236 F.2d 719 (D.C. Cir. 1956), 13127, Benson v. Schofield

Docket Nº13127, 13128.
Citation236 F.2d 719
Party NameEzra T. BENSON, Secretary of Agriculture, Appellant, v. Arthur SCHOFIELD et al., Appellees. NEW ENGLAND MILK PRODUCERS' ASSOCIATION, a Massachusetts corporation, et al., Appellants, v. Arthur SCHOFIELD et al., Appellees.
Case DateJune 29, 1956
CourtUnited States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 719

236 F.2d 719 (D.C. Cir. 1956)

Ezra T. BENSON, Secretary of Agriculture, Appellant,

v.

Arthur SCHOFIELD et al., Appellees.

NEW ENGLAND MILK PRODUCERS' ASSOCIATION, a Massachusetts corporation, et al., Appellants,

v.

Arthur SCHOFIELD et al., Appellees.

Nos. 13127, 13128.

United States Court of Appeals, District of Columbia Circuit.

June 29, 1956

Argued May 22, 1956.

Petition for Rehearing In Banc Denied Sept. 11, 1956.

Page 720

Mr. Samuel D. Slade, Attorney, Department of Justice, with whom Messrs. Leo A. Rover, U.S. Atty., at the time brief was filed, Herman Marcuse, Attorney, Department of Justice, and Neil Brooks, Assistant General Counsel, Department of Agriculture, were on the brief, for appellant in case No. 13,127. Mr. Oliver Gasch, U.S. Atty., also entered an appearance for appellant in case No. 13,127.

Mr. Reuben Hall, Boston, Mass., of the bar of the Supreme Judicial Court of Massachusetts, pro hac vice, by special leave of Court, with whom Messrs. John W. Cragun and Robert W. Barker, Washington, D.C., were on the brief, for appellants in case No. 13,128.

Mr. Edmund Burke, Boston, Mass., of the bar of the Supreme Judicial Court of Massachusetts, pro hac vice, by special leave of Court, with whom Mr. Robert W. Lishman, Washington, D.C., was on the brief, for appellees.

Before WASHINGTON, DANAHER and BASTIAN, Circuit Judges.

DANAHER, Circuit Judge.

Appellees as officials of a voluntary association of Massachusetts milk producers 1 sought, and the District Court granted, a preliminary injunction which enjoins and restrains the Secretary of Agriculture from promulgating or making effective that part of his proposed order which would extend the limits of the Greater Boston Marketing Area to reach and include milk distributed and sold in certain named towns. Proceedings with respect to proposed amendments to the present order 2 had gone forward in accordance with the applicable rules of practice and procedure, 3 public hearings had been held and a referendum had been conducted. Before the Secretary could promulgate his findings and issue his order with respect to the proposed amendments, this action was commenced. Appellants assert that the trial court erred in granting the preliminary injunction in that the District Court lacked jurisdiction because (1) the action was premature, (2) appellees lack standing and (3) the statutory plan prohibits the suspension of orders pending judicial review. Additionally, appellants insist that the preliminary injunction was improperly granted in that there was a failure to make the required findings of fact and conclusions of law, and in that, without regard to the public interest, it was erroneously assumed that appellees had established that they were likely to prevail.

The District Court concluded that no substantial constitutional question was presented in view of United States v. Rock Royal Co-op, 1939, 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446. We may assume the validity of the statute, 7 U.S.C.A. § 608c.

It is common knowledge that the production and marketing of milk are vital and that the problems of the industry have long engaged the notice of the Congress, the state legislatures and the

Page 721

courts. Citations to the numerous source references are here unnecessary. It is sufficient to point up our present problem that a few general observations be made. Since there are daily fluctuations in the demand as well as periodic and seasonal fluctuations in supply, even flow and equal distribution of available fluid milk are impossible of achievement. The quantities of fluid milk required to meet normal daily demands in an off-season, as a measure of normal need, may be vastly exceeded by large surpluses in full production periods. Such surpluses, because milk is highly perishable, are the bane of the industry. The Boston Milk Order 4 provides for two minimum price classifications: Class I milk which includes fluid milk and certain fluid milk products, and Class II milk which includes quantities in excess of what is required to meet current demands for fluid milk as a food beverage, which surplus here includes all other milk products such as butter, cheese, milk powder and similar items.

Fluid milk as a food beverage commands a much higher price than quantities which may not be so consumed and which must be utilized in other categories. It is natural that an individual producer will seek to sell advantageously his more profitable fluid milk. 5 Still the public interest in an assured 'normal' supply, as well as a proper concern for the economic status of all needed producers, as related to the economy as a whole, caused Congress to direct its attention to the complexities of the milk industry as treated in the Agricultural Marketing Agreement Act of 1937. 6

To effectuate the purposes of the Act, 7 including an equitable distribution of the burden of surplus milk, the Secretary of Agriculture has been given power in certain circumstances to issue orders which are applicable, not to producers or retailers, but to producers as handlers. 8 Here the Secretary acted pursuant to the statutory plan, but the authorized Order has not been issued since it must be predicated upon findings to be made by the Secretary, 9 which he was here prevented from making because of the assailed injunction.

The order of the District Court must be reversed for reasons we shall state.

Aside from the fact that the Secretary's order has not been issued, and may never be issued, and that, accordingly, the complaint is premature, 10 there would be scant gain if we chose to rest on that ground. Allowing the Secretary to complete his function under the Act, assuming he might make the required findings, would simply result in his doing so, whereupon, it may be supposed his order would be freshly attacked in a similar proceeding. Plain waste of time, effort and money plus possibly continued thwarting of the effectiveness of the legislative and administrative scheme would merely add up to frustration, surely not an end result to be encouraged by the action of the courts. For like reasons we pass over the point that the District

Page 722

Court failed to make the findings of fact and conclusions of law upon which the injunction was based. 11 A remand on that score would advance nothing.

Rather, we conclude that this action may not be maintained at all.

In the first place, so far as handlers 12 are concerned, including producers as handlers, the Act expressly provides that when the Secretary has promulgated his order, it becomes 'final, if in accordance with law' 13 subject to review only as the Act provides. 14 Even then, upon such review, if there has been error, the court must remand for proceedings 'in accordance with law,' and the pendency of proceedings under the subsection noted 'shall not impede, hinder, or delay the United States or the Secretary * * * from obtaining relief * * *' as provided in § 608a(6). There is no provision authorizing interference with the administrative plan. When we have in mind the purposes of the legislation, it is difficult to see how Congress in these respects could more effectively have expressed its will than is evident from a mere reading of the Act. If appellees were to be deemed handlers, they would be bound by the administrative remedy and the judicial review provisions of the Act. Appellees, viewed as producers, being unregulated, are given by the Act no greater status than the handlers who are regulated.

In the second place, appellees 'to have standing in court, must show an injury or threat to a particular right of their own, as distinguished from the public's interest in the administration of the law.' 15 Mere loss of income in consequence of the action of Government or economic disadvantage, by itself, constitutes damnum absque injuria which does not confer standing. 16 Moreover, there is no certainty of any such loss, for Milk Order No. 4 prescribes merely minimum prices. Appellees realize fully that all this is so, as their amended complaint and their brief make clear.

They argue accordingly that they derive standing because of a deprivation of the benefit of the provisions 17 of the Act entitling them...

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29 practice notes
  • 518 F.Supp.2d 58 (D.D.C. 2007), C. A. 06-1637, Hettinga v. United States
    • United States
    • Federal Cases United States District Courts District of Columbia
    • 31 Julio 2007
    ...at 784-85 (citing Hershey Foods, 293 F.3d 520; Am. Dairy of Evansville v. Bergland, 627 F.2d 1252 (D.C.Cir.1980); Benson v. Schofield, 236 F.2d 719 Page 62 Finally, plaintiffs argue that they do not have to exhaust their administrative remedies because the Secretary has no further exper......
  • 358 F.2d 647 (6th Cir. 1966), 16269, Lawson Milk Co. v. Freeman
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • 28 Marzo 1966
    ...56 S.Ct. 159, 80 L.Ed. 138, (1935); Donaldson v. United States, 264 F.2d 804 (6th Cir. 1959); Benson v. Schofield, 98 U.S.App.D.C. 424, 236 F.2d 719 (1956); cert. denied, 352 U.S. 976, 77 S.Ct. 363, 1 L.Ed.2d 324; Reed v. Franke, 297 F.2d 17 (4th Cir. 1961). It follows, therefore, that the ......
  • 342 F.Supp. 88 (D.Minn. 1972), 4-71 Civ. 58, George Benz and Sons v. Hardin
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Minnesota
    • 25 Abril 1972
    ...to and did vote in the referendum Freeman v. Hygeia Dairy Co., 326 F.2d 271 (5th Cir. 1964); Benson v. Schofield, 98 U.S.App.D.C. 424, 236 F.2d 719 (1956). The claim that votes of the 542 producers were duplicated in that they were cast by both Land O'Lakes and Twin City Milk Producers Asso......
  • 204 F.Supp. 602 (D.Del. 1962), Civ. A. 2433, Sapp v. Hardy
    • United States
    • Federal Cases United States District Courts 3th Circuit District of Delaware
    • 30 Marzo 1962
    ...Taft Hotel Corp. v. Housing and Home Finance Agency, 2d Cir., 1958, 262 F.2d 307, 308; Benson v. Schofield, 1956, 98 U.S.App.D.C. 424, 236 F.2d 719, 722. Plaintiffs here are in the same position as those in Kansas City Power and can not prevail under the Administrative Procedure From the fo......
  • Request a trial to view additional results
29 cases
  • 518 F.Supp.2d 58 (D.D.C. 2007), C. A. 06-1637, Hettinga v. United States
    • United States
    • Federal Cases United States District Courts District of Columbia
    • 31 Julio 2007
    ...at 784-85 (citing Hershey Foods, 293 F.3d 520; Am. Dairy of Evansville v. Bergland, 627 F.2d 1252 (D.C.Cir.1980); Benson v. Schofield, 236 F.2d 719 Page 62 Finally, plaintiffs argue that they do not have to exhaust their administrative remedies because the Secretary has no further exper......
  • 358 F.2d 647 (6th Cir. 1966), 16269, Lawson Milk Co. v. Freeman
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • 28 Marzo 1966
    ...56 S.Ct. 159, 80 L.Ed. 138, (1935); Donaldson v. United States, 264 F.2d 804 (6th Cir. 1959); Benson v. Schofield, 98 U.S.App.D.C. 424, 236 F.2d 719 (1956); cert. denied, 352 U.S. 976, 77 S.Ct. 363, 1 L.Ed.2d 324; Reed v. Franke, 297 F.2d 17 (4th Cir. 1961). It follows, therefore, that the ......
  • 342 F.Supp. 88 (D.Minn. 1972), 4-71 Civ. 58, George Benz and Sons v. Hardin
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Minnesota
    • 25 Abril 1972
    ...to and did vote in the referendum Freeman v. Hygeia Dairy Co., 326 F.2d 271 (5th Cir. 1964); Benson v. Schofield, 98 U.S.App.D.C. 424, 236 F.2d 719 (1956). The claim that votes of the 542 producers were duplicated in that they were cast by both Land O'Lakes and Twin City Milk Producers Asso......
  • 204 F.Supp. 602 (D.Del. 1962), Civ. A. 2433, Sapp v. Hardy
    • United States
    • Federal Cases United States District Courts 3th Circuit District of Delaware
    • 30 Marzo 1962
    ...Taft Hotel Corp. v. Housing and Home Finance Agency, 2d Cir., 1958, 262 F.2d 307, 308; Benson v. Schofield, 1956, 98 U.S.App.D.C. 424, 236 F.2d 719, 722. Plaintiffs here are in the same position as those in Kansas City Power and can not prevail under the Administrative Procedure From the fo......
  • Request a trial to view additional results