# Petition — Block v. Community Nutrition Institute > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0456%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 991 ## Text » 2 Office -S: Premie Court, US. Poe a: 2 No. SEP 16 i983 gu the Supreme Court uf the 4 ALAM iste Sto OCTOBER TERM, 1983 JOHN R. BLOCK, SECRETARY OF AGRICULTURE, and UNITED STATES DEPARTMENT OF AGRICULTURE, PETITIONERS v. COMMUNITY NUTRITION INSTITUTE, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT REx E. LEE Solicitor General J. PAUL MCGRATH Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General KATHRYN A. OBERLY Assistant to the Solicitor General LEONARD SCHAITMAN SUSAN SLEATER Attorneys Department of Justice Washington, D.C. 20580 (202) 633-2217 ORES ATOR Nh ae meme, meena emcee QUESTIONS PRESENTED The Agricultural Marketing Agreement Act of 1937 provides that a handler regulated by a market order issued pursuant to the Act may challenge that order in an administrative proceeding before the Sec- retary of Agriculture (7 U.S.C. 608c(15)(A)). The Act further provides that if a handler is dissatisfied with the Secretary’s decision, he may then obtain judicial review of that decision in the appropriate federal district court (7 U.S.C. 608&¢(15)(B)). The questions presented are: 1. Whether this statutory scheme for reviewing market orders precludes judicial review of milk mar- ket orders at the behest of ultimate consumers of milk products, who are neither regulated handlers nor pro- ducers, the direct beneficiaries of the market orders. 2. Whether ultimate consumers of milk products, who assert interests that are either antithetical to the interests Congress sought to promote in the Act or are not implicated by the market orders challenged in this litigation, lack standing to maintain this lawsuit. (1) II PARTIES TO THE PROCEEDING In addition to the parties shown by the caption, Deborah Harrell, Ralph Desmarais, Zy Weinberg, and Joseph Oberweis were plaintiffs in the district court and appellants in the court of appeals, and are re- spondents here. The National Milk Producers Federa- tion, the Associated Milk Producers, Inc., and the Cen- tral Milk Producers Cooperative were granted leave to intervene as defendants in the district court, ap- peared as appellees in the court of appeals, and, pur- suant to Rule 19.6 of the Rules of this Court, are re spondents in this Court. TABLE OF CONTENTS I I Pacetcsatieseshietrencnnndanneniomocianiakenatesentbslicbnigadsons Jurisdiction Statutory provisions involved ...............2.....-ccccee: seseeeeeeeeeee Statement ... Reasons for granting the petition —.......00000000.0eecee Conclusion ... Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G Appendix H Cases: SOreeeee errr reer terre i ee i eee ir eee eee ee errr Pree eee rier rr rr errr rt eee PPereerrr tree re Pree rere rr irr rr errr ere eee tet es PPreerre errr eee reer rir errr eee eee ee ee ee eee eee OPPer rrr errr rr Ceti eee eee ieee eer reer ree eee ed TABLE OF AUTHORITIES Associated General Contractors of California, Inc. v. California State Council of Carpenters, No. 81- a ede Association of Data Processing Service Organiza- tions, Inc. v. Camp, 397 U.S. 150 .....2000000..c ee. Barlow V. Collins, 397 U.S. 159 ................-:ccccseceeeeeee US. 820 soi dieeaichtcheppineneenichinin eee Great American Federal Savings & Loan Ass’n v. BEDOUIN, GE Tile WUE ncniccinsitiskevatialicenhinticestadisislaiituetpions H.P. Hood & Sons, Inc. vy. Du Mond, 386 U.S. 525.. (m1) non NO SS IV Cases—Continued : Page Illinois Brick Co. v. Illinois, 431 U.S. 720 ................ 19 Morris Vv. Gressette, 482 U.S. 491 0.0.0.2... 19 Nebbia v. New York, 291 U.S. 502 .......................... 3 Rasmussen V. Hardin, 461 F.2d 595, cert. denied, Sls UE cinakeerabncroons 8, 9, 11-12, 14, 15, 19, 20, 23 South Carolina v. Block, Nos, 83-1426 and 83-1511 DE is Th, SII ekictiicectenatidlids crncetbensetaloesas 28 Stark v. Wickard, $21 U.S. 288 ......................-c0-<2-- 20 Suntex Dairy v. Bergland, 591 F.2d 1068 ........ 8, 12, 15, 27 Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297 ....2..........cccceceeeeeee 19 Taz Analysts & Advocates v. Blumenthal, 566 F.2d 180, cert. denied, 434 U.S. 1086 -..............000....... 10 Train V. Colorado Public Interest Research Group, ey Ee ee SE ee 26 United Siates v. American Trucking Associations, NS Ea a ieee ye 26 United States v. Rock Royal Co-operative, Inc., 307 AN MI coorraete anak ceadigeciahdasicin:demiidistcig thes baishuccanndoiienumahiaetin 3 United States v. Ruzicka, 329 U.S. 287 ....12, 18, 17, 18, 19 Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 OE A ESS OR Neate rene ELS 9 21, 22, 29 Warth v. Seldin, 422 U.S. 490 ...2........0....:ccccccceeeeee 21, 27, 28 Zuber Vv. Allen, 806 U.S. 168 .............-cc..eccccsccccecccssee 8, 12 Constitution, statutes, regulation and rule: oP 2 RR AA ee ere ener 22, 30 Agricultural Marketing Agreement Act of 1937, 7 U.S.C. 601 et seq. ............ pace i alscciek chearuassionmesiieiil 2 1 _CRESIRRRPEEER Raen Seaetes SCC el 29, 69a Ss | Re en eee CRE .24, 69a A eS IIE caicsiscsensseeracieciactehinncnneentseeanctinsticbigal 23, 24, 69a i * 7 (5 | | REO Rao eeaeeme sebceel 25, 26, 70a jf He Oe 2, 3, 23, 71a eo Ue. EOE siatincsntisigilabesibaaale 16, 71a Be Be I cietetnihitcncrernnntesntiiltioiplinanteenanints 6, 73a Fe I ihe kdiceconvsiesienniiedinssieenbabeiingiteledain 6, 74a 7 U.S.C. 608c(5) (A) ......... 4, 74a ek | | Renee Bannan eer 4, 27, Tba 7 U.S.C. 608 (8) 6, 23, 84a v Constitution, statutes, regulation and rule—Continued: Page Oe a acccseneroammetaicl 6, 23, 87a i 9, 90a he Ee 7, 18, 90a ho EE a SA 7. 18, 90a Oe is I oi oceseccpeceninecstinacemseone 6, 9la Oe Re IE CIID irecteceeteesensecenssevecnetcrnnes 6, 23, 9la a semsenadeinnboupanuns 27 cece 3 Sup. Ct, R.: I en ceennnienenmin 7 REE SR a a 2 Miscellaneous: ee 4 eS OE. eae 4 irs ts I COD csc cceesncacecscecceceneenents 3, 4, 5,7 45 Fed. Reg. (1980): I cmenieeueicinnslabn 8, 30 SRE RE Oe a 6 8 ENS tS a a A 30 NESS a ee 80 4 )__ 5 vee 28 H.R. Rep. No. 1241, 74th Cong., Ist Sess. (1935) .... 26, 27 H.R. Rep. No. 1927, 88d Cong., 2d Sess. (1954)...... 29 S. Rep. No. 1011, 74th Cong., 1st Sess. (1935)......3, 18, 23 Iu the Supreme Court of the United States OCTOBER TERM, 1983 No. JOHN R. BLOCK, SECRETARY OF AGRICULTURE, and UNITED STATES DEPARTMENT OF AGRICULTURE, PETITIONERS OP COMMUNITY NUTRITION INSTITUTE, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT The Solicitor General, on behalf of the Secretary of Agriculture and the United States Department of Agriculture, petitions for a writ of certiorari to re- view the judgment of the United States Court of Ap- peals for the District of Columbia Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App. A, infra, la-44a) is reported at 698 F.2d 1239. The opinion of the district court (App. G, infra, 53a-67a) is unre- ported. JURISDICTION The judgment of the court of appeals (App. B, infra, 45a-46a) was entered on January 21, 1983. A petition for rehearing was denied on April 19, 1983 (App. E, infra, 50a).' On July 8, 19838, the Chief 1The government’s petition for rehearing was denied on March 28, 1983 (App. C, infra, 47a). The time for filing a (1) 2 Justice extended the time for filing a petition for a writ of certiorari to and including September 16, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The relevant provisions of the Agricultural Mar- keting Agreement Act of 1937, 7 U.S.C. 601 et sey., are set forth in Appendix H, infra, 69a-95a. STATEMENT This case concerns the jurisdiction of a federal dis- trict court to entertain a challenge to market orders by unregulated ultimate consumers of milk products who are nowhere included in the statutory scheme for administrative and judicial review of market orders and whose asserted interests are antithetical to the interests Congress sought to promote in the statute. 1. a. Section 8c of the Agricultural Marketing Agreement Act of 1987 (“AMAA”), 7 U.S.C. 608c, authorizes the regulation of numerous agricultural commodities and products, including milk. One of Congress’ primary purposes in enacting the AMAA was to end destructive price competition in the dairy industry, the structure of which “is so eccentric that economic controls have been found at once necessary and difficult.” H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 529 (1949). The ruinous competition among dairy farmers that concerned Congress centered on fluid milk sales be- cause such sales bring higher prices than do sales of milk for “surplus” use, i.e., use in manufacturing petition for a writ of certiorari did not begin to run, however, until the court of appeals denied the petition for rehearing filed by the intervenor-appellees. See Rule 20.4 of the Rules of this Court. 3 butter, cheese, and other milk products. See Zuber v. Allen, 396 U.S. 168, 172-176 (1969); United States v. Rock Royal Co-operative, Inc., 307 U.S. 533, 548- 550 (1939); Nebbia v. New York, 291 U.S. 502, 515- 518, 530 (1934).* One of the principal tools Congress used to correct this problem and to guard against its recurrence was the market order system authorized by 7 U.S.C. 608¢. The “essential purpose of [the mar- ket orders regulating commodities is] to raise pro- ducer prices.” S. Rep. No. 1011, 74th Cong., 1st Sess. 3 (1935). With respect to milk, such orders provide a method by which the benefits of the desirable fluid milk market and the burdens of the surplus milk mar- ket are fairly and proportionally shared among all dairy farmers supplying a given market. See Nebbia v. New York, supra, 291 U.S. at 517-518. Under the authority of the Act, the Secretary has issued 46 milk market orders, each encompassing a different region of the country (see 7 C.F.R. Parts 1001-1139). The orders establish minimum prices that handlers (those who process the raw milk) must pay to producers (dairy farmers). The prices are de- termined according to a classification system based on the end use to which the raw milk is put by the han- dlers. See 44 Fed. Reg. 65990 (1979). If the milk is used in hard manufactured products such as cheese, ? Fluid milk must be consumed relatively quickly after it is produced because it is a naturally fertile field for the growth of bacteria. If it cannot be marketed quickly in fluid form, it must be manufactured into cheese, butter, powder, or other milk products that can be stored for longer periods. Milk that cannot be disposed of in fluid form is referred to in the trade as “surplus,” and it commands a lower price than fluid milk because it is manufactured into products that compete directly with similar products from across the nation. See App. A, infra, 8a. Ree 4 butter, dry whole milk, or nonfat dry milk, a handler pays at least the Class II minimum price (ibid.).° For milk used as fluid milk, a handler pays the higher, Class I minimum price (ibid.). Under all but three of the market orders, all handlers’ payments for regulated milk used in the different classes are pooled, and farmers are paid from the pool on the basis of the weighted average price received for milk in all uses—the “blend price” (ibid.). Thus, handlers pay according to use, as required by 7-U.S.C. 608¢(5) (A). Farmers, on the other hand, receive a uniform, blend price, as required by 7 U.S.C. 608¢c(5)(B), and no longer have to engage in counterproductive competi- tion for fluid milk sales. b. Reconstituted or recombined milk is manufac- tured by mixing milk powder with water. See 44 Fed. Reg. 65990 (1979). Consumers can purchase milk powder and reconstitute it themselves by mixing it with water. Such milk powder is not the subject of this litigation. Instead, respondents brought this ac- tion to challenge the market order regulation of milk that a handler reconstitutes into fluid milk. Since 1964, the Secretary has treated handler re- constituted fluid milk as a Class I product in order to ensure the integrity of the end use classification sys- tem. See 29 Fed. Reg. 9010 (1964). The Secretary reconsidered the issue in 1968 and again determined that regulation of reconstituted milk was required to assure uniform and adequate minimum prices and to prevent the recurrence of destructive competition among farmers. The Secretary explained (34 Fed. Reg. 16883 (1969) ): * Some market orders contain a three-class pricing system. For all practical purposes, however, this case concerns only the difference between Class I and Class II prices (see App. A, infra, 3a n.7). 5 Primarily the problem relates to the conversion by a handler of a product, such as nonfat dry milk, normally priced as a surplus use into an- other product for Class I use. In addition, the possible entrance into the market of reconsti- tuted products from unregulated sources enlarges the problem. The potential of these conditions for disruptive influence on the market for producer milk is ex- tremely serious because disposition of a product for a Class I use but pricing it in a surplus price class undermines the classified pricing system. * e * * . The objectives of classified pricing are uniform- ity of pricing according to form or use and pro- viding an adequate return to producers for the fluid market. Therefore, the widespread disposi- tion of filled milk made from reconstituted skim milk, if the skim milk were not subject to some “equalizing” payment, could lead to total defeat of such objectives. Certainly, the classification and pricing plan should protect the Class I mar- ket from the potential effects of competition with products produced from the market’s own sur- plus or similar products produced elsewhere at a manufacturing price when used in filled milk. In this case payment to the producer-settlement fund at the difference between the Class I price and surplus price is necessary not only to assure competitive equity among handlers but also to insure the integrity of the classified pricing sys- tem as a means of assuring reasonable prices to producers. Accordingly, each of the regional milk market or- ders defines reconstituted milk that is used for drink- ing purposes as “fluid milk,” thereby including it in Class I (see 44 Fed. Reg. 65990 (1979)). Under this 6 system, handlers pay at least the minimum Class I price for all milk products used for fluid consumption. Thus, if a handler dries the raw milk received from a producer, then reconstitutes it and uses it as fluid milk, it is priced as a Class I product. If, however, the handler dries producer milk into powder and stores or sells it as powder, the powder is priced to him as a Class II or Class III product.* 2. The Secretary issues a market order only after rulemaking proceedings that include public notice and the opportunity for a hearing (7 U.S.C. 608¢(3) and (4)). The evidence introduced at the hearing must show “that the issuance of such [proposed] order and all of the terms and conditions thereof will tend to effectuate the declared policy of this chapter with respect to such commodity” (7 U.S.C. 608¢(4)). But before a milk market order can become effective, it must be approved by the handlers of at least 50% of the volume of milk covered by the proposed order and two-thirds of the dairy producers in the affected re- gion (7 U.S.C. 608¢(8)). If the handlers withhold consent, the Secretary may nevertheless impose the order if he determines that it is “the only practical means of advancing the interests of the producers” and two-thirds of the producers consent (7 U.S.C. 608c(9)(B)). An order may be terminated by the Secretary (7 U.S.C. 608¢(16)(A)) or by a majority of the producers in an order area (7 U.S.C. 608¢(16) (B)). Because this statutory scheme gives handlers con- siderably less control than producers over the adop- *In part, this pricing system is accomplished through a series of assumptions and adjustments known as “down al- locations” and “compensatory payments” (see 45 Fed. Reg. 75956-75957 (1980); App. A, infra, 4a-5a). The operational details of the pricing system are not relevant to the issues raised at this threshold stage of the litigation. 7 tion and retention of market orders, the Act expressly provides for administrative and judicial review of market orders at the behest of handlers. Specifically, 7 U.S.C. 608¢(15) (A) provides that “[a]ny handler subject to an order may file a wri‘ten petition with the Secretary of Agriculture, stating that any such order or any provision of any such order or any obli- gation imposed in connection therewith is not in ac- cordance with law and praying for a modification thereof or to be exempted therefrom.” If dissatisfied with the Secretary’s ruling on the administrative peti- tion, the handler may seek judicial review of “such ruling” in the appropriate district court (7 U.S.C. 608c(15)(B)). The Act contains no other provisions for the review of market orders. 3. In December 1980, respondents’ commenced this action in the United States District Court for the District of Columbia, seeking a declaration that all of the milk market orders, insofar as they apply to re- constituted milk products and milk powder used to make reconstituted milk products, are invalid, and an injunction prohibiting petitioners from “implement- ing” the regulations (which have been in effect since 964) (C.A. App. 29). The plaintiffs, who included three individual consumers of fluid dairy products, sought to have the Secretary amend the milk market orders so that reconstituted milk would no longer be deemed a Class I product, regardless of its end use by a handler.* In their complaint, the individual con- * As used in this petition, “respondents” refers to the plain- tiffs in the district court and does not include the intervenor- defendants who are respondents in this Court by virtue of Rule 19.6 of the Rules of this Court. * Prior to filing suit, respondents had petitioned the Secre- tary to hold a rulemaking hearing on the same proposal (see 44 Fed. Reg. 65990 (1979)). The Secretary published a No- tice of Request for Hearing and asked for comments (idid.). 8 sumers alleged that “[t]he existing regulations have denied them the opportunity to purchase a lower price reconstituted milk product in lieu of raw fluid milk” (C.A. App. 21)." Joseph Oberweis, a handler regu- lated by one of the market orders, and the Community Nutrition Institute, a self-described “nonprofit char- itable organization” (id. at 20-21), joined the individ- ual consumers as plaintiffs. Ruling on cross-motions for summary judgment, the district court dismissed the complaint for lack of jurisdiction (App. G, infra, 58a-67a). Citing Ras- mussen v. Hardin, 461 F.2d 595, 599 (9th Cir.), cert. denied, 409 U.S. 9383 (1972), and Suntex Dairy v. Bergland, 591 F.2d 1068, 1067 n.3 (5th Cir. 1979), the district court concluded that Congress intended to Subsequently, the Secretary published a preliminary impact analysis of respondents’ proposal and invited comments (45 Fed. Reg. 75956 (1980)). Respondents filed this action shortly thereafter. Later, on April 7, 1981, the Secretary determined not to hold a rulemaking hearing because respondents’ pro- posal would not further the purposes of the Act and could harm the dairy industry (C.A. App. 170). As a result of this action by the Secretary, the court of appeals held that that portion of respondents’ complaint challenging the Secretary’s “inaction” on their rulemaking request (id, at 20) had be come moot (App. A, infra, 32a n.98). In its present posture, the case is limited to respondents’ right to challenge the mar- ket orders on their merits. 7 The complaint described the individual consumers as fol- lows (C.A. App. 21): Plaintiffs Harrell, Desmarais and Weinberg are con- sumers of fluid dairy products. Due to inflation, they have become extremely cost-conscious and routinely seek to decrease food expenditures without sacrificing taste or the nutritional value of their diet. The existing reg. ija- tions have denied them the opportunity to purchase a lower priced reconstituted milk product in lieu of raw fluid milk. If such lower priced milk were available they would purchase it. 9 preclude ultimate consumers from seeking judicial review of milk market orders (App. G, infra, 65a- 66a). The district court also held that the consumers lacked standing because, even if the regulations were changed, too many other variables could affect the prices paid by consumers for reconstituted milk; thus, the court concluded that “any benefit to the [con- sumer] plaintiffs from the proposed changes in the regulations is [too] hypothetical and speculative” to confer standing (id. at 61a). In addition, the district court concluded that the interest asserted by the con- sumers—lower prices for one type of fluid milk—was outside the zone of interests protected by the AMAA. The relevant provisions of the statute, the court noted, were intended to protect consumers only against rapid or excessive price increases and against prices above the parity level (id. at 62a-64a). Be- cause those interests were not implicated in this case, the court held that the statute did not confer stand- ing on these consumers (id. at 64a). Finally, the dis- trict court dismissed the milk handler because he had failed to exhaust his administrative remedies under 7 U.S.C. 608¢(15) (App. G, infra, 66a-67a). 4. A divided panel of the court of appeals affirmed in part and reversed in part, and remanded the case for a decision on the merits. The court of appeals agreed with the district court’s dismissal of the milk handler and the nutrition organization (App. A, infra, 27a-33a). The majority held, however, that the district court had erred in dismissing the com- plaint of the individual consumers (id. at 12a-26a). With respect to preclusion of review, the court of appeals declined to follow Rasmussen v. Hardin, supra, concluding that the Ninth Circuit’s analysis of the statutory structure of the AMAA and its pur- poses did not reveal “the type of clear and convincing evidence of congressional intent needed to overcome 10 the presumption in favor of judicial review” (App. A, infra, 27a n.75). As for standing, the court con- cluded that the individual consumers had satisfac- torily alleged injury in fact by claiming that the regulations deprive them of a lower priced alternative to whole milk and that the absence of manufacturer reconstituted milk results in seasonal shortages in the milk supply (id. at 14a). The majority repeatedly questioned whether the consumers’ allegations of in- jury and redressability were capable of proof, but it concluded that they were sufficient to require a trial on the merits (id. at 14a, 16a, 17a-19a). The court of appeals also held that the concerns of the individual consumers in this case were within the zone of interests protected by the AMAA, The ma- jority rejected the district court’s reliance on the AMAA’s legislative history to determine the zone of interests arguably protected by the statute, concluding that plaintiffs are “only required to assert an inter- est ‘which is arguable from the face of the statute’”’ (App. A, infra, 22a (emphasis in original), quoting Tax Analysts & Advocates v. Blumenthal, 566 F.2d 130, 142 (D.C. Cir. 1977), cert. denied, 434 U.S. 1086 (1978)), and that the individual consumers “have clearly done this much” (App. A, infra, 22a). Thus, the majority not only chastised the district court for “examining the legislative history in great detail” (id. at 23a), but in fact declined to examine it at all. Finally, while noting that the individual consumers’ asserted injury “is shared by many other persons, i.e., every othe: cost-conscious consumer of milk” (id. at 25a), the majority ruled that the con- sumers’ claim was not barred as a generalized griev- ance (id. at 25a-26a). Judge Scalia dissented in part. Judge Scalia con- cluded that the individual consumers lacked standing, and thus he would have affirmed the judgment of the 11 district court in its entirety (App. A, infra, 35a-44a). In his view, the consumers’ interests fall outside the zone of interests arguably protected by the AMAA. Judge Scalia placed considerable weight on the fact that the individual consumers are “indirect general beneficiaries” of the AMAA (id. at 38a) and ob- served that “where there is a direct and immediate beneficiary class which can be relied upon to challenge agency disregard of the law, the claim of the indirect general beneficiaries to be congressionally designated ‘private attorneys general’ is weak indeed” (ibid.). As applied to this case, Judge Scalia thus reasoned that (id. at 38a-39a) : The direct beneficiaries of rilk marketing orders under the Agricultural Marketing Agreement Act (AMAA) are milk producers. * * * On the other side of the ledger, the direct beneficiaries of any limitations upon the Secretary’s authority with regard to milk marketing orders are the milk handlers who pay the artificially established prices. * * * In such a situation, where the narrow class immediately affected by both agency excess and agency omission is readily identifi- able, I do not believe that a more remote bene- ficiary class as generalized as the one here (viz, all consumers of fluid milk products—which can- not exclude many of the nation’s households) can be found to meet the zone of interests test. The government and the intervenor-appellees peti- tioned for rehearing en banc. The petitions were de- nied over the dissenting votes of Judges MacKinnon, Bork, and Scalia (Apps. D and F, infra, 48a-49a, 51a- 52a). REASONS FOR GRANTING THE PETITION The decision below, in direct conflict with the Ninth Circuit’s decision in Rasmussen v. Hardin, 461 12 F.2d 595, cert. denied, 409 U.S. 983 (1972), and with the views expressed by the Fifth Circuit in Suntex Dairy v. Bergland, 591 F.2d 1063 (1979), is the first in the nearly 50-year history of the market order sys- tem to hold that ultimate consumers of regulated agricultural commodities have standing and are pro- per parties to contest market orders. The case thus presents important questions concerning the orderly administration and review of commodity market or- ders issued by the Secretary of Agriculture under the AMAA. The significance of these questions is height- ened by the vast scope of the regulatory program at issue, the complexity of which this Court has often recognized. See, e.g., Zuber v. Allen, 396 U.S. 168, 172 (1969) ; United States v. Ruzicka, 329 U.S. 287, 292 (1946). The Department of Agriculture advises us that the value of milk handled under the various regional market orders exceeds an average of $1 bil- lion each month. Moreover, it would seem that the court of appeals’ ruling would logically extend to mar- ket orders covering other agricultural products, and approximately $6 billion worth of fruits, vegetables and specialty crops were handled under those market orders in 1982. The regulation of these commodities is so complex that some orders require adjustments to be made as often as once a week during the market- ing season. The court of appeals’ decision appears to sanction challenges to all of these orders by every milk, fruit and vegetable consumer in the country. A primary purpose of the statutory program is to promote mar- ket stability, but judicial intervention at the behest of consumers who are strangers to the producer- handler relationship could result in constant uncer- tainty about the validity of the orders. Such uncer- tainty is likely to “engender those subtle forces of 13 doubt and distrust which so readily dislocate delicate economic arrangements.” United States v. Ruzicka, supra, 329 U.S. at 293. If the decision below is allowed to stand, highly technical and complex market orders will be subject to direct attack in the courts without first being re- viewed in the administrative proceedings contem- plated by Congress. Consumers acting as “stalking horses” for handlers, or even handlers suing in their capacity as alleged consumers, will be able to by-pass completely the Act’s exclusive procedures for admin- istrative and judicial review. Thus, in granting ulti- mate consumers standing to launch direct attacks in the courts against agricultural market orders, the court of appeals improperly ignored this Court’s teachings that the intent of Congress to preclude re- view, if fairly perceived from the overall statutory scheme adopted by Congress for regulating the par- ticular industry in issue, must be respected. Closely related to the question of preclusion of re- view is the court of appeals’ erroneous conclusion that the individual consumers adequately demonstrated their standing to maintain this action. Of course, if the Court agrees with our submission that Congress intended to preclude all consumers from seeking judi- cial review of market orders, it need not reach the issue of respondents’ standing. But, at minimum, ex- amination of the structure and legislative history of the AMAA clearly indicates that Congress did not in- tend to protect the interests asserted by the individual consumers in this litigation; on the contrary, their interest in lower prices for reconstituted fluid milk is inconsistent with Congress’ primary purpose in enact- ing the statute, while their interest in ensuring stable supplies of fluid milk products simply is not impli- cated by the regulations at issue in this case. Accord- % 14 ingly, review by this Court is warranted to resolve the conflict among the circuits on the question of pre- clusion of review and to correct the court of appeals’ manifest error with respect to consumer standing. 1. a. The decision below squarely conflicts with the Ninth Circuit’s decision in Rasmussen v. Hardin. In that case, the Ninth Circuit held that consumers of a filled milk product were barred from seeking review of the milk market order provisions that effectively raised the price of the product in the same mamner that the market order provisions at issue in this case effectively raise the price of manufacturer reconsti- tuted fluid milk. The court held that “clear and con- vineing evidence” of an intent to preclude review by consumers could: be “inferred from [the statutory] purpose.” Rasmussen v. Hardin, supra, 461 F.2d at 599, quoting B~»/ow v. Collins, 397 U.S. 159, 166-167 (1970). The court went on to explain (461 F.2d at 599) that: [It cannot] be said that Congress overlooked con- sumers, and that therefore it did not intend to exclude them from obtaining administrative and judicial review of the Secretary’s orders. The Act contains some pious platitudes a out the in- terests of consumers. * * * The primary pur- pose of the Act, however, is to protect the pur- chasing power of the farmers and the value of agricultural assets. * * * The whole scheme of the Act is to raise the prices of agricultural prod- ucts to, and keep them at, levels fixed by the Sec- retary, and to establish “orderly” marketing of them. Bluntly stated, that means, .n part, mar- keting freed to a very large extent from price competition. It is arguable that the immediate, and possibly the long-run, interests of consumers are contrary to these goals. * * * [I]t is very clear that the whole structure of the Act con- 15 templates a cooperative venture betweer the Sec- retary, the producers, and handlers. Nowhere in the Act can we find an express provision for par- ticipation by consumers in any proceeding. We are convinced that this is no accident. The Fifth Circuit has suggested that it would reach the same result if confronted with a case squarely presenting the issue. In Suntex Dairy v. Bergland, supra, 591 F.2d at 1067 n.3, the court upheld pro- ducers’ standing to challenge a milk market order but distinguished consumer interests : We find the generalized interests of consumers in a marketing order totally different from the in- terests of producers. The statute goes to great lengths to guard the interests of producers by providing for administrative hearings and a ratification referendum. No such Congressional deference was shown consumers. In Rasmussen, the Ninth Circuit also noted that consumer suits would be particularly anomalous be- cause the statute contains no requirement for con- sumers to exhaust administrative remedies, whereas handlers, who are given an express right of judicial review, must first exhaust administrative remedies. Consumer suits would thus mean that handlers could evade the exhaustion requirement by latching on to consumer “front-men.” See Rasmussen v. Hardin, su- pra, 461 F.2d at 600. This case vividly demonstrates the potential for such abuse of the legislative scheme. Respondent Oberweis was dismissed for failure to ex- haust his administrative remedies as a handler (App. A, infra, 3la-33a; App. G, infra, 66a-67a). Yet as a result of the majority’s decision to allow the individ- ual consumers to maintain this action, Oberweis will still have his claims adjudicated without first invok- ing the administrative process. Indeed, it would not 16 be at all surprising if Oberweis were a “cost-conscious consumer,” as well as a milk handler, and the decision below would appear to allow for amendment of the complaint to add Oberweis in his new-found capacity as a consumer plaintiff. This Court has expressly disapproved of analogous efforts to frustrate carefully constructed congres- sional schemes for orderly administrative and judicial review. See, e.g., Great American Federal Savings & Loan Ass’n y. Novotny, 442 U.S. 366, 375-876 (1979) (“If a violation of Title VII could be asserted through § 1985(3), * * * the complainant could completely bypass the administrative process, which plays such a crucial role in the scheme established by Congress in Title VII”); Brown v. General Services Administra- tion, 425 U.S. 820, 832-883 (1976) (“The balance, completeness, and structural integrity of § 717 are inconsistent with the petitioner’s contention that the judicial remedy afforded by § 717(c) was designed merely to supplement other putative judicial relief. * * * Under the petitioner’s theory, by perverse op- eration of a type of Gresham’s law, § 717, with its rigorous administrative exhaustion requirements and time limitations, would be driven out of currency were immediate access to the courts under other, less demanding statutes permissible.” ). Similarly, authorizing consumer litigants to chal- lenge market orders issued under the AMAA offers the potential for considerable mischief. Congress had sound reasons for concluding that attacks on market orders should be considered by the Secretary in the first instance. The questions raised in such attacks are often complex, and their resolution requires an inti- mate knowledge of the economic and technical factors underlying the marketing of the various agricultural products subject to regulation—e.g., milk, nuts, fruits, vegetables, and hops (7 U.S.C. 608¢c(2)). It is thus 17 desirable that, before judicial intervention is sought, these questions be presented to the Secretary, who possesses the requisite expertise to illuminate and re- solve them. See, e.g., Blair v. Freeman, 370 F.2d 229, 232 (D.C. Cir. 1966) (‘A court’s deference to ad- ministrative expertise rises to zenith in connection with the intricate complex of regulation of milk mar- keting.’’). This Court recognized the importance of these con- siderations in United States v. Ruzicka, supra. In re- jecting an effort by a handler to attack for the first time the validity of an order of the Secretary of Agri- culture as a defense to a judicial enforcement pro- ceeding brought by the Secretary, the Court stressed the purposes of the statutory review provisions (329 U.S. at 294): Congress has provided a special procedure for ascertaining whether such an order is or is not in accordance with law. The questions are not, or may not be, abstract questions of law. Even when they are formulated in constitutional terms, they are questions of law arising out of, or entwined with, factors that call for under- standing of the milk industry. And so Congress has provided that the remedy in the first instance must be sought from the Secretary of Agricul- ture. It is on the basis of his rulings, and of the elucidation which he would presumably give to his ruling, that resort may be had to the courts."*! * Respondents’ petition for a rulemaking hearing (see pages 7-8 note 6, supra) is no substitute for the administrative procedures mandated by the statute and available only to han- diers. As the court of appeals noted (App. A, infra, 32a-33a; emphasis in original), the complaint in this case ‘“challenge[s] the Secretary’s authority to adopt the compensatory payment regulation in the first place; [the] complaint did not attack his subsequent refusal to correct that alleged wrong.” Thus, the issues raised in the lawsuit were not decided by the Secre- 18 Ruzicka articulated another important reason for requiring handlers to exhaust the statutorily-pre- scribed administrative remedies when it stressed the disruptive potential of premature litigation (329 U.S. at 293) : Failure by handlers to meet their obligations promptly would threaten the whole [regulatory] scheme. * * * To make the vitality of the whole arrangement depend on the contingencies and inevitable delays of litigation, no matter how alertly pursued, is not a result to be attributed to Congress unless support for it is much more manifest than we here find. That Congress avoided such hazards for its policy is persua- sively indicated by the procedure it devised for the careful administrative and judicial consider- ation of a handler’s grievance. Consumer suits would effectively nullify Congress’ in- tent, recognized by this Court in Ruzicka (329 U.S. at 293-294 & n.3), to “establish an equitable and ex- peditious procedure for testing the validity of orders, without hampering the Government’s power to enforce compliance with their terms.” S. Rep. No. 1011, sw- pra, at 14. Consumer litigants could seek injunctions against the operation of market orders that Congress intended to remain in effect pending the completion of full administrative and judicial proceedings brought by handlers. Such a result cannot be squared with Ruzicka, or with the limitations on judicial review at the behest of handlers contained in 7 U.S.C. 608¢(15) (B). tary’s denial of the petition for a rulemaking hearing. More- over, as explained by Judge Scalia (id. at 4la-44a), the ad- ministrative proceeding required by 7 U.S.C. 608¢(15) (A) as a prerequisite to judicial review is an entirely different type of proceeding from the informal rulemaking hearing that re- spondents sought. 19 b. The court of appeals clearly erred in its dis- regard for the statutory scheme and in its insistence (App. A, infra, 27a n.75) on express statutory lan- guage foreclosing actions by ultimate consumers. This Court has already held that preclusion of review may be implied as well as expressed. “A clear com- mand of the statute will preclude review; and such a command of the statute may be inferred from its pur- pose.” Barlow vy. Collins, supra, 397 U.S. at 166-167; accord, Morris v. Gressette, 482 U.S. 491, 501 (1977). Moreover, the stringent standards normally required to demonstrate congressional intent to pre- clude review are less appropriate when the issue is not whether judicial review is entirely foreclosed but instead whether review at the behest of the par- ticular plaintiff is precluded. See, e.g., United States v. Ruzicka, supra, 329 U.S. at 293-294; see also Associated General Contractors of California, Inc. v. California State Council of Carpenters, No. 81- 334 (Feb. 22, 1983), slip op. 23; Morris v. Gres- sette, supra, 432 U.S. at 505-507 & n.21; Illinois Brick Co. v. Illinois, 431 U.S. 720, 746 (1977); Bar- low v. Collins, supra, 397 U.S. at 175 n.9 (Brennan, J., concurring and dissenting) ; Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 300 (1943). It is thus extremely significant in this case that the Act does grant handlers an express right to judi- cial review. Handlers serve as spokespersons for in- terests shared with the general public,’ and granting an exclusive right of review to