The opinion of the court was delivered by: ROSENBERG
ROSENBERG, District Judge.
This action was filed by the United States against the defendant, Russell Melenyzer, d/b/a Melenyzer's Dairy pursuant to § 8a(6) of the Agricultural Adjustment Act of 1937, as amended 7 U.S.C. § 608a(6), for enforcement of the Act and Order No. 36, 7 C.F.R. 1036, issued pursuant to the Act.
The plaintiff alleges that the defendant, doing business within the jurisdiction of this court, had been designated by Market Administrator, Cleo C. Taylor, to be a "handler" as defined in § 1036.9 of the Order, and so subject to its provisions. The plaintiff alleges that commencing on June 17, 1974, the defendant violated the Act and Order by failing (1) to pay on or before the sixteenth day after the end of each month his obligation to the Market Administrator for the "producer-settlement fund" violating § 1036.70 of the Order; (2) to pay on or before the sixteenth day after the end of each month a pro-rata share of the Order's administration expense, violating § 1036.85 of the Order; and (3) to pay the interest accrued on the obligation violating § 1036.78 of the Order.
The plaintiff requests injunctive relief directed to the defendant, his officers, agents, employees, successors, assigns and persons in concert with him to comply with the Act and Order by paying to the Market Administrator all obligations due and to come due in the future.
In its amended answer the defendant denies that he is a "handler" as defined in § 1036.9 of the Order and avers that he is a "producer-handler". The defendant also attacks the determination of the Market Administrator as being "unilateral, capricious and without any foundation either in law or in fact" and constitutionally violative of due process of law; and so denies any violation of the Act or the Order.
The defendant also submitted an affidavit denying the plaintiff's motion for summary judgment and affirmatively states that he is a "producer-handler" as defined in § 1036.10 of the Order and as such was not required to and has not made any payments to the "producer-settlement fund".
When Congress passed the Agricultural Ajustment Act of 1937, its object was to effect an orderly approach to the distribution of certain commodities to the public in interstate commerce, protecting consumer and farmer. Kyer v. United States, 369 F.2d 714, 177 Ct.Cl. 747 (1966), cert. den. 387 U.S. 929, 87 S. Ct. 2050, 18 L. Ed. 2d 990; Freeman v. Canned Dairy Products, Inc., 265 F. Supp. 95 (D.C.Pa. 1966). The Act could not be effective unless, as was done in 7 U.S.C. § 608c(1), the Secretary of Agriculture was given certain powers to issue orders "applicable to processors, associations of producers, and others engaged in the handling of any agricultural commodity or product thereof specified in subsection (2) of this section." Subsection (2)(a) of 7 U.S.C. § 608c designates milk as one of these commodities.
Congress also provided that:
"The several district courts of the United States are vested with jurisdiction specifically to enforce, and to prevent and restrain any person from violating any order regulation or agreement, heretofore or hereafter made or issued pursuant to this chapter, in any proceeding now pending or hereafter brought in said courts." (7 U.S.C. §§ 608(a) [608a](6).
Order No. 36, as amended 7 C.F.R. § 1036, encompasses a "marketing area" which includes Eastern Ohio and Western Pennsylvania. The plaintiff avers and the defendant admits that his place of business is located in this area. But the defendant denies that he is a "handler" as defined in § 1036.9 of the Order and so defies the powers and duties of the market administrator as these are clearly vested in him by 7 C.F.R. § 1000.3.
I am not here required to decide whether or not the Market Administrator has made an arbitrary and capricious determination. The Act, itself, 7 U.S.C. § 608c(15)(A)
provides a complete administrative remedy to any determination made pursuant to this Order. If after final hearing and determination by the Secretary such handler is still unsatisfied he may file a bill in equity for judicial review in this court within 20 days. 7 U.S.C. § 608c(15)(B).