection analysis under the appeal. Singleton Wulff, issue in this counterclaim, either in his answer and his mo- 49 L.Ed.2d 826 court, tions before the district his briefs to this (general appellate rule that federal court does court, Thus, argument. during oral neither below); passed upon not consider an issue not nor the district court had the Bruno, Selected Risks Ins. Co. v. 718 F.2d opportunity to consider either whether strict (3d Cir.1983) (rule of discretion from which claim, scrutiny applicable would be to Frame’s departed prompted by court has excep- "when pass or whether the Act would constitutional circumstances”). tional exacting muster under this more standard of obligation his producer of not relieve the people the of the that efficiently to ensure appropriate to the adequate pay nourish- the assessment receive States United 2901(a)(3), “the and that or the ment,” qualified state beef council Cattle- 7 U.S.C. § existing expansion of in required Board as 1260.312. maintenance men’s products are and beef for beef markets 1260.310(c). Second, Frame ar- C.F.R. § producers ... of beef to the welfare vital (which in he that the absence gues § economy of the general to the as well as providing specific judicial and describes 2901(a)(4). ...,” As discussed id. Nation § remedies) express autho- administrative opinion, we of this previous section in the damages against for an action for rization had, very the Congress that believe congressional collecting persons in- evinces concluding least, a “reasonable” basis Thus, brought. that no such suit be tent inter- public the legislation was in that such remedies con- contends Frame that Therefore, the assess- hold that we est. exclusive, and that the in 2908 are tained § Promotion Beef under the authorized ment “expanded] improperly court district taking. unlawful is not an Act to subsume other coverage of the statute Congress. contemplated by remedies” ARGUMENTS V. STATUTORY Third, argues that without defendant statutory argu- advances two Defendant speci- or the Order in either the Act vision court’s order challenging the district ments liability imposed fying personal that will be assess- $66,625 in uncollected pay he that collecting be persons, it would funda- First, defen- charges. and overdue ments him liable mentally unfair to find here. Act nor the neither the argues that dant that the government The counters Act holds collect- implicitly expressly Order in- expressly authorizes liable ing persons personally against col- cause of action a civil obligat- stitute they were of assessments amount amount lecting persons to Second, recover defen- to, did not collect. ed but The assessments. charges late-payment uncollected asserts that dant in the com- express by the authorization finds assessments established for overdue reading separate sections of of three administrative represents an bined Beef Order (b) (1) of the “enforce- Act: subsection Act. expansion of the 2908, which provision, § ment” Against Col- A. Cause Action Civil juris- courts the federal district vests lecting Persons enforce, pre- and to “specifically to diction violating” from a person and restrain vent rea urges upon us several Frame (c) (2) Order; subsection Beef lia personally cannot be held why he sons id., which directs provision, enforcement under this uncollected assessments ble for to be action authorized a “civil that nothing in First, argues Frame that Act. referred section” be brought under this the Act itself statutory history nor General, appropriate ac- “for Attorney collecting Congress intended suggests that mandating provision that tion”; uncol liability for personal persons to bear produc- to a making payment person “each ar support of this assessments. lected producer purchased cattle er for Act emphasizes gument, Frame and remit an assessment collect shall ... be assessment provides specifically Board,” 7 U.S.C. import the assessment producers and against only levied government asserts that 2904(8)(A). The lines, further defendant Along ers. similar expressly provisions together, regulations these Secretary's taken own that the claims against defen- cause of action may held be authorize producers alone indicate government ar- Alternatively, proof, de As dant. assessments. for the liable action right of implied language gues the Order that an fendant cites uncollected recover collecting persons to provides: to allow this found should be assessments collecting person to col- [f]ailure funding congressional to enforce court of cat- on each head the assessment lect scheme. shall designated 1260.311 sold as tle (b) district court held that the Act The district courts of the United permitted the court to

Order entertain a jurisdiction States are vested with specif- by government against enforce, suit collecting ically to prevent and to and re- persons person for uncollected violating, strain from assessments. an order 2904(8)(A) regulations district first noted court that made or issued under this § 1260.312 the Act and of the Order15 Act U.S.C. 2901 seq.]. et. § [7 § respon- declared that “the defendants were (c) A civil action authorized to be collection sible and remittance of brought under this section be re- shall assessments, therefore, required were Attorney ferred to the appro- General for to collect assessments and to ‘transmit as- priate action. qualified sessments’ to a State beef council 7 U.S.C. 2908. § Frame, or the Board.” United States court, Like the district we do not find (E.D.Pa. No. 1988 WL 3849 Jan. expressly that the Act authorizes this suit. 19, 1988)(LEXIS, library, file), Genfed dist. enough It is 2908(b) true that sections addition, slip op. court, at 4. In noted the (c) meaningless would be rendered if we did regulations the statute and the do not state not fund them to authorize the Attorney persons responsible for the collection General to initiate proceedings against civil and remittance of only need assessments to, all subject those persons and in violation those actually “transmit assessments col- of, the terms of regula- the statute and lected” to the appropriate council or to the tions, including non-complying “collecting Id. The Board. court reasoned that persons” such this defendant. This conclu- regulations the statute and read as such not, however, sion does ques- resolve the would “vitiate ‘responsibility’ clearly Congress tion of whether par- intended this placed upon the Finally, defendants.” Id. i.e., remedy, personal ticular liability for 2908(b) relying Act, which vests assessments, uncollected be exercised jurisdiction with “specifically courts particular defendant, i.e., this a col- regulations enforce ... made under the lecting person. only Not cursory does a Act,” the district court held that it was “a reading reveal, of the Beef Promotion Act proper exercise” of its pow- own “remedial express no suit, authorization for this but a er” to hold defendant liable for the unrem- comparison with, example, 3102 of § itted assessments. Id. the Federal Insurance Act, Contribution availability As the remedy this is a 3102(b)(1982), I.R.C. patently makes this § congressional intent, matter of analysis our clear. 3102(b) (in See I.R.C. requiring § begins with the terms of the statute. The employers employees’ withhold from Act, “enforcement” section of the which wages taxes under the Federal Insurance guides inquiry, provides: our Act, Congress Contribution expressly de- 2908. Enforcement. § “[e]very clared employer required to (a)If Secretary believes that the ad- deduct the tax shall be liable for pay-

ministration and tax.”). enforcement of ment of this Act such seq.] 2901 et U.S.C. order would [7 § Nonetheless, reject we also Frame’s con- adequately be procedure, served such tention Act’s provi- enforcement following opportunity an for an adminis- sions, which do not mention liability civil hearing record, trative on the the Secre- collecting persons, provide the “exclusive” may— tary means may the Act be enforced. (1) issue an order to or pre- restrain The remedy section that Frame seeks to person from violating order; vent an characterize as appears “exclusive” in fact to have been drafted to afford maximum penalty assess a civil not more flexibility in enforcement of the statute. $5,000 than for violation of such order. The authority receive broad “specifi- courts provides pertinent 15. 7 C.F.R. 1260.312 § qualified ... to the sessments State beef coun- part: Board_ cil ... to the [or] Cattlemen’s person responsible Each collection and remittance of assessment shall remit as- personally liable to hold Order, as well Act and cally to enforce” comply with refuse to person persons who those and restrain “prevent as to 2908(b).16 goal in congressional furthers the violating” Act. the Act Attorney Act commits in the Similarly, assigning duties to defendant as to what the decision discretion General’s instance. first remedy "appropriate” action constitutes not, Frame Allowing suit does 2908(c). Act. 7 U.S.C. violations claims, Congress’ conflict decision re- seeks to case, In this against the producers levy the assessments Frame’s cal- resulting from damages cover Instead, com- government seeks only. obligations un- his to meet culated refusal $50,000 damages of pensation for worth collect as- Act to Beef Promotion der the to resulting from Frame’s failure directly to sessments, assessments remit to Therefore, the statutory his duties. meet nec- council, and to maintain State beef with imposed here do conflict remedies Thus, this the issue before essary records. funding scheme. Congress’ whether, repeated, given Frame’s court is Act, suit is an this violations willful holding de believe that Nor do we 2908(c), action,” U.S.C. “appropriate § no here personally liable violates fendant in “en- court it aids this whether and First, the fairness. of fundamental tions 2908(b). Act, 7 U.S.C. see forcpng]” this § provi in Act’s enforcement declaration it does. conclude that We sion, judicial that or ad 7 U.S.C. § Act, Congress Beef Promotion With the brought proceedings could be ministrative “authorize establishment to intended Act, alerted against all violators financing procedure orderly an ... of for liability. Addi potential for to the Frame pro-m program of a coordinated [beef] ... the com prior that to tionally, we note 2901(b) (emphasis otion....” § Frame received litigation, of mencement procedure, a added). such To establish Pennsylvania Beef warnings from the pur who assigned persons to the Congress Board, Council, and the Cattlemen’s “collecting per (denoted chase his non Agriculture about Department of in the Order) integral role an by the sons” Second, together, read compliance. machinery. Con functioning the finance of Pro of the Beef and 260.175 1260.172 §§ “shall” persons that these gress declared collecting per that Order indicate motion due. assessments remit the collect and personal some form could incur sons addition, Congress 2904(8)(C). In U.S.C. § a late in the form liability, least main persons these would determined that 1260.172(a)(5)re charge. Section payment necessary implement to tain records to transmit “remitting persons” all quires 2904(11). result of As a Act. 7 U.S.C. § quali to the Board due assessments disregard of these obli defendant’s willful day of “on 15th State beef council fied had has not Board gations, Cattlemen’s or mar purchased month the cattle $50,000 For in funds. disposal over are held Thus, collecting persons keted.” to require the court to assess timely remission of for responsible producer money due from each collect apparently purchased, cattle after ments congres frustrate individually would the assessments regardless of whether responsibili assigning purpose sional Meanwhile, im 1260.175 collected. § were collecting persons, to these ty of collection “any un charge on late-payment poses Congress’ vision thereby interfere pursuant Board due the assessments pro paid financing of this “orderly” for the holds Because 1260.172 allowing 1260.172.” § sum, In we believe that gram. 1899). language This Harbors Act statutory purpose thus Rivers 16. To further however, express Act, an will, amounts inherent Beef Congress’ courts in the have enforce power statutory appropriate remedy authority an to fashion grant infer See, e.g., Wyandotte Co. v. Unit- removing Trans. all concerns remedy, scheme. thus States, congressional U.S. contrary prove ed 385-86, would action (implying 19 L.Ed.2d intent. States under of the United in favor action responsible collecting persons timely strictly statutes are to be construed remission, warning subject penalty one not to be to a unless they received fair plainly impose the words of the statute it.” charge at least a late they will incur Acker, Commissioner v. sum, per- untimely remittance. Frame’s (1959). L.Ed.2d 127 Addi non-compliance liability does not sonal tionally, 2908 of the Beef Promotion Act unfairness.” amount to “fundamental expressly provides penalty for a civil of not $5,000, imposed only more than to be after Late-Payment Charge B. hearing, an administrative which indicates By regulation, “remitting persons” must Congress did not commit agency qualified remit to the council all State beef penalty discretion the amount of in to be day assessments not later than the 15th however, necessary, curred. It is to distin following the month the month which guish an quali administrative action that purchased the cattle were or marketed. 7 “penalty” fies as a properly from one char 1260.172(a)(5),1260.312(c). C.F.R. §§ See, acterized as a “remedial measure.” provides Beef Promotion Order also e.g., Dept. Agr., Gold Kist v. any overdue assessments will be increased (11th Cir.1984) F.2d (monetary 347-48 month, beginning day each the after 2% peanut production fine for violation of such due. 7 assessments were C.F.R. marketing quotas penalty); invalid as a The district court 1260.175. directed § Bergland, West v. 611 F.2d 722 n. 14 $14,395.11 pay “applicable Frame to late (8th Cir.1979)(withdrawal grading of meat payment charges.” sanction), services valid as a remedial cert. denied, charge Defendant claims that the is a (1980); L.Ed.2d 23 Jacquet Westerfield, v. “penalty” payment for late that contradicts (5th Cir.1978) 569 F.2d (tempo Act, the of the Beef Promotion terms which rary disqualification stamp from the Food per sets assessments at head of cattle $1.00 program of acquire household found to late-pay- and which makes no mention of a coupons by pro fraud distinct from penalty charge. request supple- ment In the Act). visions of See also Commissioner v. briefs, mental this court also directed the Acker, n. U.S. at 91 80 S.Ct. at n. parties provision to discuss whether the (Not only did Commissioner of Internal authorizing the Promotion Act Beef a civil imposition Revenue concede that the of an $5,000 penalty upof was intended to be additional tax substantially IRS for un exclusive, thereby precluding Secretary derestimating penal estimated taxes was a imposing from this additional sanction. ty, language of the statute character government responds The that the Secre- ized imposed the tax as for “breach of a tary authority impose draws his a late- statutory duty,” and as an “addition to the 2904(12), payment charge from which au- itself,” tax regarded which could not be as thorizes inclusion in the order of all terms owed). money interest on necessary and conditions “as to effectuate Courts that have addressed the issued order,” provisions of the which are “not have offered various definitions for distin- provisions inconsistent with the of the guishing penal between and remedial sanc- 2904(12). govern- Act.” 7 The U.S.C. § tions. payment charge ment asserts that the late “Penal punishable; inflicting means a Act, purposes is consistent with the of the punishment; constituting penalty; a or “penalty,” and is not a but rather “a reme- relating penalty.” to a Black’s Law Dic- dial measure.” (4th 1957). tionary ed. The dictio- validity charge The of this late de nary “penal also defines laws” as pends properly is whether it character “[tjhose prohibit impose which an act and “penalty” ized as a or a “remedial mea penalty a for the commission of it.... sure.” If charge were an additional Strictly properly speaking, penal a penalty imposed by Secretary, imposing penalty punish- it would law is one a or be penal (and invalid. “It is properly pecuniary settled law that ment a fine or (through financing procedure for orderly public na- of a mulct) some offense ...) cattle sold on all assessments wrong committed ture program pro a coordinated carrying out Id. state.” research....” motion and Similarly, the Kist, at 348. 741 F.2d Gold noted, 2901(b). program have As we pur- where the explained that court West late-pay funding. other receives no stigmatize “not to the sanction pose of Secretary is imposed by the charge ment rath- it is remedial wrongdoers,” punish of the purposes reasonably related at 722 n. 611 F.2d punitive. than er timely to facilitate Act as a measure suggested that wheth- court also The West without of assessments —funds remittance reasonably related is not sanction er the pro promotion and research pur- remedial regulation’s authorized Thus, it is not dis- operate. gram cannot punitive. Id. invalid as may also be pose, it pecu this remedial sanction positive (6th SEC, F.2d 673 (citing Beck distinguishes this case niary, which Cir.1970)). F.2d Dept. Agr., 741 Kist v. U.S. Gold Secretary’s action Assuming that pecuniary court held that where the apply an addi we “penalty,” not a here measure. penalty, not a remedial fine was a propriety of the test to determine tional however, Kist, purpose of the In Gold late-payment of the Secretary’s imposition to limit the amount statute was in overlaps with our charge, a test which market; there in the domestic peanuts sold as charge qualifies into whether quiry fore, pecuniary sanction bore because “penalty.” or a Where action” “remedial statute, purpose no relation to agency to Congress has authorized the mone properly characterized the court may be regulations as rules and make at 347-48. tary penalty. fine id. of the provisions the necessary carry to out addition, charge per the month while 2% impose Act, power the to agency the has sufficiently exceeds Frame imposed on “reasonably re measures that remedial for loans so as to rates market interest enabling legis the purpose of lated” to the timely payment, for operate as an incentive 611 F.2d Bergland, lation. See West v. operate as to charge is not so onerous the Family Mourning v. Publica (quoting inflicting punishment as a means 356, 369, 93 Service, Inc., 411 U.S. Furthermore, charge tion late the wrongdoing. (1973)); 1652, 1660, L.Ed.2d 318 higher than would be be no appears to 1345. F.2d at Westerfield, 569 lost on the Jacquet v. cover the to interest reasonable 2904(12) Promotion Act of the Beef additional money, as well the unpaid Section of all in the order incurred in connection inclusion costs authorizes administration “necessary to effectu efforts. and conditions collection with terms Thus, if order.” the provisions the ate appellants. taxed Costs be remedial, charge it is is late-payment the rela exists a rational provided there valid dissenting. SLOVITER, Judge, Circuit charge pur tionship between Promotion Act.17 the Beef poses I. Act definitions, and Research we be Beef Promotion

Applying these The our the annals of Act) unique in (the remedial rath so charge here is that the lieve analytic true is no there exercise of law penal, and is a valid case than er program what analog. understand in the To power to include Order Secretary’s not. it is outline is, necessary to what pro it is effectuate “necessary terms all regulatory pro- all, is, not the This first purposes order.” of the visions of those representative is not gram. This “an is to establish Promotion Act Beef express provision in with provisions inconsistent that the provides also This section penalty not more than civil may be "inconsistent with 2908 for Act of the 2904(12). $5,000. If provisions of the Act.” charge penalty, it is late-payment is a then programs Congress, primarily my where knowledge any has court held that secondarily the national interest and an member must be forced industry, the interest of has determined program, contribute to such a to do so regulation aspects pro of some pain of a suit the United States duction, price, or standardization of a com Department Justice seeking to collect the See, modity required. e.g., United payment penal- substantial assessed and a Sullivan, 689, 698, v. 332 U.S. States 68 ty of a month. 2% 331, 336, (1948) (federal L.Ed. 297 Although I believe that this can statute requiring drug product law standardized challenged be on more ground, than one I upheld); Filburn, labels v. Wickard believe that it is sufficient to rest this 111, 128-29, 82, 90-91, 63 S.Ct. dissent incompatibility statute’s with (1942) (wheat production quotas L.Ed. principles protected by the First upheld); Wrightwood United States v. Specifically, Amendment. I believe that Co., Dairy 315 U.S. provision the central of the Act which as- (1942)(fixing 86 L.Ed. 726 of minimum mandatory sesses a non-refundable fee for prices upheld); for milk Anthra Sunshine general promotional advertising ben- Adkins, cite Coal Co. v. 310 U.S. efits of consumption violates Frame’s 907, 912-13, 84 L.Ed. 1263 First Amendment to freedom to re- (1940)(fixing prices of minimum for bitumi engaging frain from in commercial adver- upheld). nous coal Neither the Beef Pro tising. if Even the First Amendment and Research Act offspring, motion nor its rights implicated in this case are not abso- the Cattlemen’s Board and the Operating lute, I believe that has Committee, perform any regulatory role failed to show that the scheme is carefully respect prices, beef or cattle pro pose greater tailored to no burden than duction, standardization testing. There light necessary inter- fore, majority’s pro statement this est asserted. gram “resembles number of recent con gressional enactments designed to make II. regulatory

various federal programs par self-financing,” maj. op. at entirely tially or of money Contribution to further note, is, respectfully unsupportable. I projection message of a is a form of speech, Valeo, Buckley see The only “regulatory” aspect of 612, 633-34, 96 S.Ct. 46 L.Ed.2d 659 gram which the majority has been able to (1976), follows, and it majority as the rec identify is “attempt the to bolster pub- ognizes, that mandated contribution of image lic product of a in order to increase money purposes funding of advertise demand.” consumer Id. at 1126. The adver- implicates ments rights Frame’s tising product of a does not fit within the forced speech. begin We can thus our accepted meaning “regulation.” of See, analysis' with the line of cases which have e.g., “regulate: govern ... 1: to or direct government struck requirements down that according to rule ... 2a: to reduce to or- particular ideas, individuals endorse wheth der, method, or uniformity 3: ... to fix the through er pledge allegiance, a of West time, amount, degree, or rate of.” Web- Virginia State Bd. Barnette, Educ. v. of ster’s Third New International Dictio- 624, 1178, 319 U.S. 63 S.Ct. 87 L.Ed. 1628 (1976). 1913 nary I do not view the com- (1943), display mandated of a state motto pulsion that all sellers of cattle contribute on plates, automobile license Wooley v. financially to message by pro- 705, Maynard, 1428, 430 U.S. 97 S.Ct. 51 claiming in Madison style Avenue the value (1977), L.Ed.2d payment 752 of dues for of over the radio and television sta- activities, political a labor union’s Abood v. of tions the United States to be regula- a Educ., 209, Detroit 431 Bd. U.S. 97 S.Ct. of tory program. 1782, (1977); 52 L.Ed.2d 261 see also Galda course, Of trade routinely (3d Cir.1985), associations Rutgers, 772 F.2d 1060 perform functions, such denied, 1065, 1375, but never before 475 106 S.Ct. cert. U.S.

1145 impact on there is a lesser require- Admittedly, (university’s (1986) 602 L.Ed.2d 89 nonparti- belief which to of conscience and contribute students freedom that ment Bamette-Wooley line of lobbying organization violates underlay the student san Amendment). of these A variation where, here, speech compelled First cases as recently applied principles The Court’s nature. is of a commercial Pacific v. Public Utilities Electric Co. &Gas speech analyzing commercial opinions 1, 9, 15, 106 S.Ct. Commission, however, First stress, important (1986), 908, 911, 1 903, where 89 L.Ed.2d even in the are at Amendment values stake a state held unconstitutional the Court speech context. commercial requirement Utility Commission Public given though the often Even rationale billing in its provide access private utility a speech of for the commercial protection plurality views. The envelopes to other interest “consumer’s which focuses require a may explained that a state informa- free of commercial in the flow speech "associate with utility company to Pharmacy v. Virginia Bd. tion,” State 15, Id. at disagree.” may with [it] Council, Consumer Virginia Citizens at 911. S.Ct. 106 1817, 1826, Inc., 748, 763, 96 U.S. recognition proceed from These cases here, (1976), inapplicable is 48 L.Ed.2d equated speech can be compulsion cannot mean that the two speech because suppression compel support citizens com- free to to components of the “complementary compel me It can no more speech. mercial concept of ‘individual freedom broader ” product on outer wall of to a advertise Wooley, at 97 S.Ct. U.S. mind.’ compel carry to it can me my home than Barnette, 319 U.S. at (quoting at my jacket. Sim- on the back sign similar Riley v. also Nation 1185); see S.Ct. at — my compel me to contribute ilarly, it cannot Blind, U.S. -, Fed’n al group per- to permit private money to L.Ed.2d that, function. fact form that necessar (“ speech’ a term ‘freedom of [is] stresses, may my I retain what comprising the both decision ily government’s any aspect of (emphasis in what not say”) “to criticize say Appel- program,” Brief for the promotional original). not alter the unassailable lee at does Abood, apposite case most support compulsion to utter fact although a here, held that the Court facts ... “force speech would commercial [me] private em- well as public employee, as with an speech conform [my] to alter contribute required to ployee, can be Gas, not set.” agenda [I have] de- Pacific representation of exclusive union costs at 908. U.S. at “ideological objec- employee’s spite activities, 431 to the union’s tions” whether it immaterial I believe it was unconstitution- ideological reasons objection is for Frame’s to fi- of funds to mandate assessment al ones, whether or even or libertarian ideological political the union’s nance by in colored may part also be reasons collec- were extraneous activities government considerations. economic Quoting from bargaining duties. tive did judgment summary for in its motion Jefferson, Madison and from precedent is friv- objection Frame’s argue that not 1799, 31, at n. 97 S.Ct. & n. id. at 234-35 genuine- If the sincerely held. olous or not ‘ furnish contribu- (“ compel a “to man issue, material objection were a ness of his opin- propagation of money for of the tions hearing for entitled to he be then would ty- is sinful and which he disbelieves ions purpose. ’ prin- ”), that the found the Court rannical” course, must, distin- be speech Forced “prohibit Amendment ciples of the First agree I speech. government guished from the requiring any of appellees from the leading it to analysis majority’s with support of to contribute appellants “self-help program the conclusion oppose.” Id. may ideological he cause an transformed industry” is not for the 235, 97 S.Ct. at at ” ‘government speech.’ “into Maj. op. here, at speech mercial at issue it is difficult Regardless 1134-35. of whether the appropriate indus to find the framework for try board should be public considered a or analysis. The majority’s framework, which private organization, Tribe, see L. Ameri would examine if regulations can Constitutional Law 12-4 at 807 n. “adopted compelling to serve state inter (2d 1988), ed. it is clear that ests, neutral, that are ideologically and that message in case is this not one cannot through signifi be achieved means government “representative peo as of the cantly less speech restrictive of free ple,” speech by segment but reflects “one 1134, freedoms,” op. at maj. associational population, certain common in analyzing when primarily from cases comes Abood, 13, terests.” 431 U.S. at 259 n. right to associate infringements on (Powell, J., S.Ct. at 1811-12 n. 13 concur I may justified. purposes be expressive ring). speech compelled type doubt that any basis. justified can issue here be important step This an is in our under- Nonetheless, majority’s I do not reach standing of what is in involved this case. rights stan stringent more associational example, government For if the were to justification no I believe that dard because general use revenue proselytize funds to found, exacting the less even under can be proposition, well through established Supreme Court adopted criteria studies, medical/scientific smoking regulation evaluating permissibility of harmful general to one’s health and well speech. Central Hud of commercial being, surely the industry tobacco would Public Corp. Elec. Serv. son Gas & argue govern- be able to that the use of 2343, Comm’n, 447 U.S. 100 S.Ct. purpose ment funds for that violated the (1980). L.Ed.2d 341 rights First Amendment of those who dis- agree message. with the The almost un- Hudson, In Central where the Court limited of the spend struck utility down a state commission’s general revenue funds preclude would such promotional ban on advertising by electric argument an even if utilities which imposed had been with the speech soundly based, were less as, such aim reducing the demand electricity example, promote were it to the con- response energy crisis, nation’s proposition verse encouraging smoking. the Court held speech,” that “commercial Applying proposition directly more i.e., expression “proposing a commercial here, Secretary if the Agriculture had transaction” and solely “related to the eco- determined that growth maintenance and nomic interest speaker of the and its audi- industry cattle were necessary to ence,” 561-63, 447 U.S. at 100 S.Ct. at well-being general and the encompassed by the First welfare, accordingly used appro- funds Amendment, id. at albeit with “a less- priated tm department his general from protection” er than accorded to other types promote revenues to consumption beef, of expression, id. at 100 S.Ct. at 2350. disagreed those who message, with the principle From this have come cases such vegetarians rights animal advo- as Virginia Board Pharmacy, 425 U.S. cates, complain could not on First Amend- (striking state ban on grounds. ment pass, however, Once we drug price advertisement); Consolidated government speech, by gen- financed Edison Commission, Co. v. Public Service revenues, eral speech, forced effected through compelled monetary contribu- L.Ed.2d 319 (invalidating state’s ban tion from a discrete group support a on utilities’ use of bill inserts to discuss private business advertising campaign, the “controversial issues public policy”); of reasoning precludes that challenge to Bolger Youngs v. Drug Products government speech longer applies. no 60, 68, Corp., 463 U.S. 103 S.Ct. Because, above, Ias noted there is no (state 77 L.Ed.2d 469 could not ban precedent for the compelled kind of com- speech advertising condoms). commercial in cases involv- Abood, explained (quoting that 431 U.S. at 259 op. The Court at 13, (Powell, must n. S.Ct. at 1811-12 n. 13 State speech, ing “[t]he commercial J., Thus, concurring)). even if achieved the to be interest substantial assert inter government’s by which the standard speech”; commercial on by restrictions is a “substantial” should be evaluated est in must be technique regulatory “the one, “compelling” rather than a interest interest”; “limita- the to that portion uses, conclude majority I cannot the designed care- be expression must on tion pro interest in a government’s the goal.” Central the State’s fully to achieve sufficiently kind is substantial of this gram 564, 2350. at Hudson, 100 S.Ct. 447 U.S. at compel speech. permit it to govern Probably the most substantial purpose argues that the majority regu that can asserted ment interest be “ideologically neu Act is underlying the protection is in speech late commercial Although 1135. op. Maj. at tral.” Hudson, See, e.g., Central the consumer. ideological than may be less promotion beef (Black 578, at 2357 at Die,” 447 U.S. Wooley v. “Live Free motto the Thus, example, to mun, J., concurring). 1431, at at 430 U.S. Maynard, govern example, the to the tobacco majority return is the persuaded than less amI require harmful agencies may or its implicate ment ide not promotion does beef carry cigarettes, as products, such exhibits in are concerns. There ological U.S.C. warning legend. un funded of an advertisement record Sullivan, (1982); see also United States on beef stating, lowdown “the the Act der (upholding 68 S.Ct. at 332 U.S. at in you think —lower less than probably is warning labels requiring fat, law lighter federal on cholester calories, leaner on Here, however, the drugs). another imagined,” and you than ever ol protection is not one saying, interest asserted Sheperd Cybill actress quoting the “ fraud, activity, or illegal from public don’t eat ham people who some T know ” The advertise health effects. harmful I trust them.’ I’m sure burgers. But promotion not akin to ideologically ments are messages may be found These messages by public service vege public espouse welfare groups which by offensive Instead, concerning and health. nutrition moral reasons. religious or tarianism majority, variously eating sub described Moreover, health effect is to goal program in government’s a matter of quantities of beef stantial in industry’s position “strengthen the beef it has For centuries controversy. some 1122, prevent is another’s maj. op. that, meat marketplace,” man’s “One said been poi 1134,and industry, of this id. at “decay” son.”1 message that beef is “to communicate [a] ap- Turning third criterion then to the at 1131. While the good,” id. degree of in- majority, the plied in the health of the general interest has a or, rights fringement on First Amendment gov follow that the industry, it does not terms, whether the put in Central Hudson compel in interest ernment has substantial extensive than regulation is “not more support industry to ling the beef make government] inter- necessary to serve [the Instead, as the promotion campaign. such a est,” 100 S.Ct. at rejecting the district points out majority concludes, summarily without majority argument that advertisements court’s way “in a is drafted analysis, that the Act announcement, public service forma rights infringes on contributors’ inter messages represent economic necessary.” Maj. op. than at 1137.2 no more maj. segment population,” ests of “one provision refund passing IV, Natura, We note Lucretius, bk. 2. See, e.g., De Rerum 1. and Information original Beef Research Cure, Fletcher, act 637; Love's Beaumont Stat. No. see Pub.L. Act of English Proverbs III, (1647); Dykes, O. sc. ii version of the 1985 (1976), deleted Bartlett, Quotations (1709), Familiar in J. cited produc- permitted The new statute the statute. 1980). (15th ed. 101 & n. of assessments refund a one-time to demand ers 1148 This apparently conclusion is based peaceful mote labor permit relations to majority’s

the reasoning earlier the union and an employer to conclude an Act mandates assessments “presumably to agreement requiring employees who obtain prevent ‘free-riders’ receiving the the benefit union representation to share promotion benefits of the pro- research its Abood, cost.” 217-23, 431 U.S. at gram sharing without Maj. cost.” op. at 1790-93; S.Ct. at see also Chicago Teach is, however, 1135. There nothing in the Union, ers Hudson, Local 1 v. 475 U.S. support record to the assumption that 292, there 8, 301 & n. 1066, 8, 1073 & n. would be insufficient voluntary contribu- (1986) 89 L.Ed.2d 232 (citing cases). The by producers tions those cattle support who performed function by a self-promoting in program provide to the funds necessary dustry group is hardly comparable. See promotion. such continue The record Ellis v. Brotherhood ofRy., Airline & S.S. support program shows that Clerks, within 435, grown.3 industry has 1883, 1895-96, 80 (1984) (“It L.Ed.2d 428 long has been settled

Trade association and industry promotion ... interference with First programs supported rights Amendment throughout [through mandated country through union voluntary justified by contributions contributions] governmental industry those in the convinced interest in industrial programs peace.”) (citations benefit, omitted). inure to their although they realize that non-members may also While fees assessed for industry self-reg get Therefore, some benefit. even if one ulation, fees, such as user have been up the, were to overcome for me insurmounta- held as a fair allocation of the costs of ble, imposed hurdle by the need to show a regulatioh on those whose industry bene sufficiently substantial inter- therefrom, fits see Skinner v. Mid-Amer est promotion program, in the there is ab- — Pipeline Co., ica U.S. -, solutely no other speculation basis than 1726, 1734, 104L.Ed.2d (1989), that line from which could one conclude that cases, relied on government, can compelled contributions from those who not be used uphold a mandated contribu choose not to make them are necessary to speech tion towards with which the contrib promotion goal. utor is unwilling to associate. I fear that free rider issue raised here is unlike the majority’s opinion crosses a threshold mandatory assessment union leading dues. us to mandated contributions for upholding Cases the latter do so speech because and advertisements which we can the legislative judgment “it would not presently envisage and which would during period collected endum, prior to the refer that the funds collected spon- under the Act are 2907(c) see 7 (Supp. 1985), § U.S.C. III soring (a such research fact on which the record (1988), §§ C.F.R. 1260.173-.174 but includes no silent), there is no why reason shown provision for refunds of assessments collected necessary research, amounts support as sifter respect, referendum. In this it is distinguished from the amounts needed for the unlike some of programs the other similar promotion campaign, cannot be calculated be- promoting agricultural products. See, e.g., The fore the Chicago assessment. See Teachers Un- Research Cotton and Promotion Act of ion, Hudson, 292, 305-06, Local 1 v. ("any § U.S.C. producer cotton 1066, 1075-76, (1986). 89 L.Ed.2d 232 any whose cotton assessment is made ... who is not in favor of supporting the Originally the Act did operative not become promotion program research and provided only because it received 56.4% in 1978 rather shall herein have a to demand and needed, than the two-thirds vote then and in receive from the Cotton Board a refund of such 1980 could not even assessment."); majority reach needed the Watermelon Research Glaser, under the revised statute. L. Promotion Act of Provi- 4906(h) 7 U.S.C. § 1985) (similar); sions (U.S. (Supp. Security Food III Act of the Potato 74-75 Research Dep’t Agriculture and Promotion Act of 2617(g) Information Bulletin (1982); Research, 1986). Honey No. After the Act was Promotion amended to put vote, Consumer any Information Act it into subject effect before U.S.C. to a 4608(h) 1984). (Supp. thereafter, II Even if one referendum were ap- 78.9% of the voters industry conclude that members could proved com operation, thereby be making the Act pelled to contribute research and permanent. and the assessments First Amendment mockery amake of ... decision “the accorded

protection Riley, 108 say.” See not to what original). (emphasis forth, respectfully I set the reasons For opinion majority's dissent judgment. COMPANY, for as Trustee AND

HAYS Corporation v. Monge Oil LYNCH, PIERCE, FENNER MERRILL INC., SMITH, Appellant. &

No. 88-1680. Appeals, Court States United Third Circuit. (argued), J. Argued Jan. John Jr. Hodgson, C. Clark Ronon, & III, Stradley, Stevens Murphy, 15, 1989. Sept. Decided Pa., appellant. Philadelphia, Young, Mesirov, Gel- (argued), Cooper

Jeffrey Jamieson, Philadel- Jaffe, & man, Cramer Pa., appellee. phia, MANSMANN, STAPLETON, Before Judges. GARTH, Circuit COURT THE OF OPINION Judge. STAPLETON, Circuit

I. denying order from an appeal an This is compel Lynch’s motion Merrill

defendant byit asserted of claims arbitration Chapter 11 trust- (“Hays”), Hays & Co. Corpora- Monge Oil bankruptcy inee com- “debtor”). Hays’ (“Monge” or tion se- and state federal alleges various plaint to fraudulent in addition violations curities claims trust constructive conveyance pursuant powers the trustee's under 544(b). U.S.C.A. §

Case Details

Case Name: United States v. L. Robert Frame, Sr. And Vintage Sales Stables, Inc.

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 14, 1989

Citation: 885 F.2d 1119

Docket Number: 88-1104

Court Abbreviation: 3rd Cir.