The opinion of the court was delivered by: CLARY
This action, brought under the provisions of Sec. 608a(6) of the Agricultural Marketing Agreement Act of 1937, as amended (50 Stat. 249, 7 U.S.C.A. § 601 et seq.), coming on for hearing before the Court upon a rule to show cause why a temporary injunction should not be granted; the defendants having filed their respective motions for a stay of proceedings pending determination of the issues before the Secretary of Agriculture in an administrative proceeding; the parties having presented evidence; counsel having been heard and briefs submitted in support of their respective positions; and the Court being fully advised makes the following Findings of Fact
2. The defendant, Suncrest Farms, Inc., is a Pennsylvania corporation with its principal office and place of business at 1414 Millard Street, Bethlehem, Pennsylvania.
3. Each of the defendants admitted that it is a 'handler' within the meaning of that term as defined in Sec. 927.7 of Order No. 27, as amended.
4. The Market Administrator is the duly designated and acting agency of the Secretary of Agriculture authorized to administer the provisions of said Order No. 27, as amended, as provided in said Order No. 27 and in the Act.
5. Each of the defendants has admitted that it has not filed the monthly reports with the Market Administrator of Order No. 27, as amended, as required by the provisions of said Order.
6. Each of the defendants has admitted that it has not paid for the month of August 1957, to the Market Administrator of Order No. 27, as amended, any of the amounts alleged by the plaintiff to be due and payable, but has asserted in good faith that such Order is invalid and has promptly taken its administrative appeal. As part of the defendants' motions for a stay of proceedings each asserts, and in the opinion of the Court validly asserts, that substantial legal difficulties will be encountered by them if payments are now ordered to be made directly to the Secretary of Agriculture and are later found to be not in accordance with law and refundable to the defendants.
7. Each of the defendants has failed and refused, and still continues to refuse, to comply with the provisions of said Order by filing the required reports and making available to the Market Administrator the accounts and records of its operations, and to permit verification of such reports, and each has refused, and continues to refuse, to make payments to the Producer-Settlement Fund and the Administrative Fund as required by said Order No. 27.
The jurisdiction conferred upon this Court by Sec. 608a(6) of the Act (7 U.S.C.A. § 608a(6)) is to enforce and to prevent and restrain any person from violating any order issued pursuant to the Act. The Act authorizes a handler to challenge before the Secretary of Agriculture his order or any obligation imposed in connection therewith as not in accordance with law and to ask to have it modified or to be exempted therefrom.
When the order is so challenged, the determination of the Secretary of Agriculture is final, if in accordance with law (7 U.S.C.A. 608c(15)(A)). To test whether such ruling is in accordance with law, a handler may appeal to the appropriate District Court (7 U.S.C.A. 608c(15)(B)). But Section (15) further gives the handler access to the Secretary of Agriculture for administrative relief and opportunity for judicial review of his determination and further provides that the pendency of the proceedings before the Secretary 'shall not impede, hinder, or delay the United States or the Secretary of Agriculture from obtaining relief' under Sec. 608a(6).
The plaintiff relies upon the cases of United States v. Ruzicka, 1946, 329 U.S. 287, 67 S. Ct. 207, 91 L. Ed. 290; Chapman v. United States, 8 Cir., 1943, 139 F.2d 327; La Verne Co-op Citrus Ass'n v. United States, 9 Cir., 1944, 143 F.2d 415; United States v. Turner Dairy Co., 7 Cir., 1947, 162 F.2d 425; Panno v. United States, 9 Cir., 1953, 203 F.2d 504, and Hobby v. Hodges, 10 Cir., 1954, 215 F.2d 754.