automatic and mandatory and without a provision for notice and hearing.
Finally, plaintiffs contend that since the Florida Tomato Committee is made up exclusively of Florida tomato producers, the plaintiffs are denied essential procedural safeguards by this unlawful delegation and are discriminated against in recommendations made to the Secretary. Defendants' position is that the motivation behind the recommendations of the Florida Committee is of no consequence and immaterial since the Secretary alone can issue regulations and the Committee has only the power to recommend them. Furthermore, Congress has the power to establish different procedures with respect to domestic regulations and import restrictions, and Congress has determined that whatever domestic regulations are reasonable and necessary under the marketing order to effectuate the declared policy of the Agricultural Marketing Agreement Act of 1937, the same shall also be applicable to imports under 608e-1. The theory is that unless imports are similarly controlled, the intent and purpose of the domestic regulations would be defeated, and by applying the same regulations to both domestic and imported commodities, both are accorded equitable treatment. Since the majority of tomatoes shipped from Florida are "mature green" and the majority of tomatoes imported from Mexico are "vine ripe", the plaintiffs claim that the large size requirement applicable to "vine ripes" tends to discriminate against the imports of Mexican tomatoes. With respect to these charges of discrimination, defendants answer that a single size requirement would tend to result in unequal withholdings as between the Florida growers of "mature greens" and "vine ripes", and the larger size applicable to the latter assures that producers of each of these tomatoes will withhold from shipment approximately the same percentage of tomatoes. This Court agrees with the defendants in their position on the merits of these various claims.
The plaintiffs' application for a temporary restraining order was heard on May 1, 1970, and denied by this Court for failure to demonstrate a likelihood that plaintiffs would prevail on the merits. On May 19, 1970, the Court likewise denied plaintiffs' motion for designation of a three-judge court in that it appeared to the Court that plaintiffs' constitutional attack upon 7 U.S.C. §§ 608c and 608e-1 was so insubstantial as to not require the convening of a three-judge court. That denial was appealed to the United States Court of Appeals for the District of Columbia and the appeal was dismissed. On June 2, 1970, plaintiffs filed an amended complaint with additional allegations but requesting the same relief; defendants' answer to the amended complaint was filed on August 3, 1970.
We come now to the present cross-motions for summary judgment and defendants' motion for dismissal. The Court has considered the oral and written arguments of counsel, as outlined in the preceding summary, as well as their authorities, and has concluded that there are not material issues of fact, that the statutes involved are constitutional, and that the Secretary of Agriculture was legally empowered to act as he did in issuing the contested regulations.
Accordingly, for the above reasons, the plaintiffs' motion for summary judgment and the defendants' motion for dismissal are denied, and the defendants' motion for summary judgment is granted. Defendants' counsel will submit an appropriate order.
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