Schroder v. Clinton

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 24 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

EUGENE SCHRODER; EDWIN
PETROWSKY; R. RUSSELL
GRIDER; and WESLEY MYERS,

Plaintiffs-Appellants,
v.

GEORGE W. BUSH, President of the No. 00-1357
United States; ANN M. VENEMAN,
United States Secretary of Agriculture;
PAUL H. O’NEILL, United States
Secretary of the Treasury; * and
UNITED STATES OF AMERICA,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 00-K-154)

Walker Fowler Todd, Chagrin Falls, Ohio, for Plaintiffs-Appellants.

Peter J. Krumholz, Assistant United States Attorney (Thomas L. Strickland,
United States Attorney, with him on the brief), Denver, Colorado, for Defendants-
Appellees.

*
Pursuant to Fed. R. App. P. 43(c)(2), George W. Bush is substituted for
William J. Clinton, President of the United States; Ann M. Veneman is
substituted for Daniel R. Glickman, United States Secretary of Agriculture; and
Paul H. O’Neill is substituted for Lawrence Summers, United States Secretary of
the Treasury, as Defendants-Appellees in this action.
Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
BRIMMER, ** District Judge.

EBEL, Circuit Judge.

Appellants are farmers or ranchers who live and work within the territorial

boundaries of the Tenth Circuit and who seek declaratory and injunctive relief

against the President of the United States, the United States Secretary of

Agriculture, the United States Secretary of the Treasury, and the United States of

America (collectively, “Appellees”). Appellants seek, in essence, an order

requiring Appellees and their agents to maintain market conditions favorable to

small farmers. The district court dismissed for lack of subject matter jurisdiction,

writing, “The Complaint seeks to have this court determine political questions

which are properly addressed [by] the elected branches of the government. This

Court has no jurisdiction over the discretionary acts of either. Plaintiffs’

remedies are at the polling place, not the courts.” Schroder v. Clinton, No. 00-

CV-154-K (D. Colo. July 6, 2000) (hereinafter “D.Ct. Order”). We agree that

Appellants ask us to consider nonjusticiable political questions and that

**
The Honorable Clarence A. Brimmer, Jr., United States District Judge for
the District of Wyoming, sitting by designation.

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Appellants must seek relief from the elected branches of government. We

therefore AFFIRM the district court’s dismissal. 1

BACKGROUND

A. Plight of the Small Farmer in America

Every branch of the federal government has recognized how difficult it is

for small farmers to make a living by farming. 2 See William J. Clinton, State of

the Union Address of January 27, 2000, reprinted in 2000 U.S.C.C.A.N. D7, 2000

WL 85684, *11 (“[D]roughts, floods, and historically low prices have made these

times very bad for the [family] farmers.”); S.J. Res. 171, 103rd Cong. (1994)

1
Deeply rooted ambiguity in the nature and justification of the political
question doctrine has prevented clear classification of the appropriate type of
dismissal in political question cases. See Wright, Miller & Cooper, Federal
Practice and Procedure: Jurisdiction 2d § 3534.3, at 517-525 (2d ed. 1984) We
agree with Wright & Miller’s conclusion that, in the end, clear classification is
immaterial: “[T]here is probably more room for confusion than benefit in
attempting to analogize [political question dismissal] to dismissal for failure to
state a claim, or to dismissal for lack of jurisdiction. Some cases will be
appropriate for dismissal on the pleadings, others will require further
development . . . .” Id. at 525; cf. Daniel O. Bernstine, The Political Question
Doctrine: A Perspective on its Procedural Ramifications, 31 U. Kan. L. Rev. 115,
129-30 (1982) (concluding that dismissal for subject matter jurisdiction is
appropriate if the claims fall within an established category of political questions
or are frivolous, but that, otherwise, dismissal for failure to state a claim is
appropriate).

Indeed, three of the four Appellants have other jobs besides farming:
2

Schroder is also a veterinarian; Petrowsky is also a nuclear engineer and aerial
photographer; and Myers has also been a county sheriff.

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(1994) (joint proclamation of “Small Family Farm Week”) (stating “the plight of

the small family farmer has been in jeopardy in recent times [and] many small

family farms continue to operate in the face of financial and credit difficulties”);

Mulroy v. Block, 574 F. Supp. 194, 195-96 (N.D.N.Y. 1983) (“[I]n a time when

this nation is experiencing the decline and threatened extinction of the individual

farmer, it is particularly disturbing to see legislation such as this which will

undoubtedly have a devastating effect on the small scale dairy farmers of this

nation.”); In re Moeller, No. 90-35017, 1990 WL 208617, at *1 (9th Cir. Dec. 14,

1990) (“Appellants made spirited arguments before this court regarding the plight

of family farmers who have successfully farmed the same land for generations.

We sympathize with their concerns.”). In a similar case from 1988, we

acknowledged our awareness of “ the serious plight of the family farmer in

America. We sympathize with farmers struggling to secure their livelihoods and,

more fundamentally perhaps, maintain their way of life.” Schroder v. Volcker,

864 F.2d 97, 99 (10th Cir. 1988). 3 A 1998 report from the United States

Department of Agriculture demonstrates that, more than a decade after Schroder,

3
Despite the superficial similarities in Schroder v. Volcker and Schroder v.
Bush of name and kind of case, see 864 F.2d at 98 (“Plaintiffs’ claims constitute a
broad scale attack against the agricultural credit system in particular, and the
American banking and economic systems in general.”), the two cases do not seem
related. Appellants’ first names in Schroder v. Volcker were Derral and Gladys,
while the Schroder in this case is named Eugene.

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times are still hard for small farmers in America: “Today, we have 300,000 fewer

farmers than in 1979, and farmers are receiving 13 percent less for every

consumer dollar. Four firms now control over 80 percent of the beef market.

About 94 percent of the Nation’s farms are small farms, but they receive only 41

percent of all farm receipts.” Nat. Comm’n on Small Farms, U. S. Dep’t of Agric.,

A Time to Act: A Report of the USDA National Commission on Small Farms, at 8

(Jan. 1998).

We remain sympathetic to the plight of the small farmer, but we also

remain in agreement with the judgment of both the district court in this case and

the Schroder court thirteen years ago: “ [W]e believe the issues raised by plaintiffs

in this suit are basically political questions which must be resolved in the

legislative arena.” Schroder, 864 F.2d at 99. 4

B. Relief Sought by Appellants

Appellants – Eugene Schroder from Campo, Colorado; Edwin Petrowsky

from Pratt, Kansas; R. Russell Grider from Clovis, New Mexico; and Wesley

Myers from Clovis, New Mexico – sought “a moratorium on farm foreclosures[ 5]

4
Appellants acknowledge that they have sought relief via political channels.
Despite their initial lack of success, we believe our constitutional system requires
that they stay that course.
5
In their Complaint, Appellants sought a moratorium on “all agricultural
(continued...)

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and an order requiring the President, Secretary of the Treasury, Secretary of

Agriculture, and their agents to control United States currency and to maintain

market conditions so as to be favorable to American farmers.” They admitted that

controlling currency and maintaining favorable market conditions “would require

congressional or judicial review of agricultural product and marketing controls,

bilateral trade agreements that affect U.S. agriculture, the activities of the

Exchange Stabilization Fund, and enforcement of the anti-trust laws by the U.S.

Department of Justice with respect to corporate competitors of family

farmers . . . .” They sought a permanent injunction “requiring the Secretary of the

Treasury and the U.S. Trade Representative . . . of the President to work together

and cooperate in negotiating and implementing foreign trade agreements” that

would benefit small farmers.

Appellants alleged that a national emergency in Agriculture was declared

“on May 12, 1933, and has yet to be terminated 66 years later,” and requested a

5
(...continued)
foreclosures and forced sales caused by lack of purchasing power parity.” On
appeal, however, they refined this prayer for relief to “a moratorium on federally
funded farm foreclosures.” We find the addition of no import, but even if we did,
generally we will not consider new theories on appeal. See Okland Oil Co. v.
Conoco Inc., 144 F.3d 1308, 1314 n.4 (10th Cir. 1998). This observation – that
we generally refuse to consider new theories on appeal – applies with equal force
to the other minor changes Appellants made to their request for relief on appeal.
Because their requested relief, regardless of whether they requested it in their
Complaint or Opening Brief, fits squarely within the political question doctrine,
we do not labor over the discrepancies.

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declaratory judgment that “the state of National Emergency declared by

Congressional Statute in 1933 still exists.” They also demanded declaratory

judgments that “sub-par agricultural commodity prices shall be allowed as an

affirmative defense in any action for debt” and that “the event of the commonly

quoted U.S. dollar index . . . rising above 95 shall be allowed as an affirmative

defense or as a basis for a stay of proceedings for foreclosure [against any

individual, non-corporate U.S. farmer].” 6

6
In addition, Appellants sought “a declaratory judgment that parity pricing
principles are the law of the land.” To support this claim, they rely on the
Agricultural Adjustment Act (“AAA”) of 1933. The Senate Report from the
Food, Agriculture, Conservation, and Trade Act of 1990, however, explains that

the Supreme Court invalidated the production control provisions of
the 1933 Act, [so] Congress passed a second Agricultural Adjustment
Act in 1938. . . . The Agricultural Act of 1949 amended the 1938 Act
to establish a permanent authority for parity-based price supports.
However, since 1973, Congress has amended the 1949 Act regularly
with legislation that expires after 4 or 5 years. Farm programs under
these expiring authorities have become quite different from the
parity-based programs of the 1930’s and 1940’s.

S. Rep. No. 101-357, at 43-45 (1990). Thus, Appellants’ reliance on the 1933
AAA is misplaced. Furthermore, as the Senate Report explained, over the years
Congress has enacted successive suspensions of the alleged parity pricing
requirement. Indeed, Appellants seem to acknowledge that the AAA of 1933
affords them no legal relief. At various points in their briefs Appellants complain
about how Congress has enacted “conflicting” legislation that has permitted the
Executive Branch to “pursue[] other policies antithetical to parity pricing
principles.”

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 Last, they contended the federal government has effected a taking without

paying just compensation in violation of the Fifth Amendment.

DISCUSSION

A. The Political Question Doctrine

After reviewing Appellants’ prayer for relief, we are convinced that the

district court was correct to dismiss Appellants’ claims as nonjusticiable political

questions. Since it is a legal question, we review de novo the application of the

political question doctrine. See Stuart v. United States, 813 F.2d 243, 246 (9th

Cir. 1987), overruled on other grounds by United States v. Stuart, 489 U.S. 353

(1989).

Prudence, as well as separation-of-powers concerns, counsels courts to

decline to hear “political questions.” See Baker v. Carr, 369 U.S. 186, 210 (1962);

Nixon v. United States, 506 U.S. 224, 252-53 (1993) (Souter, J., concurring in the

judgment); Alexander M. Bickel, The Least Dangerous Branch 125-26, 184 (2d

ed. 1986). 7 When deciding whether issues present political questions, courts must

make a “discriminating inquiry into the precise facts and posture of the particular

7
To resolve this case we need not explore the underpinnings of the doctrine.
We merely note that “it is uncertain whether the political question doctrine is
constitutional, prudential, or both.” Erwin Chemerinsky, Federal Jurisdiction §2.6,
at 149 (3d ed. 1999).

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case,” for it resists “resolution by any semantic cataloguing.” Baker, 369 U.S. at

217. As “there is no blanket rule,” id. at 215, application of the doctrine must be

made on a “case-by-case” basis, id. at 211.

The tangled roots of the political question doctrine stretch back to Marbury

v. Madison, 5 U.S. (1 Cranch) 137 (1803). See id. at 170 (“Questions, in their

nature political, or which are, by the constitution and laws, submitted to the

executive, can never be made in this court.”); see also generally id. at 164-66.

The most thorough explication of the doctrine was provided in Baker v. Carr, in

which the Supreme Court gathered the doctrine’s “analytical threads.” 369 U.S. at

211. It wrote, in this well-known passage,

Prominent on the surface of any case held to involve a political
question is found [1] a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or [2] a
lack of judicially discoverable and manageable standards for
resolving it; or [3] the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial discretion; or
[4] the impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government; or [5] an unusual need for unquestioning adherence to a
political decision already made; or [6] the potentiality of
embarrassment from multifarious pronouncements by various
departments on one question.

Id. at 217.

We have no doubt that this case presents textbook examples of political

questions and thus that it was properly dismissed by the district court. The

Constitution commits to Congress the regulation of domestic and foreign

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commerce, see U.S. Const. art. I, § 8, cl.3, the establishment of bankruptcy law,

see id. cl.4, and the regulation of currency, see id. cl.5. To the President, the

Constitution commits the “Power, by and with the Advice and Consent of the

Senate, to make Treaties.” U.S. Const. art. II, § 2, cl.2. “The Constitution confers

a vast amount of power upon the political branches of the federal government in

the area of foreign policy – particularly foreign commerce.” Made in the USA

Foundation v. United States, 242 F.3d 1300, 1313 (11th Cir. 2001) (gathering

constitutional provisions and Supreme Court cases). The Supreme Court has

recognized that “the President alone has the power to speak or listen as a

representative of the nation. He makes treaties with the advice and consent of the

Senate; but he alone negotiates.” United States v. Curtiss-Wright Export Corp.,

299 U.S. 304, 319 (1936). “While the treaty power of the Executive expressly

involves the participation of the Legislature, nowhere does the Constitution

contemplate the participation by the third, non-political branch, that is the

Judiciary, in any fashion in the making of international agreements . . . .” Antolok

v. United States, 873 F.2d 369, 381 (D.C. Cir. 1989) (opinion of Sentelle, J.).

Besides this evidence of a textual commitment to the political branches of the

regulation of domestic and foreign markets and currency, as well as the enactment

of treaties and trade agreements, it is clear to us that Appellants’ request that

courts maintain market conditions, oversee trade agreements, and control currency

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– all to the advantage of small farmers – would require courts to make “initial

policy determinations” in an area devoid of “judicially discoverable and

manageable standards” and where “multifarious pronouncements by various

departments” would lead to confusion and disarray. As the Baker Court

explained, “The political question doctrine [is] a tool for maintenance of

governmental order,” 369 U.S. at 215, and this case exemplifies when that tool

should be employed. Courts are ill-equipped to make highly technical, complex,

and on-going decisions regarding how to maintain market conditions, negotiate

trade agreements, and control currency. The political branches, in contrast, retain

just this sort of institutional competence. See Chicago & S. Air Lines v.

Waterman S.S. Corp, 333 U.S. 103, 111 (1948) (explaining that foreign policy

decisions “are delicate, complex, and involve large elements of prophecy. . . .

They are decisions of a kind for which the Judiciary has neither aptitude, facilities

nor responsibility and have long been held to belong in the domain of political

power not subject to judicial intrusion or inquiry.”); see also Curtis A. Bradley,

Chevron Deference and Foreign Affairs, 86 Va. L. Rev. 649, 659-60 (2000)

(describing the political question doctrine in terms of the deference courts have

chosen to afford to the Executive Branch).

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 When we turn to other aspects of Appellants’ prayer for relief, e.g., a

moratorium on farm foreclosures 8 and oversight of the Justice Department’s

enforcement of antitrust laws against agribusinesses, 9 we similarly find ourselves

enmeshed in the Baker threads. Again, the Constitution commits to Congress the

power to regulate domestic commerce and bankruptcies. See U.S. Const. art. I, §

8, cl.3 & cl.4. When and how banks may foreclose upon farms unquestionably

falls within those powers, and nothing in existing bankruptcy law empowers us to

act here. The Constitution requires the President to “take Care that the Laws be

faithfully executed,” U.S. Const. art. II, § 3, and vests in the President the general

“executive Power,” id. § 1, cl.1. Thus, there is a textual commitment to the

Executive Branch to enforce banking laws and to exercise prosecutorial discretion

in bringing antitrust suits against agribusinesses. See United States v. Renfro, 620

F.2d 569, 574 (6th Cir. 1980) (“The decision of whether or not to prosecute . . . is

a decision firmly committed by the constitution to the executive branch of the

government. . . . [I]ntervention by the court in the internal affairs of the Justice

Department would clearly constitute a violation of the Separation of Powers

8
Presumably, this request for relief would have to be directed not against
Appellees but against lending institutions holding mortgages on small farms.
That group has not been named as a party.
9
Similarly, Appellants did not name the Attorney General as a party.

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Doctrine.”); United States v. Am. Tel. & Tel. Co., 714 F.2d 178, 182 (D.C. Cir.

1983) (recognizing prosecutorial discretion).

Furthermore, Article III limits courts to adjudicating cases and

controversies, thereby precluding the sort of judicial oversight of the political

branches in which Appellants invite us to engage. As the Supreme Court has

observed,

The political question doctrine excludes from judicial review those
controversies which revolve around policy choices and value
determinations constitutionally committed for resolution to the halls
of Congress or the confines of the Executive Branch. The Judiciary
is particularly ill suited to make such decision, as courts are
fundamentally underequipped to formulate national policies or
develop standards for matters not legal in nature.

Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986) (quotation

marks omitted).

Likewise, turning to Appellants’ request for a declaratory judgment that a

1933 national emergency still exists and that low farm prices or a strong dollar

are affirmative defenses to actions to collect debt or to foreclose on farm

property, Appellants in essence ask this court to re-formulate national policies

because Appellants disagree with the policies instituted by the political branches.

Indisputably, that is not the role of the Judiciary in our constitutional system.

Regarding the existence of another national emergency, in that case war,

the Supreme Court has refused “to review the political departments’

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determination of when or whether a war has ended. Dominant is the need for

finality in the political determination, for emergency’s nature demands ‘A prompt

and unhesitating obedience.’” Baker, 369 U.S. at 213 (quoting Martin v. Mott, 25

U.S. (12 Wheat) 19, 30 (1827) (calling up of militia)). As with war, the need for

finality and certainty is critically important to determining whether a Depression-

era national emergency has ended, for many social programs hinged, directly or

indirectly, on that determination. Indeed, Appellants contend that they have legal

rights because the 1933 national emergency remains on-going. Again, lack of

legal standards and the necessity for the federal government to speak with one

voice militate in favor of leaving such declarations to the political branches.

Appellants’ request that we declare the existence of affirmative defenses to

actions for debt or foreclosure is nothing but a plea for the courts to legislate.

Clearly, the Constitution commits this power to Congress and the President. See

INS v. Chadha, 462 U.S. 919, 945 (1983) (“Explicit and unambiguous provisions

of the Constitution prescribe and define the respective functions of the Congress

and of the Executive in the legislative process.”). Appellants present us with no

legal arguments as to why these affirmative defenses allegedly exist; they merely

assert that the defenses should exist. Respect for the legislative process and

separation of powers foreclose us from entertaining Appellants’ suggestion.

Deciding whether sound public policy recommends such affirmative defenses is

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“an initial policy determination of a kind clearly for nonjudicial discretion.”

Baker, 369 U.S. at 217.

Appellants admit that “Executive Branch discretion would be invaded” if

this court granted the relief they seek, but assert that it would be invaded “no

further than appropriate[].” For the foregoing reasons, we disagree. Appellants

ask us to invade inappropriately the provinces of both the Legislative and

Executive Branches. This we decline to do.

B. Takings Claim

Appellants’ takings claim fails. First, despite counsel’s initial statement at

oral argument that “this is a takings case,” it is unclear whether Appellants

properly presented this issue to this court on appeal. Appellants mentioned

takings language in their Complaint, see Amended Complaint at 6, 25-26, but they

discussed it only tangentially on appeal, failing either to cite takings cases or to

develop any sort of argument. This is not sufficient to preserve the issue for

appeal. See Okland Oil Co. v. Conoco Inc., 144 F.3d 1308, 1314 n.4 (10th Cir.

1998) (“[D]iscussing a theory only in a vague and ambiguous way below is not

adequate to preserve issues for appeal.”).

Buttressing our conclusion that Appellants failed to present a takings claim

to the district court are Appellants’ repeated assertions that “[they] seek no

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monetary damages . . . but, rather, seek only declaratory and injunctive relief.”

Opening Brief at 1; see also Amended Complaint at 4 (“[T]he relief requested is

purely declaratory or injunctive.”). Generally, the remedy for a governmental

taking is just compensation. See U.S. Const. amend. V. Moreover, the district

court’s order makes no reference to such a claim. This court “should not be

considered ‘a second-shot’ forum . . . where secondary, back-up theories may be

mounted for the first time.” Tele-Communications, Inc. v. Comm’r, 104 F.3d

1229, 1233 (10th Cir. 1997).

Even if Appellants properly preserved a takings claim, that claim fails as

premature. “[T]aking claims against the Federal Government are premature until

the property owner has availed itself of the process provided by the Tucker Act.”

Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 195

(1985). Furthermore, Appellants brought their takings claim in the wrong court:

“The Tucker Act provides jurisdiction in the United States Claims Court for any

claim against the Federal Government to recover damages founded on the

Constitution, a statute, a regulation, or an express or implied-in-fact contract.”

Preseault v. I.C.C., 494 U.S. 1, 11-12 (1990) (citing 28 U.S.C. § 1491(a)(1)).

Appellants do not allege that they sought and were denied just compensation after

bringing a Tucker Act claim in the United States Court of Claims. These facts

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support our conclusion that Appellants did not initially intend to make a takings

claim, but later decided to elevate that claim to a more central position on appeal.

Finally, were we to address Appellants’ takings claim, we would find it

time-barred. Appellants argue, “It is undisputed that agricultural property rights

were subjected to a taking for public use on May 12, 1933.” The general statute

of limitations period for actions against the United States is six years. See 28

U.S.C. § 2401.

Consequently, we find that Appellants’ takings claim fails.

CONCLUSION

We AFFIRM the dismissal of Appellants’ complaint.

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