Danville Tobacco Association v. Freeman

• Decision Date: 30 September 1965
• Docket Number: No. 18718.,18718.
• Citation: 351 F.2d 832,122 US App. DC 135
• Parties: The DANVILLE TOBACCO ASSOCIATION, a corporation, et al., Appellants, v. Orville L. FREEMAN, Secretary of Agriculture, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

122 US App. DC 135, 351 F.2d 832 (1965)

The DANVILLE TOBACCO ASSOCIATION, a corporation, et al., Appellants, v. Orville L. FREEMAN, Secretary of Agriculture, Appellee.

No. 18718.

United States Court of Appeals District of Columbia Circuit.

Argued February 16, 1965.

Decided September 30, 1965.

Mr. Benjamin W. Dulany, Washington, D. C., with whom Mr. Edmund D. Campbell, Washington, D. C., was on the brief, for appellants.

Miss Sylvia Bacon, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty. at the time the brief was filed, Frank Q. Nebeker, Asst. U. S. Atty., and Judah Best, Asst. U. S. Atty. at the time the brief was filed, were on the brief, for appellee. Mr. John A. Terry, Asst. U. S. Atty., and Mr. William H. Willcox, Asst. U. S. Atty. at the time the record was filed, also entered appearances for appellee.

Before EDGERTON, Senior Circuit Judge, and WASHINGTON and McGOWAN, Circuit Judges.

EDGERTON, Senior Circuit Judge:

Appellants, tobacco warehousemen and their trade associations in Danville, Virginia and Winston-Salem, North Carolina, asked for a declaratory judgment that the Secretary of Agriculture's regulations adopted in 1958 under the Tobacco Inspection Act, 7 U.S.C. § 511m, and the Commodity Credit Corporation Act, 15 U.S.C. § 714b, were invalid, and that the Secretary should have granted a petition of some of the appellants to repeal them. Appellants also asked for an injunction restraining enforcement of the regulations. The regulations provide that additional tobacco inspection and price support services for a new tobacco "sale", i. e., an individual sub-market in a designated area, will be furnished only to an applicant who proves that he has firm commitments from five or more buyers "who could reasonably be expected to purchase at least two-thirds of the total U.S. production of the kind of tobacco for which the additional services are requested", that they will participate in the sale. 6 C.F.R. §§ 464.1016(b), 464.1017(a); 7 C.F.R. §§ 29.1(b), 29.2(a) (1959).

Appellants alleged that they "are desirous of applying for and obtaining * * * services for an additional or fifth daily sale to be held in each of the cities of Danville and Winston-Salem", and that such sales would bring them additional commissions of $120,000 to $150,000. They alleged that it is impossible for any applicant to comply "with the prerequisites for such increased services as set forth in the * * * regulations."¹ The District Court held that the regulations were valid and entered judgment for the defendant Secretary dismissing the complaint.

We think the court should have dismissed the complaint without passing on the validity of the regulations. Appellants are seeking judicial review of regulations in the abstract, not as applied to an existing fact situation. No appellant alleges that because of the regulations the Secretary has denied any application for services for a new sale. No final administrative action based on the regulations has been taken. The request for judicial review is therefore premature. With possible exceptions not pertinent here, litigants who have not been harmed or threatened with immediate harm by administrative action have no standing to attack it. A leading case for this familiar proposition is United...