Horne v. United States Department of Agriculture

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARVIN D. HORNE and LAURA R. 
HORNE, d.b.a. RAISIN VALLEY
FARMS, a partnership, and d.b.a.
RAISIN VALLEY FARMS MARKETING
ASSOCIATION, a.k.a. RAISIN VALLEY
MARKETING, an unincorporated No. 10-15270
association; MARVIN D. HORNE; D.C. No.
LAURA R. HORNE; DON DURBAHN,
and the ESTATE OF RENA DURBAHN,  1:08-cv-01549-LJO-
SMS
d.b.a. LASSEN VINEYARDS, a
partnership, AMENDED
Plaintiffs-Appellants, OPINION
v.
UNITED STATES DEPARTMENT OF
AGRICULTURE,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted
April 14, 2011—Pasadena, California

Filed July 25, 2011
Amended March 12, 2012

Before: Stephen Reinhardt, Michael Daly Hawkins, and
Ronald M. Gould, Circuit Judges.

Opinion by Judge Hawkins

2779
2782 HORNE v. USDA

COUNSEL

Brian C. Leighton, Clovis, California, for the plaintiffs-
appellants.

Benjamin B. Wagner, United States Attorney, and Benjamin
E. Hall, Assistant United States Attorney, Fresno, California,
for the defendant-appellee.
 HORNE v. USDA 2783
OPINION

HAWKINS, Senior Circuit Judge:

This appeal of a United States Department of Agriculture
(“USDA”) administrative decision asks us to interpret and
pass on the constitutionality of a food product reserve pro-
gram authorized by the Agricultural Marketing Agreement
Act of 1937, as amended, 7 U.S.C. § 601 et seq. (“AMAA”),
and implemented by the Marketing Order Regulating the Han-
dling of Raisins Produced from Grapes Grown in California,
7 C.F.R. Part 989 (“Raisin Marketing Order” or “the Order”),
first adopted in 1949. Farmers Marvin and Laura Horne (“the
Hornes”1) protest the USDA Judicial Officer’s (“JO”) imposi-
tion of civil penalties and assessments for their failure to com-
ply with the reserve requirements, among other regulatory
infractions, contending: (1) they are producers not subject to
the Raisin Marketing Order’s provisions; (2) even if subject
to those provisions, the requirement that they contribute a
specified percentage of their annual raisin crop to the
government-controlled reserve pool constitutes an uncompen-
sated per se taking in violation of the Fifth Amendment; and
(3) the penalties imposed for their “self-help” noncompliance
with the Raisin Marketing Order violate the Eighth Amend-
ment Excessive Fines Clause. We affirm.

BACKGROUND

I. Regulatory Framework

Raisins and other agricultural commodities are heavily reg-
1
Collectively referred to as “the Hornes,” the Plaintiffs-Appellants are
Marvin and Laura Horne, d/b/a Raisin Valley Farms (a California general
partnership), and d/b/a Raisin Valley Farms Marketing Association (a Cal-
ifornia unincorporated association), together with their business partners
Don Durbahn and the Estate of Rena Durbahn, collectively d/b/a Lassen
Vineyards (a California general partnership).
2784 HORNE v. USDA
ulated under federal marketing orders adopted pursuant to the
AMAA, a Depression-era statute enacted in response to plum-
meting commodity prices, market disequilibrium, and the
accompanying threat to the nation’s credit system. 7 U.S.C.
§ 601 et seq.; see Zuber v. Allen, 396 U.S. 168, 174-76
(1969); see generally Daniel Bensing, “The Promulgation and
Implementation of Federal Marketing Orders Regulating Fruit
and Vegetable Crops Under the Agricultural Marketing
Agreement Act of 1937,” 5 San Joaquin Agric. L. Rev. 3
(1995). The declared purposes of the AMAA are, inter alia,
to help farmers achieve and maintain price parity for their
agricultural goods and to protect producers and consumers
alike from “unreasonable fluctuations in supplies and prices”
by establishing orderly marketing conditions. 7 U.S.C. § 602;
see Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S.
132, 138 (1963); Pescosolido v. Block, 765 F.2d 827, 830 (9th
Cir. 1985).

To achieve these goals, the AMAA delegates authority to
the Secretary of Agriculture (“Secretary”) to issue marketing
orders2 regulating the sale and delivery of agricultural goods,
7 U.S.C. § 608c, principally by imposing production quotas or
by restricting the supply of a commodity for sale on the open
market, either through marketing allotments or reserve pools,
see id. § 608c(6).3 The Secretary, in turn, is authorized to del-
2
According to the specific promulgation procedures mandated by the
AMAA, the Secretary may only issue a marketing order if, after providing
notice and opportunity for hearing, he finds that “the issuance of such
order . . . will tend to effectuate the declared policy” of the Act. 7 U.S.C.
§ 608c(3)-(4). Such order will not become effective until approved by both
(1) the handlers of at least 50 percent of the volume of the commodity
covered by the proposed order and (2) either (a) two-thirds of producers
of that commodity during a representative period or (b) producers of two-
thirds of the volume of that commodity during said period. Id. § 608c(8);
see id. § 608b. The Secretary may terminate or suspend any marketing
order upon finding it “obstructs or does not tend to effectuate the declared
policy” of the Act, or upon request of a majority of active producers dur-
ing a representative time period. Id. § 608c(16).
3
Section 8c of the AMAA, 7 U.S.C. § 608c, the key statutory provision
dealing with the marketing orders, originated in a 1935 amendment to the
 HORNE v. USDA 2785
egate to industry committees the power to administer market-
ing orders. 7 U.S.C. § 608c(7)(C); see 7 C.F.R. § 989.35
(2006). Marketing orders under the AMAA apply only to
“handlers,” i.e., those who process and pack agricultural
goods for distribution,4 and do not apply to any producer “in
his capacity as a producer.”5 7 U.S.C. §§ 608c(1), 608c(13)(B).6

Agricultural Adjustment Act of 1933, Pub. L. No. 73-10, 48 Stat. 31
(“AAA”). The Supreme Court invalidated parts of the AAA in 1936, see
United States v. Butler, 297 U.S. 1, 77 (1936), but Congress quickly reen-
acted most of the AAA’s production-control measures in the AMAA,
which the Supreme Court subsequently upheld against various constitu-
tional challenges, see United States v. Rock Royal Co-op, Inc., 307 U.S.
533 (1939).
4
A “handler” under the Raisin Marketing Order is
(a) [a]ny processor or packer; (b) any person who places, ships,
or continues natural raisins in the current of commerce from
within [California] to any point outside thereof; (c) any person
who delivers off-grade raisins, other failing raisins or raisin resid-
ual material to other than a packer or other than into any eligible
non-normal outlet; or (d) any person who blends raisins [subject
to certain exceptions].
7 C.F.R. § 989.15. A “packer,” in turn, is “any person who, within [Cali-
fornia], stems, sorts, cleans, or seeds raisins, grades stemmed raisins, or
packages raisins for market as raisins,” but does not include a producer
who sorts and cleans his own raisins in their unstemmed form. Id.
§ 989.14.
5
A “producer” under the Raisin Marketing Order is “any person
engaged in a proprietary capacity in the production of grapes which are
sun-dried or dehydrated by artificial means until they become raisins.” 7
C.F.R. § 989.11.
6
The regulation of handlers, as opposed to growers, appears to be a ves-
tige of the historical context in which the AMAA was enacted, “an era
when small, independent growers were frequently left to the mercy of
large handlers who could benefit from their market power and position.”
Bensing, supra, at 8. In the raisin industry, producers generally own the
land on which the grapevines are located, and they typically pick the
grapes and dry them on trays before selling the unstemmed raisins to pack-
ers, or “handlers.” Packers then prepare the raisins for commercial sale
and distribution by cleaning, stemming, seeding, grading, sorting, and
2786 HORNE v. USDA
Any handler who fails to comply with the terms of a market-
ing order is subject to civil forfeiture, as well as possible civil
and criminal penalties. 7 U.S.C. §§ 608a(5), 608a(6),
608c(14) (authorizing civil penalties up to $1,000 for each
violation, with each day constituting a separate violation).

The Raisin Marketing Order was originally enacted in
1949, see 14 Fed. Reg. 5136 (Aug. 18, 1949) (codified, as
amended, at 7 C.F.R. Part 989), in an effort to stabilize raisin
prices by controlling production surpluses, which since 1920
had consistently been thirty to fifty percent of each year’s
crop. See Parker, 317 U.S. at 363-64.7 Like many other fruit
and vegetable orders issued under the AMAA,8 the Order pro-
vides for the establishment of annual reserve pools, as deter-
mined by each year’s crop yield, thereby removing surplus
raisins from sale on the open domestic market and indirectly
controlling prices. See 7 U.S.C. § 608c(6)(E); 7 C.F.R.

packaging the raisins into containers. Packers then typically sell the
packed raisins to wholesalers, distributors, and other dealers for resale and
distribution to the public. Brown v. Parker, 39 F. Supp. 895, 896-97 (S.D.
Cal. 1941), rev’d on other grounds by Parker v. Brown, 317 U.S. 341
(1943).
7
The raisin industry has long been an important one in California, where
99.5 percent of the U.S. crop and 40 percent of the world’s crop are pro-
duced. See The California Raisin Industry, http://www.calraisins.org/
about/the-raisin-industry/ (last visited July 6, 2011). Raisin prices rose
rapidly between 1914 and 1920, peaking in 1921 at $235 per ton. This
price increase spurred increased production, which in turn caused prices
to plummet back down to between $40 and $60 per ton, even while pro-
duction continued to expand. As a result of this growing disparity between
increasing production and decreasing prices, the industry became “com-
pelled to sell at less than parity prices and in some years at prices regarded
by students of the industry as less than the cost of production,” finally
prompting federal government intervention with the Raisin Marketing
Order in 1949. See Parker, 317 U.S. at 363-64 & nn.9-10.
8
For a comparison of the Raisin Marketing Order and marketing orders
for other agricultural products, such as walnuts, almonds, prunes, tart cher-
ries, and spearmint, see Evans v. United States, 74 Fed. Cl. 554, 558
(2006), aff’d, 250 Fed. Appx. 321 (Fed. Cir. 2007).
 HORNE v. USDA 2787
§§ 989.54(d), 989.65. By February 15 of each year, the Raisin
Administrative Committee (“RAC”)—an industry committee
charged with administration of the Raisin Marketing Order,9
see 7 C.F.R. §§ 989.35, 989.36—recommends the “reserve-
tonnage” and “free-tonnage” percentages for that year, which
the Secretary then promulgates. See id. §§ 989.54(d), 989.55.
The reserve-tonnage requirement varies from year to year; for
example, in the 2002-03 and 2003-04 crop years at issue here,
the reserve percentages were set at forty-seven percent and
thirty percent of a producer’s crop, respectively.

As a result of the Order’s reserve program requirements, a
producer receives payment (at a pre-negotiated field market
price) upon delivery of raisins to a handler only for the free-
tonnage raisins, which the handler is then free to sell on the
domestic market without restrictions. See id. § 989.65. The
reserve-tonnage raisins, on the other hand, must be held by
the handler in segregated bins “for the account” of the RAC
until the RAC sells them to handlers for resale in export mar-
kets or directs that they be sold or disposed of in secondary,
non-competitive markets, such as school lunch programs,
either by direct sale or gift to U.S. agencies or foreign govern-
ments. Id. §§ 989.54, 989.56, 989.65, 989.67, 989.166,
989.167. The reserve pool sales are used to finance the RAC’s
administration, and any remaining net proceeds must then be
equitably distributed to the producers on a pro rata basis. See
7 U.S.C. § 608c(6)(E) (providing for “the equitable distribu-
tion of the net return derived from the sale [of reserve-pool
raisins] among the persons beneficially interested therein”); 7
9
The RAC is currently comprised of forty-seven industry-nominated
representatives appointed by the Secretary, of whom thirty-five represent
producers, ten represent handlers, one represents the cooperative bargain-
ing association, and one represents the public. See 7 C.F.R. §§ 989.26,
989.29, 989.30. The RAC is an agent of the federal government but
receives no federal appropriations. Instead, it is funded by assessments
levied on handlers per ton of raisins sold on the open market and by pro-
ceeds from the sale of reserve-tonnage raisins. See 7 C.F.R. §§ 989.53,
989.79, 989.80(a), 989.82.
2788 HORNE v. USDA
C.F.R. § 989.66(h). Thus, although producers do not receive
payment for reserve-tonnage raisins at the time of delivery to
a handler, they retain a limited equity interest in the net pro-
ceeds of the RAC’s disposition of the reserve, to be paid at
a later time.

The RAC is tasked with selling the reserve raisins in a
manner “intended to maxim[ize] producer returns and achieve
maximum disposition of such raisins by the time reserve ton-
nage raisins from the subsequent crop year are available,” 7
C.F.R. § 989.67(d)(1), but the Hornes complain that they have
not received any reserve sale proceeds since the mid-1990s.
For example the RAC designated forty-seven percent of the
2002-03 crop as reserve tonnage, which it then sold for $970
per ton, but none of the money the RAC received was paid
back to the raisin producers.

In addition to the reserve pool requirement, the Raisin Mar-
keting Order obliges handlers to, inter alia: file reports with
the RAC, pay assessments to the RAC, and grant the RAC
access to records for auditing purposes. See id. §§ 989.58,
989.59, 989.73, 989.77, 989.80.

II. The Hornes’ Raisin Enterprises

Marvin and Laura Horne have been producing raisins in
Fresno and Madera Counties in California since 1969 and in
1999 registered as a California general partnership under the
name Raisin Valley Farms. They also own and operate Lassen
Vineyards, another registered California general partnership,
in partnership with Laura’s parents, Don and Rena Durbahn.
Disillusioned with a regulatory scheme they deemed “outdat-
ed” and exploitive of farmers, the Hornes looked for ways to
avoid the Raisin Marketing Order’s requirements, particularly
its mandatory raisin reserve program. Because those require-
ments apply only to handlers, the Hornes implemented a plan
to bring their raisins to market without going through a tradi-
tional middle-man packer. As part of their plan, the Hornes
 HORNE v. USDA 2789
purchased their own equipment and facilities to clean, stem,
sort, and package raisins, which they installed on Lassen
Vineyards property in 2001. Not only did this facility handle
the raisins from Raisin Valley Farms and Lassen Vineyards,
it also contracted with more than sixty other raisin growers to
clean, stem, sort, and in some cases box and stack their raisins
for a per-pound fee, typically twelve cents per pound.10 USDA
records reflect that Lassen Vineyards packed out more than
1.2 million pounds of raisins during the 2002-03 crop year
and more than 1.9 million pounds during the 2003-04 crop
year.

Meanwhile, the Hornes also organized these sixty-some
growers into the Raisin Valley Marketing Association, an
unincorporated association that marketed and sold raisins to
wholesale customers on its members’ behalf, while the grow-
ers maintained ownership over their own raisins. Raisin Val-
ley Marketing then held the sales funds on the growers’ behalf
in a trust account, from which it paid Lassen Vineyards its
packing fees, paid a third-party broker fee, and distributed the
net proceeds to the growers.

III. Proceedings Below

The Administrator of the Agricultural Marketing Service
initiated an enforcement action against the Hornes, alleging
violations of the AMAA and failure to comply with the Raisin
Marketing Order’s various requirements. On appeal from an
Administrative Law Judge’s decision following an on-the-
record hearing, the USDA JO found both Raisin Valley Farms
and Lassen Vineyards liable for: (1) twenty violations of 7
C.F.R. § 989.73 (filing of inaccurate reports); (2) fifty-eight
violations of 7 C.F.R. § 989.58(d) (failing to obtain incoming
inspections); (3) 592 violations of 7 C.F.R. § 989.66 and 7
10
This type of arrangement is known as “toll packing.” Toll packers do
not acquire ownership of the commodity but instead provide a packing
service for a fee.
2790 HORNE v. USDA
C.F.R. § 989.166 (failing to hold reserve raisins for the 2002-
03 and 2003-04 crop years); (4) two violations of 7 C.F.R.
§ 989.80 (failing to pay assessments to the RAC); and (5) one
violation of 7 C.F.R. § 989.77 (failing to allow the Agricul-
tural Marketing Service access to records). The JO accord-
ingly ordered the Hornes to pay (1) $8,783.39 in unpaid
assessments for the 2002-03 and 2003-04 crop years, pursuant
to 7 C.F.R. § 989.80(a); (2) $483,843.53, the alleged dollar
equivalent of the withheld raisin reserve contributions for the
2002-03 (632,427 pounds) and 2003-04 (611,159 pounds11)
crop years, pursuant to 7 C.F.R. § 989.166(c); and (3)
$202,600 in civil penalties, pursuant to 7 U.S.C.
§ 608c(14)(B).

The Hornes filed this action in district court seeking judi-
cial review of a final agency decision pursuant to 7 U.S.C.
§ 608c(14)(B).12 On cross-motions for summary judgment, the
district court granted summary judgment for the USDA, and
the Hornes timely appealed.

STANDARDS OF REVIEW

A district court’s grant of summary judgment is reviewed
de novo. Ariz. Life Coal., Inc. v. Stanton, 515 F.3d 956, 962
(9th Cir. 2008). Viewing the evidence in the light most favor-
able to the non-moving party, we must determine whether any
genuine issues of material fact remain and whether the district
court correctly applied the relevant substantive law. Lopez v.
Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). We
11
The Hornes do not challenge the JO’s calculation of these figures.
12
In a separate action not the subject of this appeal, the Hornes filed an
administrative petition before the Secretary of Agriculture in March 2007
pursuant to 7 U.S.C. § 608c(15)(A) challenging the Raisin Marketing
Order and its application to them. The JO granted the USDA’s motion to
dismiss for lack of standing. The Hornes filed a complaint in district court,
but the district court dismissed it for lack of subject matter jurisdiction
because it was not timely filed, and we affirmed. See Horne v. U.S. Dep’t
of Agric., 395 Fed. Appx. 486 (9th Cir. Sep. 27, 2010) (unpublished).
 HORNE v. USDA 2791
review de novo a constitutional challenge to a federal regula-
tion. Doe v. Rumsfeld, 435 F.3d 980, 984 (9th Cir. 2006) (cit-
ing Gonzales v. Metro. Transp. Auth., 174 F.3d 1016, 1018
(9th Cir. 1999)). We also review de novo whether a fine is
unconstitutionally excessive. United States v. Mackby, 339
F.3d 1013, 1016 (9th Cir. 2003) (citing United States v.
Bajakajian, 524 U.S. 321, 337 n.10 (1998)).

DISCUSSION

I. Application of the Raisin Marketing Order to the
Hornes

For the reasons discussed in the district court’s opinion
below, we conclude that the Hornes, who admit that their toll-
packing business “stems, sorts, cleans,” and “packages raisins
for market as raisins,” 7 C.F.R. § 989.14, satisfy the regula-
tory definition of a “packer” and are thus “handlers” subject
to the Raisin Marketing Order’s provisions, see 7 C.F.R.
§ 989.15. See Horne v. U.S. Dep’t of Agric., 2009 U.S. Dist.
LEXIS 115464, at *20-49 (E.D. Cal. Dec. 11, 2009). The
USDA’s interpretation of its own regulation is not “plainly
erroneous or inconsistent with the regulation” and thus must
be given “controlling weight.” See Bowles v. Seminole Rock
& Sand Co., 325 U.S. 410, 414 (1945); accord Auer v. Rob-
bins, 519 U.S. 452, 461 (1997); Miller v. Cal. Speedway
Corp., 536 F.3d 1020, 1028 (9th Cir. 2008). Furthermore, its
findings regarding the Hornes’ handler operations are sup-
ported by substantial evidence and are neither arbitrary nor
capricious. See 5 U.S.C. § 706(2)(A), (E).

[1] The Hornes argue they are statutorily exempt from reg-
ulation because they also satisfy the regulatory definition of
a “producer,” and the AMAA provides that “[n]o order issued
under this chapter shall be applicable to any producer in his
capacity as a producer.” 7 U.S.C. § 608c(13)(B). However, by
expressly limiting the exemption from regulation only to a
producer “in his capacity as a producer,” the AMAA contem-
2792 HORNE v. USDA
plates that an individual who performs both producer and han-
dler functions may still be regulated in his capacity as a
handler. Even if the AMAA is considered “silent or ambigu-
ous” on the regulation of individuals who perform both pro-
ducer and handler functions, we must give Chevron deference
to the permissible interpretation of the Secretary of Agricul-
ture, who is charged with administering the statute. Chevron,
USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842-43 (1984); see 7 U.S.C. § 608c(1); see also Morales-
Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076, 1086-87
(9th Cir. 2010); Midway Farms v. U.S. Dep’t of Agric., 188
F.3d 1136, 1140 n.5 (9th Cir. 1999). Other courts have simi-
larly rejected the Hornes’ argument that a producer who han-
dles his own product for market is statutorily exempt from
regulation under the AMAA. See, e.g., Freeman v. Vance, 319
F.2d 841, 842 (5th Cir. 1963) (per curiam); Ideal Farms, Inc.
v. Benson, 288 F.2d 608, 614 (3d Cir. 1961), cert. denied, 372
U.S. 965 (1963); Evans, 74 Fed. Cl. at 557-58. Deferring to
the agency’s permissible interpretation of the statute, as we
must, we conclude that applying the Raisin Marketing Order
to the Hornes in their capacity as handlers was not contrary
to the AMAA.

II. Takings Claim

The Hornes argue that, even if they are handlers subject to
the Raisin Marketing Order’s provisions, the requirement that
they contribute a specified percentage of their annual raisin
crop to the government-controlled reserve pool constitutes an
uncompensated per se taking in violation of the Fifth Amend-
ment.

[2] The Fifth Amendment Takings Clause does not pro-
hibit the government from taking private property; instead, it
imposes conditions on the government’s authority to act, pro-
viding that when government takes private property, pursuant
to the lawful exercise of its constitutional powers, (1) it must
take for public rather than private use, and (2) it must provide
 HORNE v. USDA 2793
owners with just compensation, as measured by the property
owner’s loss. See Brown v. Legal Found. of Wash., 538 U.S.
216, 231-32, 235-36 (2003); First English Evangelical
Lutheran Church of Glendale v. Cnty. of Los Angeles, 482
U.S. 304, 314 (1987). The former condition ensures that gov-
ernment does not abuse its powers by taking private property
for another’s private gain, see, e.g., Penn. Coal Co. v. Mahon,
260 U.S. 393, 413 (1922); the latter ensures that even when
government acts in the public interest, it does not “forc[e]
some people alone to bear public burdens which, in all fair-
ness and justice, should be borne by the public as a whole,”
Armstrong v. United States, 364 U.S. 40, 49 (1960). As a pre-
liminary matter, we must decide whether we have jurisdiction
over the Hornes’ takings claim.

[3] As we explained in Bay View, Inc. v. AHTNA, Inc., 105
F.3d 1281 (9th Cir. 1997), the just-compensation requirement
does not force the government to provide immediate compen-
sation at the time of a taking; “it must simply ‘provide an ade-
quate process for obtaining compensation.’ ” Id. at 1285
(quoting Williamson Cnty. Reg’l Planning Comm’n v. Hamil-
ton Bank, 473 U.S. 172, 194 (1985)). The Tucker Act allows
parties seeking compensation from the United States to bring
suit in the Court of Federal Claims. 28 U.S.C. § 1491(a)(1).
Thus, a takings claim against the federal government must be
brought there in the first instance, “unless Congress has with-
drawn the Tucker Act grant of jurisdiction in the relevant stat-
ute.” Eastern Enters. v. Apfel, 524 U.S. 498, 520 (1998)
(plurality opinion).

Here, the government contends that the takings claim
before us is premature because the Hornes have yet to avail
themselves of Tucker Act process available to them in the
Court of Federal Claims. The Hornes, however, argue that the
AMAA withdraws Tucker Act jurisdiction for takings chal-
lenges to AMAA marketing orders and enforcement actions,
and that the claim is therefore properly before us.
2794 HORNE v. USDA
[4] Section 8c(15) of the AMAA, 7 U.S.C. § 608c(15),
“provides an administrative remedy to handlers wishing to
challenge marketing orders under the AMAA; requires that
the Secretary [of Agriculture] grant a hearing and make a rul-
ing on petitions brought by handlers; and vests the district
courts with jurisdiction to review the Secretary’s decision.”
Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1370 (Fed.
Cir. 2005). The case law the Hornes cite makes clear that
when a handler, or a producer-handler in its capacity as a han-
dler, challenges a marketing order on takings grounds, Court
of Federal Claims Tucker Act jurisdiction gives way to sec-
tion 8c(15)’s comprehensive procedural scheme and adminis-
trative exhaustion requirements. See id. at 1370-71 (holding
that raisin producer-handler asserting a takings claim “only in
its capacity as a handler” could effectively bring that claim in
section 8c(15) proceedings and that a handler “may not seek
compensation in the Court of Federal Claims under the guise
of a takings claim for what is essentially a challenge to invalid
agency action”); see also United States v. Ruzicka, 329 U.S.
287, 292-93, 295 (1946) (holding that a handler’s challenges
to a marketing order could only be raised using the special
statutory procedure provided by section 8c(15)); cf. Wallace
v. Hudson-Duncan & Co., 98 F.2d 985 (9th Cir. 1938) (assert-
ing jurisdiction over a handler’s claim that a walnut marketing
order resulted in a taking of its private property).

[5] However, the takings claim before us is brought by the
Hornes not in their capacity as handlers but in their capacity
as producers; the Hornes allege that the regulatory scheme at
issue takes reserve-tonnage raisins belonging to producers,
not property belonging to handlers. This claim is therefore not
governed by holdings which address handlers’ takings claims,
nor is it subject to section 8c(15)’s administrative exhaustion
requirements. See Edaleen Dairy, LLC v. Johanns, 467 F.3d
778, 783 (D.C. Cir. 2006) (distinguishing suits brought in
producer-handlers’ capacity as producers from suits brought
in their capacity as handlers); Ark. Dairy-Co-op Ass’n, Inc. v.
U.S. Dep’t of Agric., 573 F.3d 815, 823 n.4 (D.C. Cir. 2009)
 HORNE v. USDA 2795
(“Where a single entity acts as a vertically-integrated
‘producer-handler,’ it must exhaust [section 8c(15) process]
before bringing suit in its capacity as a handler, but not when
bringing suit in its capacity as a producer.”) (citations omit-
ted).

[6] Nothing in the AMAA precludes the Hornes from
alleging in the Court of Federal Claims that the reserve pro-
gram injures them in their capacity as producers by subjecting
them to a taking requiring compensation. Thus, they may
bring the takings claim there under the Tucker Act. And since
they may bring a Tucker Act claim, they are required to bring
it before we can properly adjudicate the takings issue. See Bay
View, 105 F.3d at 1285 (“The Tucker Act . . . [is] an implicit
promise by Congress to pay compensation for all takings of
private property for public purposes. . . . Thus, appellants’
takings claim is premature until they have availed themselves
of the process provided by the Tucker Act.”) (internal quota-
tion marks and citations omitted).

[7] Bay View makes clear that we lack jurisdiction to
address the merits of the Hornes’ takings claim where Con-
gress has provided a means for compensation. The Hornes’
takings argument therefore fails.

III. Excessive Fines Claim

Finally, in connection with their takings argument, the
Hornes protest the JO’s imposition of nearly $700,000 in
combined assessments and fines, which they believe exces-
sively penalizes them, in violation of the Eighth Amendment,
for their justified refusal to deliver their own private property
into the hands of the government. See U.S. Const. amend.
VIII (“Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.”).

[8] To prevail on an excessive fines claim, a plaintiff must
establish (1) the assessment is imposed, at least in part, for
2796 HORNE v. USDA
punitive and not merely remedial purposes, and (2) the fine is
excessive, or “grossly disproportional to the gravity of [the]
offense” for which it is imposed. Bajakajian, 524 U.S. at 334;
see Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 1006 (9th
Cir. 2007); Mackby, 339 F.3d at 1016. Although an excessive
punitive civil fine is not beyond the Eighth Amendment’s
reach, Hudson v. United States, 522 U.S. 93, 103 (1997), civil
forfeiture that merely “provides a reasonable form of liqui-
dated damages” as compensation for government losses
resulting from the unlawful activity is remedial, not punitive,
and accordingly does not implicate the Eighth Amendment,
One Lot Emerald Cut Stones & One Ring v. United States,
409 U.S. 232, 237 (1972); see United States v. $273,969.04
U.S. Currency, 164 F.3d 462, 466 (9th Cir. 1999); Austin v.
United States, 509 U.S. 602, 622 n.14 (1993) (“[A] fine that
serves purely remedial purposes cannot be considered ‘exces-
sive’ in any event.”).

[9] Here, the district court correctly determined that the
$8,783.39 in unpaid assessments imposed pursuant to 7
C.F.R. § 989.80(a) and the $483,843.53 in compensation for
the withheld reserve-tonnage raisins imposed pursuant to 7
C.F.R. § 989.166(c) amounted to remedial rather than puni-
tive forfeitures and that the Excessive Fines Clause therefore
is inapplicable to those penalties. The JO’s order that the
Hornes pay assessments to the RAC was calculated solely to
compensate the RAC for the mandatory assessments not paid.
See 7 C.F.R. § 989.80(a) (“Each handler shall, with respect to
free tonnage acquired by him . . . pay to the committee, upon
demand, his pro rata share of the expenses . . . which the Sec-
retary finds will be incurred, as aforesaid, by the committee
during each crop year . . . .”). Similarly, the JO’s order that
the Hornes compensate the RAC for the withheld reserve-
tonnage raisins flowed inexorably from another remedial,
non-punitive provision of the regulations. See id. § 989.166(c)
(“A handler who fails to deliver to the Committee, upon
request, any reserve tonnage raisins in the quantity and quality
for which he has become obligated . . . shall compensate the
 HORNE v. USDA 2797
Committee for the amount of the loss resulting from his fail-
ure to so deliver,” as determined by a fixed formula.). Calcu-
lation of the compensation amount is nondiscretionary and is
limited by the extent of the government’s loss. Cf.
$273,969.04, 164 F.3d at 466 (inferring punitive nature of a
sanction where it was not limited by the extent of the govern-
ment’s loss and was tied to commission of a crime). The JO’s
use of the “field price” to calculate the compensatory amount
the Hornes owed the RAC for their withheld reserve-tonnage
raisins was consistent with the regulations. See 7 C.F.R.
§ 989.166(c).

[10] The only sanction that implicates the Excessive Fines
Clause is the $202,600 fine imposed pursuant to 7 U.S.C.
§ 608c(14)(B), but we again agree with the district court that
this civil penalty, less than one-third the authorized statutory
amount, is not “grossly disproportional to the gravity of [the
Hornes’] offense.” Bajakajian, 524 U.S. at 334. Although we
have no set formula for determining the proportionality of a
given penalty, relevant factors include the severity of the
offense, the statutory maximum penalty available, and the
harm caused by the offense. Mackby, 339 F.3d at 1016; see
also United States v. 3814 NW Thurman St., 164 F.3d 1191,
1197-98 (9th Cir. 1999).

We have previously recognized that noncompliance with a
marketing order’s reporting and reserve requirements are seri-
ous offenses that threaten the Secretary’s ability to regulate a
given market and prevent price destabilization, while also
unjustly enriching the offenders who profit from selling their
reserve-tonnage goods on the open market. See Balice v. U.S.
Dep’t of Agric., 203 F.3d 684, 693, 695, 698-99 (9th Cir.
2000) (upholding a fine of $225,500 imposed on an almond
handler subject to up to $528,000 in fines for violations of
various reporting and reserve requirements). Furthermore, that
Congress authorized a much steeper fine ($1,000 for each of
the Hornes’ 673 separate offenses spanning a two-year period,
for a total of $673,000) than what the JO actually imposed,
2798 HORNE v. USDA
while not dispositive, weighs heavily against finding the fine
grossly disproportional to the Hornes’ offense, for “judgments
about the appropriate punishment for an offense belong in the
first instance to the legislature.” Bajakajian, 524 U.S. at 336,
339 n.14; accord Balice, 203 F.3d at 699.13 In light of these
factors, we cannot say the district court erred in finding the
penalties consistent with the Eighth Amendment.14

CONCLUSION

The Hornes are clearly dissatisfied and frustrated with a
regulatory scheme they believe no longer serves the interests
of the farmers it was designed, in large part, to protect. That
being the case, the Hornes may wish to pursue a takings claim
in the Court of Federal Claims or attempt to impress upon the
Secretary the need for reevaluation of the Raisin Marketing
Order. See 7 U.S.C. § 608c(16) (prescribing mechanism for
13
Although in Balice it appears the JO imposed penalties under only 7
U.S.C. § 608c(14) and not under the regulation’s forfeiture provisions,
whereas here the JO imposed both, nothing in the statutory or regulatory
language seems to preclude simultaneous imposition of remedial and puni-
tive sanctions under the respective provisions. To the contrary, 7 C.F.R.
§ 989.166(c) expressly provides that compensation for failure to deliver
reserve-tonnage raisins “shall be in addition to, and not exclusive of, any
or all of the remedies or penalties prescribed in the act” for noncompliance
with the act or regulation’s requirements, and the Hornes do not challenge
the legitimacy of this provision.
14
We also reject the Hornes’ contention that 7 U.S.C. § 608c(14)(B)
exempts them from liability for their Raisin Marketing Order violations
because in 2007 they filed an administrative petition pursuant to 7 U.S.C.
§ 608c(15)(A). See 7 U.S.C. § 608c(14)(B) (immunizing from civil pen-
alty any handler who “in good faith and not for delay” files and prosecutes
a qualifying administrative petition). First, this argument was already dis-
posed of in one of our earlier decisions, see Horne, 397 Fed. Appx. at 486,
and is not properly before us now. Moreover, even if the matter were
properly before us, it is without merit. Section 608c(14)(B) only immu-
nizes handlers from penalties otherwise incurred during the pendency of
their administrative petition; it does not apply retroactively. Therefore, an
administrative petition not filed until 2007 cannot immunize the Hornes
from fines relating to their conduct in 2002-04.
 HORNE v. USDA 2799
termination or suspension of marketing orders). Our role,
however, is limited to reviewing the constitutionality and not
the wisdom of the current regulation. We find no constitu-
tional infirmity in either the Raisin Marketing Order or the
Secretary’s application of it to the Hornes, and indeed lack
jurisdiction to find such an infirmity on takings grounds until
the Hornes avail themselves of Tucker Act process in the
Court of Federal Claims. The summary judgment of the dis-
trict court is AFFIRMED.