American Dairy of Evansville, Inc. v. Robert Bergland, Secretary of Agriculture , 627 F.2d 1252 ( 1980 )

WILKEY, Circuit Judge:

This appeal involves a provision in certain milk marketing orders whereby retroactive notice is given of Class II prices that milk handlers must pay producers. Appellant handlers and two dairy associations filed suit in the district court seeking judicial review of the retroactive notice provision. The district court granted in part the motion of appellees Department of Agriculture and various officials to dismiss the suit on grounds of mootness and failure to exhaust administrative remedies, and granted their motion for summary judgment as to those issues over which the court found it had jurisdiction. For reasons to be discussed, we reverse the decision of the district court and remand the case with instructions to return it to the Secretary of Agriculture for further proceedings consistent with this opinion.

I. BACKGROUND

A. Statutory Framework

The Agriculture Marketing Agreement Act of 1937¹ authorizes the Secretary of Agriculture to regulate milk marketing and the relations between producers and handlers of milk. 7 U.S.C. § 608c(5) authorizes the Secretary to classify milk received by handlers according to its use and to establish minimum prices that handlers shall pay for each such class of milk and the time when payments shall be made. The methods for determining prices for the different classes of milk and time of announcement are set out in approximately fifty federal milk marketing orders currently in effect.²

Such milk marketing orders are issued in formal rulemaking proceedings with prior notice and hearing. The Act provides that any handler may petition the Secretary for relief from any provision of an order believed to be “not in accordance with law.”³ By regulation, administrative review of the orders is first made by an Administrative Law Judge, subject to review by the Secretary.⁴ The Secretary has delegated his statutory review authority to the Judicial Officer of the Department of Agriculture.⁵ The district court has jurisdiction to review the ruling of the judicial officer on a petition for review.⁶

B. The Course of These Proceedings

The relevant marketing orders classify milk into two and sometimes three classes. Class I is the largest class, and includes milk that is put to a fluid use. Class II is used to produce soft products such as yogurt, ice cream, and cottage cheese. Class III milk is used to produce hard products such as butter, powder, and cheese.⁷ This appeal concerns the price announcement scheme for Class II milk.

The uniform price for Class II milk in any given month is the so-called Minnesota-Wisconsin (M-W) price for that month plus ten cents per hundred weight.⁸ The price is announced on the 5th day of each month and applies to producer milk delivered to handlers during the preceding month.⁹ Appellants object to this retroactive notice provision for Class II milk.

1. The 1970-1974 Rulemaking Proceedings

(a) Docket No. AO 361-A3, et a 1.

On 1 July 1970 the Department published notice of a rulemaking proceeding (Docket No. AO 361-A3, et a 1.) to consider proposed amendments to seven marketing orders regulating milk handling in the Chicago regional and other marketing areas.¹⁰ On request of two dairy associations, advance notice or advanced pricing of Class II and Class III milk was designated as one of many hearing issues.¹¹ A substantial amount of evidence was taken in support of the proposal.¹² On 11 June 1971 the Department published a Notice of Recommended Decision and Opportunity To File Written Exceptions in connection with the rulemaking proceeding.¹³ The deputy administrator found in the recommended decision that the advanced notice proposal “should not be adopted.”¹⁴ The decision noted the claims of handlers that the retroactive procedure disadvantaged them by preventing them from knowing the cost of producer milk until after the end of the month in which the milk was processed. The decision observed that the principal milk cooperatives opposed advance notice for Class III milk. It found that because of peculiarities in the Class III milk market that “the prices paid by regulated handlers for Class III milk should correspond very closely with the pay prices for manufacturing grade milk if these handlers are to be competitive in the sale of the principal surplus products. Basing the Class III price for a particular month on the prices paid for manufacturing grade milk in the preceding month would not result in the price coordination necessary for those regulated handlers heavily engaged in the production of cheddar cheese, non-fat dry milk, or butter.” ¹⁵

Thus the advance notice provision was rejected for Class III milk to protect handlers, the very parties who claimed to be disadvantaged by the existing retroactive provision. The decision found that “[t]he same considerations are involved in the case of an advance announcement of prices for milk used in the proposed Class II products.” It concluded, therefore, that “the prices for Class II milk should be announced on the same basis as the prices for Class III milk.”¹⁶

Following the recommended decision, exceptions were filed to the proposed denial of advanced notice for Class II milk by large numbers of handlers and associations of handlers. Significantly, the record discloses that the principal producer cooperatives in the seven marketing areas covered by the orders also took exception to the proposed decision. They wrote that “[t]he principal cooperatives supported at the hearing handlers’ proposal to announce order prices for Class II milk at the beginning of the month rather than at the end of the month in which the price applies. It is not necessary for the proposed Class II prices to correspond closely with prices being paid for manufactured grade milk - in the same month.”¹⁷ While the producers opposed advance notice for Class III milk,¹⁸ they were in favor of advanced notice for Class II milk.ls The recommended decision did not take note of this distinction.¹⁹

On 14 September 1973 a Notice of Revised Recommended Decision was issued by the Administrator of the Agricultural Marketing Service of the Department.²⁰ The revised recommended decision failed even to mention the exceptions taken to the recommended decision with respect to advance notice of Class II prices. It simply reproduced word for word the language of the recommended decision regarding advance notice. Exceptions were filed to the revised recommended decision.

On 4 March 1974 the final decision on the proposals was issued by the Assistant Secretary of Agriculture.²¹ The language of the findings respecting advance notice of Class II prices was identical with that of the recommended decision, except the final decision acknowledged that both handler and producer groups had urged the adoption of advanced notice for Class II prices. No specific ruling on these exceptions was made nor any further comment or additional basis for denial given.²²

(b) Docket No. AO 366-A8, et a 1.

On 8 October 1971 the Department published a notice of a hearing on proposed amendments to thirty-three orders regulating milk handling in thirty-three- market areas.²³ Again one of the proposals was to adopt advance notice for Class II and Class III prices. The advance notice proposal was supported by a significant amount of evidence at the hearing.²⁴ On 16, 19 and 20 September 1972 the Recommended Decision and Opportunity to File Written Exceptions on the Proposed Amendments²⁵ rejected the advance notice amendment for substan-. tially the same reasons it was rejected in the rulemaking in Docket No. AO 361-A3, et al.²⁶ The exceptions filed by the proponents and handlers argued that a distinction should prevail between the new Class II products and the new Class III products respecting advance notice, and requested that the decision be amended to provide for advance notice of Class II prices.²⁷

The Revised Recommended Decision and Opportunity To File Written Exceptions²⁸ published on 11, 12 and 13 September 1973 made no mention of the many exceptions made to the recommended decision as to Class II notice. Exceptions were made to the revised recommended decision by a large number of handlers and by the two principal cooperatives in the areas covered by all the orders.²⁹ A final decision on the proposed amendments was published on 5, 6 and 7 March 1974.³⁰ The findings on the advance notice proposal were identical to those in the revised recommended decision and recommended decision, except that the exceptions to the decision were acknowledged. No further mention or disposition of the exceptions was made.³¹

2. The ALJ’s Decision

On 15 July 1974 appellants filed a petition pursuant to 7 U.S.C. § 608c(15)(A) seeking to have the Class II milk notice provision invalidated on substantive and procedural grounds. An Administrative Law Judge ruled on 20 January 1976 that the retroactive notice provisions of the federal milk marketing orders were not in accordance with law because they were not supported by record evidence. The ALJ found that there was substantial evidence in the record to support rejection of advance notice for Class III milk, but that there was no substantial evidence in the records to support the Secretary’s findings with respect to Class II notice³² The ALJ observed that “[a]fter establishing the need to announce Class III prices in a manner different from the manner of announcing Class I prices, the Secretary’s findings simply state that the same justification for treatment of price announcements for Class III and Class II milk applies — because they are similar.”³³ He observed that this “similarity” was not disclosed by the record “nor is it discoverable.”³⁴ He pointed out that “[t]he findings make no attempt at such explanation. Substantial evidence of record supports a distinction in the timing of the announcement. No evidence of record supports the Secretary’s conclusion of similarity on the point in issue.”³⁵ Therefore he concluded “that the provisions in the 40 orders providing for delayed price announcement for Class II milk are not supported by substantial evidence of record, the pertinent findings in the Decisions are inadequate or non-existent, and that such defects are contrary to the substantive and procedural requirements of the Act and the Secretary’s own regulations.”³⁶ The ALJ declined to order advance notice of prices because he believed he was without power to do so.³⁷ Both appellants and the Department of Agriculture appealed this decision to the Judicial Officer.

3. The Judicial Officer’s Disposition

On 29 April 1976 the Judicial Officer entered his decision and order on appellants’ petition. He concluded that the challenged provision was authorized by statute, was not in violation of the Constitution, and was not arbitrary and capricious or discriminatory in application.³⁸ However, the Judicial Officer agreed with the ALJ that the retroactive notice provisions of the orders were not in accordance with law because the record evidence and findings of fact did not support the Secretary’s decision purporting to continue retroactive notice solely to benefit regulated handlers.³⁹ The officer declined to offer affirmative relief to the petitioners; rather, he decided to “leave it to the Secretary” to determine whether and if such relief should be granted.⁴⁰ He was also of the view that if he were to consider amending the orders to comply with his decision, he would not order advance notice because he could not “infer from [the record] evidence that advance notice would tend to effectuate the declared policy of the Act.”⁴¹ He also stated that he would retain jurisdiction and the parties would be able to institute additional proceedings before him if unsatisfied by subsequent Secretary action.⁴² Appellants then filed suit on 10 May 1976 for review of the Judicial Officer’s decision.

4. The 1976 Rulemaking

The same day appellants filed in the district court, the Department of Agriculture designated the question of amending the notice of pricing provision in the milk marketing orders as a hearing issue for a new rulemaking proceeding.⁴³ No specific proposal to adopt retroactive notice was advanced. On 22 September 1976 the Department published a Decision on Proposed Amendments; Order Terminating Proceedings⁴⁴ in the Federal Register. The decision did not identify any proposal to provide retroactive notice in the orders, nor did it adopt any provision for retroactive notice. The decision stated only that the proceedings were terminated and that the orders should not be amended to include advance notice.⁴⁵ The appellants notified the Judicial Officer on 20 October 1976 that they did not intend to file a petition for review of these proceedings with the Judicial Officer in accordance with his 29 April 1976 decision.⁴⁶ Accordingly on 28 November 1976 the Judicial Officer issued an order terminating the proceedings.

5. The District Court Decision

At the district court level cross motions were made for summary judgment, and appellees moved for dismissal. The district court granted the motion to dismiss in part, finding that the doctrines of mootness and exhaustion barred those claims not raising “purely legal questions.” It found that such claims regarding the 1976 supplemental rulemaking proceedings were not properly before the court because appellants did not exhaust their administrative remedies with respect thereto.⁴⁷ It determined that the 1976 proceedings had supplanted the 1970-1974 proceedings as the basis for retaining the retroactive notice provisions, and thus issues regarding the 1970-1974 proceedings were moot.⁴⁸ The court found that it did have jurisdiction to decide appellants’ claims presenting questions of law and concluded that retroactive notice “is authorized by and not in conflict with the statute and that it is not violative of” any constitutional and administrative law principles against retroactive application of government regulation.⁴⁹

II. MERITS

A. Mootness

The district court was of the view that the 1976 rulemaking provided an independent basis for the inclusion of retroactive notice provisions in the milk marketing orders. Thus, it believed that whether the 1970-1974 proceedings provided a sufficient basis for the notice provision was a purely academic question.⁵⁰

We believe that the 1976 supplemental rulemaking in form and in substance did not constitute an independent basis for inclusion of retroactive notice in the various orders and therefore did not moot appellants’ challenge to the validity of the provision. In its 1976 decision the Department found that its new record did “not support the advance announcement of Class II prices.”⁵¹ Therefore, the Department concluded that “[t]he orders should not be amended to change the procedure for announcing the Class II milk prices.”⁵² Rather than purport to adopt or readopt retroactive notice, the decision simply rejected certain advance notice proposals and left in effect the retroactive notice provision which had already been declared invalid. Because it did not reconsider and readopt retroactive notice, the 1976 rulemaking merely added zero to zero, resulting in zero as far as a valid milk pricing proposal is concerned. In its form, the decision might be res judicata as to the propriety of adopting the particular advance notice proposals before the Department based on the 1976 record, but the decision on its face does not constitute an independent basis for inclusion of retroactive notice provisions in the milk orders, nor does it moot the question of the validity of their adoption in the 1970-1974 proceedings.

Nor do we think the Department’s refusal to amend the existing notice provision constituted in substance an adoption or readoption of retroactive notice. The Department made findings that the particular advance pricing proposals in some circumstances “could not be concluded to be in furtherance of the expressed purposes of the Act.”⁵³ At no point did the Department find that retroactive notice would effectuate the policies of the Act. In the absence of such an affirmative finding, the decision did not and could not in substance constitute an adoption of retroactive notice under the guise of rejection of advance notice. Again, by simply rejecting the amendments to the prior, invalid order, the Secretary added zero to zero, and comes up with zero.

Because the 1976 supplemental rulemaking did not constitute an independent basis for retroactive notice,⁵⁴ we hold that the district court erred in ruling that appellants’ challenges to the 1970-1974 proceedings were moot.

B. Exhaustion of Administrative Remedies

Nor are appellants barred from challenging the validity of retroactive notice in the milk orders by failure to exhaust administrative remedies. We think that by seeking and obtaining a ruling by the Judicial Officer on the retroactive notice question, appellants complied with the requirements of the Act and exhausted their statutorily required administrative remedy.

The dissent suggests that because the Judicial Officer’s decision in 1976 was in the nature of a remand it was a nonfinal order obligating appellants to continue participating in the new Department rulemaking and subsequent review by the Judicial Officer before seeking review by the district court. He submits that appellants’ failure to do so is not excusable because exhaustion is required by statute.

We agree that exhaustion of certain administrative remedies is required by the Act. We also believe that appellants have exhausted these statutorily required remedies. 7 U.S.C. § 608c(15)(A) provides that handlers may file written petitions with the Secretary of Agriculture to review marketing orders. The handlers are to be “given an opportunity for a hearing upon such petition,” and “[a]fter such hearing, the Secretary shall make a ruling upon the prayer of such petition which shall be final, if in accordance with law.”⁵⁵ The statute grants jurisdiction to the district court “to review such ruling.”⁵⁶ Appellants have sought review by the Judicial Officer, and a ruling has been made on their petition. That is all that the Act requires for them to seek review by the district court.

We do not believe that the 1976 rule-making justifies our imposition of any further exhaustion requirement antecedent to judicial review of promulgation of retroactive notice. As previously mentioned, the 1976 rulemaking did not purport in form or substance to adopt retroactive notice; it merely rejected certain advance notice proposals. Because the rulemaking did not add anything to the validity of the department’s promulgation of the challenged provision, we do not think it necessary to require that appellants pursue further administrative avenues prior to seeking review of the provision in the district court in this case. The Judicial Officer had already declared the retroactive notice provision not in accordance with law. As to that holding, the 1976 rulemaking purported to do absolutely nothing; adding zero to zero, it does not justify a further exhaustion requirement.⁵⁷

Because appellants have exhausted their statutorily required remedies, and because the 1976 rulemaking does not justify imposition of any further exhaustion requirement, we conclude that their challenges to retroactive notice are not barred for failure to exhaust administrative remedies.

C. Finality

Further, we do not believe that the Judicial Officer’s 1976 order was nonfinal because he retained jurisdiction to allow “whatever corrective action” the Secretary desired to take.⁵⁸ The order arguably is analogous to a remand, and in certain cases remands have been held to be nonfinal for purposes of appellate or judicial review.⁵⁹ However, simply labeling the challenged order a remand does not end our inquiry into its finality.⁶⁰

In determining whether an order is sufficiently final for purposes of judicial review, “the relevant considerations . . . are whether the process of administrative decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency action.”⁶¹ In view of these considerations and the statute outlining required administrative procedures to review marketing orders, we think the Judicial Officer’s order is final for purposes of judicial review.

The Judicial Officer’s 1976 order denied appellants’ request that advance notice be ordered and the invalidly adopted retroactive notice provision be terminated. We think that such a decision determined obligations of the handlers, and legal consequences certainly flowed from the action.

We also believe that judicial review of the order presents little danger of appreciable disruption of agency proceeding.⁶² In so deciding, we note that the requirements of finality and exhaustion are inextricably intertwined. Both are designed to avoid premature disruption of agency proceedings.⁶³ In determining at what point judicial review will not unduly intrude on the administrative process, the relevant statute outlining the required administrative procedures must be examined. The Agricultural Marketing Agreement Act provides an exclusive administrative remedy which must be followed prior to obtaining judicial review. We think that once the prescribed procedure has been followed, the exhaustion mandate should be regarded as met, and the resulting decision as sufficiently final for purposes of review by the courts.

Since we have already concluded that appellants have complied with the exhaustion mandate of the Act, it follows that the Judicial Officer’s order is final for purposes of review, even though.it is in the nature of a remand. Our conclusion is strengthened by the language in the Act stating that the Judicial Officer’s ruling “shall be final, if in accordance with law,” and that such rulings are reviewable by the district court.⁶⁴ We believe that the statute contemplates that once review has been made by the Judicial Officer, the danger of appreciable obstruction of administrative proceedings is minimized and that such orders “shall be final” for purposes of review.

III. RELIEF

The court has before it an order by the Judicial Officer finding that retroactive notice was not validly adopted in the 1970-1974 proceeding, and retaining jurisdiction pending whatever corrective action the Secretary might take. The subsequent 1976 rulemaking, in our view, was a nullity, since it did not purport affirmatively to promulgate a retroactive notice provision based on any evidence whatsoever. Therefore, we are faced with a milk marketing provision that has never been validly adopted, and has been declared invalid and of no effect. With that in mind, we believe the following relief⁶⁵ is appropriate:

(1) The case should be remanded to the Department for adoption of a new notice provision based on the 1970-1974 or 1976 records, or for an entirely new hearing on the pricing formula and notice provision for Class II milk, at the Secretary’s discretion.

(2) The retroactive notice provision in the Class II milk marketing orders should be vacated as not in accordance with law, and the Secretary should be directed in the interim to use the same notice provision used for Class I milk, i. e., advance notice, until a Class II notice provision is adopted after the appropriate hearing and/or findings.

Appellants submit that there is sufficient evidence on the record to justify advance pricing for Class I milk. In view of our disposition of this appeal, we do not believe it propitious to decide the issue at this time.⁶⁶ While the Judicial Officer indicated that he did not believe that evidence in the 1970-1974 proceedings warranted a finding that Class II advance notice would “tend to effectuate the policy” of the Act, that statement was merely dictum. Because he left it to the Secretary to take corrective action, his comment was wholly gratuitous and is in no way binding on the court or on the Department on remand. Having concluded that the notice provision is invalid, we leave it to the Secretary to issue a new notice provision supportable on the record.⁶⁷

We also believe that the challenged provision should not be enforced in the interim. All parties agree that the initial adoption of retroactive notice was invalid, and the provision has never been readopted. Because the provision is clearly invalid, we think it should be deleted from the marketing orders. Since milk must be priced and notice given pending issuance of new regulations by the Secretary we think the Class I notice procedure should be used in the meantime. In another rulemaking, the Secretary found, and that finding is unchallenged, that prospective notice effectuates the policy of the Act with respect to Class I milk.⁶⁸ Class I includes most milk. Because of certain peculiarities in the marketing of Class III milk, the Secretary made an unchallenged finding that retroactive notice should be used for that class. Having made that valid finding with respect to Class III, the Secretary attempted to impose retroactive notice on Class II milk simply by analogy. The AU and the Judicial Officer made determinations that the Secretary has not shown that the two classes are so similar that the notice provisions must be identical.

Since most milk is subject to prospective notice, and since the Secretary’s rationale for treating Class II milk differently than Class I as to timing of notice is invalid, we think it most appropriate that Class I notice be used for Class II until the Secretary promulgates new notice provisions. In ordering such interim relief, we do not intimate any view as to what type of notice provision the Secretary must issue on remand. We simply hold that the existing provision is invalid, and until a new provision is adopted Class I type notice must be utilized.

This proceeding was initiated by a notice on 1 July 1970. In almost a decade this administrative agency has failed to produce a decision sustainable on an adequate record. While recognizing that the ultimate answer on the merits of milk pricing rests with the Secretary, the aggregate record of this decade-long administrative morass is equivalent to administrative action unlawfully withheld. The courts have power to compel administrative action in such circumstances; ⁶⁹ by granting the private parties here the relief they have sought for years, although on an interim basis, we expect proper and prompt administrative action on a sound record to result.

For these reasons, the judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion.

1 . 7 U.S.C. § 601 et seq. (1976).

2 . 7 C.F.R. § 1000 et seq. (1979).

3 . 7 U.S.C. § 608c(15)(A).

4 . 7 C.F.R. § 900.50-.64 (1979).

5 . See id § 900.65-.71; 38 Fed.Reg. 10,795 (1973); 37 Fed.Reg. 28,475 (1972).

6 . 7 U.S.C. § 608c(15)(B).

7 . See, e. g„ 7 C.F.R. § 1030.40 (1979).

8 . Babcock Dairy Co., AMA Docket No. M MM-3 (decision by Administrative Law Judge 20 Jan. 1976) [hereinafter cited as ALJ Decision], reprinted in Joint Appendix (J.A.) at 52, 92 n. 7; see, e. g„ 7 C.F.R. § 1030.50 (1979).

9 . E. g„ 7 C.F.R. § 1030.53 (1979).

10 . 35 Fed.Reg. 10,692 (1970).

11 . id. at 10,694:

Proposal No. 28. Provide in each order for the announcement of Class II or Class III prices (if three classes are to be established) in advance of the date on which they become effective.

12 . See J.A. at 7-9.

13 . 36 Fed.Reg. 11,352 (1971).

14 . Id. at 11,366.

15 . Id.

16 . Id.

17 . Exceptions to the Recommended Decision on Behalf of Associated Milk Producers, Inc., Dairymen, Inc., and Mid-America Dairymen, Inc., reprinted in J.A. at 13.

18 . An exception to the revised recommended decision filed by one of the principal cooperatives, Associated Milk Producers, Inc., (AMPI) stated that “AMPI is opposed to advance announcement of Class III prices but does support the announcement of the Class I and II prices and butterfat differential on the fifth of the month to be effective on the first day of the following month.” Reprinted in J.A. at 17.

19 . By making reference to the producers opposition to Class III advance announcement and then stating that “[t]he same considerations are involved” with respect to Class III, the recommended decision erroneously implied that the producers were opposed to Class II announcement. See ALJ Decision, reprinted in J.A. at 52, 69-70.

20 . 38 Fed.Reg. 25,756 (1973).

21 . 39 Fed.Reg. 8,202 (1974).

22 . See ALJ Decision, reprinted in J.A. at 52, 76.

23 . 36 Fed.Reg. 19,604 (1971).

24 . See J.A. at 23.

25 . 37 Fed.Reg. 18,984; 37 Fed.Reg. 19,210; 37 Fed.Reg. 19,482 (1972). Hearings on the proposal were heard in three principal locations, but for legal purposes there was one hearing and one record. See ALJ Decision, reprinted in J.A. at 52, 78.

26 . See ALJ Decision, reprinted in J.A. at 52, 81.

27 . See J.A. at 25-26.

28 . 38 Fed.Reg. 25,024; 38 Fed.Reg. 25,282; 38 Fed.Reg. 25,522 (1973).

29 . See J.A. at 27-32. The two principal cooperatives were Associated Milk Producers, Inc., and Land O’Lakes, Inc., whose comments are found at J.A. at 30, 32. See ALJ Decision, reprinted in J.A. at 52, 83.

30 . 39 Fed.Reg. 8,452; 39 Fed.Reg. 8,712; 39 Fed.Reg. 9,012 (1974).

31 . See ALJ Decision, reprinted in J.A. at 52, 83.

32 . Id. at 87-88.

33 . Id. at 88.

34 . Id.

35 . Id. at 89 (emphasis in original).

36 . Id. at 89-90.

37 . Id. at 104.

38 . Babcock Dairy Co., AMA Docket No. M MM-3 (decision of Judicial Officer 29 Apr. 1976), reprinted in J.A. at 107, 125-28.

39 . Id. at 120.

40 . Id. at 129.

41 . Id. at 129-30.

42 . Id. 131.

43 . 41 Fed.Reg. 19,650 (1976).

44 . 41 Fed.Reg. 41,427 (1976).

45 . Id. at 41,428; 41,431.

46 . J.A. at 197-99.

47 . American Dairy, Inc. v. Butz, No. 76-0806, slip op. at 10-16 (D.D.C. 29 May 1977), reprinted in J.A. at 210-16.

48 . Id. at 216-18.

49 . id. at 219-29.

50 . Id. at 210, 216-18.

51 . 41 Fed.Reg. 41,431 (1976).

52 . Id. at 41,428 (emphasis added).

53 . 41 Fed.Reg. 41,430 (1976).

54 . The district court rejected appellants’ arguments that the 1976 rulemaking was a nullity, believing that the validity of the proceeding was not reviewable because appellants failed to seek review by the Judicial Officer. Our conclusion that the 1976 rulemaking did not moot the 1970-1974 proceeding does not rest on the 1976 proceeding’s claimed invalidity; assuming the rulemaking to be valid, we think it simply did not purport to repromulgate retroactive notice and hence does not moot our consideration of the provision’s original adoption.

55 . 7 U.S.C. § 608c(15)(A) (1976).

56 . Id. § 608c(15)(B).

57 . Whether a “corrective” rulemaking would ever justify judicial imposition of a requirement that handlers pursue further administrative remedies after the Judicial Officer has made a ruling on their petition is a question we do not decide. If the Department had adopted retroactive notice in its 1976 rulemaking, it might be wise for us to require handlers to obtain review by the Judicial Officer before filing in the district court. (Of course, if that had occurred, then the challenges to the original proceeding could have been correctly disposed of on mootness grounds, without need to determine whether the 1976 rulemaking triggered a further exhaustion requirement antecedent to judicial review of the 1970-1974 proceeding.) On the other hand, a holding that the Judicial Officer’s remitting handlers to a new rulemaking precluded them from seeking judicial review could create a danger of the Department’s indefinitely avoiding judicial review by an endless series of remands. In view of our conclusion that the 1976 rulemaking did not create any further obligation to exhaust, we leave open the question whether the court should ever require handlers to pursue remedies beyond those statutorily required.

58 . Babcock Dairy Co., AMA Docket No. M MM-3 (decision of Judicial Officer 29 Apr. 1976), reprinted in J.A. at 107, 131.

59 . Fieldcrest Mills, Inc. v. OSHA, 545 F.2d 1384 (4th Cir. 1976) (OSHA Review Commission decision reversing ALJ’s summary judgment and remanding for trial on the merits was not a final order because it was not one “affirming, modifying or vacating the Secretary’s citation or proposed penalty, or directing other appropriate relief” as required for finality by 29 U.S.C. § 659(c)); Sun Shipbuilding & Dry Dock Co. v. Benefits Review Bd., 535 F.2d 758 (3d Cir. 1976) (Benefit Review Board’s decision affirming ALJ’s determination of liability but remanding for redetermination of damages was a nonfinal order); see Barfield v. Weinberger, 485 F.2d 696 (5th Cir. 1973); Pauls v. Secretary of Air Force, 457 F.2d 294 (1st Cir. 1972) (both Barfield and Pauls find district court remands to agency to be nonfinal decisions within the meaning of 28 U.S.C. § 1291).

60 . Cf. Fidelity Television, Inc. v. FCC, 502 F.2d 443, 448 (D.C.Cir.1974) (agency characterization of decision not determinative of finality issue).

61 . Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203 (1970).

62 . Although the determination whether judicial review will disrupt agency proceedings should focus on the state of the proceedings at the time the relevant order was entered, we note that our reviewing the Judicial Officer’s decision presents no such danger of disruption today. The Judicial Officer entered his order terminating the proceeding on 23 November 1976, and there are no further proceedings currently pending before the Department to review the 1970-1974 adoption of retroactive notice.

63 . McKart v. United States, 395 U.S. 185, 193-94, 89 S.Ct. 1657, 1662-1663, 23 L.Ed.2d 194 (1969):

The reasons for making such procedures exclusive, and for the judicial application of the exhaustion doctrine in cases where the statutory requirement of exclusivity is not so explicit, are not difficult to understand. A primary purpose is, of course, the avoidance of premature interruption of the administrative process. The agency, like a trial court, is created for the purpose of applying a statute in the first instance. Accordingly, it is normally desirable to let the agency develop the necessary factual background upon which decisions should be based. And since agency decisions are frequently of a discretionary nature or frequently require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise. And of course it is generally more efficient for the administrative process to go forward without interruption than it is to permit the parties to seek aid from the courts at various intermediate stages. The very same reasons lie behind judicial rules sharply limiting interlocutory appeals.

64 . 7 U.S.C. § 608c(15)(A)-(B) (1976).

65 . 7 U.S.C. § 608c(15)(B) (1976) authorizes the reviewing court to “remand such proceedings to the Secretary with directions either (1) to make such ruling as the court shall determine to be in accordance with law, or (2) to take such further proceedings as, in its opinion, the law requires.”

66 . Similarly we do not decide whether the provision is authorized by the statute, nor whether it is violative of any constitutional or administrative law principles regarding retroactive application of government regulation.

67 . If the Secretary is of the view that either the 1970-1974 or 1976 records justifies findings that a particular notice procedure effectuates the policy of the Act, he may make a decision on that basis. Such decision, of course, will be subject to review by agency procedures, and eventually by the courts. If the Secretary believes that neither record warrants a finding that any particular kind of notice effectuates the policy of the Act, he may initiate a new rulemaking. The conclusion that a new hearing is necessary will also be subject to administrative and judicial review. This will allow future reviewing entities to determine if granting a new hearing constituted giving some sort of illegitimate “second bite of the apple” to the Department to prove its case. See American Dairy v. Butz, No. 76-0806, slip op. at 13 n.32 (D.D.C. 29 May 1977), reprinted in J.A. at 213 n.32.

68 . 37 Fed.Reg. 1388 (1972).

69 . See 5 U.S.C. § 706(1) (1976).