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NADER v. BUTZ

July 18, 1975

RALPH NADER, et al., Plaintiffs
v.
EARL H. BUTZ, et al., Defendants



The opinion of the court was delivered by: JONES

 The plaintiffs are Ralph Nader, Public Citizens, Inc., Federation of Homemakers, and Consumers Association of the District of Columbia. The defendants are Earl H. Butz, Secretary of Agriculture, and the Commodity Credit Corporation. This action was instituted on January 24, 1972, with the filing of plaintiffs' complaint, which was amended on February 8, 1972.

 The complaint as amended alleged that the March 25, 1971 order of the then Secretary of Agriculture Clifford M. Hardin setting the level of price support for milk and milk products for the marketing year, April 1, 1971 through March 31, 1972, was illegal. That order set the level of support at $ 4.93 per hundredweight, which plaintiffs asserted resulted from exertion of pressures by Members of Congress and the promise or expectation of political contributions from the dairy interests to the reelection campaign of the then President Richard Nixon. As a result of those pressures and expectations, plaintiffs asserted that Secretary Hardin disregarded the statutory command to consider a number of factors in establishing the milk and milk products price supports. 7 U.S.C. § 1421(b) (1970). Plaintiffs further alleged that Secretary Hardin had by a March 12, 1971 order established the price support level for the April 1, 1971 through March 31, 1972 marketing year at $ 4.66 per hundredweight, which order was vacated 13 days later by the March 25, 1971 order. The amended complaint sought a judgment of this Court declaring the March 25, 1971 order illegal and enjoining the continuance of the price support level higher than the $ 4.66 figure established in the March 12 order. The injunction would enjoin the Secretary of Agriculture and the Commodity Credit Corporation, the government agency used to implement the mechanism of price supports for agricultural products. 7 U.S.C. §§ 1424, 1446a, 1446a-1 (1970).

 Before this action was instituted in January 1972, Hardin had resigned as Secretary of Agriculture and defendant Butz was appointed to that office. Since price support levels for milk and milk products had to be established for each marketing year (7 U.S.C. § 1446(c) (1970)), Secretary Butz on March 9, 1972, announced that the $ 4.93 level would be continued for the marketing year commencing April 1, 1972, and ending March 31, 1973. Shortly after April 1, 1972, defendants moved to dismiss the amended complaint on the ground of mootness since the March 25, 1971 order terminated on March 31, 1972. Plaintiffs opposed that motion and filed a motion to further amend the complaint to include the 1972-73 order. On May 3, 1972, this Court dismissed the action as moot and denied plaintiffs' motion to amend the amended complaint.

 On appeal the Court of Appeals concluded "that, in present circumstances, it cannot be said that the challenged determination for 1971-72 did not affect the determination for 1972-73, and we find that appellants [plaintiffs] were deprived of an opportunity to show that in fact it did." 154 U.S. App. D.C. 178, 179, 474 F.2d 426, 427 (1972). The Court of Appeals reversed this Court's order and remanded for further proceedings. Id.

 On remand this Court revoked its May 3, 1972 order and granted plaintiffs leave to file their second amended complaint. Thereafter plaintiffs engaged in extensive pre-trial discovery. During that period Congress enacted the Act of August 10, 1973, Public Law 93-86, § 1 (3), 87 Stat. 222. That legislation amended 7 U.S.C. § 1446, the statute that authorized the Secretary of Agriculture to establish price support levels for milk and milk products. The amendment directed the Secretary to provide price support at a figure between 80 and 90 percent of parity when prior thereto the authorized level was to be between 75 and 90 percent of parity. *fn1" Prior to that amendment the price support for the marketing year commencing April 1, 1973, was set at $ 5.29 per hundredweight which was at the then statutory minimum of 75 percent of parity, an increase of $ 0.36 per hundredweight over the 1971-72 and 1972-73 support levels. Following the August 10, 1973 amendment, the price support for that year was, in accordance with the terms of the amended statute, increased to $ 5.61 per hundredweight, or to the 80 percent parity minimum. On April 1, 1974, the level was increased to $ 6.57 per hundredweight or 80 percent of parity (Affidavit of J. Phil Campbell, Under Secretary of Agriculture, May 23, 1974, attached to defendants' May 24, 1974 motion to dismiss).

 Under date of May 9, 1974, defendants filed a motion for an indefinite stay of proceedings in this case. The ground asserted by defendants was that this Court was being asked to render a declaration respecting matters that were then being considered by the Judiciary Committee of the House of Representatives in its impeachment investigation of the then President of the United States, Richard Nixon. Plaintiffs opposed that motion. After argument of counsel, this Court on May 14, 1974, granted defendants' motion to stay and directed defendants to file a motion to dismiss.

 On May 24, 1974, defendants filed their motion to dismiss. On June 19, 1974, plaintiffs filed their opposition to this motion and on the same date filed a motion to further amend the complaint and join additional parties defendant, as well as a motion for partial summary judgment. Thereafter defendants filed oppositions to plaintiffs' motions, and the parties then filed briefs in support of their respective positions, with the last brief being filed on July 29, 1974.

 While the impeachment proceedings against former President Nixon terminated upon his resignation from office on August 9, 1974, this Court has not felt that it has been in a position to act on the pending motions until this time. On July 29, 1974, John B. Connally was indicted. He was Secretary of the Treasury on March 25, 1971, when the 1971-72 challenged price support order was issued. The indictment charged him with receiving as a public official illegal gratuities, conspiring with another to commit certain offenses against the United States, and making false declarations before a grand jury. Those criminal charges, in part at least, involved the 1971-72 milk price support order, a subject matter of this civil litigation. To act on the pending motions in this case might have had an unfair effect on the pending criminal action. On April 17, 1975, Connally was found not guilty by the jury after trial. Thereafter the Special Prosecutor dismissed certain additional criminal charges which had been severed from the criminal trial. *fn2" So far as this Court is aware, there are no pending criminal actions against any party who was involved in the issuance of the alleged illegal 1971-72 milk price support order and, therefore, this Court can proceed to consider and act on the pending motions.

 I. Defendants' Motion to Dismiss

 As has been recited, on May 24, 1974, defendants filed a motion to dismiss this action. The ground asserted for the motion is that any controversy that existed between the parties has become moot.

 In support of their motion to dismiss this action as moot, defendants point out that the circumstances prevailing on August 21, 1972, when the Court of Appeals reversed and remanded this case, no longer exist. Both the March 25, 1971 and March 9, 1972 milk price orders have long since been superseded. In fact, on August 10, 1973, Congress amended the authorizing statute to increase the support price of milk to not less than 80 per centum of parity where prior thereto and particularly in 1971 and 1972 the minimum percentage was 75 percent. 7 U.S.C. § 1446, as amended, Act of August 10, 1973, Pub. L. No. 93-86, § 1(3), 87 Stat. 222. The effect of the amendment was to increase the support price from $ 5.29 per hundred pounds of manufacturing milk, which had been established for the marketing year commencing April 1, 1973, to $ 5.61 per hundred pounds from and after August 10, 1973. As of April 1974, the amended legislation increased the support price to $ 6.57 per hundred pounds (Affidavit of J. Phil Campbell, Under Secretary of Agriculture, May 23, 1974, attached to defendants' May 24, 1974 motion to dismiss). *fn3"

 Whatever merit there may have been for the concern that the 1972-73 milk price order was tainted by the "improprieties charged to the 1971-72 determination," such taint can no longer be said to exist. Not only have those orders long since met their demise, but the Congress by the August 10, 1973 legislation required the Secretary of Agriculture to raise the price support to 80 per centum of parity. The complained of $ 4.93 price support for the years March 1971 to April 1973 was increased at the express direction of Congress to $ 5.61 in August 1973 and to $ 6. 57 as of April 1974. Thus since at least August 1973, it cannot be said that the milk price support orders were tainted by the March 25, 1971 order.

 Nor is plaintiffs' first amended complaint for injunctive relief any longer viable. There they ask that the Secretary of Agriculture, his agents, and subordinates be permanently enjoined "from continuing to support the price of milk at $ 4.93, or at any price higher than $ 4.66." For this Court to grant such relief would require it to find invalid the Act of August 10, 1973, Pub. L. No. 93-86, § 1(3), 87 Stat. 222. But the plaintiffs have not challenged that Act, and this Court is not aware of any reason for questioning its validity.

 The plaintiffs contend that this Court should enter a declaratory judgment that the actions of former President Nixon with respect to the March 25, 1971 milk price support order were illegal. This Court would have jurisdiction to enter such declaratory relief only if this action presented an actual controversy between the parties. Article III of the Constitution controls and no advisory opinion can be rendered. Golden v. Zwickler, 394 U.S. 103, 108, 22 L. Ed. 2d 113, 89 S. Ct. 956 (1969).

 The plaintiffs argue that President Nixon in March 1971 acted illegally when he ordered the then Secretary of Agriculture Hardin to increase the price supports for political reasons. It is plaintiffs' contention that the "defendants and the White House assert that such decision making process is lawful, constitutional and proper and, moreover, assert their intention to continue so to make these decisions in the future." As evidence of that contention plaintiffs refer to a January 8, 1974 press release by the White House. There it was acknowledged that "overwhelming Congressional pressure -- and the political consequences of ignoring it -- was the reason for the milk price support decision reached on March 23rd" 1971 by the then President. The press release recounted how after Secretary Hardin's March 12, 1971 announcement of an 80 percent parity price support for the 1971-72 marketing year, the milk industry lobbied Members of Congress for higher supports. This, according to the press release, resulted in legislation being introduced to require the supports to be at least 85 percent and in some cases 90 percent of parity. The press release acknowledged that the then President and his advisors believed a veto of such legislation to be politically undesirable, particularly with the 1972 presidential campaign but a little more than a year away.

 Nowhere in the press release is there to be found any statement that the March 23, 1971 presidential "decision making process [was] lawful, constitutional and proper." Nor did that release assert the intention of the then President and his ...


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