Act of 1971, including 2 U.S.C. §§ 432-34.
The Federal Elections Campaign Act Amendments of 1974 is the law existing at this time, and this Court would be required to decide plaintiffs' second amended complaint claim for injunctive relief against the former dairy political committee for any alleged violations in future elections by applying that Act, pertinent criminal statutes, including 18 U.S.C. § 608, as amended, and pertinent provisions of the Federal Election Campaign Act of 1971, as amended. Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26, 43 U.S.L.W. 4773 (1975).
Section 208 of the Federal Elections Campaign Act Amendments of 1974, by amending section 310 of the Federal Elections Campaign Act of 1971, established a Federal Election Commission. "Any person who believes a violation of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18 [United States Code [as amended__ has occurred may file a complaint with the Commission." Pub. L. No. 93-443, § 208, 88 Stat. 1284, adding Federal Election Campaign Act § 314. Section 310(b), as amended, provides that the Commission has "primary jurisdiction" with respect to the civil enforcement of those statutory provisions. When a complaint is made to the Commission by a person, it is to report such complaint to the Attorney General and is to make its own investigation of the complained of violation. Pub. L. No. 93-443, § 208, 88 Stat. 1284, adding Federal Election Campaign Act § 314(a)(2)(A) and (B). If, following an investigation by the Commission, it believes a person has engaged in, or is about to engage in any acts or practices which constitute or will constitute violations of the Federal Election Campaign Act of 1971, as amended, it may endeavor to correct such violations by, among other things, instituting a civil action for injunctive relief against a person believed to be engaging in such illegal conduct. Also the Commission may refer past or future apparent violations of the 1971 Act, as amended, and the criminal code to the Attorney General, who upon request of the Commission is to institute a civil action for relief, including injunctive relief against the apparent violator.
In view of the primary jurisdiction vested in the Commission over the claimed dairy committee past and future violations, the plaintiffs, as taxpayers and milk consumers, as well as the class they would represent, must pursue the statutory remedy of a complaint to the Commission and invoke its authority to institute or to request the Attorney General to institute a civil action for the equitable relief they would seek in their second amended complaint. Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26, 43 U.S.L.W. 4773 (1975).
6. The final claim plaintiffs would assert by the second amended complaint is that the three dairy cooperative marketing associations and the four dairy political committees were illegally enriched by the March 25, 1971 milk price support order. Plaintiffs would have this Court require those dairy organizations to account for such enrichment as well as impose upon them a constructive trust in favor of all consumers of milk and milk products. Moreover, the plaintiffs would have this Court issue a mandatory injunction ordering those organizations to establish a reserve and to charge against that reserve until it is exhausted any future increases in prices of milk and dairy products that may be permitted "by federal price support determinations, federal milk marketing orders, or otherwise."
The lawsuit as instituted, and as prosecuted by the first amended complaint, was against the Secretary of Agriculture and the Commodity Credit Corporation. The relief sought was to declare the 1971-72 milk price support orders illegal and to enjoin the continuance of the price support level higher than the $ 4.66 figure established by the March 12, 1971 order. But now plaintiffs by this last claim in its proposed second amended complaint would in part convert this case into a private action by plaintiffs against seven dairy organizations which at no time heretofore have been parties to the action. Whatever merit, if any, there might be to a separate action by plaintiffs against those dairy organizations does not justify granting plaintiffs' motion to file a second amended complaint. See Watson v. Employers Liability Assurance Corp., 202 F.2d 407 (5th Cir. 1953), rev'd on other grounds, 348 U.S. 66, 99 L. Ed. 74, 75 S. Ct. 166 (1954). Moreover, it is also worthy of note in this connection that a month by month statistical summary submitted by the defendants indicates that the market price, or average price received by farmers for manufacturing milk, has exceeded the support price for every month from January 1972 to and including April 1974. (Affidavit of J. Phil Campbell, Under Secretary of Agriculture, May 23, 1974, attached to defendants' May 24, 1974 motion to dismiss); see note 3 supra.
7. An order will be entered denying plaintiffs' motion to file a second amended complaint.
III. Plaintiffs' Motion for Partial Summary Judgment
Plaintiffs seek a partial summary judgment in the form of a declaratory decree that the March 25, 1971 milk price support order was unconstitutional and unlawful and a permanent injunction enjoining the Secretary of Agriculture from issuing any milk price support orders in the future not in accord with 7 U.S.C. §§ 1421 and 1446.
From what has been said in this Memorandum Opinion, there is no basis for granting such a judgment. The motion will be denied.
IV. In Camera Materials
During the pendency of this action certain material has been furnished this Court for in camera inspection and determination. Since this case is being dismissed, that material will be returned to defendants' counsel.
For the reasons stated in the Memorandum Opinion and as provided in Local Rule 1-9(e), it is this 18th day of July, 1975,
ORDERED, that this action be and the same is hereby dismissed with prejudice as moot;
FURTHER ORDERED, that plaintiffs' motion to file a second amended complaint be and the same is hereby denied;
FURTHER ORDERED, that plaintiffs' motion for partial summary judgment be and the same is hereby denied; and
FURTHER ORDERED, that the materials heretofore lodged with the Court for an in camera inspection and determination be returned to counsel for the defendants.
William B. Jones / CHIEF JUDGE