
USCA1 Opinion

	




                                      UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1068                            KENNETH ADAMS, SETH BUNKER AND                                RODNEY HUDSON, ET AL.,                               Plaintiffs, Appellants,                                          v.                           GREGORY WATSON AS COMMISSIONER,                         MASSACHUSETTS DEPARTMENT OF FOOD AND                                 AGRICULTURE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________               Michael L. Altman, with whom Margaret A. Robbins and Rubin &               _________________            ___________________     _______          Rudman were on brief for appellants.          ______               Eric A. Smith,  Assistant Attorney General, with  whom Scott               _____________                                          _____          Harshbarger, Attorney General,  was on brief for  Commissioner of          ___________          the Massachusetts Department of Food and Agriculture.               Robert J.  Sherer, with  whom Francis  A. DiLuna  and Roche,               _________________             __________________      ______          Carens & DeGiacomo  were on brief  for Massachusetts Farm  Bureau          __________________          Federation, Inc.                                 ____________________                                   December 8, 1993                                 ____________________                    CYR, Circuit  Judge.   Plaintiffs-appellants, New  York                    CYR, Circuit  Judge.                         ______________          and New  Hampshire dairy  farmers, instituted  the present  civil          rights  action  against  the  Commissioner of  the  Massachusetts          Department of Food and Agriculture (Commissioner) for declaratory          and injunctive  relief from an  alleged unconstitutional enforce-          ment of a  Massachusetts milk pricing order.   The district court          dismissed their complaint for lack of standing.  We now reverse.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    On January 28, 1992, the  Commissioner declared a state          of emergency in the Massachusetts dairy industry, see Mass.  Gen.                                                            ___          L. ch. 94A,   12 (1992), based on findings that rising production          costs and flat dairy prices  were devastating the industry.1  The          Commissioner  determined that  a  price stabilization  system was          necessary.   The  pricing order  issued  by the  Commissioner  on          February 26, 1992, forms the focus of this appeal.                    The  pricing  order established  a  "Dairy Equalization          Fund"  (Fund), into which each licensed milk distributor (dealer)          in Massachusetts is required to pay monthly assessments ("differ-          ential assessments") equal  to one-third of  the amount by  which          the $15  price set  by the pricing  order exceeds  the applicable                                        ____________________               1In 1991, for  example, the average milk price  paid Massac-          husetts dairy farmers was $12.64 per hundredweight (cwt), whereas          their average  production cost was  $15.50 per cwt     an average          loss of $2.86 per cwt.   The Commissioner specifically found that          the emergency  threatened Massachusetts' local  "supply of  fresh          milk."          federal minimum or  "blend" price per hundredweight  (cwt).2  The          differential  assessment   applies  to   all  milk   marketed  in          Massachusetts  by licensed  dealers, whether  produced in  Massa-          chusetts or  elsewhere.   Notwithstanding the  fact that  dealers          must  pay the differential  assessment calculated on  all out-of-          state  and in-state  produced  milk, out-of-state  producers, who          supply most of the milk  sold in Massachusetts,3 are not entitled          to disbursements  from  the Fund.   The  monies in  the Fund  are          distributed monthly  among Massachusetts milk producers  only, in          direct proportion  to their  respective percentage  of the  total          Massachusetts milk production,  subject to a monthly  payment cap          to  each Massachusetts producer equal to the differential assess-          ment on  2000 cwt.   Excess monies  in the  Fund are  remitted to          dealers in direct proportion to their payments into the Fund.                    Plaintiffs-appellants,  out-of-state  producers,   sell          their entire  milk  production to  West  Lynn Creamery,  Inc.,  a                                        ____________________               2The  United States dairy  industry is subject  to extensive          price  regulation.  The  United States Department  of Agriculture          promulgates  federal  milk  marketing  orders,  pursuant  to  the          Agricultural Marketing Agreements Act of 1937, 7 U.S.C.   601, et                                                                         __          seq., which establish minimum  milk prices.  The  marketing order          ____          in effect in Massachusetts is New England Federal  Milk Marketing          Order  No. 1 (Order  No. 1).   See 7  C.F.R.   1001 (1993).   The                                         ___          minimum milk price ("blend price") is calculated monthly, using a          market-wide weighted average of the value of all milk sold during          the preceding month.  No state or dealer may permit regional milk          producers to  receive less than the per/cwt  figure prescribed in          Order No. 1.               3Plaintiffs allege that Massachusetts is not a "producer" or          "export"  state (like,  for  example, Vermont  and Maine),  but a          highly vulnerable "consumer" or "import" state capable of produc-          ing only  10% of the milk sold in the  state.  As a rule, out-of-          state  milk commands  a high  premium in  "consumer" states  like          Massachusetts.                                          3          licensed  Massachusetts milk dealer.  Their original civil rights          complaint  demanded (i) a  declaratory judgment that  the pricing          order  violates  the Commerce  Clause,4  (ii) the  refund  of all          amounts  previously  disbursed  from  the Fund  to  Massachusetts          producers,  and (iii) injunctive  relief against further enforce-          ment of the pricing order.                    The first amended  complaint5 included allegations that          the  pricing  order  caused  appellants  competitive  injury  and          economic  harm.6   On  defendants'  motion,  the  district  court          dismissed  the  first  amended complaint  for  lack  of standing,          finding  its "general allegations  of economic harm  . . . unsup-          ported by any specific, factual allegations of injury."  Adams v.                                                                   _____                                        ____________________               4Commerce Clause violations may be redressed under 42 U.S.C.            1983.  See Dennis v. Higgins, 498 U.S. 439, 443-51 (1991).                   ___ ______    _______               5Two  nonproducer  plaintiffs (Massachusetts  milk  dealers)                                                                   _______          voluntarily dismissed their claims, following the  Commissioner's          motion  to dismiss their claims on Younger and Burford abstention                                             _______     _______          grounds.   The remaining  plaintiffs, appellants here,  filed the          first amended complaint, which  dropped the dealer-plaintiffs and          withdrew  a claim  for damages.    West Lynn  Creamery, Inc.,  an          original plaintiff, brought  a separate state court  action chal-          lenging the pricing  order, under which the  Commissioner threat-          ened to  suspend its  license to sell  milk in  Massachusetts for          failure to pay its monthly differential  assessments to the Fund.          On April 15, 1993, the Massachusetts Supreme Judicial Court ruled          that the pricing  order did not violate the Commerce Clause.  See                                                                        ___          West Lynn  Creamery, Inc.  v. Commissioner of  Dep't of  Food and          _________________________     ___________________________________          Agric., 415 Mass.  8, 611 N.E.2d 239, cert.  granted, 62 U.S.L.W.          ______                                _____  _______          3244 (U.S. Oct. 4, 1993) (No. 93-141).               6The first amended complaint merely alleged that the pricing          order "has  the same  effect as a  'customs duty'  or 'protective          tariff' on the  importation of  milk produced  in other  states,"          "subsidizes  Massachusetts farmers  which  causes the  disorderly          marketing  of  milk,"   causes  out-of-state  farmers,  including          plaintiffs, to  suffer economic harm and competitive disadvantage          because it subsidizes  Massachusetts farmers, and may  force out-          of-state farmers, including plaintiffs, out of business.                                          4          Watson, No.  92-11641-Z, 1992 U.S.  Dist. LEXIS 19306, at  *4 (D.          ______          Mass. 1992).   The  district court noted  that the  first amended          complaint contained no  allegations that the plaintiffs  had sold          less  milk in Massachusetts  since February 26, 1992,  received a          lower price for their milk, or were otherwise frustrated in their          attempt to "undersell" Massachusetts producers.                    The  district court denied plaintiffs' motion to recast          their first  amended complaint by  adding two paragraphs  for the          stated purpose of  alleging "with greater specificity  'injury in          fact' to meet the requirement  of more 'specific, factual allega-          tions  of injury.'"    The district  court  summarily denied  the          ensuing motion for relief from judgment under Fed. R. Civ. P. 60.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Applicable Law of Standing.          A.   Applicable Law of Standing.               __________________________                    Article III  of the Constitution  limits federal "judi-          cial power" to the resolution of "cases" and "controversies," see                                                                        ___          U.S. Const.  art. III; only  if it is  presented with a  "case or          controversy" may an  Article III court entertain an  action.  See                                                                        ___          Warth v. Seldin, 422 U.S. 490,  498 (1975); United States v.  AVX          _____    ______                             _____________     ___          Corp., 962 F.2d 108, 113 (1st Cir.  1992).  In its constitutional          _____          formulation, the  doctrine of standing is a  gatekeeper of justi-          ciability,  and  "serves  to identify  those  disputes  which are          appropriately resolved through  the judicial process."   Whitmore                                                                   ________          v. Arkansas, 495 U.S. 149,  155 (1990).  The "irreducible consti-             ________          tutional minimum of standing" entails three elements:                                          5                    First,  the plaintiff  must have  suffered an                    "injury  in fact"    an invasion of a legally                    protected interest which is (a) concrete  and                    particularized; and  (b) actual  or imminent,                    not  conjectural  or hypothetical.    Second,                    there must be a causal connection between the                    injury and the  conduct complained of     the                    injury  has  to  be fairly  traceable  to the                    challenged action  of the defendant,  and not                    the result of the  independent action of some                    third  party not before the court.  Third, it                    must be "likely" as opposed to merely "specu-                    lative," that the injury will be redressed by                    a favorable decision.          Lujan  v. Defenders  of Wildlife,  112 S.  Ct. 2130,  2136 (1992)          _____     ______________________          (citations and some  internal quotation marks omitted);  see also                                                                   ___ ____          Northeastern Fla. Chapter  of Associated Gen. Contractors  of Am.          _________________________________________________________________          v. Jacksonville, 113 S.  Ct. 2297 (1993);  AVX, 962 F.2d at  113;             ____________                            ___          Munoz-Mendoza v. Pierce, 711 F.2d 421, 424 (1st Cir. 1983).7          _____________    ______                                        ____________________               7Prudential limitations on the exercise of federal jurisdic-          tion      self-imposed rules  of  judicial  restraint     may  be          invoked even if  all constitutional essentials  are present.   As          the  Supreme Court has acknowledged, however,  "it has not always          been  clear in  the opinions  of  [the] Court  whether particular          features of the 'standing' requirement have been required by Art.          III ex proprio vigore, or  whether they are requirements that the              __ _______ ______          Court  itself has  erected and  which were  not compelled  by the          language of the Constitution."  Valley Forge Christian College v.                                          ______________________________          Americans United  for Separation of  Church and State,  Inc., 454          ____________________________________________________________          U.S. 464,  471 (1982).   Nonetheless,  at least  three prudential          principles bear importantly  on "standing".  First,  the litigant          must  assert its  own legal  rights and  interests, not  those of          third parties.  Warth, 422 U.S.  at 499.  Second, claimants  with                          _____          "generalized grievances" shared  by a large class of citizens and          raising "abstract questions of wide public significance" normally          will be denied standing, as such questions are more appropriately          addressed to the  representative branches of government.   Valley                                                                     ______          Forge, 454 U.S. at 475.   Finally, the claim presented  must come          _____          within "the zone of interests to be protected or regulated by the          statute or constitutional guarantee in question."  Association of                                                             ______________          Data  Processing Serv.  Orgs., Inc.  v. Camp,  397 U.S.  150, 153          ___________________________________     ____          (1970).               In  the instant case, appellees  have not suggested that the          appellant producers are asserting rights and interests other than          their  own; the complaint  does not allege  a "generalized griev-                                          6                    The  injury-in-fact inquiry  "serves  to distinguish  a          person with a direct stake in the outcome of a litigation    even                        ______ _____                                   ____          though small    from  a person with a mere interest  in the prob-          ______ _____          lem."   United States  v. Students Challenging  Regulatory Agency                  _____________     _______________________________________          Procedures  (SCRAP),  412  U.S. 669,  690  n.  14  (1973) (citing          ___________________          Kenneth C. Davis,  Standing: Taxpayers and Others, 35  U. Chi. L.                             ______________________________          Rev. 601,  613  (1968) ("an  identifiable  trifle is  enough  for          standing  to fight  out  a  question  of  principle"))  (emphasis          added);  see Bowman v. Wilson, 672 F.2d 1145, 1151 (3d Cir. 1982)                   ___ ______    ______          ("The  contours  of  the injury-in-fact  requirement,  while  not          precisely  defined,  are  very  generous,"  requiring  only  that          claimant "allege[] some specific, 'identifiable trifle' of injury          . . . ."); Tax Analysts & Advocates v. Blumenthal,  566 F.2d 130,                     ________________________    __________          138 (D.C. Cir. 1977) (distinct and palpable competitive injury is          injury-in-fact for standing  purposes even if economic  injury is          slight in magnitude), cert. denied, 434 U.S. 1086 (1978).  Courts                                _____ ______          "may reasonably expect  that a person so harmed  will, as best he          can, frame the  relevant questions with specificity,  contest the          issues  with the necessary adverseness, and pursue the litigation          vigorously."  Barlow v. Collins, 397 U.S. 159, 172 (1970).                        ______    _______                                        ____________________          ance" more appropriately  addressed to another branch  of govern-          ment; and  appellants, as milk  producers who ship  in interstate          commerce,  would appear  to  be within  the  "zone of  interests"          protected by  the Commerce  Clause, see Dennis,  498 U.S.  at 449                                              ___ ______          (Commerce  Clause was  intended  to  benefit  those  involved  in          interstate commerce and is the source of a right of action on the          part of those  injured by state  regulation of commerce)  (citing          Boston Stock  Exch. v.  State Tax Comm'n,  429 U.S. 318,  320 n.3          ___________________     ________________          (1976)).                                          7                    The  responsibility   for  "clearly   and  specifically          set[ting]  forth  facts  sufficient to  satisfy  the  Article III          standing  requirements" rests with  the claimant.   Whitmore, 495                                                              ________          U.S. at 155-56; see also Lujan, 112 S. Ct. at 2136;  FW/PBS, Inc.                          ___ ____ _____                       ____________          v. Dallas, 493 U.S. 215, 231 (1990); Warth, 422 U.S. at 518; AVX,             ______                            _____                   ___          962 F.2d  at 114.  Like  the trial court, we "accept  as true all          material  allegations of  the complaint,  and  must construe  the          complaint in favor of the complaining party."  Warth, 422 U.S. at                                                         _____          501; see AVX,  962 F.2d at  114.8  "'[E]mpirically  unverifiable'               ___ ___          conclusions,  not 'logically compelled, or at least supported, by          the stated facts,' deserve no deference."  Id. (quoting Dartmouth                                                     __           _________          Review v.  Dartmouth College, 889  F.2d 13, 16 (1st  Cir. 1989)).          ______     _________________          Within this analytic framework, we examine appellants' claims.          B.   The District Court Decision.          B.   The District Court Decision.               ___________________________                    The  district court found  that the first  amended com-          plaint raised general allegations of "economic harm" or "competi-                        _______          tive  disadvantage" but alleged  no "specific" facts  which would          substantiate  actual injury,  such as  reduced  out-of-state milk          sales to Massachusetts dealers,  or lower milk prices  to out-of-          state producers.  The court noted:                                        ____________________               8Although the Commissioner contends  that the district court          correctly  applied AVX's  "heightened" requirements  for pleading                             ___          "standing," AVX, 962  F.2d at 113, we note no  citation or refer-                      ___          ence  to AVX in  the district court  opinion.   Since we conclude                   ___          that the proposed second amended complaint meets either standard,          however,  we need not revisit AVX in light of the Supreme Court's                                        ___          recent  decision in Leatherman v. Tarrant County Narcotics Intel-                              __________    _______________________________          ligence & Coordination Unit, 113 S. Ct. 1160 (1993).          ___________________________                                          8                    In  complaining that  the  subsidy in  itself                    injures   out-of-state   farmers,  plaintiffs                    assume  a  perfectly  competitive  market  in                    which a  direct subsidy to  local farmers re-                    sults  in their  capture of  a larger  market                    share  because they can offer their milk at a                    lower price.  Such analysis  ignores the fact                    that there  is [a]  federal price support  in                    effect.   Because the  milk dealers  must pay                    the federal minimum price  to any dairy farm-                                                  ___                    er, there  is no incentive  to purchase local                    rather than out-of-state milk.          Adams, No. 92-11641-Z, 1992 U.S. Dist. LEXIS 19306, at *4 n.4.           _____          C.   Allegations of "Competitive Injury."          C.   Allegations of "Competitive Injury."               __________________________________                    Since  the proposed  second amended  complaint did  not          address  the perceived  deficiencies in  the  first amended  com-          plaint, and the  district court did not elaborate  on its reasons          for denying the motion to amend, we assume that the court consid-          ered  the  proposed  amendment futile.    See  Correa-Martinez v.                                                    ___  _______________          Arrillaga-Belendez, 903 F.2d 49, 59 (1st  Cir. 1990).  According-          __________________          ly, setting to  one side the first amended  complaint, we inquire          whether the second  amended complaint alleged an  actual or immi-          nent  "injury-in-fact"  proximately  caused   by  the  challenged          pricing order.   Id. (suggesting  that denial of motion  to amend                           ___          constitutes abuse of discretion "if no justification appears").                    The second amended complaint, paraphrased, alleges that          the following chain of economic events will result in appellants'          loss of future income, profits, and business opportunities:                     All milk currently produced  by appellants is                    sold in  the  Massachusetts  milk  market  in                    direct  competition  with  Massachusetts milk                    producers.   As a  direct consequence of  the                    differential  assessments Massachusetts  milk                    dealers must pay  into the Fund for  each cwt                                          9                    purchased  from  producers,9   consumer  milk                    prices  in  Massachusetts   will  rise  since                    dealers, in  all likelihood, will  pass along                    at  least  some  portion of  their  increased                    costs to Massachusetts consumers.10                    Consumer  demand  will   decrease  as  prices                    increase.  In  this shrinking market,  Massa-                    chusetts  dealers will  continue  to buy  all                    available  milk  produced  in  Massachusetts,                    because of their "preference"  for local sup-                                      __________   ___ _____ ____                    plies, due to the lower transportation  costs                    _____                    and lesser producer-to-consumer delivery time                    (perishability  being a  major industry  con-                    cern).  Higher milk prices and increased dis-                    bursements from the  Fund will induce greater                    milk production  by Massachusetts  producers,                    thereby  lowering the  current 90%  Massachu-                    setts  market share  enjoyed by  out-of-state                    producers.   Moreover, even  if Massachusetts                    milk prices were to remain relatively stable,                    individual Massachusetts producers would have                    a  strong  incentive to  increase  production                    over their  fellow home state  dairy farmers,                    since  Fund disbursements  are based  on each                    producer's relative  share of  overall Massa-                               ________                    chusetts milk production.                                   __________                    As  Massachusetts  producers  increase  their                    market share, out-of-state milk will be  dis-                    placed,   and   "overflow"   into  interstate                    commerce.   These  resulting surplus  "inter-                    state"  supplies  will  deflate  the  federal                    "blend" or minimum  price under Order  No. 1.                    Since appellants previously sold their entire                    milk  production  in Massachusetts,  some  of                    their out-of-state  milk will  be "displaced"                    by Massachusetts-produced milk.  As Massachu-                    setts consumer demand decreases, out-of-state                    producers will  no longer be able  to command                                        ____________________               9Appellants concede that the Fund's collection mechanism, by                                                   __________          itself, does  not injure them.  Since  Massachusetts dealers must          pay  an assessment  on  every  cwt  purchased,  whether  produced          locally or out-of-state,  dealers could not reduce  their assess-          ments to the Fund by avoiding out-of-state purchases.               10By proscribing "unconscionable"  consumer price increases,          section VIII(b) of the pricing order merely places an outer limit          on the total amount of  differential assessment costs dealers may          pass along to consumers.                                            10                    the  same premium  prices (in  excess  of the                    federal  "blend price")  received before  the                    challenged pricing order.   See supra note 3.                                                ___ _____                    Massachusetts  producers  will  be  insulated                    from any  federal blend-price  deflation, be-                    cause,  under the  Fund's collection  formula                    the  greater the gap between $15 and the fed-                                     ___                    eral blend price, the larger the differential                    assessments  Massachusetts  dealers  must pay                    into the Fund, and  therefore, the larger the                    Fund disbursements to Massachusetts producers                    (but not to out-of-state producers).   Unless                    remedied, the challenged pricing order event-                    ually would lead  to the failure and  closure                    of appellants' businesses.11          D.   "Imminence" and "Particularity" of Economic Injury.          D.   "Imminence" and "Particularity" of Economic Injury.                _________________________________________________                    The  district  court correctly  noted  that appellants'          current  income and profits do not substantiate their allegations          of economic  injury.  As  of the district court  dismissal order,          appellants continued to sell their entire milk production to West          Lynn Creamery,  and neither the  volume nor the price  had abated          since the pricing order went into effect.  For their part, appel-          lees  cite to  several cases  holding  that the  "injury-in-fact"          requirement is  satisfied at  the pleading  stage by  allegations          that  the plaintiffs  sustained  actual  financial  loss,  fairly          traceable  to the  challenged regulation,  between its  effective          date and the  filing of the complaint.  See, e.g., Minnesota Milk                                                  ___  ____  ______________          Producers Ass'n v. Madigan, 956  F.2d 816, 818-19 (8th Cir. 1992)          _______________    _______          ("The producers  have alleged  that  the provisions  of the  Sec-                                        ____________________               11The  Commissioner characterizes  these  dire forecasts  as          speculative.  Nevertheless, the affidavit of West Lynn Creamery's          president attests that the dairy industry's economic woes are not          restricted to Massachusetts, and that out-of-state milk producers          likewise are in precarious financial straits.                                          11          retary's  orders directly  cause a  reduction in  the price  they          receive for their milk.").12                    Although at  the pleading  stage "injury-in-fact"  need          not entail currently realized economic loss, Article III standing                               ________          in  the commercial  context must  be premised,  at a  minimum, on          particularized  future  economic  injury  which,  though  latent,          nonetheless qualifies  as "imminent."   See Lujan, 112 S.  Ct. at                                                  ___ _____          2136.  Our review of  the pertinent authorities satisfies us that          the  proposed  second  amended  complaint alleges  particularized          future economic injury  sufficient to support Article  III stand-          ______          ing.                    In Rental  Hous. Ass'n  of Greater  Lynn v. Hills,  548                       _____________________________________    _____          F.2d 388  (1st Cir.  1977), the Department  of Housing  and Urban          Development  (HUD)  approved funding  to  convert factories  into          housing for the elderly.  While the project was still in process,          an  association of local  landlords brought suit  in federal dis-          trict court, complaining that the  grant contravened Section 8 of          the Housing and Community Development Act of 1974, and threatened          "competitive injury" to the plaintiff association's  members, who          "will lose tenants to the new project."  Id. at 389.  Finding the                                                   ___                                        ____________________               12The parties  to the  present appeal  debate whether  cases          like AVX, dealing with "associational standing," have any bearing               ___          on the  question of the individual  appellants' "injury-in-fact."                                  __________          An  essential element  of "associational standing"  is injury-in-          fact  to some member  of the association.   See AVX,  962 F.2d at                        ______                        ___ ___          116.  Thus,  insofar as these  associational standing cases  deal          with  the requirements of "injury-in-fact," we cite them through-          out this opinion, as appropriate.                                          12          "competitive injury" allegations sufficient  to survive a  motion          to dismiss, we stated:                      While the  [] project  is not  yet completed,                    and hence specific proof of competitive inju-                              ________ _____                    ry  is  not  possible,  it  could  hardly  be                    thought that administrative  action likely to                    cause  harm cannot be  challenged until it is                    too late.  We see no insurmountable obstacles                                      __ ______________ _________                    to proof of the likelihood that [plaintiff's]                    __ _____                    members will  lose tenants to the [] project.          Id.  (citation omitted)  (emphasis added).   We  noted  that many          ___          cases  uphold "competitor standing"  based on  "unadorned allega-          tions" of latent economic injury.  Id. at 390; see, e.g., Associ-                                             ___         ___  ____  _______          ation of Data Processing Serv. Orgs. v.  Camp, 397 U.S. 150, 152,          ____________________________________     ____          154  (1970) (sellers of  data processing services  "no doubt" had          standing  to test  ruling allowing  national banks  to sell  data          processing services;  injury-in-fact element  met by  allegations          that  competition from national  banks "might entail  some future          loss of  profits"  and  that  respondent bank  was  preparing  to          perform data processing  services for two of  plaintiffs' custom-          ers);  Arnold Tours,  Inc. v.  Camp,  400 U.S.  45, 45-46  (1970)                 ___________________     ____          (holding that  travel agents  had "competitor  standing" to  test          ruling  allowing  national  banks to  provide  travel  services);          Investment Co. Inst. v. Camp,  401 U.S. 617, 620-21 (1971) (find-          ____________________    ____          ing "competitor standing,"  on the part of  investment companies,          to test a regulatory ruling authorizing national banks to operate          collective investment funds).13                                        ____________________               13See also, e.g., Associated Gas Distribs. v. Federal Energy                 ___ ____  ____  ________________________    ______________          Regulatory Comm'n, 899  F.2d 1250, 1258 (D.C. Cir. 1990) (holding          _________________          that, even if no "specific instances of existing competition" had          been asserted, FERC's decision authorizes transportation and sale                                          13                    The proposed  second amended complaint meets the bench-          mark for "competitor standing"  established by these authorities.                                        ____________________          of gas which "threaten AGD's members competitively, because AGD's          members include local  distribution companies who may  lose busi-                                                            ___  ____          ness  to  allegedly  illegal   transactions")  (emphasis  added);          Securities Indus. Ass'n  v. Clarke, 885 F.2d 1034,  1038 (2d Cir.          _______________________     ______          1989)  (securities   dealers  sufficiently   alleged  competitive          injury-in-fact for "standing" to test regulatory ruling  allowing          banks to  sell mortgage pass-through certificates),  cert denied,                                                               ____ ______          493 U.S. 1070 (1990); Bullfrog Films, Inc. v. Wick, 847 F.2d 502,                                ____________________    ____          506  (9th Cir.  1988) (film  distributors  and exporters  alleged          sufficient injury-in-fact to test custom duties that "put[] their          films  at a competitive disadvantage in the international market-          place  . . . ., [a]lthough  plaintiffs did  not produce  evidence          that the payment of custom duties . . . caused decreased sales or          profits"); National Coal Ass'n v.  Hodel, 825 F.2d 523, 526 (D.C.                     ___________________     _____          Cir.  1987) (holding  that Secretary  of  Interior's decision  to          allow land exchange so that plaintiff's competitor could  mine "a          large  tract of  previously  unmineable  land  . . .  undoubtedly                                                                ___________          satisf[ies]  constitutional  standing   requirements")  (emphasis          added);  Investment  Co.  Inst. and  Securities  Indus.  Ass'n v.                   _____________________________________________________          Federal Deposit  Ins.  Corp., 815  F.2d  1540, 1543  (D.C.  Cir.)          ____________________________          (holding that  FDIC ruling  allowing insured  nonmember banks  to          enter securities  field  will  deal  petitioners,  who  represent          mutual  fund  companies and  investment  bankers,  a "competitive          injury"), cert denied, 484 U.S. 847  (1987); Sea-Land Serv., Inc.                    ____ ______                        ____________________          v.  Dole, 723  F.2d 975,  977 (D.C.  Cir. 1983)  (concluding that              ____          plaintiff, which operated vessels  on nonsubsidized trade routes,          had  alleged sufficient "competitive harm"  to test a decision by          Department of Transportation allowing  subsidized carrier to call          on ports  off its subsidized  route), cert. denied, 469  U.S. 824                                                _____ ______          (1984);  Peoples Gas, Light & Coke Co.  v. U.S. Postal Serv., 658                   _____________________________     _________________          F.2d 1182, 1194 & n.9 (7th  Cir. 1981) (finding that plaintiff, a          gas company, which alleged "a loss of future revenue" from postal          service's plan to  install electric  instead of  gas system,  had          suffered a non-"speculative" competitive injury; judicial invali-          dation  of first bidding  procedure "offer[s] at  least a likeli-          hood" that  plaintiff, a  potential bidder,  would ultimately  be          awarded  the government contract);  P.A.M. News Corp.  v. Hardin,                                              _________________     ______          440  F.2d 255, 257  (D.C. Cir.  1971) (concluding  that plaintiff          alleged  competitive  injury  from  Department  of  Agriculture's          decision to  allow free access to agricultural data, since plain-          tiffs previously compiled  and sold information to  public);  cf.                                                                        ___          Simmons v. Interstate Commerce  Comm'n, 900 F.2d 1023,  1026 (7th          _______    ___________________________          Cir.  1990)  (holding  that  rival  shippers  alleged  sufficient          injury-in-fact to contest  ICC decision to permit  abandonment of          rail  line,  where  plaintiffs' competitor's  line  remains open,          although  injury  was  not  ultimately  redressable  by  judicial          action), cert. denied, 499 U.S. 919 (1991).                   _____ ______                                          14          The  Camp triad  and Rental Housing  cases are all  premised on a               ____            ______________          plaintiff's  status as a direct competitor  whose position in the                       ______      ______ __________          relevant marketplace  would be  affected adversely  by the  chal-          lenged  governmental action.   Cf. Energy Transp.  Group, Inc. v.                                         ___ ___________________________          Maritime Admin.,  956 F.2d 1206,  1215 (D.C. Cir.  1992) (finding          _______________          that a disgruntled contract bidder, although generally engaged in                                                       _________          the fuel  transportation business,  failed  to allege  sufficient          "competitive  injury" where  it could  not  presently, or  within          prescribed future period, perform the particular types of servic-          es required by  the contract at issue).  The  Supreme Court found          "competitor  standing" in  the  Camp cases  based  on an  alleged                                          ____          potential  for heightened competition  in a national marketplace.                                                      ________          Thus, arguably at  least, the narrower the  relevant marketplace,                                        ________          as in Rental Housing (municipality) and here (state), the greater                ______________          the likelihood that  a plaintiff will experience  future economic          loss  as a consequence  of the competitive  advantage bestowed on          its direct competitor.             In  some  "direct  competitor"          cases, future injury-in-fact is viewed as "obvious" since govern-          ment action that removes or eases only the competitive burdens on          the plaintiff's  rivals  plainly  disadvantages  the  plaintiff's                           ______          competitive position  in  the  relevant  marketplace.    However,          "[w]here 'injury' and 'cause' are not obvious, the plaintiff must                                            ___ _______          plead  their existence  in his  complaint with  a fair  degree of          specificity."  Munoz-Mendoza, 711 F.2d at 425 (emphasis added).                         _____________                    There can  be no  question but  that out-of-state  milk          producers  are  in  direct  competition  with Massachusetts  milk                                          15          producers.   At the  very least,  out-of-state producers  have to          defend  their current 90% share of  the Massachusetts milk market          and may even  elect to compete  with Massachusetts producers  for          the  remaining 10%  market share.14   If,  as alleged,  see supra                                                                  ___ _____          pp. 9-11,  Massachusetts  producers were  to  realize  sufficient          infusions of capital to increase their  milk production and their          Massachusetts market share, it is "obvious" that appellants would          sustain  direct economic harm commensurate with the diminution of          their current market share.                    Even assuming,  however, for discussion  purposes, that          the causal nexus between the challenged pricing order  and appel-          lants' alleged competitive injury is not  sufficiently "obvious,"          we  are not persuaded  by the Commissioner's  contention that the          sequence  of  economic  events projected  in  the  second amended          complaint is  too conclusory,  speculative or  attenuated.   See,                                                                       ___          e.g., United  Transp. Union  v. Interstate  Commerce Comm'n,  891          ____  _____________________     ___________________________          F.2d 908,  912 (D.C. Cir.  1989) ("When considering any  chain of          allegations  for standing  purposes,  we  may  reject  as  overly          speculative . . . predictions of future events (especially future                                                                     ______          actions  by  third  parties)  . . . .")  (emphasis  added), cert.          _______  __  _____  _______                                 _____          denied, 497  U.S. 1024 (1990).   In order to  demonstrate "stand-          ______          ing," "pleadings must be something more than an ingenious academ-                                        ____________________               14The  Commissioner points out that appellants do not allege          that  they can  increase their  future milk  production so  as to          displace the  Massachusetts  producers  from  their  current  10%          market  share.  Even assuming that this omission undermines their          claimed "injury-in-fact" with  respect to the 10% share, there is          no requirement  that a plaintiff  plead multiple forms  of future                                                  ________          injury-in-fact.                                          16          ic  exercise in  the  conceivable"; a  plaintiff  may not  simply          assert "that  he can imagine  circumstances in which he  could be          affected by the agency's  action."  SCRAP, 412 U.S. at  689.  The                                              _____          more remote in time the alleged injury-in-fact,  the less obvious          the "concreteness of the controversy."  Thus, where the complaint          relies only on prospective harm, it  "'must demonstrate a realis-          tic danger  of  sustaining a  direct  injury.'"   United  Transp.                                                            _______________          Union, 891 F.2d at 913.  On the other hand, "competitor standing"          _____          cases  necessarily  turn  on degrees  of  probability,  see Mount                 ___________           _______  __  ___________   ___ _____          Wilson FM  Broadcasters, Inc.  v. Federal  Communications Comm'n,          _____________________________     ______________________________          884  F.2d 1462,  1465 (D.C.  Cir.  1989) ("If  an[] agency's  act          creates  'a substantial probability' of  an 'injury in fact,' the          causation  requirement of  Article  III is  satisfied.") (quoting          Warth, 422 U.S. at 504), a measurement "not easily susceptible to          _____          concrete definitions or mechanical application," AVX, 962 F.2d at                                                           ___          113.                    All predictions are conjectural to a degree.  Somewhere          along the spectrum of probability, between tomorrow's sunrise and          "unadorned  speculation," see, e.g., Diamond v. Charles, 476 U.S.                                    ___  ____  _______    _______          54, 66 (1986) (pediatrician's allegations of injury-in-fact based          on assertion  that aborted  fetuses might  otherwise have  become          fee-paying patients),  lie appellants' allegations  of "imminent"          injury-in-fact based  on the laws  of economics.  Economics  is a          cross between an  art and  a science,  which is to  say, both  an          imperfect art and an imperfect science.  While the law  of supply          and  demand may sometimes  be suspended by  unpredictable market-                                          17          place  decisions, and even lesser fortuities like bovine obstina-          cy,  basic economic  theory quite  consistently transcends  utter          randomness by positing  elemental laws of cause and effect predi-          cated on actual  market experience and probable  market behavior.                                                 ________          Indeed,  most "competitor  standing" cases  depend  on such  core          economic postulates.   See United Transp. Union, 891  F.2d at 913                                 ___ ____________________          (noting that  in  "garden  variety  competitor  standing  cases,"          courts  routinely credit causal connections "firmly rooted in the          basic  laws of  economics" or "basic  economic logic");  see also                                                                   ___ ____          American Soc'y  of Travel  Agents, Inc.  v. Blumenthal,  566 F.2d          _______________________________________     __________          145, 157  (D.C. Cir. 1977)  ("[A]ll claims of  competitive injury          are  to some extent speculative  [and] predicated on the indepen-          dent  decisions of  third  parties,  i.e.  customers.    However,          economics is the  science of predicting these  economic decisions          . . . .") (Bazelon, J.,  dissenting), cert. denied, 435  U.S. 947                                                _____ ______          (1978).                    In Rental Housing, we credited at face value an allega-                       ______________          tion  that  the plaintiff  landlords, representing  slightly more          than one-third  of the  renters in  the relevant  housing market,          would "lose tenants"  to the HUD-subsidized project,  even though          their  economic prediction plainly  depended on the  decisions of          any number of independent parties    inter  alia, elderly tenants                                               _____  ____          seeking suitable housing, local zoning and planning boards, other          federal and state  agencies, and lending  institutions    not  to          mention less predictable  factors such as disasters,  e.g., fire.                                                                ____          Two rational economic assumptions nonetheless combined to make it                                          18          sufficiently "probable"  that the  landlords would sustain  "con-          crete"  future  injury:  by increasing  the  volume  of available          housing in a defined market, both consumer demand and prices were          likely  to fall.   Similar economic principles  impelled the Camp                                                                       ____          triad decisions  on "competitor standing."   See also  supra note                                                       ___ ____  _____          13.                    The  second amended complaint, much like that in Rental                                                                     ______          Housing, is based  on standard principles of  "supply and demand"          _______          routinely  credited by  courts in  a variety  of contexts.   See,                                                                       ___          e.g.,  Minneapolis Star  &  Tribune Co.  v.  Minnesota Comm'r  of          ____   ________________________________      ____________________          Revenue, 460  U.S. 575, 590  (1983) (price or sales  tax increase          _______          "presumably will cause a decrease in demand" for product) (citing          Paul A.  Samuelson, Economics  381-83, 389-90  (10th ed.  1976));          Competitive Enter.  Inst.  v.  National  Highway  Traffic  Safety          _________________________      __________________________________          Admin., 901 F.2d 107, 125 (D.C. Cir. 1990) ("Since the demand for          ______          a product is decreased as its price is increased . . . ."); Alcan                                                                      _____          Sales, Div.  of Alcan Aluminum  Corp. v. United States,  693 F.2d          _____________________________________    _____________          1089, 1092 (Fed. Cir. 1982) (nonrefundable federal surcharges are          likely to  be more  effective in  decreasing demand  for imported          goods because importers  are more likely "to pass  along the cost          of the surcharge  through to consumers  . . . ."), cert.  denied,                                                             _____  ______          461 U.S.  943 (1983).   In the present  case, the  more industry-          specific allegations    such as Massachusetts dealers' preference          for indigenous milk supplies    are confirmed by the affidavit of          Dr. Ronald Knutson,  a national expert in dairy  industry econom-          ics, see  supra pp.  9-11.  We  conclude, therefore,  that rather               ___  _____                                          19          than  "empirically   unverifiable"  conclusions,   see  Dartmouth                                                             ___  _________          Review,  889 F.2d  at 16,  the  economic "facts"  alleged in  the          ______          proposed second amended  complaint set forth adequate  grounds to          demonstrate,  at the pleading stage, a sufficient likelihood that                        __ ___ ________ _____          the  challenged pricing order will result in reduced out-of-state          milk sales to Massachusetts dealers at lower prices.                    Even  assuming that out-of-state producers, as a class,                                                                __ _ _____          might be  injured under  appellants' forecasts, the  Commissioner          contends that  these individual appellants failed  to demonstrate                               __________          either injury-in-fact  or that West  Lynn Creamery will  buy less          than 100%  of their milk  production in  the event  Massachusetts          production is  increased in  the future.   Once again,  we cannot          agree.    Like  other  Massachusetts dealers  with  whom  it must          compete, West Lynn's self-interest (in lower transportation costs          and reduced perishability) will be served by purchasing milk from          nearby producers,  which at  least in many,  perhaps most,  cases          will be producers located in Massachusetts.  In that eventuality,          the out-of-state producers' current 97% share of West Lynn's milk          business would decline.   Nor is there anything  in the appellate          record to  suggest that  West Lynn has  a non-economic  motive to                                                    ____________          spare these individual appellants at the expense of other out-of-          state producers.  Furthermore, even if the  alleged reductions in          out-of-state  milk purchases were  minimal at the  outset, appel-          lants would no  longer be able to  command as high a  premium for                                                                _______          their milk,  because they would  then have to compete  with other          out-of-state  producers  to  supply a  diminished  share  of West                                          20          Lynn's import needs.  Finally,  as out-of-state milk is displaced          in the Massachusetts marketplace  and "overflows" into interstate          commerce,  the federal  blend price  will  deflate, lowering  the          "safety  net" for all  milk producers including  appellants.  For          these  reasons, we  cannot  agree with  the  conclusion that  the          federal "blend"  price insulates appellants  from all  cognizable          injury-in-fact, see supra pp. 8-9, or renders inconsequential all                          ___ _____          other  alleged injury-in-fact (e.g., loss of premium paid out-of-                                         ____          state producers prior to pricing order).                      Similarly, the Commissioner cannot carry the day on the          claim  that appellants' injury-in-fact is shared  with so large a          class (all out-of-state producers selling to  Massachusetts deal-          ers) that their respective shares of the aggregate injury will be          minimal.  "To  deny standing to  persons who are in  fact injured          simply because many others are  also injured, would mean that the          most injurious and  widespread Government actions could  be ques-          tioned by  nobody."  SCRAP,  412 U.S. at  687; see also  AVX, 962                               _____                     ___ ____  ___          F.2d  at 113 ("While the requisite injury  may be common to many,          it  may not be  shared by  all.") (citations  omitted).   Even if          appellants' market  "displacement" estimates  were grossly  exag-          gerated,  a relatively small economic  loss    even an "identifi-          able trifle"     is enough  to confer standing,  as it  affords a          constitutionally cognizable  stake  sufficient  to  ensure  their          vigorous prosecution of the litigation.   See Rental Hous. Ass'n,                                                    ___ __________________          548 F.2d at  389 (although plaintiffs collectively owned  7000 of          18,000  rental units in  relevant marketplace, and HUD-subsidized                                          21          competitor would develop only 183 units, "the injury required for          standing need not be substantial, it need only  exist") (emphasis                                            __ ____ ____  _____          added).                    Nor can the  Commissioner sustain the dismissal  on the          ground  that significant increases  in Massachusetts milk produc-          tion may be slow to materialize.   The meaning of the term "immi-          nent"  depends on the particular circumstances, and in the highly          competitive  environment  of  the  dairy  industry,  governmental          actions often have intractable, long-term consequences.  Particu-          larly apt here is our earlier observation in Rental Housing:  "it                                                       ______________          could hardly be thought that  [State] action likely to cause harm          cannot be  challenged until it is too late."  Rental Hous. Ass'n,                                                        __________________          548 F.2d at 389.  Although the "emergency" pricing order protect-          ed Massachusetts milk  producers from immediate erosion  of their          remaining 10% share of  the Massachusetts milk market  by out-of-          state producers, an actual increase in Massachusetts milk produc-          tion may take months or even years to materialize since it  would          depend upon long-term capital investments in dairy herd and  farm          expansions  and  infrastructure  improvements.    Once  realized,          however, the  Massachusetts producers' newfound  competitive edge          would likely continue for an  extended period.  See, e.g., Sabine                                                          ___  ____  ______          River Auth. v. United States Dep't of Interior, 951 F.2d 669, 675          ___________    _______________________________          (5th Cir.) (plaintiff's challenge  to government's acquisition of          perpetual  easement  to  wetlands area  alleged  sufficient  non-          speculative injury by projecting water shortage "some forty years          in the future"), cert. denied, 113 S. Ct. 75 (1992).                           _____ ______                                          22                    We  in  no way  suggest,  of  course, that  the  second          amended  complaint's  portrayal  of milk  industry  economics  is          beyond refutation  either on summary  judgment or at trial.   See                                                                        ___          SCRAP,  412 U.S. at  689 (where plaintiff  alleges a "perceptible          _____          harm,"  the defendant  should move  "for summary judgment  on the                                                   _______ ________          standing issue and demonstrate[]  to the District Court  that the          allegations  were  sham  . . . .")  (emphasis  added);  see  also                                                                  ___  ____          Bullfrog Films, Inc. v. Wick,  847 F.2d 502, 506 (9th Cir.  1988)          ____________________    ____          (holding  that  film   distributor-exporters  alleged  sufficient          injury-in-fact to challenge custom  duties which allegedly "put[]          their  films at a  competitive disadvantage in  the international          marketplace; "[a]lthough plaintiffs did not produce evidence that          the payment  of  custom duties  . . . caused  decreased sales  or          profits, at the summary judgment stage, a plaintiff's allegations          need not be  proven but  merely provable");  Citizens for  Envtl.                                                       ____________________          Quality v. United States,  731 F. Supp. 970, 973 (D.  Colo. 1989)          _______    _____________          (noting that opposing party could refute "general rule in econom-          ics [] that price decreases with increasing supply," by  explain-          ing "in highly  technical terms that local  timber markets depart          from  the general  economic rule  . . . .").15   As  we noted  in                                        ____________________               15We  think appellants were entitled, at the pleading stage,                                                     __ ___ ________ _____          to  presume that the milk industry  would be subject to the basic          economic laws at work in other competitive markets.  See supra p.                                                               ___ _____          9:                 The Supreme Court [in Camp] did  not ... require plain-                                     ____               tiffs  to allege in their complaint facts sufficient to                      __ ______ __ _____ _________               refute every possible  anomaly of the marketplace  such               as the  existence of  voluntary labor or  ideologically               committed consumers.  The Court assumed the marketplace               would function in a normal, predictable fashion, for to                                          23          Rental  Housing, at this  stage of appellants'  litigation, "[w]e          _______________          see          no insurmountable obstacles  to proof."  Rental  Hous. Ass'n, 548          __ ______________ _________  __ _____    ___________________          F.2d at 389 (emphasis added).16                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    As the proposed second amended complaint was sufficient          to survive the motion to  dismiss based on lack of standing,  the          motion  to amend was not futile and the order granting the motion          to dismiss must be vacated.                     The judgment is  vacated and the  case is remanded  for                    The judgment is  vacated and the  case is remanded  for                    _______________________________________________________                                        ____________________               assume  otherwise would be to foreclose the very possi-               bility of  ever satisfactorily  alleging a  competitive               injury.          American Soc'y, 566 F.2d at 158 (emphasis added).  We nonetheless          ________ _____          recognize, of  course, as did  the district court, that  the milk          industry is subject  to federal marketing orders.   Consequently,          where such economic anomalies are material, they may be tested at          summary judgment.                 16We take  no position respecting the merits of the Commerce          Clause  challenge,  which   implicates  questions  of  interstate          commerce  "burdens"  analytically distinct  from  the "injury-in-          fact" determination that is central to standing.  As noted above,          the Supreme Court  has decided to review the  underlying Commerce          Clause claim.   See West  Lynn Creamery, Inc. v.  Commissioner of                          ___ _________________________     _______________          Dep't  of Food  and Agric.,  415 Mass.  8, 611 N.E.2d  239, cert.          __________________________                                  _____          granted, 62 U.S.L.W. 3244 (U.S. Oct. 4, 1993) (No. 93-141).          _______                                          24          further proceedings consistent with this opinion.           further proceedings consistent with this opinion.          ________________________________________________                                          25
