Free Response to Supplemental Brief - District Court of Federal Claims - federal

Case 1:06-cv-00439-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS JOYCE EVANS, ET AL., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 06-439C (Judge Lettow)

DEFENDANT'S RESPONSE TO PLAINTIFFS' POST-ARGUMENT SUBMISSIONS OF ADDITIONAL AUTHORITIES AT THE COURT'S REQUEST Defendant, the United States, agrees with plaintiffs that the Agricultural Marketing Agreement Act ("AMAA"), 7 U.S.C. §§ 601-608c, does not provide producers an administrative remedy to challenge a marketing order. It is not surprising that § 608c

does not contain such a remedy, because the Raisin Marketing Order does not regulate the activities of producers. See Lion

Raisins, Inc. v. United States, 416 F.3d 1356, 1359 (Fed. Cir. 2005). If one acts as a handler, however, one brings oneself A handler

within the reach of the AMAA and the marketing order. means:

(a) Any processor or packer; (b) any person who places, ships, or continues natural condition raisins in the current of commerce from within the area to any point outside thereof; (c) any person who delivers off-grade raisins, other failing raisins or raisin residual material to other than a packer or other than into any eligible non-normal outlet; or (d) any person who blends raisins: Provided, That blending shall not cause a person not otherwise a handler to be a handler on account of such blending if he is either: (1) A producer who, in his capacity as a producer, blends raisins entirely of his own production in the course of his usual and customary practices of preparing raisins

Case 1:06-cv-00439-CFL

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for delivery to processors, packers, or dehydrators; (2) a person who blends raisins after they have been placed in trade channels by a packer with other such raisins in trade channels; or (3) a dehydrator who, in his capacity as a dehydrator, blends raisins entirely of his own manufacture. 7 C.F.R. § 989.15 (2004). Because the Raisin Marketing Order only regulates the activities of handlers, it makes sense that 7 U.S.C. § 608c provides only handlers a remedy to challenge its implementation. In any case, during the November 21, 2006 oral argument upon the Government's motion to dismiss, the Court raised the question of administrative remedies in the context of a producer's ability to obtain review of its equity interest in a reserve pool. 2006 Transcript at 57. Nov. 21,

This case does not include such a claim;

indeed, although plaintiffs allege that they receive little or no "payments" as a result of their equity interest in the reserve pool (Complaint ¶¶ 36.3, 45), they do not allege that the Government has taken their equity interest in the reserve pool. Rather, plaintiffs allege that, through the reserve pool remedy, the Government "forcibly confiscates" a portion of their raisin crop and takes their raisins. See Complaint ¶¶ 25, 47. Because,

for the reasons set forth in our briefs in support of our motion to dismiss, plaintiffs' complaint does not state a claim upon which relief can be granted pursuant to the Takings Clause of the Fifth Amendment; whether the AMAA provides an administrative remedy to them is not relevant to this action. 2

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/Mark A. Melnick MARK A. MELNICK Assistant Director

s/Timothy P. McIlmail TIMOTHY P. MCILMAIL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 514-4325 Fax: (202) 514-7965 December 6, 2006 Attorneys for Defendant

3

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Certificate of Filing I hereby certify that on December 6, 2006, a copy of the foregoing Defendant's Response To Plaintiffs' Post-Argument Submissions Of Additional Authorities At The Court's Request was filed electronically. I understand that notice of this filing

will be sent to all parties by operation of the Court's electronic filing system. the Court's system. Parties may access this filing through

s/Timothy P. McIlmail