Orville L. Freeman, Secretary of Agriculture, Appellant, v. L. B. Vance and Ford Vance, Partners, Doing Business As Vance Dairy, Appellees, 325 F.2d 663 (5th Cir. 1963)

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US Court of Appeals for the Fifth Circuit - 325 F.2d 663 (5th Cir. 1963) December 18, 1963

Alan S. Rosenthal, Atty., Dept. of Justice, Neil Brooks, Asst. Gen. Counsel, Dept. of Agriculture, Washington, D. C., E. R. Holmes, Jr., Asst. U. S. Atty., Robert E. Hauberg, U. S. Atty., Jackson, Miss., for appellant.

Alfred Moore, Hattiesburg, Miss., W. E. McIntyre, Jr., Brandon, Miss., John B. Carroll, Syracuse, N. Y., for appellees.

R. Emmett Kerrigan, New Orleans, La., John A. Cardon, Washington, D. C., filed a brief amici curiae for Dairymen's League Coop. Assn., Inc., Metropolitan Coop. Milk Producers' Bargaining Agency, Inc., and Mutual Federation of Independent Cooperatives, Inc.

Before RIVES, JONES and BROWN, Circuit Judges.


In reversing and rendering the judgment of the district court, we gave consideration to the contentions renewed on petition for rehearing which were not involved in Ideal Farms, Inc. v. Benson, 3 Cir. 1961, 288 F.2d 608, cert. denied, 372 U.S. 965, 83 S. Ct. 1087, 10 L. Ed. 2d 128. We hold that there were sufficient findings by the Secretary that appellees' intrastate handling of milk in this marketing area directly affects interstate commerce, and further that the Secretary's order is not a trade barrier in violation of Sec. 8c(5) (G) of the Agricultural Marketing Agreement Act of 1937 [7 U.S.C.A. § 608c(5) (G)] as construed in Lehigh Valley Cooperative Farmers, Inc., et al. v. United States, et al., 1962, 370 U.S. 76, 82 S. Ct. 1168, 8 L. Ed. 2d 345.

The petition for rehearing is