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December 30, 1968

UNITED STATES of America, Plaintiff,
LEHIGH VALLEY COOPERATIVE FARMERS, INC., Defendant, Jacob H. Bross et al., Applicants for Intervention

The opinion of the court was delivered by: WOOD


 WOOD, District Judge.

 This is a petition to intervene in an action commenced by the Secretary of Agriculture pursuant to 7 U.S.C. § 608a(6) to enforce against the Lehigh Valley Cooperative Farmers an Order of the Secretary, No. 2, Subsections (c-1) and (c-2), 7 C.F.R. 1002.66. Petitioners are all individual milk producers and members of the Cooperative (milk handlers), which acts as the agent of the individual producers to process and market milk supplied to it.

 The Order which the Secretary seeks to enforce was made pursuant to regulations promulgated by him to effectuate the purposes of the Agricultural Marketing Act of 1937 by providing for adjustment of prices paid by handlers to producers. *fn1" The effect of the order would be to compel the handlers cooperative to pay $97,072.05 into the Producers Settlement Fund, the mechanism created by the Secretary to implement adjustments in prices paid to producers. If the cooperative is compelled to pay the amount due the Settlement Fund, the cooperative will have less money to pay the producers for milk that they have shipped to it. Therefore, if they are permitted to intervene, it would be the contention of the producers that enforcement of Order No. 2 would deprive them of the rightful proceeds for milk that they shipped, and that regulations (c-1) and (c-2) *fn2" exceed the authority given the Secretary under § 608c(5)(A) of the Act, or in the alternative, that the Act delegates excessive discretion to the Secretary.

 We have decided to deny the producers leave to intervene because we think that Congress wished to have the 608a(6) enforcement action to be unencumbered by contests of the legality of orders. Congress's desire to prevent the intrusion of collateral issues which might delay the enforcement of orders of the Secretary is apparent from the circumscribed jurisdiction given the district court under § 608a(6), and the explicit inclusion of a separate administrative procedure for contesting the legality of orders of the Secretary. Under § 608a(6), this Court is given "jurisdiction specifically to enforce, and to prevent and restrain any person from violating any order [issued by the Secretary] * * *." If a handler is aggrieved by an order of the Secretary, he may pursue an administrative remedy pursuant to 7 U.S.C. § 608c(15)(A). Under that section, a party desiring to contest the legality of such an order is given the right to petition and to a hearing before the Secretary. *fn3" After the ruling of the Secretary is entered the District Courts are vested with jurisdiction to review the Secretary's ruling. 7 U.S.C. § 608c(15)(B). *fn4" It is explicitly provided, however, that the pendency of administrative or judicial review of the legality of the Secretary's Order "* * * shall not impede, hinder, or delay the United States or the Secretary of Agriculture from obtaining relief pursuant to section 608a(6) of this title." (i.e. the enforcement procedure in the instant case).

 In United States v. Ruzicka, 329 U.S. 287, 67 S. Ct. 207, 91 L. Ed. 290 (1946), the Supreme Court held that the handler could not contest the legality of the Secretary's Order, in the 608a(6) enforcement proceeding, but must first exhaust his administrative remedy provided for in 608c(15)(A) before the district court had jurisdiction pursuant to 608c(15)(B) to hear challenges to the legality of a marketing order or administrative action taken thereunder. The rationale of its decision, as elaborated by Mr. Justice Frankfurter at 329 U.S. 292-293, 67 S. Ct. at 209 was essentially that Congress did not want enforcement of the Secretary's orders to be obstructed by allowing enforcement proceedings to be enlarged into contests of the legality of orders, and therefore provided a separate procedure for contesting the legality of orders:


"The procedure devised by Congress explicitly gave to an aggrieved handler an appropriate opportunity for the correction of errors or abuses by the agency charged with the intricate business of milk control. In addition, if the Secretary fails to make amends called for by law the handler may challenge the legality of the Secretary's ruling in court. Handlers are thus assured opportunity to establish claims of grievances while steps for the protection of the industry as a whole may go forward. Sections 8a(6) and 8c(15) thus form a complementary procedural scheme. Contrariwise, it would make for disharmony to extrapolate from these provisions of the statute the right to consider independently, in a proceeding by the Government for the enforcement of the Secretary's order, questions for which Congress explicitly furnished the handler an expert forum for contest with ultimate review by a district court.


"The situation before us indicates how disruptive it would be to allow issues that may properly come before a district court in a proceeding under § 8c(15) to be open for independent adjudication in a suit for enforcement under § 8a(6). * * * In large measure, the success of this scheme revolves around a 'producers' fund which is solvent and to which all contribute in accordance with a formula equitably determined and of uniform applicability. Failure by handlers to meet their obligations promptly would threaten the whole scheme. Even temporary defaults by some handlers may work unfairness to others, encourage wider non-compliance, and engender those subtle forces of doubt and distrust which so readily dislocate delicate economic arrangements. To make the vitality of the whole arrangement depend on the contingencies and inevitable delays of litigation, no matter how alertly pursued, is not a result to be attributed to Congress unless support for it is much more manifest than we here find. That Congress avoided such hazards for its policy is persuasively indicated by the procedure it devised for the careful administrative and judicial consideration of a handler's grievance."

 Clearly, then, the handlers, in this instance the Lehigh Valley Cooperative Farmers, cannot contest the legality of the Secretary's action in this enforcement action under § 608a(6). The individual producers, however, assert that they are not bound by the restrictions placed on their agents, the handlers, and seek leave to intervene to contest the legality of the Secretary's Order. They rely first on Stark v. Wickard, 321 U.S. 288, 64 S. Ct. 559, 88 L. Ed. 733 (1944). In that case the Supreme Court held that although the Agricultural Marketing Act did not specifically provide an administrative or judicial remedy for producers aggrieved by an order of the Secretary, the producers had standing to challenge the legality of such an order in the district court. The Supreme Court stated further on the same point in Ruzicka that:


"We are dealing here solely with the rights of handlers. This is not Stark v. Wickard, 321 U.S. 288 [64 S. Ct. 559, 88 L. Ed. 733.] In that case it was concluded that since Congress had provided no administrative remedy for a producer to review the legality of an order against him, presumably the courts were not closed to him. But by § 8c(15) Congress has made precisely such provisions for handlers. As to them the procedural scheme is complete." 329 U.S. at 295, 67 S. Ct. at 210.

 The producers assert that since under Stark they are granted standing to contest the legality of the Secretary's orders, and since they will be directly affected by enforcement of the Order, that they should be permitted to intervene to settle the entire matter in the instant action.

 Secondly, the producers assert that if they are not permitted to intervene in this action, they will be required to bring a separate action and regardless of the outcome of that action will be without the use of nearly $100,000 until the legality of the Secretary's Order is finally adjudicated.

 We fully sympathize with the predicament of the producers in contesting the legality of an order which will restrain the payment of money to them while awaiting the outcome of litigation. However, we think that the reasons why handler-cooperatives are precluded from contesting the legality of the Act apply equally as well to the producers. The statutory scheme delineated above and the Ruzicka opinion make it clear that Congress desired to have the 608a(6) enforcement action unencumbered by contests of the legality of the Act, and it therefore provided for a separate procedure for contests of the legality of the Act. *fn5" To allow the producers, who in many cases may be closely affiliated with their agents, the handlers cooperative, to contest the legality of the order in this action, would be to read these limitations out of the Act. The Stark case, cited by the producers, merely states that under some circumstances the producers can have access to court to contest the legality of an order of the Secretary which directly affects them. But the mere grant of standing to raise certain issues does not entitle the producers to intervene and raise those issues in an action which Congress has limited to enforcement of the Secretary's Order. The producers can not stand in a more privileged position than their agent, the cooperative. Benson v. Schofield, 98 U.S.App.D.C. 424, 236 F.2d 719 (1956). Intervention is not proper to litigate an issue or issues which do not exist or are not available in an action between the original parties. Slusarski v. United States Lines Co., 28 F.R.D. 388 (D.C.1961); True Gun-All Equipment Corp. v. Bishop International Eng. Co., 26 F.R.D. 150 (D.C.1960); United States for Use of Ward Construction Service, Inc. v. United States Fidelity and Guaranty Company, D.C., 26 F.R.D. 568 (1960).

 Finally, the producers have urged us that, contrary to Ruzicka and the other authority cited above, recent decisions of the circuit courts have concluded that in 608a(6) actions, this court possesses residual discretion to consider defenses such as those which they propose to raise here. See United States v. Brown, 331 F.2d 362 (10th Cir. 1964); United States v. Tapor-Ideal Dairy Company, Inc., 283 F.2d 869 (6th Cir. 1960). In Brown, the Tenth Circuit held that in a 608a(6) action the defendant could be heard on the question of whether he is indeed a handler subject to regulation or not. Similarly, in Tapor-Ideal, the Sixth Circuit allowed the handler to raise the defense of accord and satisfaction.

 However, we do not think that either of these cases meant to allow the handler or producer initiate a full-blown contest of legality of the Secretary's Order in the 608a(6) proceeding. The questions of whether the defendant is a handler or whether there has been accord and satisfaction are threshold questions which may be rapidly determined; it would be harsh to relegate a party to the expense of an administrative hearing if he were not a handler or had made an accord and satisfaction. But to allow contests of the legality of the Secretary's orders at this stage would as a practical matter vitiate the primary administrative review provided for by statute, and affirmed by the Supreme Court in Ruzicka.


 And now, this 30th day of December, 1968, it is ordered that the petition for leave to intervene is denied.

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