the Secretary's order, questions for which Congress explicitly furnished the handler an expert forum for contest with ultimate review by a district court.
'The situation before us indicates how disruptive it would be to allow issues that may properly come before a district court in a proceeding under § 8c(15) to be open for independent adjudication in a suit for enforcement under § 8a(6). * * * In large measure, the success of this scheme revolves around a 'producers' fund which is solvent and to which all contribute in accordance with a formula equitably determined and of uniform applicability. Failure by handlers to meet their obligations promptly would threaten the whole scheme. Even temporary defaults by some handlers may work unfairness to others, encourage wider noncompliance, and engender those subtle forces of doubt and distrust which so readily dislocate delicate economic arrangements. To make the vitality of the whole arrangement depend on the contingencies and inevitable delays of litigation, no matter how alertly pursued, is not a result to be attributed to Congress unless support for it is much more manifest than we find here. That Congress avoided such hazards for its policy is persuasively indicated by the procedure it devised for the careful administrative and judicial consideration of a handler's grievance. * * * In the case before us, administrative proceedings were instituted before the Secretary of Agriculture and, apparently, are awaiting his action. Presumably the Secretary of Agriculture will give the respondents the right to which Congress said they were entitled. If they are dissatisfied with his ruling, they may question it in a district court. The interests of the entire industry need not be disturbed in order to do justice to an individual case.'
In Panno v. United States, 9 Cir., 1953, 203 F.2d 504, 508, the administrative remedy for exemption from the effect of an order was held exclusive, even in a criminal proceeding. More recently, in another enforcement proceeding, the administrative procedure provided by Congress in 7 U.S.C.A. § 608c(15)(A) was held to be exclusive, and summary judgment ordered where the handler questioned his obligation to pay under an order where the milk was produced on farms he leased. United States v. Hinman Farms Products, Inc., D.C.N.D.N.Y., 1957, 156 F.Supp. 607. Where a declaratory judgment was sought as to the authority of the Secretary of Agriculture to take certain proceedings not actually taken, the court held the action premature and beyond the court's jurisdiction because of the remedy provided by 7 U.S.C.A. § 608c(15)(A). Hygeia Dairy Co. v. Benson, D.C.Tex.1957, 151 F.Supp. 661.
In its initial motion for a stay of proceedings in this action, defendant cites an apparently as yet unreported opinion of Judge Clary in United States of America v. Lehigh Valley Co-Operative Farmers and Suncrest Farms, Inc., D.C.E.D.Pa., 161 F.Supp. 885, and annexes a copy of that opinion to its brief. Judge Clary's decision was evoked in an enforcement proceeding under § 608a(6), upon defendant's application for a preliminary injunction. The defendants moved for a stay of the action 'pending determination of the issues before the Secretary of Agriculture in an administrative proceeding.' Upon the offer of defendants, the Court ordered that the amounts billed by the Administrator, under the Marketing Order, be paid into the registry of the Court instead of into the Settlement Fund 'pending the determination of the administrative proceedings before the Secretary of Agriculture and/or a judicial review of such determinations in (the) Court.' Judge Clary concluded, however, that the Act authorized a handler to challenge before the Secretary the Order or any obligation imposed in connection therewith as not in accordance with law. The Court points out that when the Order is so challenged the determination of the Secretary is final if in accordance with law; this determination, however, being subject to appeal under Section 608c(15)(B). The opinion also emphasizes that 'Section (15) further gives the handler access to the Secretary * * * for administrative relief and opportunity for judicial review of his determination and * * * provides that the pendency of the proceedings before the Secretary 'shall not impede, hinder or delay the United States or the Secretary of Agriculture from obtaining relief' under Sec. 608a(6).' I find nothing in the cited opinion inconsistent with the conclusions to which I am brought at this stage of the present case.
Unless and until this Court is called upon under 7 U.S.C.A. § 608c(15)(B) to review an adverse decision of the Secretary under subdivision (15)(A) of the same Section, defendant's obligation under the Order to pay into the Fund the amounts billed by the Administrator cannot properly be passed upon by this Court. Since the correctness of the billings 'subject to the statutory audits) is unquestioned, plaintiff is entitled to a decree of enforcement of the Order and to judgment for the amounts of the audited billings with interest from the respective dates upon which each amount became due. Accordingly, plaintiff will be accorded the injunctive relief which it seeks and defendant will be commanded to comply with the Order by making payments to the Fund in accordance therewith.
Because of the possibility of protraction of the noticed (15)(A) hearing, and of delay in the Secretary's decision therein, for the protection of defendant against irreparable damage and to afford relief to the plaintiff in case of defendant's non-compliance with the decree of this Court, jurisdiction of this action will be retained for such further proceedings therein as may be warranted by subsequent developments.
This opinion shall constitute the Court's findings of fact and conclusions of law as required by Rule 52 of the Rules of Civil Procedure, 28 U.S.C.A., and a decree may be submitted in accordance with the views herein expressed.
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