The Cornucopia Institute, Dominic Marchese, and Rebecca Goodman, Plaintiffs-Appellants,
United States Department of Agriculture and Sonny Perdue, Secretary of Agriculture, Defendants-Appellees.
January 8, 2018
from the United States District Court for the Western
District of Wisconsin. No. 16-cv-246-wmc - William M. Conley,
Easterbrook and Sykes, Circuit Judges, and Bucklo, District
Easterbrook, Circuit Judge.
National Organic Standards Board, an advisory committee, has
15 members, all ap- 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.
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 Swaffar. 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
Swaffar are ineligible to fill the seats to which they were
appointed. Problem: throwing Beck and Swaffar off 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).
and Swaffar 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 Swaffar were employees of agribusinesses that
produce some organic products and some non-organic products.
It is not clear whether plaintiffs object to the fact that
Beck and Swaffar were office 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 plaintiffs' theory and from deciding whether Beck
and Swaffar were qualified to serve.
demonstrate standing a plaintiff 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 c默齾 say is demonstrated by many votes they
cast differently from the votes of the other members
appointed to the seats reserved by §6518(b)(1).
Plaintiffs insisted that by deflecting the Board from making
recommendations most likely to promote organic farmers'
interests, Beck and Swaffar have called the organic-farming
industry into disrepute and reduced organic farmers'
district judge found that plaintiffs had not alleged that the
Board's recommendations about what should be on or off
the National List had any effect on the fortunes of organic
farmers-and the judge added that this whole line of argument
did not show any injury personal to the plaintiffs. 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-specific loss needed to show standing. See,
e.g., Hollingsworth v. Perry, 133 S.Ct. 2652,
2662-63 (2013); Lance v. Coffman, 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).
appeal plaintiffs have abandoned this line of argument.
Instead Marchese and Goodman contend that they suffered the
personal loss of being denied a fair opportunity to compete
for positions on the Board. Loss of a chance to obtain some
benefit can indeed be an injury sufficient to 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
satisfied. 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 rectified by a judicial decision.
bypass causation, which doesn't matter because the injury
plaintiffs assert could not be redressed by a favorable
decision. Marchese and Goodman contend that the appointments
of Beck and Swaffar 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 submitted 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 staff of the Department of
Agriculture's organic-farming bureau, is an
"interested person" who can make a nomination, the
Secretary may confine attention 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 plaintiffs' grievance. We could not direct
the Secretary to appoint them to the Board, to give them
favorable (or any) attention, or even to put them in a pool
from which a member would be drawn at random.
federal statutes limit the discretion of appointing
officials. For example, the Federal Trade Commission has five
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 filled 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 plaintiff for a
position on the Commission. Someone aggrieved by an order of
an improperly constituted Commission has a bona fide
complaint, see NLRB v. Noel Canning, 134 S.Ct. 2550
(2014), because the injury may be redressed by setting 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.
Cornucopia Institute's standing derives from that of its
members, and as the members lack standing so does the
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
re-appointment. 7 U.S.C. §6518(d). Swaffar's term
continues, though she has changed jobs and now operates her
own organic farm. Plaintiffs say that this does not matter
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. ...