Baseball Crank
Covering the Front and Back Pages of the Newspaper
March 23, 2005
LAW: This Is America?

The opening of a recent opinion of the United States Court of Appeals for the DC Circuit:

The Secretary of Agriculture ("Secretary") appeals the District Court's award of attorney's fees and costs to several milk marketing cooperatives under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 (2000). The underlying litigation involved a dispute between the cooperatives and the Secretary over the price of Class III butterfat. The Secretary argues that the District Court erred in concluding that the milk cooperatives were "prevailing parties" under EAJA and in calculating the amount of the award.

The price of raw milk and its component parts is governed by a complex regulatory regime known as the Federal Milk Marketing Orders ("FMMO"). The Secretary administers the FMMO pursuant to authority under the Agricultural Marketing Agreement Act ("AMAA"), 7 U.S.C. § 601 et seq. (2000). Prior to 2000, the price under the FMMO for Class III butterfat (which is used to make hard cheeses) was the same as the price for Class IV butterfat (which is used to make butter and nonfat dry milk). In December of that year, the Secretary promulgated a rule creating a separate price for Class III butterfat. The new price, which was to be announced on February 2, 2001, would have applied retroactively to transactions that had taken place in January 2001. See Select Milk Producers, Inc. v. Veneman, 304 F.Supp.2d 45, 48-49 (D.D.C.2004).

Select Milk Producers, Inc., Continental Dairy Products, Inc., and Elite Milk Producers, Inc. (collectively "Milk Producers") are milk marketing cooperatives, which would have been subject to an immediate loss of an estimated $5,000,000 if the new price for Class III butterfat had taken effect. Id. at 53. On January 31, 2001, the District Court granted Milk Producers' motion for a preliminary injunction enjoining the Secretary from imposing a separate price for Class III butterfat.

So, to summarize, we have a federal cabinet secretary setting - fixing - prices for dairy products, a staple commodity. And we have a federal court overturning this price-fixing, solely because - if you read the rest of the opinion - the Secretary failed to jump through enough bureaucratic hoops, requiring the price to be restored to a different price previously fixed by the same federal department. And we then have a federal court ordering that taxpayer money be given to a "milk marketing cooperative" for the benificient public service of filing a lawsuit over the absence of bureaucratic hoop-jumping.

In the immortal words of PJ O'Rourke, written long ago enough now to make you weep at how little has changed:

[F]arm policy, although it's complex, can be explained. What it can't be is believed. No cheating spouse, no teen with a wrecked family car, no mayor of Washington, DC, videotaped in flagrante delicto has ever come up with anything as farfetched as U.S. farm policy.
Posted by Baseball Crank at 11:59 PM | Law 2005 | Comments (1) | TrackBack (0)

When you consider the remarkable productivity of American farmers, it makes you wonder whether the productivity is the result of the our bizarre system or despite it? Some of both? How could we tell?

Posted by: Dave Schuler at March 24, 2005 9:23 AM
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