hormones is not a message attributed to plaintiff; rather, it is the message of the National Dairy Board.

Third, plaintiff has failed to show a connection between the "promotion" of artificial growth hormones and endorsement of a specific political or ideological message. Nor could it. The purpose of the legislation challenged in this case is to "strengthen the dairy industry's position in the marketplace and to maintain and expand domestic and foreign markets and uses for fluid milk and dairy products produced in the United States." 7 U.S.C. § 4501(b). To the extent the use of growth hormones increases milk production, the entire dairy industry benefits; thus, the legislation's purpose is met. Cf. United States v. Frame, 885 F.2d 1119, 113537 (3d Cir. 1989) (promotion of message that eating beef is healthy is ideologically neutral).

Finally, plaintiff has failed to characterize his objection to the promotion of growth hormones in a way in which the court could "infer a dispute over anything more than mere strategy." Frame, 885 F.2d at 1137. A disagreement with the content of the advertising or the promotional purposes espoused by the Board are administrative challenges to the program, not constitutional ones.

Based on the foregoing, plaintiff's complaint fails to state a claim and defendant's motion to dismiss is GRANTED.

B. Motion for Sanctions

Defendant seeks reimbursement of its reasonable attorneys fees incurred preparing its motion to dismiss contending that plaintiff's complaint was filed in violation of Federal Rule of Civil Procedure 11. Specifically, defendant argues that the first amendment claim raised in the complaint is frivolous in light of the Supreme Court's Wileman's decision and the subsequent reliance on Wileman by the judges of this district.

Plaintiff characterizes its complaint somewhat differently, describing the claims and arguments raised within it as recognition of a disagreement between the parties and the court concerning the scope and breadth of Wileman. Since neither the Ninth Circuit nor the Supreme Court have ruled on Wileman's applicability outside the tree fruit industry, plaintiff's counsel contends that his continued efforts to advocate for the modification of Wileman within the context of other industries are not just warranted, but are required lest he waive his client's rights.

The court is inclined to agree. While plaintiff has failed to persuade the judges of this district that mandatory funding of generic advertising may implicate the first amendment dependent upon the nature of the industry, the Wileman decision has not been applied by either the Ninth Circuit or the Supreme Court outside of the

57 Agric. Dec. 895

tree fruit industry. Accordingly, plaintiff's complaint is not filed in violation of Rule 11.

Based on the foregoing, defendant's motion for sanctions is DENIED.

CONCLUSION

1. Defendant's motion to dismiss is GRANTED with prejudice and without leave to amend.

2. Defendant's motion for sanctions is DENIED.

3. The Clerk is directed to close this case.

IT IS SO ORDERED.

GALLO CATTLE COMPANY, a California limited partnership v. THE UNITED STATES DEPARTMENT OF AGRICULTURE.

No. 97-15198.

Decided November 3, 1998.

(Cite as: 159 F.3d 1194) (9th Cir.).

Dairy Promotion - Interim relief — Judicial review - Jurisdiction.

A milk producer sought judicial review of the Judicial Officer's denial of its request for interim relief. The United States Court of Appeals for the Ninth Circuit affirmed the decision of the United States District Court for the Eastern District of California dismissing the complaint for lack of subject matter jurisdiction. The court of appeals held that the Dairy and Tobacco Adjustment Act of 1983 does not grant the district court jurisdiction to review the agency's denial of interim relief until the agency issues a final ruling on the merits of the underlying petition; the Administrative Procedure Act does not independently vest district courts with jurisdiction to review an agency's discretionary denial of interim relief; the Administrative Procedure Act's waiver of sovereign immunity in suits seeking judicial review of agency action under 28 U.S.C. § 1331 does not apply because the agency's denial of interim relief is not made reviewable by statute and is not final agency action; and due process does not require immediate judicial review of the agency's denial of interim relief.

United States Court of Appeals

Ninth Circuit.

Before: FLETCHER, T.G. NELSON, Circuit Judges, and WHALEY,' District Judge.

WHALEY, District Judge:

Gallo Cattle Company appeals the district court's dismissal of its Complaint for lack of subject matter jurisdiction. Gallo, a milk producer required under federal law to pay assessments to the National Dairy Promotion and Research Board, is currently challenging the constitutionality of these assessments in an ongoing administrative proceeding before the Secretary of Agriculture. In the administrative proceeding Gallo sought permission to escrow current and future assessments pending resolution of the administrative proceeding. Gallo's request was denied and Gallo brought suit in district court seeking review of the Secretary's decision denying Gallo's request for interim relief. Concluding that it lacked subject matter jurisdiction, the district court granted the Department of Agriculture's Motion for Judgment on the Pleadings. We affirm.

FACTUAL BACKGROUND

Gallo Cattle Company ("Gallo") owns one of the largest dairy herds in the nation. Gallo uses the milk from its herd solely for the production of cheese. As a dairy producer, Gallo is subject to the provisions of the Dairy and Tobacco Adjustment Act of 1983 ("Dairy Act"), Pub.L. No. 98-180, 97 Stat. 1128 (1983) (codified as amended 7 U.S.C. §§ 4501-38). The Dairy Act requires the Secretary of Agriculture to establish a national program for dairy product promotion, research, and consumer education, see 7 U.S.C. § 4504 (1992), which the Secretary did in 1984. See 7 C.F.R. pt. 1150 (1997). This program, the Dairy Promotion Program, is administered by the National Dairy Promotion and Research Board ("National Board"), which consists of 36 milk producers appointed by the Secretary of Agriculture. 7 C.F.R. § 1150.131 (1997).

Pursuant to the Dairy Promotion Program, milk producers are required to pay to the National Board a 15 per hundredweight assessment on milk for commercial

'Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation.

57 Agric. Dec. 895

use in fluid form or for manufactured products, including cheese. 7 C.F.R. § 1150.152 (1997). The assessment is reduced by up to 10 per hundredweight for payments made to a "qualified" state dairy program. 7 C.F.R. §§ 1150.153, 1150.152(c)(1997).' The National Board uses the assessments to defray the cost of administering the Dairy Promotion Program, which includes the costs associated with dairy product promotion, research projects, and nutrition education projects. See generally 7 C.F.R. § 1150.140 (1997).

PROCEDURAL BACKGROUND

On April 16, 1996, Gallo filed a petition with the United States Secretary of Agriculture ("Secretary") challenging the assessments it was required to pay to the National Board pursuant to the Dairy Promotion Program as violative of the First Amendment of the United States Constitution. In its Petition, Gallo sought interim relief. Specifically, Gallo sought permission to pay its assessments into escrow pending a decision on the merits of the petition. In an Order filed on May 29, 1996, the judicial officer, who acts for the Secretary in the adjudication of these petitions, denied Gallo's request for interim relief.

On June 18, 1996, Gallo filed an action in the United States District Court for the Eastern District of California seeking review of the judicial officer's Order denying interim relief. On October 7, 1996, Gallo moved for a preliminary injunction and/or summary judgment, and on October 8, 1996, the respondent, the United States Department of Agriculture ("USDA") moved for judgment on the pleadings. On November 8, 1996, the district court ruled from the bench that neither the Dairy Act nor the Administrative Procedure Act vested it with jurisdiction over the action. Accordingly, the district court dismissed Gallo's Complaint for lack of subject matter jurisdiction and filed an order memorializing that ruling on November 13, 1996. On January 10, 1997, Gallo timely filed its Notice of Appeal.

Since the dismissal by the district court, the United States Supreme Court issued its opinion in Glickman v. Wileman Bros., 521 U.S. 457, 117 S.Ct. 2130, 138 L.Ed.2d 585 (1997). In Glickman, the Court upheld a marketing order promulgated by the Secretary of Agriculture under the Agricultural Marketing Agreement Act

'Gallo participates in a California dairy program administered by the California Milk Producers Advisory Board. Pursuant to that program, Gallo pays to the California Board 10 per hundredweight of milk produced. Accordingly, because California's program is a "qualified" dairy program as defined by the National Dairy Act, Gallo's payment to the California program reduces its assessment due under the National Dairy Act. See 7 U.S.C. § 4504(g) (1992).

of 1937, the constitutionality of which had also been challenged as violative of the First Amendment. On November 14, 1997, this court ordered the parties to submit supplemental briefing on the effect, if any, of the Glickman decision on this appeal.2

DISCUSSION

We review de novo a district court's conclusion that it lacks subject matter jurisdiction. Wilson v. A.H. Belo Corp., 87 F.3d 393, 396 (9th Cir. 1996).

I. THE DAIRY PROMOTION PROGRAM DOES NOT GRANT THE DISTRICT COURT JURISDICTION TO REVIEW THE AGENCY'S DENIAL OF INTERIM RELIEF, UNTIL SUCH TIME AS THE SECRETARY RULES ON THE MERITS OF THE UNDERLYING PETITION.

Title 7 U.S.C. § 4509 (1992) sets forth the petition and review provisions of the Dairy Promotion Program. The statutory provision for administratively challenging the legality of any order issued pursuant to the Dairy Promotion Program is found in subsection (a) of § 4509, which provides:

Any person subject to any order issued under this subchapter may file with the Secretary a petition stating that any such order or any provision of such order or any obligation imposed in connection therewith is not in accordance with law and requesting a modification thereof or an exemption therefrom. The petitioner shall thereupon be given an opportunity for a hearing on the petition, in accordance with regulations issued by the Secretary. After such hearing, the Secretary shall make a ruling on the petition, which shall be final if in accordance with law.

7 U.S.C. § 4509(a) (emphasis added). The statutory provision conferring jurisdiction in the federal district courts to review the Secretary's administrative ruling is found in the next subsection of § 4509, which provides in relevant part:

'Given this court's conclusion that the district court did not have jurisdiction to review the Judicial Officer's denial of interim relief, any impact of the decision in Glickman on Gallo's underlying Petition currently before the Secretary is not before the court.