Cornucopia Institute v. United States Department of Agriculture, No. 17-2422 (7th Cir. 2018)
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The National Organic Standards Board, an advisory committee, has 15 members, all appointed by the Secretary of Agriculture, 7 U.S.C.6518(b), (c); its principal task is advising the Secretary what belongs on the “National List of approved and prohibited substances that shall be included in the standards for organic production and handling” Plaintiffs, who operate organic farms, asked the Secretary to appoint them to the Board, but the Secretary appointed Beck and Swaffar. Plaintiffs contend that Beck and Swaffar are ineligible to fill the seats to which they were appointed. The Seventh Circuit affirmed the dismissal of the suit for lack of standing. Beck and Swaffer, appointed to seats reserved for “individuals who own or operate an organic farming operation,” were office employees of agribusinesses that produce some organic products and some non-organic products. Plaintiffs argued that by deflecting the Board from making recommendations most likely to promote organic farmers’ interests, Beck and Swaffar have called organic-farming into disrepute and reduced organic sales; that is not the kind of person-specific loss needed to show standing. Any injury plaintiffs assert could not be redressed by a favorable decision. The Secretary has a statutory right to appoint Board members but no corresponding duty to evaluate any particular applicant.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 17-2422 THE CORNUCOPIA INSTITUTE, DOMINIC MARCHESE, and REBECCA GOODMAN, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE and SONNY PERDUE, Secretary of Agriculture, Defendants-Appellees. ____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 16-cv-246-wmc — William M. Conley, Judge. ____________________ ARGUED JANUARY 8, 2018 — DECIDED MARCH 12, 2018 ____________________ Before EASTERBROOK and SYKES, Circuit Judges, and BUCKLO, District Judge.* EASTERBROOK, Circuit Judge. The National Organic Standards Board, an advisory commiYee, has 15 members, all ap- * Of the Northern District of Illinois, sitting by designation. 2 No. 17-2422 pointed by the Secretary of Agriculture. 7 U.S.C. §6518(b), (c). The Board’s principal task is advising the Secretary what belongs on the “National List of approved and prohibited substances that shall be included in the standards for organic production and handling” (7 U.S.C. §6517(a)). See 7 U.S.C. §6518(k)(2). Dominic Marchese and Rebecca Goodman, who operate organic farms, have asked the Secretary to appoint them to the Board, but without success. In 2011, when Marchese applied, the Secretary appointed Carmela Beck instead; in 2014, when Goodman applied, the Secretary picked Ashley Swa ar. In this suit under the Administrative Procedure Act Marchese and Goodman, plus the Cornucopia Institute (an organic-farming group to which Marchese and Goodman belong), contend that Beck and Swa ar are ineligible to ll the seats to which they were appointed. Problem: throwing Beck and Swa ar o would not put Marchese or Goodman on. This led the district court to dismiss the suit for lack of standing. 260 F. Supp. 3d 1061 (W.D. Wis. 2017). Beck and Swa ar were appointed to two of the four seats that §6518(b)(1) reserves for “individuals who own or operate an organic farming operation”. When appointed, both Beck and Swa ar were employees of agribusinesses that produce some organic products and some non-organic products. It is not clear whether plainti s object to the fact that Beck and Swa ar were o ce employees rather than hands-on farm operators or entrepreneurs, or to the fact that their employers were not 100% dedicated to organic farming. The standing hurdle prevented the district court from pinning down plainti s’ theory and from deciding whether Beck and Swa ar were quali ed to serve. No. 17-2422 3 To demonstrate standing a plainti must identify an injury caused by the complained-of conduct and redressable by a judicial decision. See, e.g., Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). In the district court plainti s tried to show injury by contending that Beck and Swa ar don’t have organic farmers’ true interests at heart, which plainti s say is demonstrated by many votes they cast di erently from the votes of the other members appointed to the seats reserved by §6518(b)(1). Plainti s insisted that by de ecting the Board from making recommendations most likely to promote organic farmers’ interests, Beck and Swa ar have called the organic-farming industry into disrepute and reduced organic farmers’ sales. The district judge found that plainti s had not alleged that the Board’s recommendations about what should be on or o the National List had any e ect on the fortunes of organic farmers—and the judge added that this whole line of argument did not show any injury personal to the plainti s. If people are not buying or consuming the optimal amount of organic produce, that’s a general, social injury, rather than the kind of person-speci c loss needed to show standing. See, e.g., Hollingsworth v. Perry, 133 S. Ct. 2652, 2662–63 (2013); Lance v. Co man, 549 U.S. 437, 439–42 (2007); Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 599 (2007); United States v. Hays, 515 U.S. 737, 744–45 (1995). On appeal plainti s have abandoned this line of argument. Instead Marchese and Goodman contend that they su ered the personal loss of being denied a fair opportunity to compete for positions on the Board. Loss of a chance to obtain some bene t can indeed be an injury su cient to 4 No. 17-2422 provide standing. Northeastern Florida Chapter of the Associated General Contractors of America v. Jacksonville, 508 U.S. 656, 664–66 (1993). It is therefore possible in principle for someone passed over for appointment to a position to complain that the decisionmaker used forbidden criteria. See Colorado Environmental Coalition v. Wenker, 353 F.3d 1221 (10th Cir. 2004). But the other elements of standing—causation and redressability—still must be satis ed. See, e.g., Bensman v. United States Forest Service, 408 F.3d 945 (7th Cir. 2005), which holds that ability to show a procedural irregularity (which we assume Marchese and Goodman have done) does not establish standing unless a concrete loss has been caused by that irregularity and could be recti ed by a judicial decision. We bypass causation, which doesn’t maYer because the injury plainti s assert could not be redressed by a favorable decision. Marchese and Goodman contend that the appointments of Beck and Swa ar robbed them of their “right to be considered” for appointment. Yet they have no such right. The Secretary has a statutory right to appoint members of the Board but no corresponding duty to evaluate any particular applicant. Marchese and Goodman submiYed their own names, but the Secretary was not obliged to consider them. Indeed, the Department of Agriculture was not obliged to open the envelopes. Section 6518(c) provides that the Secretary must choose from among “nominations received from organic certifying organizations, States, and other interested persons and organizations”, but not that any of these nominations must be considered. And as almost everyone, including the sta of the Department of Agriculture’s organic-farming bureau, is an “interested person” who can make a nomination, the Secretary may con ne No. 17-2422 5 aYention to internally generated lists of candidates or those received from Senators and Representatives or supported by the editorial page of the Washington Post. This means that we could not redress the plainti s’ grievance. We could not direct the Secretary to appoint them to the Board, to give them favorable (or any) aYention, or even to put them in a pool from which a member would be drawn at random. Many federal statutes limit the discretion of appointing o cials. For example, the Federal Trade Commission has ve members, of which “[n]ot more than three … shall be members of the same political party.” 15 U.S.C. §41. When the FTC has three Republicans, any vacancy must be lled by a member of some other party or an independent. It is easy to imagine a contention that someone nominated as a Democrat is not a “real Democrat” despite being registered as one; indeed, such assertions have been made frequently over the decades. But a lifelong Democrat passed over for appointment could not litigate the question whether a person appointed by the President with the consent of the Senate is a “real Democrat,” because the judiciary could not redress any injury by requiring the President to consider the plainti for a position on the Commission. Someone aggrieved by an order of an improperly constituted Commission has a bona de complaint, see NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), because the injury may be redressed by seYing aside the Commission’s order. But a person disappointed by being turned down for a post on the Commission must seek political rather than judicial remedies. The Cornucopia Institute’s standing derives from that of its members, and as the members lack standing so does the Institute. 6 No. 17-2422 What we have said so far resolves this appeal, and we need not consider the possibility that the case has become moot. Beck’s term has expired, and she was ineligible for reappointment. 7 U.S.C. §6518(d). Swa ar’s term continues, though she has changed jobs and now operates her own organic farm. Plainti s say that this does not maYer because she was ineligible in 2014, when she was appointed. We bypass that subject. There is no priority among reasons not to reach the merits of a lawsuit. See Sinochem International Co. v. Malaysia International Shipping Corp., 549 U.S. 422 (2007); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999). The absence of standing makes this suit non-justiciable; whether it would be non-justiciable for a further reason is unimportant. AFFIRMED
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