William J. Rasmussen, Etc. v. Clifford Hardin, Secretary of Agriculture of the United States, Marlene L. Kresse v. Clifford Hardin, Secretary of Agriculture of the United StatesWilliam J. Rasmussen, Etc. v. Clifford Hardin, Secretary of Agriculture of the United States, Marlene L. Kresse v. Clifford Hardin, Secretary of Agriculture of the United States
William D. Appler (argued), Alan S. Rosenthal, William D. Ruckelshaus, Asst. Atty. Gen., Washington, D. C., Richard K. Burke, U. S. Atty., Richard C. Gormley, Asst. U. S. Atty., Phoenix, Ariz., for appellee.
OPINION
DUNIWAY, Circuit Judge:
These are appeals by the plaintiffs from orders dismissing two actions challenging the validity of certain provisions of a milk marketing order promulgated by the defendant Secretary of Agriculture. We affirm in both cases.
1. Nature of the cases.
The complaints are identical in the two cases except for the parties plaintiff. In No. 25,668 the plaintiff Rasmussen is a milk producer and handler who also makes and sells a milk product called “Go.” In No. 25,669, the plaintiffs Kresse, et al., are consumers of “Go,” and all but two of them are members of Concerned Consumers, an unincorporated association.
The complaints assert a common law right to be free from unlawful regulation by the Secretary. They also alleged that the Secretary violated the appellants’ Fifth Amendment right to due process by holding hearings concerning the milk order in a location some 1,500 miles from appellants’ residence. Finally, they allege that by attempting to regulate the milk product marketed by Rasmussen, the Secretary exceeded his statutory authority and imposed an unlawful burden on consumers.
The cases arise from orders issued by the Secretary under the Agricultural Marketing Agreement Act,
On December 14, 1966, and thereafter, the Secretary gave notice of public hearings to consider proposed amendments to the Central Arizona Marketing Order, including proposals to classify filled milk under the order and to review the producer-handler definition. See 31 F.R. 16227; 32 F.R. 140; 32 F.R. 415. The public hearing was held in Phoenix, Arizona, on February 7-10, 1967, and interested parties, including Rasmussen, appeared, presented evidence, and filed briefs. On October 9, 1967, a Recommended Decision was issued. 32 F.R. 14232. The decision concluded that (1) filled milks should be priced as Class I products, and (2) producer-handlers should not be exempted if they use milk powder not of their own production to manufacture filled milk. 32 F.R. 14233. Exceptions to this Recommended Decision were filed by Rasmussen and others.
Subsequently, the Secretary, following a series of public meetings determined to hold national hearings on the question of “how filled milk should be classified and priced” under all Federal milk orders. 34 F.R. 16881. This national hearing, held at Memphis, Tennessee in 1968, reopened prior hearings on thirteen orders including that for Central Arizona. Rasmussen appeared at these hearings, but rather than present any evidence additional to what he had already presented at Phoenix, objected to the location of the national hearings and moved to adjourn or dismiss them. The requests were denied, and Rasmussen took no further action except to file exceptions to the Recommended Decision that followed the hearings. The Secretary then issued a Final Decision applicable to all marketing orders (34 F.R. 16881), and a Final Decision incorporating its findings and conclusions and the same terms for Central Arizona. 34 F. R. 16548.
In the Final Decision the Secretary concluded that the skim milk component of filled milk, whether obtained from fluid skim milk or reconstituted dry milk powder, should be priced and pooled as a Class I product. 34 F.R. 16882-83. The Final Decision also provided that if a producer-handler reconstitutes nonfat powder into a fluid milk product, he loses the privilege of exemption provided to producer-handlers like Rasmussen.
Title
The trial judge dismissed Rasmussen‘s case for failure to exhaust his administrative remedy. This was correct. The principles of United States v. Ruzicka, 1946, 329 U.S. 287, 67 S.Ct. 207, 91 L.Ed. 290, are controlling. Ruzicka arose in the context of an enforcement action under
“. . . whether . . . an order is or is not in accordance with law is not a question that brings its own immediate answer, or even an answer which it is the familiar, everyday business of courts to find. Congress has provided a special procedure for ascertaining whether . . . an order is or is not in accordance with law. The questions are not, or may not be, abstract questions of law. Even when they are formulated in constitutional terms, they are questions of law arising out of, or entwined with, factors that call for understanding of the milk industry. And so Congress has provided that the remedy in the first instance must be sought from the Secretary of Agriculture.” Id. at 294, 67 S.Ct. at 210 (Emphasis added.)
We have followed Ruzicka. Panno v. United States, 9 Cir., 1953, 203 F.2d 504; see also La Verne Co-op. Citrus Ass‘n v. United States, 9 Cir., 1944, 143 F.2d 415.
Stark v. Wickard, 1944, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733, on which Rasmussen relies, is not in point. There, the party regulated by the order was a producer, for whom Congress had failed to provide an administrative remedy. In upholding judicial review, the Court relied on the fact that the statute created “definite personal rights” in producers. (321 U.S. at 309, 64 S.Ct. 559.) Gardner v. Toilet Goods Ass‘n, Inc., 1967, 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704, is also not in point. The statute there involved did not provide for an administrative remedy to attack the regulation involved. In Abbot Laboratories v. Gardner, 1967, 387 U.S. 136, 141-6, 87 S.Ct. 1507, 18 L.Ed.2d 681, decided the same day as Gardner, the Court based much of its analysis on language in
“The remedies provided for in this subsection shall be in addition to and not in substitution for any other remedies provided by law.”
Rasmussen argues that
“The remedies provided for in this section shall be in addition to, and not exclusive of, any of the remedies or penalties provided for elsewhere in this chapter or now or hereafter existing at law or in equity.”
However, as the Court held in Ruzicka, supra, 329 U.S. 291, n.2, 67 S.Ct. 207, this language, in context, refers only to the government‘s remedies, not to Rasmussen‘s.
Finally, Rasmussen argues that the Supreme Court‘s interpretation of
3. Standing—the Kresse appeal, No. 25,669.
The appellants in No. 25,669 admittedly have no administrative remedy under
It is true that
The statute before us does more than provide for administrative and judicial review and name the affected class entitled to seek it.
Nor can it be said that Congress overlooked consumers, and that therefore it did not intend to exclude them from obtaining administrative and judicial review of the Secretary‘s orders. The Act contains some pious platitudes about the interests of consumers. See
To grant consumers standing would be to say that, while Congress regarded it as imperative that a challenge by a handler who is directly regulated by a marketing order, first be considered by the Secretary, it was nevertheless the legislative judgment that if advanced by consumers, the same challenge did not require initial scrutiny by the administrative body. There is no basis for attributing to Congress the intent to draw such a distinction. Had Congress intended to allow consumers to attack provisions of a marketing order, it would have required them to pursue the administrative remedy provided in
Furthermore, giving appellants standing to sue would provide a handler with a convenient device for evading the statutory requirement that he first exhaust his administrative remedies. A handler need only find a consumer who is willing to join in or lend his name to an action in the district court, raising precisely the same exceptions that the handler must raise administratively. The identity of the complaints and of counsel for all appellants in these cases points up the possibility. We are not unsympathetic to the plight of the consumer appellants, but we think that if they are to have a remedy, Congress must supply it.
Nor do Harry H. Price & Sons, Inc. v. Hardin, 5 Cir., 1970, 425 F.2d 1137, cert. denied, 400 U.S. 1009, 91 S.Ct. 568, 27 L.Ed.2d 622, or Walter Holm & Co. v. Hardin, D.C.Cir., 1971, 449 F.2d 1009, require a contrary result. There the courts held that the plaintiffs, who were a tomato repacker and tomato importer respectively, had standing to challenge an administrative order promulgated by the Secretary under
In Walter Holm & Co., the order challenged had a much more direct impact on the plaintiff than the order challenged here has on appellants. The plaintiff in Walter Holm & Co., was an importer of Mexican tomatoes, and attacked the Secretary‘s regulation limiting the size of such tomatoes. In holding that the plaintiff had standing to sue the court explicitly noted that although the appellant was not among the domestic handlers directly governed by the Secretary‘s order, he was nevertheless directly affected since the law, as administered by the Secretary, resulted in automatic import restrictions of the same nature being applied to the operations of importers. 449 F.2d at 1011. No such immediate link exists in the present case between the Secretary‘s order and the consumer appellants. Moreover, as in Price & Sons, Inc., there is no discussion of whether the statute prevented judicial review; apparently the question was not raised.
Affirmed.