The opinion of the court was delivered by: JAMES KNOLL GARDNER, District Judge
This matter is before the court on the parties' cross-motions
for summary judgment. For the reasons expressed below, we
conclude that defendant is entitled to judgment as a matter of
law on plaintiff's claims. Therefore, we grant defendant's
motion, deny plaintiff's motion, and dismiss plaintiff's
The factual background of this civil action was described in
detail by United States District Judge Edward N. Cahn in a
related decision, Kreider Dairy Farms, Inc. v. Glickman, No.
95-CV-6648, 1996 U.S. Dist. LEXIS 12094, at *5-7 (E.D. Pa. August
14, 1996). The following facts are taken from Chief Judge Cahn's
August 14, 1996 decision.
Plaintiff Kreider Dairy Farms, Inc. ("Kreider") is a dairy farm
corporation with its principal office in Manheim, Pennsylvania.
Manheim is located within what the United States Department of
Agriculture ("USDA") considers to be the Middle Atlantic area, a
region in which sales of milk are regulated by Federal Milk
Marketing Order 4 ("Order 4"). See 7 C.F.R. § 1004 (1995).
Although Kreider is physically located within the boundaries of
Order 4, it sells fluid milk in the marketing area covered by the
New York-New Jersey Milk Marketing Order 2 ("Order 2").*fn1
Since 1990, Kreider has been selling packaged kosher fluid milk
to two subdealers or handlers: the Foundation for the
Preservation and Perpetuation of the Torah Laws and Customs, Inc.
("FPPTLC") and Ahava Dairy Products, Inc. ("Ahava"). The FPPTLC
is a distributor of fluid milk and milk products and is located
in Baltimore, Maryland It sells fluid milk to customers in
Lakewood, New Jersey. Ahava, which is also a distributor of fluid
milk and milk products, is located in Brooklyn, New York. Ahava
distributes its dairy products in Brooklyn, Manhattan, and
Queens, New York.*fn2
This civil action is closely related to earlier litigation
between plaintiff and defendant in Kreider Dairy Farms, Inc. v.
Glickman, Nos. 95-CV-06648 and 98-CV-00518 ("Kreider I").
Kreider I and the instant action ("Kreider II") share the
same factual background, and the procedural history of Kreider
I is essential to an understanding of the issues before us on
appeal in Kreider II. The procedural history of both actions
follows, and is taken from, the August 14, 1996 opinion of Chief
Judge Cahn in Kreider, 1996 U.S. Dist. LEXIS 12094, at * 5-7,
and from the opinion of the United States Court of Appeals for
the Third Circuit in Kreider Dairy Farms, Inc. v. Glickman,
190 F.3d 113, 116-117 (3d Cir. 1999), where indicated.
In December 1990 the Market Administrator ("MA") responsible
for administering Order 2 learned that Kreider was selling fluid
milk to Ahava for distribution into the milk marketing area
covered by the New York-New Jersey Milk Marketing Order.
Subsequently, the MA determined that Kreider also sold milk to
the FPPTLC, which distributed it into the Order 2 marketing
By letter dated December 19, 1990, the MA informed Kreider that
it might be subject to regulation under Order 2 and instructed it
to file reports with the MA's office. In January 1991 Kreider
filed an application for a producer-handler designation with the
MA for Order 2.*fn4 The MA denied the application based on
its determination that Kreider did not meet the requirements of a
producer-handler as defined in § 1002.12 of Order 2. See
7 C.F.R. § 1002.12 (1995).
Instead, in July 1992, following audits of Kreider, the MA
concluded that Kreider should be billed as a regulated handler
operating a partial pool plant under Order 2. On August 7, 1992
the MA sent a billing statement to Kreider, billing it as a
regulated handler under Order 2 for the period November 1991 to
June 1992. Subsequently, the MA continued to bill Kreider on a
monthly basis as a handler operating a partial pool
On December 28, 1993 Kreider filed a petition challenging the
MA's determination that Kreider was a handler regulated by Order
2 and liable for payments to the producer-settlement fund, rather
than a producer-handler exempt from such payments.*fn6 The
Judicial Officer ("JO") dismissed Kreider's petition, affirming
the MA's determination that Kreider was not eligible for
producer-handler status because it sold milk to two subdealers,
Ahava and FPPTLC.*fn7 The JO found that Kreider's reliance
on Ahava and FPPTLC to distribute some of its fluid milk products
evidenced its lack of complete and exclusive control over all
facilities and resources used for the production, processing and
distribution of milk, as required to qualify as a
producer-handler under Order 2.*fn8
On October 18, 1995 Kreider filed a complaint pursuant to the
AMAA in the District Court challenging the JO's decision. See
AMAA, 7 U.S.C. § 608c(15)(B) (1994). By opinion and Order dated
August 14, 1996, the District Court denied the parties' cross
motions for summary judgment and remanded for further
administrative findings on whether Kreider was "riding the pool,"
that is, whether Kreider was the type of dairy for ...