Michigan Pork Producers v. Campaign for Fam. Farms, No. 1:01-CV-34.

CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)
Writing for the CourtEnslen
PartiesMICHIGAN PORK PRODUCERS ASSOCIATION, INC., National Pork Producers Council, Pete Blauwiekel, Bob Bloomer, High Lean Pork, Inc., California Pork Producers, Kentucky Pork Producers, Indiana Pork Producers, New York Pork Producers, and Ohio Pork Producers, Plaintiffs, v. CAMPAIGN FOR FAMILY FARMS, Rodney Slater, James Dale Joens, Richard Smith, Rhonda Perry, Lawrence E. Giner, Jr., and Stan Scott Schutte, Defendant-Intervener/Cross-Complainants, v. Ann Veneman, Secretary of United States Department of Agriculture, and Kenneth Clayton, Acting Administrator, Agricultural Marketing Service, Defendants and Cross-Defendants.
Docket NumberNo. 1:01-CV-34.
Decision Date04 December 2001
174 F.Supp.2d 637
MICHIGAN PORK PRODUCERS ASSOCIATION, INC., National Pork Producers Council, Pete Blauwiekel, Bob Bloomer, High Lean Pork, Inc., California Pork Producers, Kentucky Pork Producers, Indiana Pork Producers, New York Pork Producers, and Ohio Pork Producers, Plaintiffs,
v.
CAMPAIGN FOR FAMILY FARMS, Rodney Slater, James Dale Joens, Richard Smith, Rhonda Perry, Lawrence E. Giner, Jr., and Stan Scott Schutte, Defendant-Intervener/Cross-Complainants,
v.
Ann Veneman, Secretary of United States Department of Agriculture, and Kenneth Clayton, Acting Administrator, Agricultural Marketing Service, Defendants and Cross-Defendants.
No. 1:01-CV-34.
United States District Court, W.D. Michigan, Southern Division.
December 4, 2001.

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Robert Charles Timmons, Boyden, Timmons, Dilley & Haney, PLC, Grand Rapids, MI, Edward M. Mansfield, Belin Lamson McCormick Zumbach Flynn, Des Moines, IA, for Plaintiffs.

W. Francesca Ferguson, Charles R. Gross, U.S. Attorney's Office, Western District of Michigan, Grand Rapids, MI, William Rastetter, Olson & Bzdok, PC, Traverse City, MI, Patricia Leitner, U.S. Department of Justice Civil Division, Washington, DC, Christopher M. Bzdok, Olson, Noonan & Bzdok, PC, Traverse City, MI, David R. Moeller, Lynn A. Hayes, St. Paul, MN, for Defendants.

OPINION

ENSLEN, District Judge.


This matter is before the Court to determine four dispositive motions: (1) Defendants and Cross-Defendants Ann Veneman and Kenneth Clayton's Motion to Dismiss Cross-Complaint; (2) Cross-Complainants Campaign for Family Farms et al.'s Motion for Partial Summary Judgment; (3) Plaintiffs Michigan Pork Producers Association, Inc. et al.'s Motion for Summary Judgment on Count One; and (4) Defendants and Cross-Defendants Ann Veneman and Kenneth Clayton's Motion to Dismiss Defendant-Inventors/Cross-Complainants' Record-Based APA Cross-Claim. The Motions have now been fully briefed. In light of the extensive briefing and the Court's past experience with this case, the Court determines that oral argument would not assist the Court in decision making and would unnecessarily protract the resolution of these motions.

PROCEDURAL BACKGROUND

In 1985, Congress enacted the Pork Promotion, Research and Consumer Education Act ("Pork Act") 7 U.S.C. § 4801, et seq. The Act was enacted as part of the Food Security Act of 1985, which included both the Pork Act and the Watermelon Act. The Act created a Pork Program, which provides a large number of pork promotion, research and education programs to benefit pork producers. These efforts are funded by an assessment of less than one-half of one percent on the value of pigs and pork products sold. The Program pays for these promotions and employs approximately 200 persons, in addition to contractors. In accordance with the Pork Act, an initial Pork Promotion Order (establishing the Program) was issued by the Secretary in 1986. After this,

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in accordance with the statute, an initial referendum on the Program was conducted among pork producers in 1988 and the producers initially approved the Program by a vote of 77.5 percent in favor of the Program. (Tank Affidavit at ¶ 7; Dkt. No. 72 at 4.)

In May 1999, the Campaign for Family Farms, after soliciting signatures, turned in petitions seeking a mandatory and binding referendum on the termination of the Program under 7 U.S.C. § 4812(b)(1)(A). This portion of the statute requires a binding referendum be made among pork producers provided that fifteen percent of pork producers have petitioned for the referendum. Upon verification of the petitions, the United States Department of Agriculture ("USDA") apparently determined that the petitions submitted did not meet the 15 percent threshold. This determination was somewhat clouded, however, in that the USDA admitted that the "verification process was vulnerable to criticism ...." (Glickman Memorandum of February 25, 2000.)

Because of the problems in the verification process, former Secretary of Agriculture Glickman determined on February 25, 2000 that he would conduct a voluntary, "fairness" referendum to determine whether to terminate the program. (Id.) This decision was later published as part of an administrative rule (to be published in the Code of Federal Regulations) in order to provide notice to affected persons and the public at large. 65 F.R.43,498 (July 13, 2000).

On January 11, 2001, Secretary Glickman announced that 15,951 had voted against the Program and 14,396 had voted for the Program, and that the Program would be terminated consistent with his earlier announcement. Plaintiffs then filed suit on January 12, 2001 to both challenge the counting of the votes and to challenge the legality of termination based upon such a "voluntary" referendum. Plaintiffs also moved for a temporary restraining order and preliminary injunction to forbid the USDA from terminating the program pending the resolution of the suit. On January 19, 2001, after receiving a response from the USDA, the Court issued a Temporary Restraining Order pending hearing of the preliminary injunction motion.

The preliminary injunction hearing contemplated never occurred because, in the interim, there was a change in administration at the USDA and counsel representing the newly appointed Secretary, Secretary Ann Veneman, determined not to terminate the Pork Program based on the voluntary referendum. This decision was contained in a settlement agreement reached on February 28, 2001. In addition to providing that the Pork Program would not be terminated based on the voluntary referendum, the settlement agreement determined that funds from the Pork Program would be directly administered by the National Pork Board (whose members are appointed by the Secretary) instead of the National Pork Producers Council.

Thereafter, Plaintiffs filed an Amended Complaint which sought a declaratory judgment on Count One that the settlement reached on February 28, 2001 was lawful. The Intervener Defendants then cross-claimed against the original Defendants for the purpose of challenging the legality of the settlement. Since then, both the Complaint and the Counter-claims have been supplemented to add additional plaintiffs and to assert additional claims (especially including the cross-claim that the "forced" commercial speech violates the First Amendment as stated in United States v. United Foods, Inc., 533 U.S. 405, 121 S.Ct. 2334, 150 L.Ed.2d 438

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(2001)). (See Order of Sept. 5, 2001; First Supplemental Cross-Claim of September 27, 2001.)

STANDARD FOR SUMMARY JUDGMENT

Under the language of Rule 56(c), summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.1 The initial burden is on the movant to specify the basis upon which summary judgment should be granted and to identify portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-movant to come forward with specific facts, supported by the evidence in the record, upon which a reasonable jury could find there to be a genuine fact issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If, after adequate time for discovery on material matters at issue, the non-movant fails to make a showing sufficient to establish the existence of a material disputed fact, summary judgment is appropriate. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548.

Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences are jury functions. Adams v. Metiva, 31 F.3d 375, 382 (6th Cir.1994). The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in the non-movant's favor. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505). The factual record presented must be interpreted in a light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Rule 56 limits the materials the Court may consider in deciding a motion under the rule: "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits." Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir.1995) (quoting Federal Rule of Civil Procedure 56(c)). Moreover, affidavits must meet certain requirements:

[A]ffidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

Fed.R.Civ.P. 56(e). The Sixth Circuit has held "that documents submitted in support of a motion for summary judgment must satisfy the requirements of Rule 56(e); otherwise, they must be disregarded." Moore v. Holbrook, 2 F.3d 697, 699 (6th Cir.1993). Thus, in resolving a Rule 56 motion, the Court should not consider unsworn or uncertified documents, Id., unsworn statements, Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 968-969 (6th Cir.1991), inadmissible expert testimony, North American Specialty Ins. Co. v. Myers, 111 F.3d 1273, 1280 (6th Cir.1997),

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or hearsay evidence, Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996); Wiley v. United States, 20 F.3d 222, 225-226 (6th Cir.1994).

LEGAL ANALYSIS

A. Motion to Dismiss Record-Based A.P.A. Cross-Claim

Cross-Defendants have moved to dismiss those of Defendant Interveners' cross-claims which are based on the legal theory that the decision of the Secretary not to suspend...

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2 practice notes
  • Michigan Pork Producers v. Campaign for Family, Case No. 1:01-CV-34.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • October 25, 2002
    ...Program" or "Program") under the Pork Act) should continue. See Michigan Pork Producers Association v. Campaign for Family Farms, 174 F.Supp.2d 637 (W.D.Mich. 2001). The result of the previous, disputed "fairness" referendum announced on January 11, 2001, was that 15,951 producers disfavore......
  • Michigan Pork Producers Ass'n, Inc. v. Veneman, No. 02-2337.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 22, 2003
    ...it. MPPA filed suit the next day to enjoin the program's termination. Mich. Pork Producers Ass'n, Inc. v. Campaign for Family Farms, 174 F.Supp.2d 637, 639 (W.D.Mich. 2001) ("MPPA I"). On January 19, 2001, the district court issued a temporary restraining order pending hearing of the prelim......
2 cases
  • Michigan Pork Producers v. Campaign for Family, Case No. 1:01-CV-34.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • October 25, 2002
    ...Program" or "Program") under the Pork Act) should continue. See Michigan Pork Producers Association v. Campaign for Family Farms, 174 F.Supp.2d 637 (W.D.Mich. 2001). The result of the previous, disputed "fairness" referendum announced on January 11, 2001, was that 15,951 producers disfavore......
  • Michigan Pork Producers Ass'n, Inc. v. Veneman, No. 02-2337.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 22, 2003
    ...it. MPPA filed suit the next day to enjoin the program's termination. Mich. Pork Producers Ass'n, Inc. v. Campaign for Family Farms, 174 F.Supp.2d 637, 639 (W.D.Mich. 2001) ("MPPA I"). On January 19, 2001, the district court issued a temporary restraining order pending hearing of the prelim......

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