No. 95-1393

In the Supreme Court  of the United States

OCTOBER TERM, 1995

WILEMAN BROS. & ELLIOTT, INC., ET AL.,
CROSS-PETITIONERS

v.

DANEIL R. GLICKMAN, SECRETARY OF AGRICULTURE

ON CROSS-PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE SECRETARY OF AGRICULTURE
IN OPPOSITION

DREW S. DAYS, III
Solicitor General

FRANK W. HUNGER
Assistant Attorney General

DOUGLAS N. LETTER
IRENE M. SOLET
DANIEL BENSING
Attorneys

Department of Justice
Washington, D.C. 20530
(202)514-2217

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QUESTION PRESENTED

Whether the application of a "well-matured" stan-
dard of maturity for California peaches, nectarines,
and plums from 1980 through 1987, pursuant to mar-
keting orders issued by the Secretary of Agriculture
under the Agricultural Marketing Agreement Act of            
1937, 7 U.S.C. 601 et seq., violated the Administrative
Procedure Act or was unconstitutionally vague.

(I)

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TABLE OF CONTENTS

Page

Opinions below . . . . 1
Jurisdiction . . . . 2
Statement . . . . 2
Argument . . . . 7
Conclusion . . . . 12
    
 TABLE OF AUTHORITIES

Cases:

Babbitt v. Sweet Home Chapter of Communities
for a Great Oregon, 115 S. Ct .2407 (1995) . . . . 9
Bailey v. United States, 116 S. Ct. 501(1995) . . . . 9
Black v. Cutter Laboratories, 351 U.S. 292 (1956) . . . . 8
Davis v. United States, 495 U.S. 472 (1990) . . . . 10-11
District of Columbia v. Sweeney, 310 U.S. 631
(1940) . . . . 9
Good Samaritan Hosp. v. Shalala, 113 S. Ct. 2151
(1993) . . . . 11
Gustafson v. Alloyd Co., 115 S. Ct. 1061 (1995) . . . . 9
Hankerson v. North Carolina, 432 U.S. 233
(1977) . . . . 8
Martin v. OSHRC, 499 U.S. 144 (1991) . . . . 10
Platt v. Union Pacific R.R., 99 U.S. 48 (1879) . . . . 9
Schweiker v. Hogan, 457 U.S. 569 (1982) . . . . 8
Stinson v. United States, 113 S. Ct. 1913 (1993) . . . . 10
Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381
(1994) . . . . 10
Wileman Bros. & Elliott, Inc. v. Giannini, 909
F.2d 332 (9th Cir. 1990) . . . . 7, 10, 11
Wisniewski v. United States, 353 U.S. 901(1957) . . . . 11

Constitution, statutes and regulations:

U. S. Const. Amend. I . . . . 3, 7, 8
Administrative Procedure Act, 5 U.S.C. 551 et seq . . . .  9

(III)

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IV

Statutes and regulations-Continued:

Page

Agricultural Marketing Agreement Act of 1937,
7 U.S.C. 601 et seq . . . . 2 
7 U.S.C. 608c(6)(A) . . . . 3
7 U.S.C. 608c(15)(A) . . . . 5
7 U.S.C.  608c(15)(B) . . . . 6
7 U.S.C. 1622(c) . . . . 3
7 C.F.R.:
Section 51.1212 . . . . 3
Section 51.1521 . . . . 3
Section 51.3147 . . . . 3, 4

Miscellaneous:

45 Fed. Reg. (1980):
p. 32,308 . . . . 4
p. 32,310 . . . . 4
p. 33,596 . . . . 4
p. 44,917 . . . . 4 
p. 45,252 . . . . 4, 10
p. 45,253 . . . . 4
p. 47,115 . . . . 4
p. 47,116 . . . . 4
53 Fed. Reg. (1988):
p. 19,226 . . . . 5
p. 19,232 . . . . 5
56 Fed. Reg. 23,773 (1991) . . . . 5
57 Fed. Reg. (1992):
p. 20,735 . . . . 5
p. 42,681 . . . . 5
Robert L. Stern, et al., Supreme Court Practice
(7th ed. 1993) . . . . 8

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In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-1393

WILEMAN BROS. &  ELLIOTT, INC., ET AL.,
CROSS-PETITIONERS

v.

DANIEL R. GLICKMAN, SECRETARY OF AGRICULTURE
                 

ON CROSS-PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE SECRETARY OF AGRICULTURE
IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-
35a) 1. is reported at 58 F.3d 1367. The opinion of the
district court (Pet. App. 40a-100a) is unreported. The
opinions of the Judicial Officer of the Department of
Agriculture are reported at 49 Agric. Dec. 705 and 50
Agric. Dec. 1165. 2.

___________________(footnotes)                                          

1 All references to "Pet." and "Pet. App." refer to our peti-
tion for a writ of certiorari in No. 95-1184 and the appendix
thereto.
2 The Judicial Officer (JO) issued two decisions, one
dismissing each of the administrative petitions that cross-
petitioners, among others, filed in the administrative

(1)

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2

JURISDICTION

The judgment of the court of appeals was entered on
June 27, 1995. A petition for rehearing was denied on
September 18, 1995. Pet. App. 2a. On December 15,
1995, Justice O'Connor extended the time within
which to file a petition for a writ of certiorari to and
including January 16, 1996. On January 11, 1996,
Justice O'Connor further extended the time within
which to file a petition to and including January 24,
1996, and the Secretary's petition was filed on that
day and docketed on January 25, 1996. The cross-
petition for a writ of certiorari was filed on February
26, 1996 (a Monday). The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

STATEMENT

This case arises from administrative petitions filed
by cross-petitioners. and others challenging certain
provisions in the marketing orders for California
peaches, nectarines, and plums issued by the Sec-
retary of Agriculture under the Agricultural Market-
ing Agreement Act of 1937 (AMAA or Act.), 7 U.S.C.
601 et seq. On review of the Secretary's decisions
dismissing the petitions, the Ninth Circuit sustained

___________________(footnotes)
                                                   
proceedings that led to the present case. Because of the length
of the decisions and the fact that they are reported, we
reproduced in the appendix to our petition in No. 95-1184 only
that portion of the JO decision that addressed the First
Amendment issue presented by our petition. Cross-petitioners
have not reproduced any portion of either JO decision in the
appendix to their conditional cross-petition. In the appendix to
their brief in opposition to our petition, however, cross-
petitioners have reproduced the decision of the Administrative
Law Judge that was reversed by the JO in the decision
reported at 50 Agric. Dec. 1165.

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3

cross-petitioners' First Amendment challenge to the
provisions in the marketing orders authorizing in-
dustry-funded generic advertising programs for those
fruits. The Ninth Circuit rejected cross-petitioners'
other challenges, however, including their challenge
to the promulgation and administration of the matu-
rity provisions in the marketing orders in effect from
1980 through 1987. In No. 95-1184, the Secretary has
petitioned for a writ of certiorari to review the Ninth
Circuit's holding on the First Amendment issue.
Cross-petitioners seek further review of the Ninth
Circuit's ruling on the fruit-maturity issue in the
event that this Court grants the Secretary's petition.
Our petition in No. 95-1184 describes (at 4-14) the
statutory and regulatory provisions and the course of
the present litigation relevant to the First Amend-
ment issue. We describe below the additional provi-
sions and facts relevant to the fruit-maturity issue.
1. The AMAA authorizes the Secretary to in-
clude provisions in a marketing order regulating the
"grade, size, or quality" of a commodity. 7 U.S.C.
608c(6)(A). Before 1980, the marketing orders for
California peaches, nectarines, and plums required
those fruits to meet grade "U.S. No. l." Pet. App. 22a.
Grade U.S. No. 1 is a term defined in regulations of
the Secretary for use in a variety of regulatory
contexts, including but not limited to AMAA market-
ing orders. See 7 U.S.C. 1622(c). As defined for nec-
tarines, for example, U.S. No. 1 requires the fruit to
be "mature but not soft or overripe * * * [with] [a]t
least 75 percent of the nectarines in any lot [showing]
some blushed or red color." 7 C.F.R. 51.3147. 3.

___________________(footnotes)
                           
3 The definition of U.S. No, 1, as it relates to maturity, is
similar for peaches and plums.  7 C.F.R. 51.1212; 51.1521.

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In 1980, the Secretary amended the maturity pro-
visions of the marketing orders by adding, after the
preexisting language. requiring the fruits to meet
U.S. No. 1 grade, a proviso stating that "maturity
shall be determined by the application of color
standards by variety or such other tests as de-
termined to be proper by the Federal or Federal-State
Inspection Service" (a joint federal-state program for
fruit inspection and grading). See Pet. App. 22a; 45
Fed. Reg. 32,308, 45,252 (1980) (nectarines); 45 Fed.
Reg. 32,310, 44,917 (peaches); 45 Fed. Reg. 33,596,
47,115 (1980) (plums). 4. The administrative record
accompanying the amendments stated that "provision
is made for a higher maturity standard." Id. at
45,252 (nectarines); see also id. at 47,116 (plums). In
the wake of the 1980 amendments, the committees
              
___________________(footnotes)

Grade U.S. No. 1 also addresses other characteristics of fruits
and vegetables, in addition to maturity. For example, U.S. No.
1 requires nectarines to be "free from decay, broken skins
which are not heeled, worms, [and] worm holes," and free from
injury or damage caused by a wide variety of specific plant
diseases, pests, and other conditions. 7 C.F.R. 51.3147.

4 As amended in 1980, the maturity provision in the market-
ing order for nectarines, for example, provided:
[N]o handler shall handle * * * [a]ny package or con-
tainer of any variety of nectarines unless such nectarines
meet the requirements of U.S. No. I grade: Provided,
That maturity shall be determined by the application of
color standards by variety or such other tests a as
determined to be proper by the Federal or Federal-State
Inspection Service.

45 Fed. Reg. 45,253 (1980) (1980 amendment italicized). The
text of the amended maturity provision for nectarines was
similar to those for peaches and plums, and, in challenging
those provisions, cross-petitioners have not distinguished
among them. See Pet. App. 22a.

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responsible for implementing the marketing orders
applied a higher maturity standard that came to be
known as the "well-matured" standard. See Pet. 5-6
(describing duties of commodity committees).
In 1988, the Secretary further amended the market-
ing orders expressly to provide for the "well-
matured" standard of maturity. Pet. App. 22a; see 53
Fed. Reg. 19,226 and 19,232 (1988).
In 1992, the Secretary again amended the market-
ing orders by establishing a two-tiered standard. for
nectarines and peaches.  57 Fed. Reg. 20,735 and
42,681 (1992). 5. The minimum maturity standard is
"mature," and handlers may voluntarily seek to earn
the "well-matured" designation. Pet. App. 23a.
2. Cross-petitioners are handlers (i.e., packers and
distributors) of California peaches, nectarines, and
plums. They and other handlers of those fruits filed
administrative petitions with the Secretary pursuant
to 7 U.S.C. 608c(15)(A) challenging, among other
things, the maturity standards applied by the re-
sponsible committees under the marketing orders
in effect from 1980 through 1987. Pet. App. 6a, 22a-
27a. Reversing decisions by an administrative law
judge in favor of the handlers, id. at 6a, the Judicial
Officer (JO) of the Department of Agriculture ruled
in favor of the Secretary on all issues, id. at 7a.
As relevant here, the JO rejected the handlers' con-
tention that the 1980 amendment to the marketing
orders did not change the maturity standard previ-
ously imposed under grade U.S. No. 1. 49 Agric. Dec.

___________________(footnotes)
                               
5 The provisions in the marketing order applicable to plums
ended in 1991, after a majority of plum producers failed to vote
for its continuation in a periodic referendum. Pet. App. 5a n.1,
43a; 56 Fed. Reg. 23,773 (1991).

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at 796-803; 50 Agric. Dec. at 1327-1328. The JO
determined that the rulemaking record made clear
that the Secretary in 1980 had intended "to establish
a higher maturity standard for plums and nectarines
than the U.S. No. 1 standard previously in effect."
49 Agric. Dec. at 798. The JO concluded that "the
regulations should be construed to effectuate the
Secretary's intent." Ibid. 6.
3. Cross-petitioners and other handlers filed this
action in the United States District. Court for the
Eastern District of California under 7 U.S.C.
608c(15)(B), seeking judicial review of the JO'S
decisions. See Pet, 9-10. The district court held,
inter alia, that their challenge to the promulgation
and administration of the maturity regulations con-
tained in the marketing orders in effect from 1980
through 1987 was moot in light of the Secretary's
1992 amendments to those regulations. Pet. App. 56a-
58a. 4. The court of appeals held that the handlers'
challenge to the fruit maturity regulations was not
moot, because, in its view, if their challenge suc-
ceeded, they would be entitled to a refund of assess-
ments used to administer those regulations.  Pet.
App. 23a-24a.
On the merits, the court of appeals rejected cross-
petitioners' contention that the committees lacked
authority to apply a "well-matured" standard under
the marketing orders in effect from 1980 through
1987. Cross-petitioners based their contention chief-

___________________(footnotes)                                                 

6 In the second administrative decision, the JO explained
that peaches, which were regulated in the same marketing or-
der as plums, were also covered by this determination. 50
Agric. Dec. at 1328.

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7

ly on the court's prior decision in Wileman Bros. &
Elliott, Inc. v. Giannini, 909 F.2d 332, 336 (1990),
which, as the court here described it, "held that tree
fruit committee members had not acted in accord with
the marketing orders in promulgating the heightened
maturity standards in 1980 and thus were not immune
from suit in an antitrust action brought by several
handlers." Pet. App. 24a. The court observed that
Giannini was "primarily concerned with the issue of
immunity from an antitrust suit." Id. at 25a. The
court also observed that Giannini "was decided in
the context of an appeal of a Rule 12(b)(6) dismissal
for failure to state a claim." Ibid. In that context, the
court explained, "[t]he Giannini court could not
resolve the ambiguity it found in the regulation
promulgated by the Secretary and had to hold in favor
of the plaintiffs."  Ibid. In the present context,
however, the court determined from the adminis-
trative record that "it is clear that the Secretary
intended to raise the maturity standards and to allow
the committees to promulgate the implementing reg-
ulations, just as they had with numerous standards in
the past." Ibid.
The court of appeals also rejected cross-petitioners'
contention that the heightened maturity standard
was not supported by substantial evidence. Pet. App.
26a n.12.

ARGUMENT

1. Although cross-petitioners prevailed in the
court of appeals on the First Amendment issue, they
argue that, in addressing that issue, the court did not
apply a stringent enough standard, of review. Cross-
Pet. 10-20. That argument provides no basis for
granting their conditional cross-petition. This Court

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8

"reviews judgments, not statements in opinions."
Black v. Cutter Laboratories, 351 U.S. 292,297 (1956).
Because cross-petitioners prevailed on the judgment
as to the First Amendment issue, they are not
entitled to petition for a writ of certiorari on that
issue, at least in the absence of extraordinary cir-
cumstances, which are not claimed to exist here.
See Robert L. Stern, et al., Supreme Court Practice
2.4, at 45 (7th ed. 1993). Moreover, if this Court
grants the Secretary's petition in No. 95-1184, cross-
petitioners may advance their arguments for a
more stringent standard of review in support of the
judgment below on the First Amendment issue. See,
e.g., Schweiker v. Hogan, 457 U.S. 5697585 n.24 (1982);
Hankerson v. North Carolina, 432 U.S. 233, 240 n.6
(1977). Because our position on the First Amendment
issue is set forth in our certiorari petition (at 14-30),
we do not address it further here.
2. Cross-petitioners contend (Cross-Pet, 20-30)
that the responsible committees lacked authority to
apply a "well-matured" standard under the marketing
orders in effect from 1980 through 1987. 7.  They base
that contention on their view that the maturity

___________________(footnotes)

7 The court of appeals concluded that cross-petitioners'
challenge to the "well-matured" standard was not moot because
cross-petitioners might be entitled to a refund of assessments
used to pay for the administration of the standard from 1980
through 1987 if their challenge was successful. Pet. App. 23a-
24a.  As we argued below, cross-petitioners would not be
entitled to a refund if they prevailed on their challenge. See
Gov't C.A. Br. 43-48. However, as we acknowledged below,
cross-petitioners' challenge is not moot for another reason-
namely, that the Secretary could return to the pre-1988
regime, so that the issue would be capable of repetition yet
evading review. Id. at 30-31.

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provisions in the marketing orders for those years
cannot be read to have increased the maturity
standard previously in effect. Cross-petitioners
argue that the assertedly unauthorized application of
the "well-matured" standard violated the Adminis-
trative Procedure Act, 5 U.S.C. 551 et seq., and the
doctrine of unconstitutional vagueness.
The proper interpretation of the marketing orders
for California peaches, nectarines, and plums that
were in effect from 1980 through 1987 does not
present an issue of broad legal importance. Nor does
it have continuing importance, since, as noted above,
the Secretary amended the marketing orders in 1988
explicitly to adopt the "well-matured" standard and
again in 1992 to make compliance with that standard
voluntary. Cf. District of Columbia v. Sweeney, 310
U.S. 631 (1940) (certiorari denied because statute at
issue had been repealed and question presented was
"therefore not of public importance"). In any event,
cross-petitioners' challenge is without merit.
In arguing that the 1980 amendment to the mar-
keting orders did not change the "U.S. No. 1" grade
previously in effect, cross-petitioners accord no effect
to the language of the amendment. See note 4, supra.
Their argument is therefore at odds with well-settled
principles of interpretation. See, e.g., Bailey v.
United States, 116 S. Ct. 501, 507 (1995) (citing Platt
v. Union Pacific R.R., 99 U.S. 48, 58 (1879));
Gustafson v. Alloyd Co., 115 S. Ct. 1061, 1069 (1995);
Babbitt v. Sweet Home Chapter of Communities for
a Great Oregon, 115 S. Ct. 2407, 2413 (1995). More-
over, as noted above, the grade "U.S. No. 1" governs
not only fruit maturity, but also other characteristics
of fruit. See note 3, supra. In contrast, the 1980
amendment exclusively addressed the issue of fruit

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maturity. That makes cross-petitioners' insistence
that the proviso simply re-expressed the U.S. No. 1
standard of maturity particularly unpersuasive.
Thus, contrary to cross-petitioners' contention
(Cross-Pet. 21), the text of the marketing orders was
not so "plain" that the court of appeals was confined
to the "four corners" of the orders in reviewing
cross-petitioners' challenge to the application of the
"well-matured" standard. 8. Instead, the court properly
reviewed the administrative record, and it correctly
found support there for the Secretary's view that the
orders authorized the "well-matured" standard. See
45 Fed. Reg. 45,252 (1980) ("Under the amendment,
California fresh nectarine shipments are required to
grade at least U.S. No. 1, except that provision is
made for a higher maturity standard based on color
standards by variety or other specified tests."). The
court's decision upholding the Secretary's view com-
ports with decisions of this Court that accord con-
siderable deference to an agency's interpretation of
its own regulations, see, e.g., Thomas" Jefferson Univ.
v. Shalala, 114 S. Ct. 2381, 2386 (1994); Stinson v.
United States, 113 S. Ct. 1913, 1919 (1993); Martin v.
OSHRC, 499 U.S. 144, 150-151 (1991), especially
where, as here, that interpretation was contem-
poraneous with the regulations and has been consis-
tently followed. See Davis v. United States, 495 U.S.

___________________(footnotes)

8 Indeed, even in Wileman Bros. &; Elliott, Inc. v. Giannini,
909 F.2d 332, 335-336 (1990), upon which cross-petitioners rely
(see note 9, infra), the Ninth Circuit observed that "[t]his new
[1980] language governing standards and tests is ambiguous s..
to whether the maturity standards themselves were being or
would subsequently be modified and, if so, by whom."

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472, 484 (1990); see. also Good Samaritan Hosp. v.
Shalala, 113 S. Ct. 2151, 2159 (1993). 9.
Cross-petitioners err in contending (Cross-Pet. 25-
26) that the 1980-1987 maturity provisions were un-
constitutionally vague because they gave inadequate
notice of conduct (i.e., violation of the marketing
orders) that was subject to criminal penalties. The
fact that the maturity provisions were amended in
1980 signaled a change in the prior maturity stan-
dard, and the setting in which that change occurred
made clear that the change took the form of a
heightening of the standard. Moreover, the actual
color standards applicable to each variety of nec-
tarine, peach, and plum were well-publicized. They
were announced each season and published by the
marketing committees in bulletins distributed to all
members of the industry. Indeed, cross-petitioners
admit that the bulletin announcing the new maturity
standard for nectarines was "supplied to all growers
and handlers of nectarines" and that it explicitly
stated that the fruit was required to meet the "well-
matured" standard. Cross-Pet. 6. As quoted by
cross-petitioners, that bulletin eliminated any doubt
about whether the 1980 marketing orders raised the
maturity standard by explaining that "[t]his maturity
requirement is more advanced than the maturity
requirement of the U.S. No. 1 grade." Ibid. In those

___________________(footnotes)
                                                               
9 Cross-petitioners contend that the Ninth Circuit's decision
below conflicts with its prior decision in Wileman Bros. &
Elliott, Inc. v. Giannini, supra. The Ninth Circuit, however,
is the best authority on the proper reading of its precedent, cf.
Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per
curiam), and it explained in the present case that there is no
such conflict, Pet. App. 25a.

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circumstances, cross-petitioners `had fair notice of
the maturity standard.                  

CONCLUSION

The conditional cross-petition for a writ of certio-     
rari should be denied.

Respectfully submitted.                

DREW S. DAYS. III
Solicitor General

FRANK W. HUNGER
Assistant Attorney General

DOUGLAS N. LETTER
IRENE M. SOLET
DANIEL BENSING
Attorneys

MAY 1996

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