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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 478 U.S. 1012

## Text

» . 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1562%3A1. Public record. Not legal advice.