Koretoff v. Vilsack

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 22, 2010 Decided August 3, 2010

No. 09-5286

NICK KORETOFF, DOING BUSINESS AS NICK KORETOFF
RANCHES, ET AL.,
APPELLANTS

v.

TOM VILSACK, UNITED STATES SECRETARY OF AGRICULTURE,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01558-ESH)

John H. Vetne argued the cause for appellants. With him
on the briefs were Susan Silber and Kenneth Sigman.

Michael P. Abate, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Tony West, Assistant Attorney General, Channing D. Phillips,
Acting United States Attorney, and Michael S. Raab,
Attorney.

Before: HENDERSON, GRIFFITH, and KAVANAUGH,
Circuit Judges.
 2

Opinion for the Court filed by Circuit Judge
KAVANAUGH, with whom Circuit Judge GRIFFITH joins.

Opinion dissenting in part filed by Circuit Judge
HENDERSON.

KAVANAUGH, Circuit Judge: A 2007 Department of
Agriculture rule mandates that almonds produced in the
United States be pasteurized or chemically treated to prevent
salmonella outbreaks. That requirement largely eliminates the
ability of California almond producers to sell raw almonds –
and therefore harms those producers’ economic well-being.
At the same time, because of what the California producers
view as a statutory loophole, foreign almond producers are
still able to sell raw almonds in the United States. Several
California almond producers filed suit. They argue that the
2007 rule is arbitrary and capricious under the Administrative
Procedure Act, exceeds the agency’s statutory authority, and
violates various APA procedural requirements.

The Government responds not on the merits, but by
contending that the California producers should not even be
allowed into court to advance their claims. The Government
does not deny that the producers suffered an injury-in-fact and
have standing under Article III of the Constitution. Rather,
according to the Government, the Agricultural Marketing
Agreement Act of 1937 precludes almond producers from
obtaining judicial review of the 2007 rule. We disagree with
the Government. The AMAA does not expressly bar
producers’ suits. And in light of the decisions of the Supreme
Court and this Court, we conclude that the AMAA does not
implicitly bar the producers’ claims. See Block v. Community
Nutrition Institute, 467 U.S. 340 (1984); Stark v. Wickard,
321 U.S. 288 (1944); Arkansas Dairy Cooperative
 3
Association v. U.S. Department of Agriculture, 573 F.3d 815
(D.C. Cir. 2009). We therefore reverse the contrary judgment
of the District Court, which was issued before and thus
without the benefit of our recent on-point decision in
Arkansas Dairy.

Three of the 10 California almond producers involved in
this appeal are also retailers who sell their own almonds
directly to consumers. Those three plaintiffs mount an
additional legal challenge to separate Department of
Agriculture regulations that restrict retail sales by such
producers. We agree with the District Court that the AMAA
does not preclude plaintiffs from raising such claims but does
require plaintiffs to exhaust their administrative remedies with
the Department of Agriculture before bringing the claims to
court. We therefore affirm the District Court’s judgment as to
those claims.

I

A

This case is about the almond market. That market
consists of growers (whom we will refer to as “producers”),
handlers, retailers, and consumers of almonds. Producers
grow the almonds and sell them to handlers. Handlers buy the
almonds from the producers, process and package the
almonds, and then sell them to retailers. Retailers sell
almonds to consumers. Some producers also sell directly to
consumers, bypassing the intermediaries.

This case involves the Agricultural Marketing Agreement
Act of 1937, a landmark piece of legislation that arose out of
the farming catastrophe during the Great Depression. The
AMAA authorizes the Secretary of Agriculture to promulgate
 4
marketing orders that regulate the production and sale of
agricultural commodities. 7 U.S.C. §§ 601-674. It seeks to
“avoid unreasonable fluctuations in supplies and prices” of
various farm commodities. Id. § 602(4). The AMAA is
currently applied to about three dozen agricultural
commodities, such as milk, avocados, oranges, and peanuts.
Agricultural marketing orders may dictate the “total quantity”
of a regulated commodity sold in a particular region, as well
as the “grade, size, or quality thereof.” Id. § 608c(6)(A).

Before promulgating a marketing order under the
AMAA, the Secretary of Agriculture must consult with
producers and handlers of the commodity in question. The
AMAA requires that a marketing order receive the approval
of two-thirds of producers in a region (measured by number
of producers or volume). For some purposes, the AMAA also
requires the approval of a majority of handlers (measured by
volume). Id. § 608c(8)-(9).

The AMAA expressly allows handlers to sue and obtain
judicial review of marketing orders, but requires them first to
exhaust specified administrative remedies. Id. at
§ 608c(15)(A). The AMAA is silent about a right to sue or
about exhaustion of administrative remedies for producers,
retailers, or consumers.

B

In 1950, acting pursuant to the AMAA, the Secretary of
Agriculture promulgated the California Almond Marketing
Order, 7 C.F.R. pt. 981. The Almond Order has been
amended often in the 60 years since. Among other things, the
Order sets quality standards for commercially sold almonds
and regulates the quantity of almonds that may be sold in a
given year.
 5

In the wake of two salmonella outbreaks in 2001 and
2004, the Secretary in 2007 issued a new almond rule under
the Almond Order. Almonds Grown in California; Outgoing
Quality Control Requirements, 72 Fed. Reg. 15,021, 15,034
(Mar. 30, 2007). This rule is now codified at 7 C.F.R.
§ 981.442(b).

The new rule required the use of one of several approved
methods for reducing salmonella bacteria in almonds, all
involving either pasteurization or chemical treatment of
nearly all almonds sold. 7 C.F.R. § 981.442(b).

C

The current dispute arises primarily because the 2007
rule had the effect of largely eliminating the domestic raw
almond market. The 10 plaintiffs still involved in the case
are California almond producers who grew raw almonds for
domestic U.S. consumption. Because the 2007 rule
devastated the market for domestic raw almonds, those
producers allege that they lost both their expected profits from
the premium price paid for raw almonds and the return on
investments they had made in production equipment. At the
same time, the 2007 rule had no impact on foreign almond
producers, who are not subject to Department of Agriculture
regulation and are still permitted to import raw almonds into
the United States.

Three of the 10 producers are also retailers who sell
almonds directly to consumers. These producer-retailers also
challenged separate Department of Agriculture restrictions on
how and where they could sell almonds at retail. Those
restrictions date back to 1985. See 50 Fed. Reg. 30,264 (July
25, 1985) (codified at 7 C.F.R. § 981.413).
 6

A group of California almond producers sued in U.S.
District Court, arguing that various aspects of the Secretary’s
2007 rule were arbitrary and capricious under the APA,
exceeded statutory authority, and violated certain APA
procedural requirements. The District Court dismissed
plaintiffs’ suit. See Koretoff v. Vilsack, 601 F. Supp. 2d 238
(D.D.C. 2009). It reasoned that the AMAA implicitly
precludes producers from suing to challenge regulations
issued under the AMAA. The Court ruled that the separate
claims by the producer-retailers were not precluded but
should be dismissed for failure to exhaust administrative
remedies. See id. at 241-44.

Plaintiffs appeal on both issues. Our review of the legal
questions is de novo. In resolving the question of AMAA
preclusion, it bears mention that the District Court rendered
its decision before Arkansas Dairy Cooperative Association v.
U.S. Department of Agriculture, 573 F.3d 815 (D.C. Cir.
2009), a recent opinion of this Court that helps chart our path
here.

II

A

The Administrative Procedure Act establishes a cause of
action for those “suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency action.”
5 U.S.C. § 702; see Abbott Labs. v. Gardner, 387 U.S. 136,
140 (1967). That statutory right to judicial review does not
apply, however, when “statutes preclude judicial review.” 5
U.S.C. § 701(a)(1). Whether a statute precludes judicial
review of agency action, the Supreme Court has said, is a
question of congressional intent, which is determined from
 7
the statute’s “express language,” as well as “from the
structure of the statutory scheme, its objectives, its legislative
history, and the nature of the administrative action involved.”
Block v. Community Nutrition Inst., 467 U.S. 340, 345 (1984);
see also Free Enter. Fund v. Public Co. Accounting Oversight
Bd., No. 08-861, slip op. at 8 (U.S. June 28, 2010); Thunder
Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994).

In assessing whether a plaintiff’s suit is precluded by
statute, we must determine not only whether “Congress
precluded all judicial review” of the agency action but also
whether Congress “foreclosed review to the class to which the
[plaintiff] belong[s].” Block, 467 U.S. at 345-46 (quoting
Barlow v. Collins, 397 U.S. 159, 173 (1970) (Brennan, J.,
concurring in result and dissenting)).

B

The Supreme Court and this Court have applied those
preclusion principles in three important cases arising under
the Agricultural Marketing Agreement Act: Stark v. Wickard,
321 U.S. 288 (1944); Block v. Community Nutrition Institute,
467 U.S. 340 (1984); and Arkansas Dairy Cooperative
Association v. U.S. Department of Agriculture, 573 F.3d 815
(D.C. Cir. 2009). As we will explain, those cases together
indicate that the AMAA does not preclude producer suits
challenging rules and orders issued under the AMAA.

In Stark v. Wickard, the Supreme Court held that milk
producers could sue to challenge a milk marketing order. 321
U.S. 288 (1944). The Court acknowledged that the AMAA
granted “no direct judicial review” to producers. Id. at 307-
08. The Court noted, however, that producers had a
“financial interest” in aspects of the marketing order. Id. at
308. And the Court stated that it was “not to be lightly
 8
assumed that the silence of the statute bars from the courts an
otherwise justiciable issue.” Id. at 309.

The Supreme Court decided Stark in 1944 – before the
1946 passage of the Administrative Procedure Act. Pub. L.
No. 79-404, 60 Stat. 237 (codified at 5 U.S.C. § 701 et seq.).
The timing of the Stark decision only adds, however, to its
precedential force. If anything, the subsequent enactment of
the APA, which created a generic cause of action to challenge
agency action, fortifies Stark’s open-the-courthouse-door-to-
producers ruling. Indeed, passage of the APA largely
resolved the main concern that had been articulated in Justice
Frankfurter’s dissent in Stark – namely, that “creat[ing] a
judicial remedy for producers when the statute gave none is to
dislocate the Congressional scheme of enforcement.” 321
U.S. at 317 (Frankfurter, J., dissenting).

The Supreme Court next addressed AMAA preclusion
some 40 years later in Block v. Community Nutrition Institute.
There, the Court held that the AMAA precludes judicial
review of challenges brought by consumers to marketing
orders. Allowing suit by consumers would mean virtually
every American could challenge every agricultural marketing
order. As revealed at oral argument in the Block case, that
hard-to-fathom result was of great concern to the Supreme
Court and informed its assessment of Congress’s intent on
whether such suits were precluded by the AMAA. See Tr. of
Oral Arg. at 32, Block, 467 U.S. 340 (No. 83-458) (raising
question whether all of the individual Justices could sue as
consumers of milk). In its opinion addressing whether
consumer suits were precluded, the Block Court explained
that the AMAA “contemplates a cooperative venture among
the Secretary, handlers, and producers.” 467 U.S. at 346.
Consumers, by contrast, were assigned no active role in the
regulatory scheme. Id. at 346-47. The Court determined that
 9
the “structure of this Act indicates that Congress intended
only producers and handlers, and not consumers, to ensure
that the statutory objectives would be realized.” Id. at 347.
The Court also noted that Congress had required handlers to
exhaust administrative remedies before suing. Allowing
consumers to bring suit without exhausting administrative
remedies “would provide handlers with a convenient device
for evading” that exhaustion requirement by either recruiting
a consumer as a partner in litigation or, in the case of handlers
who were also consumers, suing in their capacity as
consumers. Id. at 348. The Court reasoned that Congress
likely would not have intended to allow such easy
circumvention of the exhaustion requirement, and thus likely
did not intend for consumers to be able to challenge
agricultural marketing orders in court.

Importantly, in barring consumer suits, the Block Court
expressly reaffirmed Stark’s holding with respect to producer
suits. It found that “preclusion of consumer suits is perfectly
consistent” with the Court’s “conclusion concerning producer
challenges in Stark v. Wickard.” Id. at 352. In discussing
Stark, the Block Court stated that “[j]udicial review of the
producers’ complaint” in Stark was “necessary to ensure
achievement of the Act’s most fundamental objectives – to
wit, the protection of the producers of milk and milk
products.” Id. The Block Court echoed then-Judge Scalia’s
opinion in this Court, in which he had similarly concluded
that consumers could not bring challenges to agricultural
marketing agreements, even though producers could. Judge
Scalia had reasoned that the “direct beneficiaries of milk
marketing orders under the [AMAA] are milk producers.
Even before adoption of the APA, the courts found a
congressional intent to permit them to sue.” Community
Nutrition Inst. v. Block, 698 F.2d 1239, 1257 (D.C. Cir. 1983)
(Scalia, J., concurring in part and dissenting in part).
 10

Notably, in distinguishing Stark, the Block Court largely
followed the approach that the Government had advocated to
the Court. The Government argued that “producers and
consumers stand on very different ground” and have
“generally antagonistic” interests. Gov’t Br. at 31, Block, 467
U.S. 340 (No. 83-458). The Government added that “it would
be anomalous to conclude that Congress meant to foreclose
all producer challenges to the market order program; indeed,
Congress appears to have contemplated producer suits . . . .”
Id. at 31-32. At oral argument, the Government further stated
that “this statute was passed expressly for the benefit of
producers.” Tr. of Oral Arg. at 12, Block, 467 U.S. 340 (No.
83-458). The Government’s counsel went so far as to suggest
that barring producer suits might be unconstitutional: “One
other difference, Justice White, between consumers and
producers is that basically the market orders are government-
ordered contracts between handlers and producers; and it
would be quite unfair and perhaps even unconstitutional to
say that one party to the contract, the handler, can sue, but the
other party to the contract, whose personal proprietary rights
are affected, can’t sue because Congress didn’t mention them.
The same thing is not true of consumers.” Id. at 15.1

As our Court has recently explained, Stark and Block
together indicate that producers can sue to challenge
agricultural marketing orders, but consumers cannot. See

1
Judge Henderson’s dissent highlights a sentence in Block
where the Court said that judicial review would “ordinarily be
confined to suits brought by handlers.” Dissenting Op. at 1, 3
(quoting Block, 467 U.S. at 348). But in Arkansas Dairy we
analyzed that sentence from Block and explained that, in context,
the Court was simply distinguishing handlers from consumers, and
that a contrary reading would require us to ignore Stark. See
Arkansas Dairy, 573 F.3d at 823-24.
 11
Arkansas Dairy, 573 F.3d 815 (D.C. Cir. 2009). In Arkansas
Dairy, we relied heavily on Stark in permitting milk
producers to bring a challenge to a milk marketing order
promulgated under the AMAA. We distinguished Block,
reiterating that producers “occupy a different status under the
AMAA from that of consumers.” Id. at 823. We said that the
Block Court had “contrasted” the role of consumers in the
statutory scheme “with the role of handlers and producers.”
Id. at 822; see also id. at 834 (Griffith, J., dissenting in part
and concurring in judgment in part) (“The majority reads
Stark to require judicial review of all claims by producers.”).

The Government seems to suggest that the statutorily
required approval of two-thirds of producers for a marketing
order evinces a congressional intent to bar all producers’ suits.
In light of Arkansas Dairy and the relevant Supreme Court
precedents, the Government’s intimation is incorrect. As we
explained in Arkansas Dairy, some minority of producers –
by definition, up to one-third of all producers in a region –
could vote against the promulgation of a marketing order but
nonetheless would be unable to prevent the Secretary from
promulgating the order. We therefore rejected the argument
that the opportunity to participate precludes suit. In so ruling,
we quoted Stark, which had stated: “a mere hearing or
opportunity to vote cannot protect minority producers against
unlawful exactions which might be voted upon them by
majorities.” Id. at 825 (majority opinion) (quoting Stark, 321
U.S. at 307). We added that Stark “evidences a focus on
ensuring a judicial forum for producers who allege they are
harmed by an illegal order, regardless of their right to vote on
that order.” Id. at 826 n.5 (emphasis added).2

2
We note that the Government’s suggestion here is contrary to
its argument to the Supreme Court in Block. In explaining why
producer suits were allowed, the Government there stated that
 12

To the extent legislative history is relevant here, the
legislative debates during passage of the AMAA’s precursor
also support our analysis in Arkansas Dairy. Representative
Andresen of Minnesota, a member of the House Committee
on Agriculture, pointed to judicial review as the remedy for
the vindication of minority producer interests: “Mr.
DONDERO. The point I make is whether or not the minority
in that kind of a case would have any voice of protest in order
to get them from under the agreement in which they did not
care to join. Mr. ANDRESEN. Personally I think they would
have the best kind of a day in court if they came before the
court and presented their side of the question.” 79 CONG.
REC. 9479 (1935).

It also bears mention that the two-thirds of producers
needed for approval of almond orders may be measured either
by number of producers or by volume of almonds sold. 7
U.S.C. § 608c(9)(B)(i)-(ii). It is thus easy to envision a
scenario in which a few large almond producers approve a
marketing order that disadvantages a relatively large group of
small almond producers, either to run the latter out of
business or simply because the two groups have divergent
interests. That example further illustrates why Congress’s
decision to require approval of two-thirds of producers does
not indicate a congressional intent to bar all producers’ suits.3

“[n]ot every producer is always going to be happy,” acknowledging
that this group would include “[a]ny one of the third who didn’t
vote for it.” Tr. of Oral Arg. at 13, Block, 467 U.S. 340 (No. 83-
458).
3
In this case, moreover, producers did not vote on
promulgation of 7 C.F.R. § 981.442(b)’s salmonella rule. Rather,
that regulation was promulgated pursuant to the authority of the
California Almond Board – with the approval of the Secretary – to
establish “such minimum quality and inspection requirements . . .
 13

In sum, the precedents of the Supreme Court and this
Court indicate that the AMAA does not preclude producer
suits challenging rules and orders issued under the AMAA.
As we also noted in Arkansas Dairy, moreover, our Court is
not alone in reading Stark and Block to allow producers – but
not consumers – to challenge such agency actions. Three of
the four other circuits to consider the question have reached
the same conclusion, finding that adopting the Government’s
“radical interpretation” of Block as precluding producers’
suits “would effectively undermine the presumption in favor
of judicial review that the Supreme Court has consistently
reaffirmed.” Farmers Union Milk Marketing Coop. v.
Yeutter, 930 F.2d 466, 474 (6th Cir. 1991) (Boggs, J.); see
also Alto Dairy v. Veneman, 336 F.3d 560, 567-69 (7th Cir.
2003); Minn. Milk Producers Ass’n v. Madigan, 956 F.2d
816, 817-18 (8th Cir. 1992). Only the Ninth Circuit has
reached a different conclusion, in a decision rendered 25 years
ago over the disagreement of Judge Wiggins. See
Pescosolido v. Block, 765 F.2d 827, 831-32 (9th Cir. 1985).

C

The Government tries to get around the precedents by
contending that Stark, Block, and Arkansas Dairy dealt with
milk, rather than almonds, and that the almond industry raises
different issues.

as will contribute to orderly marketing or be in the public interest”
and to “establish rules and regulations necessary and incidental.” 7
C.F.R. § 981.42(b); see Almonds Grown in California; Outgoing
Quality Control Requirements and Request for Approval of New
Information Collection, 71 Fed. Reg. 70,683, 70,687 (proposed
Dec. 6, 2006). Because such rules are not amendments to the
Order, no producer referendum was held before promulgation of the
salmonella rule.
 14

The Government’s attempted distinction of the
precedents goes as follows: In the almond industry, unlike in
the milk industry, handlers’ interests are identical to
producers’ interests. Therefore, according to the Government,
almond handlers – who possess a statutory right to judicial
review under the AMAA – can adequately represent the
interests of almond producers in court.

The Government’s argument finds no support in
precedent and is flawed at a very basic conceptual level. The
usual rule of administrative law is that an aggrieved party can
sue to challenge agency action regardless of whether there
might be some other aggrieved party who might raise the
same challenge or seek the same relief. The Government’s
argument – handlers can sue and that’s good enough for
producers – is thus inconsistent with bedrock tenets of
administrative law. We find no indication that Congress
intended to depart from those principles when enacting the
AMAA. See Stark, 321 U.S. at 308-10. It would be
especially odd to rely on this kind of virtual or vicarious
representation to bar producers from suing given that
producers are the primary intended beneficiaries of the
AMAA – a point noted by the Supreme Court in Block. 467
U.S. at 352 (“[j]udicial review of the producers’ complaint [in
Stark] was therefore necessary to ensure achievement of the
Act’s most fundamental objectives – to wit, the protection of
the producers of milk and milk products.”). This conclusion
finds additional support in intervention cases, where we have
stated that intervenors are not sufficiently protected by a mere
congruence of interests with a party litigant. See Fund for
Animals, Inc. v. Norton, 322 F.3d 728, 737 (D.C. Cir. 2003).
We see no reason for a different result here.
 15
In any event, the Government’s argument is also flawed
on the facts. The Government makes too much of the
distinction between the almond and milk industries. Even a
cursory examination of the Almond Marketing Order shows
how the interests of almond producers and handlers can
diverge. The Almond Order requires, for example, that
handlers maintain a certain quantity of almonds on hand as
“reserves” at all times. See 7 C.F.R. §§ 981.46, 981.50. The
required quantity is determined by regulation. Id.
§ 981.49(e). Almond producers and almond handlers may
have different preferences: Almond handlers may prefer a
smaller reserve, to avoid the cost of purchasing reserve
almonds, whereas almond producers might prefer a larger
reserve in order to guarantee larger mandatory sales.
Similarly, the Almond Marketing Order permits regulation of
handlers’ labeling of almond containers. Id. § 981.43.
Handlers may disfavor such restrictions as imposing
additional burdens upon them. Producers, however, might be
inclined to support such regulation in some circumstances:
Precise, accurate labeling might encourage repeat orders by
customers. The Almond Order also imposes quality control
regulations on handlers. Id. § 981.42. As with labeling, it is
easy to see how handlers might chafe under such regulations,
while producers might appreciate any refinement of the final
product sold that did not come at their direct expense.

True, there will be some cases where the interests of
almond producers and almond handlers overlap. But in
others, they won’t. And the Government has provided us with
no workable way to determine when interests diverge in such
a manner as to draw the line in precluding suit. The
Government’s theory – almond producers sometimes can sue
and sometimes cannot – would produce a chaotic case-by-
case determination of whether producers’ and handlers’
interests are aligned. This is a recipe for endless satellite
 16
litigation. We declined to embark on such an endeavor in
Arkansas Dairy, and we must do so again here.

III

Three of the 10 plaintiffs still involved in this case not
only produce almonds, but also sell them directly to
consumers. These producer-retailer plaintiffs argue that the
AMAA does not authorize the Secretary of Agriculture to
regulate retail sales. The statute and regulation together
require these plaintiffs to exhaust their administrative
remedies before bringing their claims to court. That is
because the statute requires handlers to exhaust, and the
regulations in turn define these producer-retailers as handlers
because of where and how they sell almonds.

Plaintiffs retort that the regulation classifying them as
handlers – and triggering the exhaustion requirement – is
inconsistent with the AMAA. In other words, plaintiffs argue
that the regulation improperly requires them to exhaust
administrative remedies. But this broad-based challenge to
the agency’s exhaustion requirement is itself an argument that
must be raised first to the agency. Cf. Myers v. Bethlehem
Shipbuilding Corp., 303 U.S. 41, 49-51 (1938) (party may not
challenge agency’s jurisdiction over it without exhausting
administrative remedies); Greater Detroit Res. Recovery
Auth. v. EPA, 916 F.2d 317, 323 (6th Cir. 1990) (exceptions
to the exhaustion doctrine may not be “automatically invoked
whenever a challenge to the scope of an agency’s authority is
raised”) (quoting Shawnee Coal Co. v. Andrus, 661 F.2d
1083, 1093 (6th Cir. 1981)); Deltona Corp. v. Alexander, 682
F.2d 888, 893 (11th Cir. 1982) (“the agency ordinarily should
be given the first opportunity to consider a challenge to its
jurisdiction”).
 17
We therefore agree with the District Court’s conclusion
dismissing the claims of the three producer-retailer plaintiffs
for failure to exhaust their administrative remedies with
respect to their challenge to the Department’s retail
restrictions.

* * *

We reverse the judgment of the District Court with
respect to the suit of the ten producers. Their claims can go
forward. We affirm the District Court’s judgment dismissing
the claims of the three producer-retailers; those claims must
be raised first to the Department of Agriculture.

So ordered.
 KAREN LECRAFT HENDERSON, Circuit Judge, dissenting in
part:
The Agricultural Marketing Agreement Act (Act or AMAA),
7 U.S.C. §§ 601 et seq., authorizes the United States Secretary
of Agriculture (Secretary) to issue and amend agricultural
marketing orders applicable to handlers of various agricultural
commodities, including almonds. Id. § 608c(1)-(2). The Act
expressly requires the Secretary to submit a proposed order for
approval by the handlers and the producers—with the producers,
but not the handlers, wielding veto power should two-thirds of
them (by number or volume produced) fail to approve. Id.
§ 608c(8)-(9). While lacking a veto, the handlers can challenge
a marketing order before the Secretary and then in district court.
Id. § 608c(15). The Act provides no express right of review to
any other party. In light of “this complex and delicate
administrative scheme,” the United States Supreme Court
“think[s] it clear that Congress intended that judicial review of
market orders issued under the Act ordinarily be confined to
suits brought by handlers in accordance with 7 U.S.C.
§ 608c(15).” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 348
(1984)—with the single exception that a milk producer may
challenge in court an order that infringes its statutory right under
the Act to receive the guaranteed minimum milk price set by the
Secretary, see Stark v. Wickard, 321 U.S. 288 (1944).
Nonetheless, the majority maintains that as a matter of course
“producers” as well “can sue to challenge agricultural marketing
orders,” Maj. Op. at 10, including the appellant almond
producers. I throw my lot in with the Supreme Court. Almonds
do not belong on the same shelf with milk.
As the district court observed, Stark carved out a “a narrow
exception” to the general rule, noted in Block, that ordinarily
only handlers (and not producers) may seek review of a
marketing order. Koretoff v. Vilsack, 601 F. Supp. 2d 238, 244
(D.D.C. 2009) (citing Stark, supra). In Stark, the Supreme
Court permitted a class of milk producers to challenge a
marketing order that required the “settlement fund”
 2

administrator to deduct from the fund’s pooled payments a fee
to be paid to milk producer co-operatives. The effect of the
deduction was to reduce the minimum “blend” price paid to the
milk producers from the fund.1 The Court concluded that,
although there was “no direct judicial review granted by [the
Act] for the[] proceedings,” the “authority for a judicial
examination of the validity of the Secretary’s action is found in
the existence of courts and the intent of Congress as deduced
from the statutes and precedents.” 321 U.S. at 307-08. In
particular, the Court determined that “[t]he statute and Order
create a right in the producer to avail himself of the protection
of a minimum price afforded by Governmental action”—a right
“mandatory in character and obviously capable of judicial
enforcement.” 321 U.S. at 303 (emphasis added). Noting that
“the challenged deduction reduces pro tanto the amount actually
received by the producers for their milk,” id. at 302, the Court
explained that “[i]t is because every dollar of deduction comes
from the producer that he may challenge the use of the fund,” id.
at 308.2

1
Under the milk marketing regime, the Secretary fixes different
minimum raw milk prices depending on the end-use to which a
handler puts it (e.g, fluid milk, cream, ice cream). The payments are
pooled in a settlement fund and, after certain administrative expenses
are deducted, an average “blend price” is calculated which is the price
each producer actually receives. See Edaleen Dairy, LLC v. Johanns,
467 F.3d 778, 779-80 (D.C. Cir. 2006). Thus, any deduction from the
fund (such as the co-operative payment in Stark) reduces the price
each producer is paid.
2
The Court indicated that the availability of review for marketing
orders is limited:
It is suggested that such a ruling puts the agency at the
mercy of objectors, since any provisions of the Order may
be attacked as unauthorized by each producer. To this
objection there are adequate answers. The terms of the
 3

In Block, as noted supra, the Court made clear that judicial
review is “ordinarily . . . confined to suits brought by handlers
in accordance with 7 U.S.C. § 608c(15).” Block, 467 U.S. at
348. The Court acknowledged that under Stark, “dairy
producers could challenge certain administrative actions even
though the Act did not expressly provide them a right to judicial
review” but explained that the challenged deductions in Stark
“ ‘reduce[d] pro tanto the amount actually received by the
producers for their milk,’ ” thereby giving the producers
“standing to object to the administration of the settlement fund.”
Id. at 351 (quoting Stark, 321 U.S. at 302) (emphasis added)
(alteration in Block). “Though the producers’ standing could not
by itself ensure judicial review of the Secretary’s action at their
behest, the statutory scheme as a whole, the [Stark] Court
concluded, implicitly authorized producers’ suits concerning
settlement fund administration.” Id. (emphasis added) (internal
citation omitted). The Block court noted that in Stark the
handlers “ ‘[could not] question the use of the fund, because
handlers had no financial interest in the fund or its use’ ” and so,
unless the producers were granted judicial review, there was
“ ‘no forum’ in which this aspect of the Secretary’s actions
could or would be challenged.” Id. at 351-52 (quoting Stark,
321 U.S. at 309) (alteration added) (internal citation omitted).3

Order are largely matters of administrative discretion as to
which there is no justiciable right or are clearly authorized
by a valid act. United States v. Rock Royal Co-op., 307 U.S.
533 [(1939)]. Technical details of the milk business are left
to the Secretary and his aides.
321 U.S. at 310.
3
The majority asserts that considering whether the producers’ and
the handlers’ interests coincide in a particular case “would produce a
chaotic case-by-case determination.” Maj. Op. at 15. But case-by-
case determinations are the hallmark of administrative and judicial
 4

In this Circuit’s decisions permitting producers to challenge
a marketing order, the injury to the producers was, as in Stark,
an impairment of their statutory right to full payment, through
the settlement fund, of the minimum price fixed by the Secretary
for milk products. In Blair v. Freeman, 370 F.2d 229 (D.C. Cir.
1966), we entertained a challenge to a price deduction in the
form of a travel distance variable based on the location of the
milk producer’s farm. We there concluded the appellant dairy
producers had “standing to present their claim that the nearby
differential provision exceeded the statutory power of the
Secretary.” Id. at 234. We explained: “Since this differential is
payable out of the equalization pool, the deduction reduces pro
tanto the amount actually received by producers for their milk.
The appellants thus have standing to invoke the protection of
equity to insure that their statutory right to minimum price
protection is not being improperly diminished.” Id. n.15 (citing
Stark, 321 U.S. at 290, 302-310).
Most recently, in Arkansas Dairy Cooperative Ass’n v.
United States Department of Agriculture, 573 F.3d 815 (D.C.
Cir. 2009), the court again permitted milk producers to
challenge reductions to the minimum price they received for
milk. In Arkansas Dairy, the milk producers challenged the
Secretary’s interim rule that increased the “make
allowance”—an amount which is intended to represent the costs
to the handlers of making the end dairy products from raw milk
and which is deducted from the end-use price before the blend
price is computed. Relying primarily on Stark, the court held
the milk producers could “bring suit under the APA to challenge
the Interim Rule, which directly affect[ed] their blend prices

adjudications and the Supreme Court advocated just such an inquiry
in Block. In this case the interests of untreated almond producers and
of untreated almond handlers—both of whom will lose the profits they
would otherwise earn from the sale of raw almonds—are indeed
aligned.
 5

through increased make allowances, even though the milk
marketing orders w[ould] not directly affect the producer
settlement fund.” 573 F.3d at 827. We explained: “The
producers are aggrieved, within the meaning of the APA, by the
alleged diminution of their personal rights secured under the
AMAA, the Interim Rule they challenge constitutes final agency
action, and they seek non-monetary injunctive relief.” Id. (citing
5 U.S.C. §§ 702, 704). The case paralleled Stark and Blair, the
majority wrote, because the challenged rule “deduct[ed] funds
from the value of milk before calculating the blend price
guaranteed to producers, thus reducing, ‘dollar for dollar,’ the
minimum price producers are guaranteed for their milk
products.’ ” Id. at 825.4

4
It was on this basis, in part, that Arkansas Dairy distinguished our
earlier decision in Benson v. Schofield, 236 F.2d 719 (D.C. Cir. 1956),
in which the court did find precluded a suit by Massachusetts dairy
producers challenging a proposed order expanding the “Greater
Boston Marketing Area” to subject milk from additional towns to its
minimum prices. Arkansas Dairy points out that “in Benson the court
was not addressing a diminution of producers’ statutorily-guaranteed
blend prices, as in Stark, Blair, and the instant case, but rather an order
that increased the boundaries of a marketing area to cover a greater
number of handlers, an action the court held did not infringe any
statutory right possessed by the producers because only handlers were
affected.” 573 F.3d at 827 (citing Benson, 236 F.2d at 723). The
Benson court in turn had distinguished Stark on a similar ground:
[A]ppellees claim standing to vindicate a “legal wrong”
because of language to be found in Stark v. Wickard. But
there the Court pointed out: “It is because every dollar of
deduction comes from the producer that he may challenge the
use of the fund. The petitioners’ complaint is not that their
blended price is too low, but that the blended price has been
reduced by a misapplication of money deducted from the
producers’ minimum price.” We still come back to the
proposition, as the Stark case points out, that absent
 6

This case is nothing like Stark or its progeny. The
commodity at issue here is not milk—as in Stark, Blair and
Arkansas Dairy—but almonds. And the Act confers no
statutory right on a producer to receive any payment for its
almonds; nor does it empower the Secretary to fix their price, as
it does for milk. The Act expressly authorizes the Secretary to
regulate milk prices alone. See Pescosolido v. Block, 765 F.2d
827, 830 (9th Cir. 1985) (“Unlike the fixed minimum prices
which must be established for milk . . . , see 7 U.S.C.
§ 608c(5)(A), the Secretary is not empowered to fix prices for
any other commodities covered by the Act. Instead, he may only
employ market controls, see id. § 608c(6), in an effort to
‘effectuate the declared policy of’ the Act” (quoting 7 U.S.C.
§ 608c(4))) (emphasis in original). Milk is sui generis in this
respect as in so many others.5 As Block observed, in Stark,
“[j]udicial review of the producers’ complaint was . . . necessary
to ensure achievement of the Act’s most fundamental
objectives—to wit, the protection of the producers of milk and
milk products.” 467 U.S. at 351 (emphasis added). Protecting
the market for raw almonds—by the appellants’ own admission
a “niche” market (albeit a “lucrative” one), Appellants’ Br.
10—presents no such compelling necessity.6

“justiciable individual rights,” (italics ours) the detriment
complained of is damnum absque injuria.
236 F.2d at 723.
5
Milk is far more extensively regulated under the Act than the
other covered commodities. Compare 7 U.S.C. § 608c(5) with id
§ 608c(6).
6
All of the extra-Circuit cases the majority cites to support its
position involved milk prices. See Maj. Op. at 13 (citing Farmers
Union Milk Marketing Coop. v. Yeutter, 930 F.2d 466, 474 (6th Cir.
1991); Alto Dairy v. Veneman, 336 F.3d 560, 567-69 (7th Cir. 2003);
 7

For the foregoing reasons, I respectfully dissent.7

Minn. Milk Producers Ass’n v. Madigan, 956 F.2d 816, 817-18 (8th
Cir. 1992)). The only extra-Circuit case the majority cites as contra
involved navel oranges. See id. (citing Pescosolido, 765 F.2d at
831-32.
7
I concur in the majority’s affirmance of the district court’s
dismissal of the three producer-retailers’ claims for failure to exhaust
administrative remedies.