Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1988)

MEMORANDUM^*

FACTS AND PROCEEDINGS

The United States sought enforcement of an advertising assessment levied by the California Almond Board ("Board") against Saulsbury Orchards, an almond handler. All almond handlers are subject to the Agricultural Marketing Agreement Act of 1937 ("Act"), 7 U.S.C. § 601 et seq. Saulsbury cross-complained raising affirmative constitutional defenses to the assessment levy. Contending that it was a neutral stakeholder, Saulsbury filed an interpleader action naming the government and a number of almond growers as interpled defendants. Saulsbury maintained that because the Board's advertising assessment compelled commercial speech in violation of the first amendment, the assessment was invalid and the levied money should therefore revert to the growers from whose profits it had been offset.

The district court dismissed the cross-complaint and interpleader and granted summary judgment for the government, issuing a mandatory injunction requiring that Saulsbury conform with the order of the Almond Board. Saulsbury timely appealed.

STANDARD OF REVIEW

This court reviews a grant of summary judgment de novo. California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).

DISCUSSION

The government's authority to enforce the order of the Board derives from 7 U.S.C. § 608a(7):

Upon the request of the Secretary of Agriculture, it shall be the duty of the several United States attorneys, in their respective districts, under the directions of the Attorney General, to institute proceedings to enforce the remedies and to collect the forfeitures provided for in, or pursuant to this chapter.

When this section is read in combination with 7 U.S.C. § 608c(15) (B) it is apparent that congressional intent was that the United States would have standing to sue to enforce the various orders promulgated under this Agricultural Adjustment Act:

The pendency of proceedings instituted pursuant to this subsection (15) shall not impede, hinder, or delay the United States or the Secretary of Agriculture from obtaining relief pursuant to section 608a(6) of this title.

In Block v. Community Nutrition Institute, 467 U.S. 340, 348 (1984), the Court quoted Sen.Rep. No. 1011, 74th Cong., 1st Sess., 14 (1935), which states that Congress's intent was to not hamper the government's power to enforce compliance.

Saulsbury's contentions that the United States is not a real party in interest and that its standing to sue is limited to recovery of forfeitures are not consistent with a reading of the statutory plan as a whole.

The enforcement provision of the Act is found at 7 U.S.C. § 608a(6):

(6) The several district courts of the United States are vested with jurisdiction specifically to enforce, and to prevent and restrain any person from violating any order, regulation, or agreement, heretofore or hereafter made or issued pursuant to this chapter, in any proceeding now pending or hereafter brought in said courts.

Hence, Saulsbury's contention that no equitable jurisdiction lies with the district court is contrary to the plain meaning of this statutory provision. Saulsbury's argument that enforcement of payment of the specific brand assessments exceeds the jurisdiction granted in the Act, is similarly without merit. In Navel Orange Administration Committee v. Exeter Orange Co., 722 F.2d 449, 453 (9th Cir. 1983) and American Fruit Growers, Inc. v. United States, 105 F.2d 722, 726 (9th Cir. 1939), we affirmed injunctions enforcing compliance with marketing orders promulgated under the Agricultural Adjustment Act. In so doing, we implicitly acknowledge jurisdiction to compel compliance under the statute. The district court thus has jurisdiction to enforce the Board's order by injunction.

Saulsbury argues that it should be permitted to raise affirmative defenses in the district court to the collection of the Board's advertising assessments, without first raising those defenses in an administrative proceeding before the Secretary of Agriculture. One of the affirmative defenses Saulsbury inartfully raises is that the Board's imposition of the specific brand label advertising assessments is enforced commercial speech prohibited by the first amendment. Saulsbury apparently also asserts that the collection of those assessments results in an unlawful taking.

We decline to reach the merits of these contentions. Concurrent with the filing of this appeal, Saulsbury instituted an administrative proceeding before the Secretary of Agriculture. After initially dismissing the Saulsbury petition, inter alia, because the allegations relating to the constitutional questions were beyond the competency of that tribunal, the Secretary, through his judicial officer, has now ruled that Saulsbury's constitutional issues may be considered as they are related to the regulations and practices of the Almond Board rather than the statutory scheme. Because the Secretary's decision may afford Saulsbury the relief it requests, we will abstain from ruling on Saulsbury's constitutional claims.

In so doing, we adhere to deeply rooted principles of judicial restraint. "Few propositions are better established than that constitutional adjudication should be avoided wherever possible." Life Ins. Co. of North America v. Reichardt, 591 F.2d 499, 506 (9th Cir. 1979). Mr. Justice Brandeis succinctly summarized: "The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it." Aschwander v. Tennessee Valley Authority, 297 U.S. 288, 346 (1936) (concurring). Accordingly, we decline to entertain the issue of Saulsbury's constitutional defenses.

The United States may not be interpled under 28 U.S.C. § 1335. Statutory interpleader requires that at least two of the adverse claimants be of diverse citizenship. Kent v. Northern Cal. Reg. Off. of Amer. Friends Serv. Com., 497 F.2d 1325, 1327 (9th Cir. 1974). The United States, for purposes of the interpleader statute, is not a citizen of any state. Id. Since the adversity alleged by Saulsbury is between the government and the growers, the requisite diversity of citizenship is lacking and the interpleader must fail. See id.

CONCLUSION

Without reaching the merits of Saulsbury's affirmative defenses, we hold that Saulsbury's attempt to interplead the United States and the almond growers does not meet statutory interpleader requirements.

AFFIRMED IN PART.