Consolidated-Tomoka Land Company v. Butz, 73-1173.

• Decision Date: 15 August 1974
• Docket Number: No. 73-1173.,73-1173.
• Citation: 498 F.2d 1208
• Parties: CONSOLIDATED-TOMOKA LAND COMPANY et al., Plaintiffs-Appellees, v. Earl L. BUTZ, as Secretary of the United States Department of Agriculture, Etc., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

498 F.2d 1208 (1974)

CONSOLIDATED-TOMOKA LAND COMPANY et al., Plaintiffs-Appellees, v. Earl L. BUTZ, as Secretary of the United States Department of Agriculture, Etc., et al., Defendants-Appellants.

No. 73-1173.

United States Court of Appeals, Fifth Circuit.

August 15, 1974.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Kendell W. Wherry, Asst. U. S. Atty., Orlando, Fla., Fred Harris, Jr., Regional Atty., U. S. Dept. of Agriculture, Atlanta, Ga., Michael Kimmel, Dept. of Justice, Wash., D. C., William Mount, Gen'l Litigation Section, Civ. Div., U. S. Dept. of Justice, Washington, D. C., Walter H. Fleischer, Dept. of Justice, Washington, D. C., for defendants-appellants.

Charles E. Davis, Orlando, Fla., for plaintiffs-appellees.

Before WISDOM, AINSWORTH and GEE, Circuit Judges.

WISDOM, Circuit Judge:

This appeal is from an order entered by Judge Gerald B. Tjoflat granting the plaintiffs' motion for summary judgment, declaring a producers' referendum conducted under the Agricultural Marketing Act of 1937, as amended, 7 U.S.C. § 608c, invalid, because it was not conducted in accordance with the provisions of that Act and the regulations issued by the Department of Agriculture implementing it. The district court enjoined the defendants from enforcing the marketing order submitted in the referendum to the producers. In a well-considered opinion accompanying his judgment, Judge Tjoflat concluded that Seald-Sweet Growers, Inc., a cooperative association under Florida law that cast 1474 of the 4164 votes cast in the referendum, "is not a `cooperative association of producers' within the meaning of the . . . Act and the regulations thereunder and, therefore, was not entitled to cast a ballot in the referendum". The court held, "as an alternate ground for disqualifying Seald-Sweet's ballot, that Seald-Sweet improperly permitted its board members from the Indian River District a district not included within the territory governed by the proposed marketing order to participate in the decision to cast the ballot approving the marketing order". Consolidated-Tomoka Land Co. v. Butz, M.D.Fla.1972, 353 F. Supp. 683, 688. Judge Tjoflat further concluded that, "since the official ballots used in the referendum do not contain sufficient information to distinguish between the producers of covered and uncovered i. e., `exempt' fruit, not entering the fresh fruit market intended to be regulated by the proposed marketing order fruit, there is no way of determining whether two-thirds of the producers engaged in the production of the commodity covered in the order approved its issuance" as the Marketing Act now requires. Id. at 690. We adopt the district court's opinion as the opinion of this Court.

A few words, perhaps, should be said on two points Judge Tjoflat may have thought so obvious as not to merit discussion in his opinion. The Secretary has argued in this Court that the plaintiffs have no standing to seek judicial review of the procedure by which the marketing order in question was adopted. As the Supreme Court noted in Barlow v. Collins, 1970, 397 U.S. 159, 166, 90 S.Ct. 832, 837, 25 L.Ed.2d 192, 199, "preclusion of judicial review of administrative action adjudicating private rights is not lightly to be inferred. Citations omitted. Indeed, judicial review of such administrative action is the rule, and nonreviewability an exception which must be demonstrated. In Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681, 686, we held that `judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.'" As we view the Agricultural Marketing Act, Congress intended not to foreclose judicial review at the instance of producers such as the plaintiffs, but, on the contrary, intended, through the device of a validly conducted referendum, to give decisive weight to their views. The Act, 7 U.S.C. § 608c(8), provides that no marketing order shall be effective unless the Secretary determines that the issuance of the order is approved either by two-thirds of the producers of the commodity proposed...