Petition for Writ of Certiorari — Iowa ex rel. Miller v. Lyng

» . ne Court, U.S.

8 5 - | 4g ® : se har

Th. ccutnee MAR 5S 1886

: JOSEPH F. SPANIOL, JR,

IN THE __. CLERK

\

Suprene Court of the United States

OCTOBER TERM, 1985

THE STATE OF IOWA ex rel.

THOMAS J. MILLER,

Attorney General of Iowa,

and

DANNY GETTLER, et al.

Petitioners,

VS.

JOHN BLCCK, Secretary of the

United States Department of Agriculture,

and THE UNITED STATES

DEPARTMENT OF AGRICULTURE,

Respondents.

JOINT PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

G. F. HOFFMAN III THOMAS J. MILLER

Hoffman Law Firm Attorney General of lowa

107 West Ninth Street

Leon, Iowa 50144 “BRENT R. APPEL

Deputy Attorney General

Counsel for Petitioners Hoover State Office Bldg.

Danny Gettler, et al. Des Moines, lowa 50319

(515) 281-5164

TIMOTHY D. BENTON

Assistant Attorney General

KEVIN M. KIRLIN

Assistant Attorney General

Counsel for Petitioner,

*Counsel of Record The State of iowa

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUEL.

QUESTIONS PRESENTED

As Whether an Administrative

Procecure Act action challenging the

validity of a rule which purports to

terminate a statutory program estab-

lished by the Congress is an attempt to

obtain "an attachment, injunction,

garnishment, or similar process, mesne

or final" against the Commodity Credit

Corporation or its property in violation

of i5 U.S.C. §

~J

14b(c).

as Whether an Administrative

Procedure Act action seeking to require

the Secretary of Agriculture to comply

with federal law and his own rules is an

attempt to obtain "an attachment,

injunction, garnishment, or similar

process, mesne or final" against the

Commodity Credit Corporation or its

property in violation of 15 U.S.C.

§ 714b(c).

: Whether a state may litigate

on its own behalf or as parens patriae

to force a federal agency to comply with

the intent of statutory provisions

enacted by Congress that are beneficial

to the citizens of the State.

4. Whether allegations of injury

to the state fisc establish sufficient

injury in fact to confer standing to

challenge the failure of a federal

agency to provide statutory benefits to

its citizens.

- iii -

QUESTIONS PRESENTED.........

TABLE OF AUTHORITIES........

OPINION BELOW. ....... ees eees

JURISDICTION. ....ccccevecees

STATEMENT OF THE CASE.......

REASONS FOR GRANTING THE

os Pere eee ee eee

I. THE REFUSAL OF

THE SECRETARY

TO PROVIDE

DISASTER ASSIS-

TANCE TO LIVE-

STOCK FARMERS

WHOSE OPERATIONS

WERE DEVASTATED

BY THE 1983

DROUGHT HAS HAD

MAJOR IMPACT ON

LIVESTCCK OPERA-

TIONS IN THE MID-

II. THE COURT OF

APPEALS' OPINION

INSULATES IMPOR-

TANT RULEMAKING

AND AGENCY ACTION

FROM JUDICIAL

REVIEW CONTRARY

TO ESTABLISHED

PRINCIPLES OF

ho

20

- iv -

TABLE OF CONTENTS

(continued)

ADMINISTRATIVE

4

r4

rH

. THE QUESTION OF

WHETHER A STATE

HAS STANDING TO

ENFORCE CONGRES-

SIONALLY ESTAB-

LISHED POLICY IS

AN IMPORTANT

QUESTION THAT

HAS DIVIDED THE

FEDERAL COURTS

OF APEEAbss ceccencs 31

eM i a | ee 37

TABLE OF AUTHORITIE

ri

op)

Cases: Page

Alabama ex rel. Baxley v.

Tennessee Vallev

Authority, 467 F.Supp.

791 (N.D. Ala. 1979),

rev'd on other grounds

sub nom. Alabama ex rel.

Gradaick v. Tennessee

Valley Authorityv, 636

F.2d 1061 (Sth Cir.),

cert. denied, 454 U.S.

spate. | 6 BeRiserarnerc sear e 33

lfred L. Snapp & Son

v. Puerto Rico, 458

U.8. SSS CASS!’ ec ae vsinncs 34 , 36

Barlow v. Collins, 397

om Pe’) ee i) Peerage 25,28

Carey v. Klutznick,

637 F.2d 834 (2nd Cir.

AGOGO) 6 ices ctw btes es en eees Janae

Citizens to Preserve

Overton Park v. Volpe,

S01 GU.8. SOZ Cast adbocsess 25,28

City of New York v.

Heckler, 578 F.Supp.

1109 (E.D.N.Y.), aff'd

on other proud. .

742 F.2d | Gar.

1984), par kate stay

granted “pending dis-

ERIE U.S. ,

. 3552, cert.

aa U.S.

, 106 $.Ct. 57

-_

b

(oe)

Fa)

~~

.

.

.

.

.

.

.

.

*

(2

Lo

TABLE OF AUTHORITIES

(continued)

Page

Commonwealth of

Pennsylvania v. Kieppe,

533 F.2d 668 (D.C.

Cir.), cert. denied

. Ee me Mek 2) ) ee 34

Florida v. Weinberger,

492 F.2d 488 (5th

CEE. LITE) a cwcesecccsccce 36

Georgia v. Pennsylvania

Railroad Co., 324 U.S.

Bae CAPR de ace cecsececese 35

Magnum Import Co. v. Coty,

gee U.S. 159 (19Z3). 2000. 24

Massachusetts v. Mellon,

Bee Gets G47 CI9Z3) 2.0500 34,37

Mitchell v. Block, 55l

F.Supp. 1011 (W.D.

2, > 2 aa oer 28 ,29,30

Motor Vehicle Manufacturers

Association v. State Farm

Mutual Ins. Co., 463 U.S.

Pe PES. ck geese eneecess 26

State of Iowa ex rel.

Miller v. Block, 771

F.2d 347 (8th Cir.

Pa 10,17,

_

- vii -

TABLE OF AUTHORITIES

continued)

Page

Washington Utilities and

Transportation Com-

mission v. Federal

Communications Com-

mission, 513 F.2d

1142 (9th Cir.),

cert. denied, 423

% a met oy) Ree. 35

Constitutional Provisions:

U.S. Const. art. IIil,

Peo Re eee eee 3

Statutes and Regulations:

> UiBcGw BF FORAGE CEP sé de chs 4

> Ustates B Fee tarteriscceaaee 4

F Uses B~BOETC KEES 5,11

, U.B.6. § T666Ce) CAS) vc kce’ 30

7 U.S.C. § 1444d(b) (2) (D)... 4

I UeBcGSx. BS SOGGGCR vcd eiae cen 30

a re mel Se: } eee 30

y UsScGe B BOR ese lO) ic casas 30

a Se Bet) ee ee ee ee

TABLE OF AUTHORITIES

(continued)

7 C.F.R. § 1475.50 et seq...

7 C.F.LR. § 1475.55... eee cere

7 oF

YY

4

7 C

/ .

a

}—4

£

j

ui

UW

ui

R

R

R. § 1475.54... --- 2 ees

» Re

7 C.F.R. § 1475.56... eee eee

Miscellaneous:

2

NO. \

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1985

——

—

THE STATE OF IOWA ex rel.

THOMAS J. MILLER,

Attorney General of lowa,

and

DANNY GETTLER et al.,

Petitioners,

vs.

JOHN BLOCK, Secretary of the

United States Department of Agriculture,

and THE UNITED STATES

DEPARTMENT OF AGRICULTURE,

Responcents.

Oo-

JOINT PETITIUN FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT CF APPEALS

FOR THE EIGHTH CIRCUIT

—— .

i

Petitioners, the State of Iowa ex

rel. Thomas J. Miller and Danny Gettler,

et al., respectfully pray that a Writ of

Certiorari issue to review the judgment

i

ho

t

and opinion of the United States Court

of Appeals issued on September 21, 1985,

rehearing and rehearing en banc denied

on December 5, 1985.

OPINION BELOW

The opinion of the Court of Appeals

is reported at 7/1 F.2d 347 and is

presented in Petition Appendix A for the

convenience oz the Court. The order

denying rehearing en banc, which is not

reported, appears as Petition Appendix

B. The unreported opinion of the

District Court appears as Petition

Appendix C.

JURISDICTION

The final judgment of the Court of

ls for the Eighth Circuit was

entered cn December 5, 1985, after

rehearing and rehearing en banc was

cCenied. This petition is filed within

ninety days of entry of judgment.

Jurisdiction is invcked pursuant to 28

U.S.C. § 1243(1).

CONSTITUTIONAL PROVISIONS

U.S. Gomee.. act. ia. § 25 Gas &1

The judicial Power shail

extend to all Cases, in Law

and Equity, arising under this

Constitution, the Laws of the

United States, and Treaties

made, or which shall be made,

under their Authority;--to all

Cases affecting Ambassadors,

other public Ministers and

Consuls;--to ali Cases of

admiralty and maritime

Jurisdiction;--to

Controversies to which the

United States shall be a

Party;--to Controversies

between two or more

tates;--between a State and

Citizens of another

State;--between Citizens of

different States ,--between

Citizens of the same State

claiming Lands under Grants of

different States, and between

a State, or the Citizens

thereof, and foreign States,

Citizens or Subjects.

STATUTORY AND REGULATORY

PROVISIONS LNVOLVED

STATUTES

Administrative Procedure Act

> U.S.C. § 706(2) (a):

To the extent necessary

to decision and when

presented, the reviewing court

shall decide all relevant

questions of law, interpret

constitutional and statutory

provisicns, and determine the

meaning or applicability of

the terms of an agency action.

The reviewing court shall--

(2) hold unlawful and

set aside agency action,

findings, anc ccnclusions

found to be--

(A) arbitrary,

capricious, an abuse

of discretion, or

otherwise not in

accordance with law;

> U.S.C. § 701(a) (2):

{a) This chapter applies,

according to the provisions

therecf, except to the extent

that--

(2) agency action is

committed to agency discretion

by law.

Emergency Feed Program

7 U.S.C. § 2267(a):

Notwithstanding any other

provision of law, the

Secretary of Agriculture may

implement an emergency feed

program for assistance in the

preservation and maintenance

of livestock and poultry in

any area oi the United States,

including Puerto Rico, Guam,

and the Virgin Isiands of the

United States, where, because

of flood, drougnt, fire,

hurricane, earthquake, storm,

or other natural disaster, the

Secretary determines that an

emergency exists.

Livestock Feed Program

7 U.S.C. § i62/:

The Commodity Credit

Corporation may sell any farm

commodity owned or controlled

by it at any price not prohib-

ited by this section...

The Corporation shall not sell

any basic agricultural commod-

ity or storable ncenbasic

commodity at less than 5 per

centum above the current

suppcrt price for such

commodity, pilus reasonable

carrying charges:

* * *

Notwithstanding the foregoing,

the Corporation, on such terms

and conditions as the Secre-

tary may deem in the public

interest, may make available

any farm commodity or product

thereof owned or controlled by

it for use in relieving

distress . .. in connection

with any major disaster

determined by the President to

warrant assistance by the

Federal Government under

sections 1855 to 1855g of

Title 42 and may make feed

owned or controlled by it

available at any price not

less than 75 per centum of the

current basic county loan rate

(or a comparable price if

there is no current basic

county loan rate) for assis-

tance in the preservation and

maintenance of fcundation

herds of cattle (including

producing dairy cattle),

sheep, and goats, and their

offspring, in any area of the

United States including the

Virgin Islands where, because

of flood, drought, fire,

hurricane, earthquake, storm,

Gisease, insect infestation,

or other catastrophe in such

areas, the Secretary deter-

mines that an emergency exists

which warrants such

assistance, such feed to be

made available only to persons

who do not have, and are

unable to obtain through

normal channels of trade

without undue financial

hardship, sufficient feed for

such livestock: Provided,

That the Secretary may provide

for the furnishing of feed or

mixed feed, in accordance with

regulations prescribed by hin,

to such persons by feed

dealers under an arrangement

whereby the feed grains (or

other feed being sold by the

Corporation) in the feed so

furnished would be replaced

with feed owned or controlled

by the Corporation and sold to

such persons at a4 price

determined as providec above

(emphasis supplied).

* * *

Anti-Injunction Provision

15 U.S.C. § 714b(c):

The Corporation --

(c) May sue and be sued, but

mo attachment, injunc-

tion, or other process,

mesne or final, shall be

issued against the

Corporation or its

property.

REGULATIONS

Livestock Feed Program

¢ C.FLR. § 1473.1:

The regulations in this

subpart contain the terms and

conditions of a Livestock Feed

Program.

Emergency Feed Program

7 C.F.R. § 1475.50:

The regulations in this

subpart contain the terms and

conditions of an emergency

feed program.

‘ C.F.R. § 1475.53:

BeneZtits under the program

shall be available to ‘any

owner of livestock which are

maintained in the United

States .. . who: (a) has

suffered during the crop year

a substantial loss of live-

stock feed normally produced

on land owned (or operated

under a bona fide lease) by

the livestock owner, and (b)

has filed an application for

assistance under the Emergency

Feed Program no later than

April 8, 1982.

STATEMENT OF THE CASE

The State of Iowa and several

individual farmers seek review of the

adverse portions of a decision of the

United States Court of Appeals for the

Eighth Circuit which held that 15 U.S.C.

§ 714b(c) immunized the Secretary of

Agriculture and the United States

Department of Agriculture from an

Administrative Procedure Act (APA)

challenge tc an agency rule and barred

judicial review to compel the Secretary

to comply with federal law and his own

duly promulgated rules. The Court of

Appeals also erroneously ruled that the

State of Iowa lacked standing to seek

judicial review of the agency's action.

A. Factual Background.

In 1983 livestock farmers in Iowa

experienced the worst drought since the

dust bowl. Transcript of Hearing on

=: a

Preliminary Injunction at 22-24

(hereinafter Tr.). Yields on feed

grains used by livestock farmers to

Support their herds fell to a small

fraction of established yields in normal

years. Tr. 62, 126. The inability of

livestock farmers to produce their own

feed grains forced producers either to

purchase feed grains or feed grain

substitutes on the open market or to

liquidate all or part of their herds.

ae. 207. Either course of action

presented livestock producers with

dramatic financial hardship. As a

result of the drought and its conse-

quences, "many farmers skirted the brink

of financial ruin." State of Iowa ex

rel. Miller v. Block, 771 F.2d 347, 348;

Pet. Apo. 3.

—)

B. The Congressionally Established

Disaster Assistance Programs.

Congress has long recognized that

farmers are at the mercy of weather

conditions. In order to assist farmers

facing severe economic hardship caused

by unpredictable weather catastrophies

such as the 1983 drought, Congress

established in 1949 a Livestock Feed

Program currently codified in 7 U.S.C.

§ 1427.

In the Food and Agriculture Act of

1977, Congress established an Emergency

Feed Program, now codified at 7 U.S.C.

§ 2267, to provide an additional safety

net for livestock producers.

Under the Emergency Feed Program,

or EFP, the Secretary is authorized to

provide cash assistance to livestock

mroducers in order to preserve herds

when natural disasters such as drought

have created an emergency. Based on the

|

aa a |

» 1% <

congressional authorization, the

Secretarv has promulgated extensive

rules establishing the EFP, 7 C.F.R.

§§ 1475.50-.68. The rules establish

eligibility criteria, § 1475.54,

describe procedures for applying,

§ 1475.55, and structure program

benefits, § 1475.56. In 1982 the

Secretary promulgated a rule which

expressly terminated EFP benefits for

any and all applications received after

ASTiL G, 1962. 7 C.F.R. § 1475.53.

The Livestock Feed Program, or LFP,

authorizes the Secretary to make avail-

able federaily held commodities to

affected farmers at advantageous prices.

As with the EFP, the Secretary has

promulgated extensive rules establishing

the program, 7 C.F.R. §§ 1475.1-.17.

Unlike the EFP, the Secretary has not

attempted to terminate the program

through rulemaking.

C. Proceedings Below.

Notwithstanding the severity of the

1983 drought the Secretary refused to

provide program benefits to Iowa live-

stock farmers under the EFP or LFP.

After informal efforts by the Governor

and members of Iowa's congressional

delegation to persuade the Secretary to

‘provide benefits under the programs, the

State of Iowa, as parens patriae of its

citizens, filed an action under the

Administrative Procedure Act in the

United States District Court ‘for the

Southern District of Iowa which, inter

alia, challenged the Secretary's failure

to provide benefits to qualified farmers

under the EFP and the LFP. The State

challenged the validity of the EFP rule

purporting to terminate the program with

respect to applications received after

April 8, 1982, eas arbitrary and

s th-@

capricious and contrary to the will of

Congress, 7 C.F.R. § 1475.53. The State

also challenged the failure of the

Secretary to provide benefits under the

rules establishing the LFP. After the

State filed its parens patriae action,

several individual farmers and their

spouses sought and were granted inter-

vention as additional plaintiffs.

After an evidentiary hearing on the

plaintiffs’ motion for a preliminary

injunction, the District Court dismissed

the action. Pet. App. 55-77. The Court

first found that the State had no

Standing to litigate, either on its own

behalf or as parens patriae for its

citizens. Pet. App. 62, 68. The Court

further concluded that it had ne subject

Matter jurisdiction to review the

Secretary's decisions not to implement

the programs. Pet. App. 75. The Court

“ae

believed the broad delegation of

authority left it with no "law to apply"

in reviewing the Secretary's inaction.

Pet. App. 71-72. While the Court

recognized that the challenge to the

Secretary's termination regulation

presented "the judicial review issue in

a distinct procedural context" [Order

at 12 a.$S. Pet. App. 77 a.3}], it

refused to consider the plaintiffs’ APA ;

attack on the rule. The Court did note,

however, that were it to review the

Secretary's decision not to provide

assistance under the programs, "it would

have no difficulty in finding that the

emergency assistance programs actually

implemented by the Secretary did not

provide sufficient relief to livestock

farmers in southeast lIowa who find

themselves in precarious financial

positions due, at least in part, to the

« Shs

adverse weather conditions of the past

three years."" Order at 10. Pet. App.

74,

The State and plaintiff-intervenors

filed a motion for altered judgment

after the District Court entered its

order dismissing the \case. In their

motion, the State and plaintiff-

intervenors re-emphasized that with

respect to the EFP, the action presented

a straightforward APA challenge to the

validity of a rule which purported to

“terminate” the program. The State and

plaintiff-intervenors further reiterated

their view that with respect to the LFP,

the Secretary had implemented the

program through rulemaking. Once rules

are promulgated establishing a program,

the State and plaintiff-intervenors

argued, the Secretary was legally

required to follow them until he had

Wiis

es 235

them amended or withdrawn through APA

rulemaking procedures. The District

Court denied the motion for altered

judgment and the plaintiffs appealed.

On appeal, the Court of Appeals

affirmed the District Court ruling that

the State of Iowa lacked standing to

litigate. State of Iowa ex rel. Miller

v. Block, 771 F.2d 347, 352-55; Pet.

App. 1-52. The Court further affirmed

the District Court's dismissal of the

action challenging the failure of the

Secretary to provide qualified farmers

with assistance under the EFP and LFP.

In reaching this result, however, the

Court of Appeals did not rely on the "no

law to apply’ exception to judicial

l

review undex the APA. Instead, the

1 It should be noted that. the

Court found that the plaintiffs’

challenge to the Secretary's failure to

ee) ee

Court of Appeals found the action

concerning the EFP and LFP barred by the

anti-injunction provisions of 15 U.S.C.

§ 714b(c). This provision states that

the Commodity Credit Corporation ''may

sue and be sued, but no attachment,

injunction, garnishment, or other

similar process, mesne or final, shall

be issued against the corporation or its

property." According to the Court of

Appeals, because EFP and LFP benefits

are “administered under the auspices of

the CCC," the District Court lacked

jurisdiction to consider the APA attack

against the validity of the Secretary's

n.l continued

implement the Special Disaster Payments

Program at 7 U.S.C. § 1444d(b) (2) (D)

presented a straightforwarc case

compelling judicial review of agency

inaction. State of Iowa ex rel. Miller

v. Block, 7/71 F.2d at 351; Pet. App.

14-15.

it

EFP termination rule and the APA attack

on the Secretary for failing to abide by

his own rules establishing the LFP

program. See State ex rel. Miller v.

Baoem, #/1 F.20 at 346 n.i. Pet. App.

46-48 n.l.

E. Issues Presented To This Court.

While the proceedings below are

complex, the issues presented to this

Court in this petition are well focused.

The first issue is whether district

court jurisdiction to consider an APA

action challenging the rule promulgated

by the Secretary of Agriculture attempt-

ing to terminate the EFP program was

ousted by the CCC anti-injunction

provisions in 15 U.S.C. § 714b(c). The

second issue is whether an APA action to

force the Secretary to abide by his own

rules is barred by the same

anti-injunction provision. The final

question is whether a state has standing

as parens patriae or on its own behalf

to enforce the terms of congressionally

established programs that benefit its

citizens.

REASONS WHY THE WRIT

SHOULD BE GRANTED

THE REFUSAL OF THE SEC-

RETARY TO- PROVIDE DIS-

ASTER ASSISTANCE TO LIVE-

STOCK FARMERS WHOSE OPERA-

TIONS WERE DEVASTATED BY

THE 1983 DRCUCGHT HAS HAD

MAJOR IMPACT ON THE LIVE-

STOCK INDUSTRY IN THE

MIDWEST.

rd

The refusal of the Secretary to

provide relief under the two programs at

issue in this petition has had a major

impact on livesteck farming in the

Midwest. The impact of the drought is

illustrated by the evidence presented to

the district court hearing on the piain-

tiffs' motion for a preliminary injunc-

tion.

The testimony of individual farmers

was especially powerful. Hope

Mendenhall of Garden Grove, Iowa,

testified that corn yield on her fami-

ly's farm in 1983 averaged seven bushels

per acre in contrast to 125 bushels per

acre in a normal year. Tr. 62. In

addition to affecting corn yields, the

drought also had a "devastating" effect

on hay and pasture on the farm, a

potential alternative source of

livestock nutrition. Tr. 64. Without

any meaningful assistance from disaster

programs, the Mendenhalls were forced to

prematurely reduce their cattle herd.

Tr. 81. They were forced to purchase an

additional $100,000 of feed to replace

the feed grain that they normally would

have produced on their own farm were it

not for the drought. Tr. 85.

Similar testimony was offered by

Henry Richardson of Lineville, Iowa.

Richardson told the District Court that

because oz the reduced yields on his

farm (less than 5 bushels per acre) and

the damage to pasture land caused by the

drought, he suffered dairv production

losses and experienced an increased

incidence of disease in his dairy herd.

Tr. 126. As a result of the drought,

Richardson testified that he had

insufficient feed to sustain his dairy

cows and sheep. Consequently, he was

forced to sell his starving young calves

and lambs at disadvantageous prices.

Tr. 134-136.

While both the Mendenhali and

Richardson operations are financially

stressed, testimony at the District

Court hearing indicated that there was

still hope for their economic survival.

Agricultural banker Leslie Miller, after

reviewing the financial posture of the

Mendenhall and Richardson operations,

testified that it was possible for them

to remain in farming with timely

assistance. Tr. 208-209. She noted

that federal agricultural loans are

inadequate and that “cash injections"

such as that available to eiigible

farmers under the EFP are essential to

their survival. Tr. 226.

Miller further testified that it

would take almost five years for cow-

calf operations in southern Iowa to show

any significant profits after the 1983

drought. Tr. 186. Agricultural

economist Daniel Otto buttressed

Miller's testimony, observing that an

increasing volume of farm bankruptcies

after the conclusion of the 1984 crop

year could be expected as the effects of

the drought rippled through successive

years of livestock operations. Tr. 234.

The import of the evidence is

clear: timely assistance under the

programs which the Secretary has refused

to implement would provide many live-

stock farmers with the resources neces-

sary to stay on the farm. Conversely,

failure to render timely assistance will

speed up the process of foreclosure and

bankruptcy of farmers unable to recover

from the 1983 disaster.

This case is thus not simply

important to the particular parties

before the Court, Magnum Import Co. v.

Coty, 262 U.S. 159, 163 (1923), but to a

substantial portion of the pubiic.

Because of the importance of the issues

raised to the livestock industry in the

Midwest, this Court should grant the

petition for certiorari.

« 38 «

II. THE COURT OF APPEALS'

OPINION INSULATES IM-

PORTANT RULEMAKING AND

AGENCY ACTION FROM JU-

DICIAL REVIEW CONTRARY

TO ESTABLISHED PRINCI-

PLES OF ADMINISTRATIVE

LAW.

The thrust of the Court of Appeals’

opinion is that because a United States

Department of Agriculture program is

administered by the Commodity Credit

Corporation, no attack under the Admin-

istrative Procedure Act may be launched

to challenge program rules prcmuigated

by the Secretary or to force the Secre-

tary to comply with rules already in

vlace. This approach runs afoul of the

established principles of administrative

law articulated by this Court in Barlow

v. Collins, 397 U.S. 159, i67 (i979)

(validity of amended regulation not a

question committed to agency discretion

by law); Citizens to Preserve Overton

Park v. Volpe, 401 U.S. 402, 410 (1971)

(strong presumption of judicial review

of agency action); and Motor Vehicle

Mfr. Ass'n. of the United States v.

State Farm Mutual Ins. Co., 463 U.S. 29,

41-42 (1983) (agency action reversing

previous policy subject to heightened

judicial review).

\

The refusal of the Court of Appeals

to allow plaintirfs to challenge the

rule purporting to terminate the EFP

program was particularly unsupportable.

The agency's own rule, 7 C.F.R.

§ 1475.53, states:

Benefits under the program

shall be available to any

owner of livestock which are

maintained in the United

States . .. who: (a) has

suffered during the crop year

a substantial loss of live-

stock feed normallv produced

on land owned (or operated

under a bona fide lease) by

the livestock owner, and (b)

has filed an application for

assistance uncer the Emergency

Feed Program no later than

April 6, 1982. .

(emphasis supplied).

—

o 29s

The effect of this rule, which

arbitrarily imposed an April 8, 1982,

cutofé for applications for EFP

benefits, was to terminate the program

altogether. As announced by the

Secretary in the notice accompanying the

rule in the Federal Register, "the

effect of this interim rule is to

terminate this discretionary program in

order to reduce acministrative costs

(emphasis supplied)." 47 Fed. Reg.

9,981 (March 9, 1982).

The plaintiffs maintained that the

purported termination rule was contrary

to the intent of Congress in that when

it enacted 7 U.S.C. 2267, the Congress

expected the Secretary to use his

discretion to create some kind of EFP

program, not abolish it altogether by

administrative fiat. In addition, the

plaintitfs scught to attack the

termination rule through an Overton

Park-type analysis, claiming that the

Secretary failed to consider important

relevant factors when it promulgated the

rule. The Court of Appeals

fundamentally erred when it tossed aside

these challenges to the Secretary's

action simply because the programs are

carried out through the Commodity Credit

Corporation.

The only other case considering the

question of whether the anti-injunction

provisions of 15 U.S.C. § 714b(c) appiy

te the Secretary's rulemaking proceed-

ings comes to a result consistent with

Barlow and dramatically opposed to the

Court of Appeals in this case. in

Mitchell v. Block, 551 F.Supp. 1011

(W.D.Va. 1982), the Court considered

whether the anti-injunction provision

prevented an action seeking to enjoin

=,

the Secretary from refusing to grade and

provide price support for barley tobac-

co. The defendants asserted that

because price support is offered through

the Commodity Credit Corporation, the

action was barred by 15 U.S.C.

§ 714b(c).

The District Court rejected the

claim, noting the action was against the

Secretary of Agriculture. The court

noted that there is no language in 15

U.S.C. § 714b(c) “which would estop this

Court from enjoining the Secretary from

doing an arbitrary and capricious act."

Mitchell v. Block, 551 F.Supp. at 1015.

The mere fact that the farmers would be

entitled to assistance under the EFP and

LFP if the Secretary were restrained

from unlawful acts does not clothe the

Secretary with the corporation's cloak

— a

of immunity. Mitchell v. Block, 551

F.Supp. at 1016.

The approach in Mitchell is sound.

If the law were as the Court of Appeals

held in the instant case, district

courts would be deprived of jurisdiction

to consider APA challenges to a host of

agriculture programs established by the

Secretary of Agriculture but

administered or carried out through the

Commodity Credit Corporation. 7 U.S.C.

§ 1444(¢) (15) (loan rates, target

prices, disaster payments, acreage

recuction, and land diversion programs

for cotton); 7 U.S.C. § 1444d(h) (loan

rates and target prices for feed

grains); 7 U.S.C. § 1445b-1(h) (loan and

target price program for wheat); 7

U.S.C. § 1445b-2(e) (deficiency payments

program for wheat, feed grains, upland

cotton, and rice producers). Because

the approach of the Court of Appeals is

—

so fundamentally wrong and sweeping in

its potential application, this Court

should grant this petition for writ of

certiorari.

III. THE QUESTION OF WHETHER

A STATE HAS STANDING TO

ENFORCE CONGRESSIONALLY

ESTABLISHED POLICY IS

AN IMPORTANT QUESTION

THAT HAS DIVIDED THE

COURTS OF APPEAL.

The State of Iowa alleged that the

well-being of all Iowa citizens is

dependent upon the economic viability of

its farmers and livestock producers.

Complaint, 415. The State of Iowa

further alleged that the failure of the

Secretary to assist livestock farmers

would impose fiscal burdens on the State

because it administers unemployment

compensation and other programs for

displaced workers and failed businesses

affected by the drought. Amended

Complaint, § 17.

ae

The Court of Appeals dismissed the

State 4s a party, deciding first that

the State had failed to establish

sufficient injury in fact to meet the

requirements of Article III of the

United States Constitution. See State

of Iowa ex rel. Miller v. Block, 771

F.2d at 354; Pet. App. 26-27. The Court

of Appeals further held that the State

lacked standing to litigate as parens

patriae on behalf of its citizens.

Block, .771 F.2d 354-355; Pet. App.

29-30.

The State believes the Court of

Appeals erred in giving short shrift to

its allegations of fiscal harm. As a

provider of a wide array of public

services, the State has a vital interest

in maintaining revenues and controlling

expenditures. Several lower courts have

recognized that similar fiscal interests

are sufficient to meet Article IIT

standing requirements. Carey v.

Klutznick, 637 F.2d 834, 838 (2nd Cir.

1980); Alabama ex rel. Baxley v.

Tennessee Valley Authority, 467 F.Supp

791, 794-5 (N.D. Ala. 1979), rev'd on

other grounds sub. nom. Alabama ex rel.

Graddick v. Tennessee Valley Authority,

636 F.2d 1061 (5th Cir.), cert. denied,

454 U.S. 837 (1981); City of New York v.

Heckler, 578 F.Supp. 1109, 1119-22

(E.D.N.Y.), aff'd on other grounds, 742

F.2d 729 (2d Cir. 1984), partial stay

granted pending disposition, U.S.

, 105 S.Ct. 3552, cert. granted,

U.S. _, 106 S.Ct. 57 (1985).

In addition, the question of

whether a state may assert parens patrae

standing to seek judicial review of

federal agency action presents 4a

question that has divided the Courts of

Appeal. In this case, the Court of

» Sk ow

Appeals for the Eighth Circuit rejected

parens patriae standing, citing dicta in

a footnote in Alfred L. Snapp & Son v.

Puerto Rico, 458 U.S. 592, 610 n.16

(1982), and Commonwealth of Pennsylvania

v. Kleppe, 533 F.2d 668, 677-78 (D.C.

Cir.), cert. denied, 429 U.S. 977

(1976).

The Court of Appeals failed to

recognize the posture of this case. The

State of Iowa does not seek to enjoin or

cut down a federal statute on constitu-

tional grounds as was the case in

Massachusetts v. Mellon, 262 U.S. 447

(1923). Instead, the State is seeking

to vindicate the congressional will by

preventing the Secretary from engaging

in actions contrary to federal law. The

parens patriae doctrine is being used as

a sword to insure that an executive

official complies with federal policy,

mot as a shield to protect a state from

the political output of the federal

system.

This critical distinction has been

recognized by this Court. See Georgia

v. Pennsylvania Railroad Co., 324 U.S.

439, 446-47 (1945) (state seeking to

enforce federal law distinguished from

Mellon). In conflict with the approach

of the Court of Appeals in this case,

the Second, Fifth, and Ninth Circuits

have held that the Mellon doctrine does

not preclude suits by state authorities

seeking to compel compliance with

applicable federal law. See Carey v.

Klutznick, 637 F.2d at 838 (census

"sndercount'’ of New York residence);

Washington Utilities and Transportation

Commission v. Federal Communications

Commission, 513 F.2d 1142, 1153 (9th

Cir.), cert. denied, 423 U.S. 836 (1975)

(state agency has parens patriae

~

standing to challenge FCC order);

Florida v. Weinberger, 492 F.2d 488,

493-494 (5th Cir. 1974) (reversing

dismissal of state challenge to federal

regulation).

Nothing in Alfred L. Snapp & Son v.

Puerto Rico, 458 U.S. 592 (1982) defeats

state parens patriae standing in this

case. The only reference in Snapp to an

action brought by a state against the

federal gevernment amounted to pure

dicta in a footnote. In fact, Snapp

upheld the territory's assertion of

parens patriae standing in that suit

against private defendants. The brief

footnote distinguishing parens patriae

suits against the federal government is

clearly dicta. Further, it does not

reflect the critical distinction between

actions challenging congressional acts

and those challenging an agency's

ey ae

failure to implement the will of

Congress. The rule of Massachusetts v.

Mellon, 262 U.S. 447 (1923), should not

apply where, as here, a state challenges

a federal agency's refusal to comply

with federal law. This question was not

at issue in Snapp, and the Eighth

Circuit erred in relying on a footnote

to dispose of the state's action.

CONCLUSION

For all the above reasons, the

State of Iowa and individual farmers

respectfully request that their petition

for writ of certiorari be granted.

Respectfully submitted,

THOMAS J. MILLER

Attorney General of Iowa

Deputy Attorn

Hoover State Office Bldg.

Des Moines, Towa 50319

(515) 281-5164

Assistant Attorney General

A, MU. Ful~ >

KEVIN M. KIRLIN

Assistant Attorney General

> F AV EFDEAM DO lly {CF (€

C FY. HOFFMAN TLL 7

Hoffman Law Firm

107 West Ninth Street

Leon, Iowa 50144

ATTORNEYS FOR PETITICNERS

*Counsel of Record