225 F.2d 527 (D.C. Cir. 1955), 12464, United Milk Producers of New Jersey v. Benson

Docket Nº12464.
Citation225 F.2d 527
Party NameUNITED MILK PRODUCERS OF NEW JERSEY et al., Appellants, v. Ezra Taft BENSON, Secretary of Agriculture of the United States, Appellee.
Case DateJune 23, 1955
CourtUnited States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 527

225 F.2d 527 (D.C. Cir. 1955)

UNITED MILK PRODUCERS OF NEW JERSEY et al., Appellants,

v.

Ezra Taft BENSON, Secretary of Agriculture of the United States, Appellee.

No. 12464.

United States Court of Appeals, District of Columbia Circuit.

June 23, 1955

Argued May 25, 1955.

Mr. Robert Henry O'Brien, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom Mr. William P. Murray, New York City, was on the brief, for appellants. Mr. Michael F. X. Dolan, Washington, D.C., also entered an appearance for appellants.

Mr. Neil Brooks, Sp. Asst. to Atty. Gen., United States Department of Justice, with whom Messrs. J. Stephen Doyle, Jr., Sp. Asst. to Atty. Gen., United States Department of Justice, and Donald A. Campbell, Attorney, United States Department of Agriculture, were on the brief, for appellee. Messrs. Leo A. Rover, U.S. Atty., and Lewis Carroll, Asst. U.S. Atty., also entered appearances for appellee.

Page 528

Mr. Keith L. Seegmiller, Washington, D.C., filed a brief on behalf of Daniel J. Carey, Commissioner of Agriculture and Markets of the State of New York, as amicus curiae, urging affirmance.

Messrs. Frederic P. Lee and Ralph A. Gilchrist, Washington, D.C., filed a brief on behalf of Metropolitan Milk Producers Bargaining Agency, Inc., and Mutual Federation of Independent Cooperatives, Inc., as amici curiae, urging affirmance.

Before PRETTYMAN, FAHY and DANAHER, Circuit Judges.

FAHY, Circuit Judge.

Plaintiffs appeal from an order of the District Court dismissing their complaint on motion of defendant, the Secretary of Agriculture, for lack of standing on their part to maintain the action. We affirm.

Plaintiffs are corporate and individual producers and sellers of milk in the State of New Jersey. They compete with producers located out-of-State who sell to distributors who in turn transport the milk into New Jersey and sell it there. Defendant has responsibility for the administration of the Agricultural Marketing Agreement Act of 1937, 50 Stat. 246, as amended, 7 U.S.C.A. § 601 et seq. Relying upon this statute the Secretary on August 5, 1938, 1 issued Order No. 27 for the New York metropolitan milk marketing area, 7 CFR§ 927.1-927.89 (Rev.1952). The Order as amended establishes a formula under which distributors of milk thereby regulated account to producers at a minimum price which varies according to the geographical area in which the milk is delivered to the purchaser by the distributor. There are three area classifications, known as Class I A, Class I B and Class I C, but all the milk in the three classes is of the same grade and quality. Milk that the distributor sells in the New York metropolitan milk marketing area is designated Class I A, and is paid for by the distributor and accounted for to the producer at a higher minimum price than for Class I C milk, which the distributor sells in non-Federal milk marketing areas, including New Jersey. See 7 CFR § 927.37(a), (c) (Rev.1952). [ 2] The complaint alleges that these are the only differences between Class I A and Class I C milk insofar as Order No. 27 is concerned. Plaintiffs aver that the statute does not permit defendant Secretary to establish such price differences in these two classes of milk of the same grade and quality; that as a consequence of the allegedly unlawful price differences, plaintiffs 3 receive substantially lower prices for the fluid milk they sell to distributors than otherwise would be the case; that this is due to the fact that the distributors purchase fluid milk outside New Jersey, paying for it at substantially lower prices than must be paid for Class I A, transport it into New Jersey as Class I C and resell it there. Plaintiffs allege that except for this...

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