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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 13, 2004 Decided June 18, 2004
No. 03-5086
AVOCADOS PLUS INCORPORATED, ET AL.,
APPELLANTS
v.
ANN M. VENEMAN, IN HER OFFICIAL CAPACITY AS SECRETARY
OF THE UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(02cv01798)
Dale E. McNiel argued the cause for appellants. With him
on the briefs was Tracey M. Price.
Julie M. Carpenter was on the brief for amicus curiae
DKT Liberty Project in support of reversal.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
August E. Flentje, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With him on the brief
were Peter D. Keisler, Assistant Attorney General, Roscoe C.
Howard, Jr., U.S. Attorney, and Douglas N. Letter, Counsel.
Richard T. Rossier was on the brief for appellees Charlie
Wolk, et al.
Before: EDWARDS, RANDOLPH, and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: The Hass Avocado Promotion,
Research, and Information Act, 7 U.S.C. §§ 7801-7813, au-
thorizes the Department of Agriculture to collect assessments
from avocado growers and importers and to transfer the
assessments to a board charged with promoting domestic
consumption of avocados of the Hass variety. Two importers
of avocados and two importers of avocado products sued in
district court alleging that the Act violated their First
Amendment right to be free of compelled speech.1 The
district court dismissed the complaint because the importers
had not exhausted the administrative remedies the Act pro-
vides.
I.
The Avocado Act, one of more than a dozen federal statutes
aimed at promoting the sale of various agricultural commodi-
ties, requires the Secretary of Agriculture to issue an imple-
menting order that takes effect if the majority of affected
growers and importers approve it in a referendum. § 7805.
The order establishes a Hass Avocado Board consisting of
1 Two of the plaintiffs – Avo-King International, Inc. and Sunny
Avocado, Ltd. – import only processed or frozen avocado products.
The Secretary has not imposed assessments on such products, and
it is not clear she ever will. We therefore affirm the dismissal of
the complaint with respect to these plaintiffs on the ground that
their claims are, so to speak, not ripe. See Clean Air Implementa-
tion Project v. EPA, 150 F.3d 1200 (D.C. Cir. 1998). This opinion
only concerns the remaining two importers – Avocados Plus, Inc.
and LGS Specialty Sales Ltd.
3
industry representatives. § 7804. The function of the Board
is to ‘‘administer the order,’’ § 7804(c)(1), ‘‘develop budgets
for the implementation of the order,’’ § 7804(c)(5), and ‘‘devel-
op’’ and ‘‘implement plans and projects for Hass avocado
promotion, industry information, consumer information, or
related research[.]’’ § 7804(c)(5)-(6). The Board may not
implement any budget, plan or project without the prior
approval of the Secretary, but these are ‘‘deemed to be
approved’’ if the Secretary does not act within 45 days.
§ 7804(d)(3).
The Act also requires the Secretary to impose assessments
on growers and importers to pay for the Board’s activities.
§ 7804(h). The Board must pay 85 percent of a grower’s
assessments to its state grower organization, if such an
organization exists. § 7804(h)(8). If an importer belongs to
an importers’ association, the Board must pay 85 percent of
its assessment to that group. § 7804(h)(9). The Board must
also reimburse the Secretary for expenses incurred conduct-
ing the referendum and supervising the Board. § 7804(i).
The rest of the money pays for Board programs, although at
least some of it must fund a promotion program conducted by
the California Avocado Commission. See § 7804(e)(1) (re-
quiring Board to enter contract with ‘‘avocado organization
TTT in a State with the majority of Hass avocado production
in the United States’’); § 7801(a)(2) (stating that ‘‘virtually all
domestically produced avocados for the commercial market
are grown in the State of California’’).
Under the § 7806 of the Act, any ‘‘person subject to an
order’’ may file a petition with the Secretary ‘‘stating that the
order, any provision of the order, or any obligation imposed in
connection with the order is not in accordance with the law;
and TTT requesting a modification of the order or an exemp-
tion from the order.’’ § 7806(a)(1). The Secretary must rule
on the petition after a hearing. § 7806(a)(3). The Act fur-
ther provides that the ‘‘district courts of the United States
TTT shall have jurisdiction to review the ruling of the Secre-
tary on the petition[,]’’ § 7806(b)(1), and must remand it if it
‘‘is not in accordance with law[.]’’ § 7806(b)(3).
4
Rather than invoking § 7806, the importers filed a com-
plaint in district court claiming that the mandatory assess-
ments were unconstitutional and seeking an injunction
against enforcement of the Act.2 The importers relied princi-
pally on United States v. United Foods, Inc., 533 U.S. 405
(2001), in which the Supreme Court ruled that an identical
provision in the Mushroom Promotion, Research, and Con-
sumer Information Act, 7 U.S.C. §§ 6101-6112, violated the
free speech rights of mushroom growers by forcing them to
pay for speech with which they disagreed.
The government had argued in United Foods that the
mushroom promotion program was government speech, and
that the government therefore could force growers to pay for
it. The Supreme Court refused to consider the argument
because the government had not raised it in the court of
appeals. 533 U.S. at 416-17. United Foods triggered a
series of challenges against other agricultural commodity
promotion programs. In each case the government relied on
the government speech defense and in each case the court of
appeals rejected it. See Cochran v. Veneman, 359 F.3d 263
(3d Cir. 2004) (dairy); Michigan Pork Producers Ass’n v.
Veneman, 348 F.3d 157 (6th Cir. 2003) (pork); Livestock
Mktg. Ass’n v. USDA, 335 F.3d 711 (8th Cir. 2003), cert.
granted, 2004 WL 303634 (May 24, 2004) (beef); see also
Pelts & Skins, LLC v. Landreneau, 365 F.3d 423 (5th Cir.
2004) (striking down state alligator products promotion pro-
gram); but see Charter v. USDA, 230 F. Supp. 2d 1121 (D.
Mont. 2002) (sustaining beef program as government speech).
The avocado importers moved for a preliminary injunction.
The government opposed the motion, arguing that the avoca-
do program was government speech. The government also
moved to dismiss the complaint for failure to exhaust adminis-
trative remedies. The district court initially addressed the
importers’ First Amendment claims, holding that they were
2 It is unclear whether, if the importers can go forward with their
suit, they should be relegated to an as-applied rather than a facial
challenge to the Act.
5
not required to exhaust the administrative remedy provided
in § 7806. Then, in response to a government motion, the
court reconsidered its decision, ruled that importers must
exhaust their administrative remedy, and dismissed the com-
plaint for lack of subject matter jurisdiction.
II.
The word ‘‘exhaustion’’ now describes two distinct legal
concepts. The first is a judicially created doctrine requiring
parties who seek to challenge agency action to exhaust avail-
able administrative remedies before bringing their case to
court. See generally 2 RICHARD J. PIERCE, JR., ADMINISTRATIVE
LAW TREATISE § 15.2 (4th ed. 2002). We will call this doctrine
‘‘non-jurisdictional exhaustion.’’ Non-jurisdictional exhaus-
tion serves three functions: ‘‘giving agencies the opportunity
to correct their own errors, affording parties and courts the
benefits of agencies’ expertise, [and] compiling a record ade-
quate for judicial review[.]’’ Marine Mammal Conservancy,
Inc. v. Dep’t of Agric., 134 F.3d 409 (D.C. Cir. 1998); McCar-
thy v. Madigan, 503 U.S. 140, 145-46 (1992).
Occasionally, exhaustion will not fulfill these ends. There
may be no facts in dispute, see McKart v. United States, 395
U.S. 185, 198 n.15 (1969), the disputed issue may be outside
the agency’s expertise, see id. at 197-98, or the agency may
not have the authority to change its decision in a way that
would satisfy the challenger’s objections, see McCarthy, 503
U.S. at 147-48. Also, requiring resort to the administrative
process may prejudice the litigants’ court action, see id. at
146-47, or may be inadequate because of agency bias, see id.
at 148-49. In these circumstances, the district court may, in
its discretion, excuse exhaustion if ‘‘the litigant’s interests in
immediate judicial review outweigh the government’s inter-
ests in the efficiency or administrative autonomy that the
exhaustion doctrine is designed to further.’’ Id. at 146 (quot-
ing West v. Bergland, 611 F.2d 710, 715 (8th Cir. 1979)).
The second form of exhaustion arises when Congress re-
quires resort to the administrative process as a predicate to
judicial review. This ‘‘jurisdictional exhaustion’’ is rooted, not
6
in prudential principles, but in Congress’ power to control the
jurisdiction of the federal courts. See EEOC v. Lutheran
Soc. Servs., 186 F.3d 959, 963-64 (D.C. Cir. 1999). Whether a
statute requires exhaustion is purely a question of statutory
interpretation. See McCarthy, 503 U.S. at 144. If the stat-
ute does mandate exhaustion, a court cannot excuse it. See
Shalala v. Illinois Council on Long Term Care, 529 U.S. 1,
13 (2000).3
While the existence of an administrative remedy automati-
cally triggers a non-jurisdictional exhaustion inquiry, jurisdic-
tional exhaustion requires much more. In order to mandate
exhaustion, a statute must contain ‘‘ ‘[s]weeping and direct’
statutory language indicating that there is no federal jurisdic-
tion prior to exhaustion, or the exhaustion requirement is
treated as an element of the underlying claim.’’ Weinberger
v. Salfi, 422 U.S. 749, 757 (1975); 2 PIERCE, ADMINISTRATIVE
LAW TREATISE § 15.3, at 986. We presume exhaustion is non-
jurisdictional unless ‘‘Congress states in clear, unequivocal
terms that the judiciary is barred from hearing an action until
the administrative agency has come to a decision,’’ I.A.M.
Nat’l Pension Fund Benefit Plan C v. Stockton Tri Indus.,
727 F.2d 1204, 1208 (D.C. Cir. 1984).
For example, the Supreme Court decided that the Social
Security Act mandated exhaustion in light of this statutory
language: ‘‘No findings of fact or decision of the Commission-
er of Social Security shall be reviewed by any person, tribu-
nal, or governmental agency except as herein provided. No
action against the United States, the Commissioner of Social
Security, or any officer or employer thereof shall be brought
under section 1331 or 1346 of title 28 to recover on any claim
3 General federal question jurisdiction under 28 U.S.C. § 1331
does not empower the court to proceed to the merits in a jurisdic-
tional exhaustion case. See Heckler v. Ringer, 466 U.S. 602, 616
(1984). In a non-jurisdictional exhaustion case, if the court decides
not to require exhaustion, the case may proceed under § 1331. If
the court rules that the plaintiff must exhaust, and the plaintiff
proceeds to do so, judicial review of the agency’s decision will be
under the relevant provision for review of that agency’s action.
7
arising under this subchapter.’’ 42 U.S.C. § 405(h). See
Salfi, 422 U.S. at 756-67. Similarly, we found jurisdictional
exhaustion in the following language from the Federal Power
Act: ‘‘No proceeding to review any order of the Commission
shall be brought by any person unless such person shall have
made application to the Commission for a rehearing there-
onTTTT No objection to the order of the Commission shall be
considered by the court unless such objection shall have been
urged before the Commission in the application for rehearing
unless there is reasonable ground for failure so to do.’’ 16
U.S.C. § 8251. See Platte River Whooping Crane Critical
Habitat Maint. Trust v. FERC, 876 F.2d 109, 112–13 (D.C.
Cir. 1989).
The Avocado Act contains no comparable ‘‘sweeping and
direct’’ language. It neither mentions exhaustion nor explic-
itly limits the jurisdiction of the courts. It merely creates an
administrative procedure for challenging the Secretary’s or-
ders. In this respect, the Avocado Act is therefore more like
the statute we considered in Lutheran Social Services. In
that case, we excused a party challenging an EEOC subpoena
from exhausting administrative remedies, even though the
statute creating the subpoena power provided such a remedy.
We rejected the EEOC’s argument that exhaustion was juris-
dictional, observing that ‘‘nowhere does [the statute] even
imply, much less expressly state, that courts lack jurisdiction
to hear objections not presented to the Commission.’’ 186
F.3d at 963.
The government argues that United States v. Ruzicka, 329
U.S. 287 (1946), compels the opposite conclusion. In Ruzicka,
the Supreme Court ruled that milk handlers challenging
marketing orders issued pursuant to the Agricultural Market-
ing Agreement Act of 1937, ch. 296, 50 Stat. 246, must
exhaust administrative remedies before coming to court. The
relevant provisions of the AMAA are nearly identical to those
in the Avocado Act. Compare 7 U.S.C. § 608c(6) & (15) with
7 U.S.C. §§ 7806-7807(a). To the government, it follows that
the Avocado Act mandates exhaustion.
8
Two unstated premises are behind the government’s argu-
ment. The first is that when Congress uses the language of
one statute in another statute it usually intends both statutes
to have the same meaning. See Energy Research Found. v.
Defense Nuclear Facilities Safety Bd., 917 F.2d 581, 582-83
(D.C. Cir. 1990). The second is that Congress knew of the
interpretation given the earlier statute in Ruzicka. For this
proposition, the government could have cited Cannon v. Univ.
of Chicago, 441 U.S. 677, 694-98 (1979), in which the Court
endorsed the assumption that Congress knows ‘‘the law’’– by
which the Court meant judicial decisions. See Miles v. Apex
Marine Corp., 498 U.S. 19, 32 (1990). The government’s
argument has some force but we believe there is an equally
forceful argument on the other side. If we are to assume
that Congress knew of the law handed down in Ruzicka, we
should also assume that Congress knew of the law set forth in
Salfi, McCarthy, I.A.M., and other cases distinguishing non-
jurisdictional and jurisdictional exhaustion. In other words,
Congress’ failure to include in § 7806 of the Avocado Act the
sort of ‘‘sweeping and direct’’ language mandating exhaustion
and thereby depriving the courts of jurisdiction tends to
indicate that we are dealing here with non-jurisdictional
exhaustion.
The most telling point against the government’s position is
that the Ruzicka Court did not find the exhaustion require-
ment in the text of the AMAA’s provisions cited above and
duplicated in § 7806. Standing alone that text was, as the
Court saw it, inconclusive, which is why the Court stated that
‘‘Congress did not say in words’’ that exhaustion was manda-
tory. 329 U.S. at 292. In nevertheless requiring exhaustion,
the Court looked elsewhere, relying on the complex statutory
enforcement scheme in the AMAA, a scheme Congress would
not have wanted disrupted by ‘‘the contingencies and inevit-
able delays of litigation,’’ id. at 292-93. Unlike the AMAA,
the Avocado Act does not provide for comprehensive market
regulation that could be disrupted by ill-timed judicial inter-
9
ference. It simply transfers money from growers and im-
porters to the Board. Cf. United Foods, 533 U.S. at 411-12
(distinguishing the AMAA, where ‘‘the mandated assessments
for speech were ancillary to a more comprehensive program
restricting marketing autonomy,’’ from the Mushroom Act,
where ‘‘advertising itself TTT is the principal object of the
regulatory scheme’’). One therefore cannot conclude much of
anything about exhaustion from the apparent fact that Con-
gress decided to use the language of the AMAA review
provisions as a model for the Avocado Act.
We also question the Secretary’s characterization of Ruzic-
ka as a case in which the statutory language made exhaustion
jurisdictional. Certainly, under the modern precedents dis-
cussed above, the AMAA’s lack of anything close to explicit
jurisdictional language would render any exhaustion require-
ment non-jurisdictional. The fact that Ruzicka focused on
congressional intent tells us little, for even in non-
jurisdictional exhaustion cases courts owe ‘‘appropriate defer-
ence to Congress’ power to prescribe the basic procedural
scheme under which a claim may be heard in a federal court.’’
McCarthy, 503 U.S. at 144. The Ruzicka Court did not
distinguish between jurisdictional and non-jurisdictional ex-
haustion because the current doctrinal framework did not
exist at the time. The Court itself recognized the limited
precedential effect of its holding: ‘‘Certainly the recent
growth of administrative law counsels against generalizations
regarding what is compendiously called judicial review of
administrative action. And so we deem it desirable, in a case
like this, to hug the shore of the precise problem before us in
relation to the provisions of the particular Act immediately
relevant.’’ 329 U.S. at 295.
The district court relied primarily on Gallo Cattle Co. v.
USDA, 159 F.3d 1194 (9th Cir. 1998), which construed lan-
guage in the Dairy and Tobacco Adjustment Act of 1983, 7
U.S.C. § 4509 (‘‘the Dairy Act’’), identical in all relevant
respects to § 7806. The court of appeals found that the
language mandated exhaustion and that the district court had
10
no jurisdiction to consider the plaintiff’s challenge until it
exhausted administrative remedies. 159 F.3d at 1197–98.
Despite the Ninth Circuit’s terminology, Gallo Cattle was not
so much an exhaustion case as a case about finality. See 2
PIERCE, ADMINISTRATIVE LAW TREATISE § 15.1, at 966 (‘‘Finality
and exhaustion are particularly difficult to distinguish.’’).
The plaintiffs had already filed a petition with the Secretary
challenging the order. A judicial officer had denied the
petition, and the plaintiffs were asking the court for interim
relief pending their appeal to the Secretary. Under the
statute, only the Secretary’s ruling was final and subject to
judicial review. See 7 U.S.C. § 4509(a)-(b). The court there-
fore ruled that there was no jurisdiction to consider the
challenge to the judicial officer’s ruling pursuant to § 4509.
159 F.3d at 1198. This does not necessarily mean exhaustion
would be jurisdictional if the plaintiffs had brought their
challenge directly to district court. True, the Gallo Cattle
court stated in dicta that the Dairy Act mandated exhaustion,
citing a Ninth Circuit case interpreting the AMAA. Id. at
1197 (citing Rasmussen v. Hardin, 461 F.2d 595, 597-98 (9th
Cir. 1972)). But that case, like Ruzicka, did not say whether
the AMAA exhaustion requirement was jurisdictional or non-
jurisdictional.
While the matter is not free from doubt, we therefore
hold – particularly in light of our decision in Lutheran Social
Services – that the language of the Avocado Act does not
make exhaustion jurisdictional.
III.
Our precedent demands that we review non-jurisdictional
exhaustion decisions for abuse of discretion. See Ogden v.
Zuckert, 298 F.2d 312, 317 (D.C. Cir. 1961). Whether in this
case the district court thought it had discretion is not so clear.
The first part of the court’s analysis clearly states that the
Avocado Act ‘‘mandates exhaustion,’’ and that ‘‘Congress has
given the Court jurisdiction over only ‘the ruling of the
Secretary.’ ’’ J.A. 107-08 (italics added, underline in the
11
original). Having concluded that the Avocado Act mandated
exhaustion, the court could have stopped there, but did not.
In the next section of its opinion, the court – responding to
the importers’ argument that the constitutional nature of
their claim should excuse exhaustion – explained how requir-
ing exhaustion would serve the policies underlying the doc-
trine. In doing so, the court applied a portion of the non-
jurisdictional exhaustion analysis. This would have been
unnecessary if the court believed the statute mandated ex-
haustion as a jurisdictional matter. See Salfi, 422 U.S. at
762-64 (applying jurisdictional exhaustion to constitutional
claim). One could argue, therefore, that notwithstanding the
district court’s earlier absolute language, and its dismissal of
the complaint for lack of subject matter jurisdiction, it was
requiring exhaustion as a matter of discretion.
Despite these uncertainties we believe the district court
thought it had no power to excuse exhaustion. Otherwise
there is no explaining why the court did not complete the
non-jurisdictional exhaustion analysis by ‘‘balanc[ing] the in-
terest of the individual in retaining prompt access to a federal
judicial forum against the countervailing institutional inter-
ests favoring exhaustion.’’ McCarthy, 503 U.S. at 147. ‘‘Ap-
plication of this balancing principle is intensely practical TTT
because attention is directed to both the nature of the claim
presented and the characteristics of the particular administra-
tive remedy.’’ Id. (quotation marks and citations omitted).
We see no signs the district court attempted to make either
of these inquiries.
‘‘[T]he district court was entitled to determine, in the first
instance, whether exhaustion was required and, if so, wheth-
er, in its discretion, it should retain jurisdiction pending
exhaustion. Because the district [court] was apparently un-
aware that these decisions were open to [it], we find it
appropriate to vacate [its] order dismissing the action and to
remand the case so that [the court] may address them.’’
12
Montgomery v. Rumsfeld, 572 F.2d 250, 254 (9th Cir. 1978).
See also Ogden, 298 F.2d at 317.4
So ordered.
4 In many cases the time limits for challenging an order before
the agency may be relatively short. In non-jurisdictional (and
jurisdictional) exhaustion cases, those who bypass administrative
remedies and bring an action in court therefore run a substantial
risk. If the court decides that the plaintiff had to exhaust, by then
it may be too late for the plaintiff to seek relief from the agency.
While unusual circumstances may warrant dispensing with exhaus-
tion when the time limits have run, see Bowen v. City of New York,
476 U.S. 467, 482–86 (1986), we held in American Federation of
Government Employees v. Loy, 367 F.3d 932, 936 (D.C. Cir. 2004),
that the court will not ‘‘excuse non-compliance with the requirement
that one must exhaust administrative remedies on the basis that the
party failed to comply.’’ See Steadman v. Governor, U.S. Soldiers’
& Airmen’s Home, 918 F.2d 963, 968 (D.C. Cir. 1990).
The importers in this case are fortunate. The time limit in
§ 7806(a)(4) of the Avocado Act is generous. They have until early
September 2004 to file a petition with the Secretary challenging the
order. See § 7806(a)(4). They should be allowed to do so without
prejudicing their right to argue to the district court that exhaustion
should be excused.