Cornucopia Inst. v. U.S. Dep't of Agric. ( 2018 )

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 Stand-
ards 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 ap-
plied, 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).
Beck and Swaffar were appointed to two of the four seats
that §6518(b)(1) reserves for “individuals who own or oper-
ate 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 farm-
ing. The standing hurdle prevented the district court from
pinning down plaintiffs’ theory and from deciding whether
Beck and Swaffar were qualified to serve.
No. 17-2422 3
To demonstrate standing a plaintiff must identify an in-
jury 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 plaintiffs tried to
show injury by contending that Beck and Swaffar don’t have
organic farmers’ true interests at heart, which plaintiffs 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 or-
ganic farmers’ interests, Beck and Swaffar have called the
organic-farming industry into disrepute and reduced organ-
ic farmers’ sales.
The 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 or-
ganic 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).
On appeal plaintiffs have abandoned this line of argu-
ment. 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
4 No. 17-2422
provide standing. Northeastern Florida Chapter of the Associat-
ed General Contractors of America v. Jacksonville, 508 U.S. 656,
664–66 (1993). It is therefore possible in principle for some-
one 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 re-
dressability—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 deci-
sion.
We bypass causation, which doesn’t maYer because the
injury plaintiffs assert could not be redressed by a favorable
decision. Marchese and Goodman contend that the ap-
pointments 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 par-
ticular 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 re-
ceived 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 Agricul-
ture’s organic-farming bureau, is an “interested person”
who can make a nomination, the Secretary may confine
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 plaintiffs’ grievance. We could not di-
rect 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
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 per-
son appointed by the President with the consent of the Sen-
ate is a “real Democrat,” because the judiciary could not re-
dress any injury by requiring the President to consider the
plaintiff for a position on the Commission. Someone ag-
grieved by an order of an improperly constituted Commis-
sion has a bona fide 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 dis-
appointed by being turned down for a post on the Commis-
sion 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 re-
appointment. 7 U.S.C. §6518(d). Swaffar’s term continues,
though she has changed jobs and now operates her own or-
ganic farm. Plaintiffs say that this does not maYer because
she was ineligible in 2014, when she was appointed. We by-
pass 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 ab-
sence of standing makes this suit non-justiciable; whether it
would be non-justiciable for a further reason is unimportant.
AFFIRMED