                 United States Court of Appeals
                            F OR T HE D ISTRICT OF C OLUMBIA C IRCUIT
                                       ____________


No. 09-5286                                                     September Term 2010
                                                                        1:08-cv-01558-ESH
                                                        Filed On: December 13, 2010
Nick Koretoff, doing business as Nick Koretoff
Ranches, et al.,

               Appellants


      v.

Tom Vilsack,

               Appellee


      BEFORE:       Henderson,* Griffith, and Kavanaugh,* Circuit Judges


                                         ORDER

       Upon consideration of appellee’s petition for panel rehearing filed on October 18,
2010, and the response thereto, it is

      ORDERED that the petition be denied.

                                        Per Curiam

                                                            FOR THE COURT:
                                                            Mark J. Langer, Clerk
                                                    BY:     /s/
                                                            Michael C. McGrail
                                                            Deputy Clerk


* A statement by Circuit Judge Henderson concurring in the denial of rehearing is
attached.

* A statement by Circuit Judge Kavanaugh concurring in the denial of rehearing is
attached.
                 United States Court of Appeals
                             F OR T HE D ISTRICT OF C OLUMBIA C IRCUIT
                                        ____________

No. 09-5286                                                      September Term 2010

KAREN LECRAFT HENDERSON , Circuit Judge, concurring in the denial of panel rehearing:

       Unlike my colleague, I do not read the petition for rehearing as reflecting any change
in the Government’s litigation position. As it did before the panel, the Government argues
that producers are generally precluded from bringing an action under the Agricultural
Marketing Agreement Act subject to an exception for a producer litigating a “definite” and
“personal” right. See Pet. for Reh’g 8-12; Appellant’s Br. 15-20. It is true that the
Government did not expressly identify its argument before the panel as one of “standing”
but the term plainly applies and has so been used in Stark v. Wickard, 321 U.S. 288
(1944), and its progeny which the Government cited to the district court and to us. See
Stark v. Wickard, 321 U.S. at 305-306; Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351
(1984); Benson v. Schofield, 236 F.2d 719, 722 (D.C. Cir. 1956); Arkansas Dairy Co-op
Ass’n v. U.S. Dep’t of Agric., 573 F.3d 815, 817 (D.C. Cir. 2009); Koretoff v. Vilsack, 601
F. Supp.2d 238, 244 (D.D.C. 2009).1 The Government is simply repeating its previous
arguments and, having fought and lost that battle, I believe that rehearing is unwarranted.




       1
       None of these authorities (nor the Government) characterizes such standing as
grounded in Article III of the United States Constitution—rather its presence vel non is
determined by “the statutory scheme as a whole.” Block, 467 U.S. at 351.

                                             Page 2
       KAVANAUGH , Circuit Judge, concurring in the denial of panel rehearing:

       The only substantial question in this case is whether the Agricultural Marketing
Agreement Act (AMAA) precludes judicial review of the producers’ APA challenges to the
almond marketing order. See 7 U.S.C. §§ 601-674. As the panel opinion explained, the
AMAA does not explicitly or implicitly preclude the producers’ claims, at least not under the
Supreme Court’s precedents in Block and Stark, which permitted producers and handlers
(but not consumers) to challenge marketing orders. See Block v. Cmty. Nutrition Inst., 467
U.S. 340 (1983); Stark v. Wickard, 321 U.S. 288 (1944). The Court in Block summarized:
“The structure of this Act indicates that Congress intended only producers and handlers,
and not consumers, to ensure that the statutory objectives would be realized.” 467 U.S.
at 347.

        Apparently recognizing the difficulty with its argument that the AMAA implicitly
precludes judicial review of producer challenges to marketing orders, the Government has
opened a second front in its petition for rehearing. It now argues for the first time that the
producers lack standing to advance some (but not all) of their claims; in particular, the
Government contends that the marketing order in this case did not affect producers’
“definite personal rights.” Pet. for Reh’g at 6, 8. In its 25-page brief to the panel, the
Government never once suggested that the producers lacked standing, and for good
reason: The marketing order here directly thwarts the producers’ ability to sell their
almonds and significantly affects their livelihoods. To be sure, there may be cases where
agricultural marketing orders do not affect producers and where producers therefore would
not have standing. But this is not such a case.1

        The Government also claims that the panel decision will upset the AMAA scheme
for review of marketing orders. The Government is particularly concerned that producers
may sue without first exhausting administrative remedies, whereas handlers are statutorily
required to exhaust. But if the Government wants producers to exhaust their claims
administratively before suing, the Department of Agriculture may seek to adopt a regulation
requiring producers to exhaust, a point Judge Posner made in Alto Dairy v. Veneman, 336
F.3d 560, 568 (7th Cir. 2003). In any event, judicial review in this context is hardly as
fearsome or novel a prospect as the Government suggests. Most agency rules are of
course subject to judicial review under the APA. Indeed, agricultural marketing orders are
already subject to judicial review when challenged by handlers. And even the Government
now concedes that the AMAA allows some challenges by these producers (a concession
appearing for the first time in the Government’s petition for rehearing).
       Aside from the above problems, the Government’s petition suffers from a more
fundamental flaw: In light of the Administrative Procedure Act and binding Supreme Court
precedents, it would be highly unusual, at least absent some stronger indication of
congressional intent, to hold that a business directly affected by an agency’s economic
regulation can never challenge the legality of that agency rule in any judicial forum at any
time. It would be especially odd to find that the AMAA, which after all was enacted to
       1
         The Government is thus incorrect in saying that the panel decision “would
presumably allow producer suits even for matters that do not affect ‘definite personal
rights.’” Pet. for Reh’g at 9-10.


                                           Page 3
protect farmers, silently precludes farmers (i.e., producers) from challenging unlawful
agency orders that directly affect their ability to sell their products.




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