Cite as 24 A.D. 727 (No. 9854) HYBELS' PRODUCE COMPANY, INC. v. D. J. THOMSON. PACA Docket No. 9758. Reparation of $350 with 5 percent interest from June 1, 1964, awarded complainant against respondent in order issued May 5, 1965. (No. 9855) OAKFIELD AND ELBA GROWERS, INC. v. J & R TOMATOES, INC. PACA Docket No. 9757. Reparation of $4,970 with 5 percent interest from October 1, 1964, awarded complainant against respondent in order issued May 5, 1965. (No. 9856) BLUE GOOSE GROWERS, INC. v. HOWARD COHEN CO. PACA Docket No. 9765. Reparation of $11,799.36 with 5 percent interest from January 1, 1965, awarded complainant against respondent in order issued May 10, 1965. (No. 9857) FRED G. HILVERT CO., INC., DISTRIBUTORS v. TURNER PRODUCE COMPANY, INC. PACA Docket No. 9768. Reparation of $2,391.18 with 5 percent interest from January 1, 1965, awarded complainant against respondent in order issued May 10, 1965. (No. 9858) MINUTE MAID GROVES CORPORATION v. HOWARD COHEN CO. PACA Docket No. 9764. Reparation of $6,748.75 with 5 percent interest from January 1, 1965, awarded complainant against respondent in order issued May 10, 1965. (No. 9859) OREGON PEAR SALES CO., INC. v. HOWARD COHEN Co. PACA Docket No. 9766. Reparation of $4,013.60 with 5 percent interest from January 1, 1965, awarded complainant against respondent in order issued May 10, 1965. Cite as 24 A.D. 728 (No. 9860) ROGUE RIVER ORCHARDS, OREGON, LTD. v. HOWARD COHEN Co. PACA Docket No. 9767. Reparation of $14,855.50 with 5 percent interest from January 1, 1965, awarded complainant against respondent in order issued May 10, 1965. (No. 9861) PRODUCE CREDIT ASSOCIATION, INC. v. LEVINSON FRUIT & PRODUCE Co. PACA Docket No. 9725. Reparation of $960.92 with 5 percent interest from December 1, 1964, awarded complainant against respondent in order issued May 12, 1965. (No. 9862) HAINES CITY CITRUS GROWERS ASSOCIATION v. STANDARD FRUIT AND PRODUCE COMPANY. PACA Docket No. 9769. Reparation of $4,655.21 with 5 percent interest from January 1, 1965, awarded complainant against respondent in order issued May 13, 1965. (No. 9863) PINE GROVE FARMS v. HUGH CUNNINGHAM. PACA Docket No. 9762. Reparation of $756.10 with 5 percent interest from June 1, 1964, awarded complainant against respondent in order issued May 19, 1965. (No. 9864) JIMMIE SHMON PRODUCE BROKER v. MAGIC VALLEY PRODUCE COMPANY. PACA Docket No. 9782. Reparation of $166.95 with 5 percent interest from November 1, 1964, awarded complainant against respondent in order issued May 20, 1965. (No. 9865) E. ARMATA v. LEVINSON FRUIT & PRODUCE CO. PACA Docket No. 9784. Reparation of $1,039.50 with 5 percent interest from December 1, 1964, awarded complainant against respondent in order issued May 24, 1965. Cite as 24 A.D. 729 (No. 9866) COVE VALLEY PACKERS, INC. v. HOWARD COHEN CO. PACA Docket No. 9789. Reparation of $17,136.50 with 5 percent interest from January 1, 1965, awarded complainant against respondent in order issued May 24, 1965. (No. 9867) SIEGEL BROS. PRODUCE, INC. v. LEVINSON FRUIT & PRODUCE CO. PACA Docket No. 9786. Reparation of $1,614.75 with 5 percent interest from December 1, 1964, awarded complainant against respondent in order issued May 24, 1965. (No. 9868) SUN GLO PRODUCERS, INC. v. ECONOMY WHOLESALE FOODS, INC. PACA Docket No. 9788. Reparation of $1,753 with 5 percent interest from November 1, 1964, awarded complainant against respondent in order issued May 24, 1965. (No. 9869) EARL BYRD & Co. v. J & R TOMATOES, INC. PACA Docket No. 9793. Reparation of $1,181.20 with 5 percent interest from January 1, 1965, awarded complainant against respondent in order issued May 25, 1965. (No. 9870) H. H. ZIMMERLI, INC. v. L & S POTATO Co. PACA Docket No. 9787. Reparation of $1,450 with 5 percent interest from December 1, 1964, awarded complainant against respondent in order issued May 25, 1965. (No. 9871) HORWATH AND CO., INC., t/a GONZALES PACKING CO. v. H. C. OVERSTREET PRODUCE. PACA Docket No. 9785. Reparation of $2,624 with 5 percent interest from October 1, 1964, awarded complainant against respondent in order issued May 25, 1965. Cite as 24 A.D. 730 (No. 9872) VINCENT B. ZANINOVICH & SONS v. HOWARD COHEN CO. PACA Docket No. 9790. Reparation of $7,022.50 with 5 percent interest from December 1, 1964, awarded complainant against respondent in order issued May 25, 1965. (No. 9873) W. A. SPECTOR, INC. v. JOHN J. WEIPERT Co. PACA Docket No. 9791. Reparation of $792 with 5 percent interest from March 1, 1965, awarded complainant against respondent in order issued May 25, 1965. STAY ORDER-PENDING ISSUANCE OF FURTHER ORDER (No. 9874) GROWERS EXCHANGE, INC. v. NEIMAN BROS. PACA Docket No. 9568. Order issued May 25, 1965. COURT DECISIONS FITCHETT BROS., INC. V. ORVILLE FREEMAN, Secretary of Agriculture of the United States. Filed May 4, 1965. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK OPINION Bryan, District Judge: This is a statutory action pursuant to Sec. 8c (15) (B) of the Agricultural Marketing Agreement Act of 1937 as amended (the Act), 7 U.S.C. § 608c (15) (B), to review a decision and order of the judicial officer of the Department of Agriculture acting for the Secretary of Agriculture. The decision and order under review involve the interpretation and application of a compensatory payment provision, ¶(b)(1) of § 927.83 of Cite as 24 A.D. 730 Milk Market Order No. 27,1 promulgated by the Secretary under the Act, (7 U.S.C. § 601, et seq.), which regulates the handling of milk in the New York-New Jersey marketing area. In Crowley's Milk Co. v. Brannan, 198 F.2d 861, 862 (2 Cir. 1952), Judge Clark said "It is now no secret that governmental regulation of the distribution of milk is complex and mystifying." The subject has not grown any less so since that time. The general scheme of federal milk regulation, compensatory payment provisions thereunder and their purpose and effect, is described in detail in Lehigh Valley Co-op Farmers, Inc. v. United States, 370 U.S. 76, 78-91 (1962). See generally United States v. Rock Royal Co-op, Inc., 307 U. S. 533 (1939); Kass v. Brannan, 196 F.2d 791 (2 Cir), cert. den. 344 U.S. 891 (1952). The specific problem in the case at bar will be discussed against that background. The Lehigh case held that paragraphs (b)(2), (b) (3) and (b) (4) of § 927.83 of Marketing Order No. 27, the order involved here, were invalid as inconsistent with the policy expressed by Congress in § 8c (5) (G) of the Act under which Order 27 was issued by the Secretary. The case at bar involves paragraph (b)(1) of § 927.83 of the Order which was not passed upon in the Lehigh case. The issue here is different from that in Lehigh and involves the application rather than the validity of paragraph (b)(1). Plaintiff Fitchett is a milk distributor with a processing plant at Poughkeepsie, New York, in the New York-New Jersey marketing area covered by Marketing Order No. 27. Fitchett purchased quantities of milk from suppliers in the Connecticut milk marketing area who were not covered by Order No. 27 but by the Connecticut Marketing Order No. 119.2 The present controversy concerns the amount which the market administrator determined was owing by Fitchett to the so-called Producer Settlement Fund because of those purchases from Connecticut sources. The Producer Settlement 1 Effective January 1, 1962 Order No. 27, 7 C.F.R. § 927, was renumbered Order No. 2, 7 C.F.R. § 1002, but will be referred to here by its original number. During the period involved in this case and thereafter Order No. 27 was amended from time to time. The amendments, however, did not affect the controversy here. To avoid confusion and for convenience, references to Order 27 are to the order in the language quoted by the judicial officer in his decision which sets forth the Order in the form effective March 1, 1960. A copy of Order 27 in pamphlet form is part of the file in this case. 2 Effective January 1, 1962, Connecticut Order No. 119 was renumbered Order No. 15, 7 C.F.R. § 1015, but will be referred to here by its original number. |