Pescosolido v. Block

• Decision Date: 09 July 1985
• Docket Number: No. 84-1820,84-1820
• Citation: 765 F.2d 827
• Parties: Carl A. PESCOSOLIDO, Marvin Wilson, and Oleah Wilson, partners doing business under the names of Canal Ranch, Madera 240 Ranch, and Panoche Ranch, and on Behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. John BLOCK, Secretary of Agriculture of the United States, and Mildred Thumian Administrator of Agriculture Marketing Service, United States Department of Agriculture, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 827

765 F.2d 827

Carl A. PESCOSOLIDO, Marvin Wilson, and Oleah Wilson, partners doing business under the names of Canal Ranch, Madera 240 Ranch, and Panoche Ranch, and on Behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. John BLOCK, Secretary of Agriculture of the United States, and Mildred Thumian Administrator of Agriculture

Marketing Service, United States

Department of Agriculture,

Defendants-Appellees.

No. 84-1820.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 16, 1985.

Decided July 9, 1985.

Linda A. Netzer, Victor M. Epport, Epport, Kaseff & Mirman, Beverly Hills, Cal., for plaintiffs-appellants.

Aaron B. Kahn, Atty., U.S. Dept. of Agriculture, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California.

Before WALLACE and WIGGINS, Circuit Judges, and WILLIAMS, ^* District Judge.

WALLACE, Circuit Judge:

Carl Pescosolido, Marvin Wilson, and Oleah Wilson (the Growers) brought this action under the Agricultural Marketing Agreement Act of 1937 (the Act), 7 U.S.C. Secs. 601-624, seeking to compel the Secretary of Agriculture (the Secretary) to terminate Federal Marketing Order No. 907, 7 C.F.R. Part 907 (1984) (Order 907), and also seeking declaratory relief and damages under the Act. Jurisdiction in the district court was alleged under the Mandamus Act, 28 U.S.C. Sec. 1361, the Administrative Procedure Act, 5 U.S.C. Sec. 702, and 28 U.S.C. Sec. 1331. The district court held that the damages claim was barred by sovereign immunity; the Growers do not appeal that holding. The district court also found no jurisdiction under the Mandamus Act, and that the Growers lacked standing to bring these claims outside the administrative remedies prescribed by the Act, see 7 U.S.C. Sec. 608c(15)(A). We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

I

The Growers are partners doing business under the names Canal Ranch, Madera 240 Ranch, and Panoche Ranch. They allege that they are in the business of producing navel oranges for commercial sale, and they seek to represent a class of similar producers in this suit against the Secretary seeking injunctive and declaratory relief. Their complaint alleges that Order 907, promulgated under the Act and which regulates the marketing of oranges in Arizona and parts of California, fails to achieve and maintain "parity" prices, as defined in 7 U.S.C. Sec. 1301(a)(1), for navel orange producers. Under Order 907, the handling of navel oranges in the geographic area it covers is regulated by an Administrative Committee that determines, among other things, the percentage of the total crop that may be made available for commercial shipment by handlers. Producers of such oranges are thereby precluded from marketing all the navel oranges they grow.

The Act was passed in response to unstable marketing conditions during the Depression, with an objective of helping farmers obtain a fair value for their agricultural products. See, e.g., Zuber v. Allen, 396 U.S. 168, 174-76, 90 S.Ct. 314, 318-19, 24 L.Ed.2d 345 (1969). Shortly after its enactment, the Supreme Court upheld market regulation under the Act against constitutional challenges. See United States v. Rock Royal Co-operative, Inc., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446 (1939). Marketing orders such as the one in controversy here may be issued only after the Secretary complies with the Act's detailed promulgation procedures. The Secretary must first give notice and an opportunity for a hearing upon any proposed order. See 7 U.S.C. Sec. 608c(3). After a hearing, if the Secretary finds "that the issuance of such order ... will tend to effectuate the declared policy" of the Act, id. Sec. 608c(4), he may submit the proposed order to producers for their approval. An order regarding citrus fruits does not generally become effective unless handlers of at least eighty percent (80%) of the oranges, and producers of two-thirds (66 2/3%) of the oranges or two-thirds (66 2/3%) of the producers approve of the Secretary's determination. Id. Sec. 608c(8).

The Growers assert that the central purpose of the Act is affirmatively to establish parity prices, citing 7 U.S.C. Sec. 602(1), which states that one of its purposes is

to establish and maintain such orderly marketing conditions for agricultural commodities in interstate commerce as will establish, as the prices to farmers, parity prices as defined by section 1301(a)(1) of this title.

The Growers contend that over the past thirteen years, Order 907 has failed to obtain parity prices for them in all but two instances. As a result of this failure, the Growers claim that the Secretary has violated section 8c(16)(A) of the Act, 7 U.S.C. Sec. 608c(16)(A), which provides that:

[t]he Secretary of Agriculture shall, whenever he finds that any order issued under this section, or any provision thereof, obstructs or does not tend to effectuate the declared policy of this chapter, terminate or suspend the operation of such order or such provision thereof.

In October 1980, handlers Sequoia Orange Company, Inc. and Exeter Orange Company, Inc., and the three partnerships owned by the Growers filed a petition with the Department of Agriculture (the Department) challenging the validity of Order 907, as provided by the administrative remedy provisions of 7 U.S.C. Sec. 608c(15)(A). The Growers are also officers of Sequoia Orange Company, Inc. Section 608c(15)(A) provides for an initial hearing on a petition before the Secretary, who then must issue a ruling on the merits. Id. If the ruling is unfavorable, the petitioner may seek review of the Secretary's ruling in the district court. Id. Sec. 608c(15)(B). Because the remedy provisions of section 608c(15)(A) are only applicable to "handlers," however, the three partnerships were subsequently dismissed from the administrative petition because they were "producers" under the Act. See id. Sec. 608c(13)(B).

After the Department filed its motion to dismiss the administrative petition, the Growers brought this action in district court raising similar claims. They seek an order compelling the Secretary to terminate Order 907 and a declaration of their rights, alleging injury to their goodwill and competitive ability as the result of the continued enforcement of Order 907's marketing restrictions on their produce. The Secretary then moved for dismissal. The motion was heard by a magistrate, who recommended dismissal of the damages claims, but denial of the motion with respect to injunctive relief. The district court rejected the latter recommendation and dismissed all claims. The district court held (1) that there was no mandamus jurisdiction, (2) that the Growers lacked standing, and (3) that the class the Growers sought to represent would have an adequate administrative remedy under 7 U.S.C. Sec. 608c(16)(B), which provides for termination of a marketing order by a vote of a majority of affected producers.

II

We review the district court's first holding, lack of mandamus jurisdiction under 28 U.S.C. Sec. 1361, de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984) (McConney ). Mandamus jurisdiction exists only when there is "a duty owed to the plaintiff." 28 U.S.C. Sec. 1361. "[I]t is appropriate only when the plaintiff's 'claim is clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt.' " Nova Stylings, Inc. v. Ladd, 695 F.2d 1179, 1180 (9th Cir.1983), quoting Jarrett v. Resor, 426 F.2d 213, 216 (9th Cir.1970). Mandamus is not available to review discretionary acts, and "[t]he availability of an adequate alternative remedy will also preclude [such] review." 695 F.2d at 1180. Mandamus is also generally unwarranted when the statute prescribes a specific method of review. Id. at 1180-81.

The Growers contend that 7 U.S.C. Sec. 602(1) explicitly commands the Secretary to achieve parity prices, and that if any marketing order fails to achieve them, he must terminate the order under 7 U.S.C. Sec. 608c(16)(A). Because parity prices have only been achieved in two instances over the past thirteen years, they argue that the Secretary should be compelled to terminate Order 907 and instead permit untrammeled competition in their markets.

It is clear that one of the central purposes of the Act is to establish and maintain parity prices for farmers. See, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 138, 83 S.Ct. 1210, 1215, 10 L.Ed.2d 248 (1963). Unlike the fixed minimum prices which must be established for milk, however, see 7 U.S.C. Sec. 608c(5)(A), the Secretary is not empowered to fix prices for any other commodities covered by the Act. Instead, he may only employ market controls, see id. Sec. 608c(6), in an effort to "effectuate the declared policy of" the Act. Id. Sec. 608c(4).

The Growers correctly point out that the parity price is easily determined by a statutory formula. See 7 U.S.C. Sec. 1301. They concede, however, that the Secretary has discretion over the means used to attempt to achieve this goal. Indeed, the clear language of the Act, which permits the issuance of an order if the Secretary finds it "will tend to effectuate the declared policy" of the Act, see id. Sec. 608c(4) (emphasis added), indicates that an order may be valid if it has a tendency to achieve the goal of parity prices. Thus, the statute reflects congressional understanding of the difficulty in achieving any fixed price merely through the use of marketing controls. Instead, "parity" is a goal toward which the Secretary must strive, rather than the process of setting an objective, fixed price. Although the Secretary is commanded by section 608c(16)(A) to terminate any order which "obstructs or does not tend to effectuate" the Act's policy, this command only applies after the...