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Third, Petitioner contends that Glickman v. Wileman Bros. & Elliott, Inc., 117 S. Ct. 2130 (1997), does not dispose of Petitioner's claim that the Dairy Production Stabilization Act and the assessments imposed pursuant to the Dairy Production Stabilization Act and the Dairy Order violate Petitioner's right to freedom of association guaranteed under the First Amendment to the Constitution of the United States (Petitioner's Appeal Petition at 17).

I disagree with Petitioner. The Court in Wileman Bros. addresses freedom of association stating that, in contrast to compelled contributions for collective bargaining where an employee may have ideological, moral, or religious objections to the union's activities, "the collective programs authorized by the marketing order do not, as a general matter, impinge on speech or association rights." Glickman v. Wileman Bros. & Elliott, Inc., supra, 117 S. Ct. at 2140 n.16. The United States District Court for the Eastern District of California, examining the constitutionality of a law permitting the California Table Grape Commission to assess shipped grapes to fund generic advertising of California table grapes, states "[t]he predicate of [Wileman Bros.] is that there is no First Amendment right of association not to be compelled to associate for generic advertising" and that "no compelling purpose is needed. . . to require commercial association." Delano Farms Co. v. California Table Grape Comm'n, supra, slip op. at 11 (emphasis in original).

Moreover, I have previously held, based on Wileman Bros., that freedom of association is not infringed by compelled funding of the generic promotion of fresh mushrooms under the MPRCIA and the Mushroom Order (a promotion program similar in nature, purpose, and content to the dairy promotion program) and that the right to freedom of association under the First Amendment to the Constitution of the United States is not even implicated by the MPRCIA or the Mushroom Order.9

Fourth, Petitioner contends that bloc voting by cooperatives in National Dairy Promotion and Research Board referenda violates Petitioner's due process and equal protection rights (Petitioner's Appeal Petition at 21). I agree with the ALJ's conclusion that bloc voting does not violate Petitioner's rights to due process and equal protection of the law, and I have adopted the ALJ's discussion of the issue with only minor modifications.

Fifth, Petitioner contends that the National Dairy Promotion and Research Board's use of Petitioner's assessments to advertise dairy products that Petitioner

'In re United Foods, Inc., 57 Agric. Dec. , slip op. at 27-28 (Mar. 4, 1998); In re Donald B. Mills, Inc., 56 Agric. Dec. 1567, 1603 (1997), aff'd, No. CIV F-97-5890 OWW SMS (E.D. Cal. Mar. 26, 1998).

does not sell has no rational basis and violates Petitioner's right to equal protection of the law (Petitioner's Appeal Petition at 22).

The equal protection clause in section 1 of the Fourteenth Amendment to the Constitution of the United States provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Although the equal protection clause of the Fourteenth Amendment is not applicable to the federal government, the concepts of equal protection implicit in the due process. guarantees of the Fifth Amendment, which is binding on the federal government, are applicable to the federal government.10 Equal protection requires that persons similarly situated be treated alike." The general rule is that legislation is

10 See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995) (holding that the equal protection guarantee of the Fifth Amendment is coextensive with that of the Fourteenth Amendment); San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 542 n.21 (1987) (stating that the Fourteenth Amendment applies to actions by a state; the Fifth Amendment, however, does apply to the federal government and contains an equal protection component); United States v. Paradise, 480 U.S. 149, 166 n.16 (1987) (stating that the reach of the equal protection guarantee of the Fifth Amendment is coextensive with that of the Fourteenth Amendment); Wayte v. United States, 470 U.S. 598, 608 n.9 (1985) (stating that although the Fifth Amendment, unlike the Fourteenth Amendment, does not contain an equal protection clause, it does contain an equal protection component, and the Court's approach to the Fifth Amendment equal protection claims has been precisely the same as the equal protection claims under the Fourteenth Amendment); Washington v. Davis, 426 U.S. 229, 239 (1976) (holding that the due process clause of the Fifth Amendment contains an equal protection component applicable to the federal government); Buckley v. Valeo, 424 U.S. 1, 93 (1976) (holding that equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975) (stating that while the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is so unjustifiable as to be violative of due process; this Court's approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment).

"It should be noted that virtually all statutes and regulations classify people, but equal protection does not prohibit legislative classifications. See Romer v. Evans, 517 U.S. 620, 631 (1996) (stating that the Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons); Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (holding that the equal protection clause does not forbid classifications; it simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (stating that the equal protection clause is essentially a direction that all persons similarly situated should be treated alike); Rinaldi v. Yeager, 384 U.S. 305, 308-09 (1966) (stating that the equal protection clause does not demand that a statute necessarily apply equally to all persons, nor does it require things which are different in fact to be treated in law as though they were the same; hence, legislation may impose special burdens on defined classes in order to achieve permissible ends); Norvell v. State of Illinois, 373 U.S. 420, 423 (1963) (holding that exact equality is no prerequisite of equal protection of the laws within the meaning of the Fourteenth Amendment); Tigner v. State of Texas, 310 U.S. 141, 147

(continued...)

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presumed to be valid and will be sustained if the statute's classification scheme is rationally related to a legitimate governmental interest, unless the statute creates a suspect classification or impinges upon a constitutionally protected right.12 The Dairy Production Stabilization Act does not create a suspect classification or impinge upon a constitutionally protected right.

Equal protection analysis requires a two-part inquiry: 1) whether the challenged legislation has a legitimate governmental purpose; and 2) whether the challenged classification is rationally related to that legitimate governmental purpose. Rational-basis scrutiny is "the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause." Dallas v. Stanglin, 490 U.S. 19, 26 (1989). All that is needed to uphold the classification scheme is to find that there

(...continued)

(1940) (holding that the Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same); Stebbins v. Riley, 268 U.S. 137, 142 (1925) (holding the guaranty of the Fourteenth Amendment of equal protection of the laws is not a guaranty of equality of operation or application of state legislation upon all citizens of a state); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920) (stating that the equal protection clause does not preclude states from resorting to classification for purposes of legislation); Magoun v. Illinois Trust & Savings, 170 U.S. 283, 294 (1898) (holding that a state may distinguish, select, and classify objects of legislation without violating the equal protection clause); Gulf, Colorado & Santa Fe Ry. v. Ellis, 165 U.S. 150, 155 (1897) (stating that it is not within the scope of the Fourteenth Amendment to withhold from the states the power of classification; yet classification cannot be made arbitrarily, it must always rest upon some difference that bears a reasonable and just relation to the act in respect to which the classification is proposed); Hayes v. Missouri, 120 U.S. 68, 71 (1887) (stating that the equal protection clause of the Fourteenth Amendment does not prohibit legislation which is limited either in the objects to which it is directed, or by the territory within which it is to operate; it requires all persons subject to legislation to be treated alike under like circumstances and conditions).

12 Vacco v. Quill, 117 S. Ct. 2293, 2297 (1997); Romer v. Evans, 517 U.S. 620, 631 (1996); Heller v. Doe by Doe, 509 U.S. 312, 319-20 (1993); Nordlinger v. Hahn, 505 U.S. 1, 10 (1992); Dallas v. Stanglin, 490 U.S. 19, 23 (1989); Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 81 (1988); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985); Schweiker v. Wilson, 450 U.S. 221, 230 (1981); Vance v. Bradley, 440 U.S. 93, 96-97 (1979); New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam).

are "plausible,"13 "arguable," or "conceivable"15 reasons which may have been the

basis for the distinction.

Congress declared that the purposes of the Dairy Production Stabilization Act are to strengthen the dairy industry's position in the marketplace and to maintain and expand domestic and foreign markets and uses for fluid milk and dairy products produced in the United States. 7 U.S.C. § 4501(b). The Supreme Court of the United States has recognized the legitimate governmental interest in creating other mandatory marketing order programs for "advancing the interests of producers" and to "raise producer prices," Block v. Community Nutrition Inst., 467 U.S. 340, 342 (1984), and has described a statutory scheme providing for generic advertising intended to stimulate consumer demand for an agricultural product as "legitimate." Glickman v. Wileman Bros. & Elliott, Inc., supra, 117 S. Ct. at 2141.

Moreover, I have previously held that the government's purposes, as declared in the MPRCIA and the Beef Promotion Act, two acts the purposes of which are

13FCC v. Beach Communications, Inc., 508 U.S. 307, 313-14 (1993) (holding that where there is a plausible reason for a legislative classification, the equal protection inquiry is at an end); Nordlinger v. Hahn, 505 U.S. 1, 11 (1992) (stating that in general, the equal protection clause is satisfied so long as there is a plausible policy reason for the classification); United States R. R. Retirement Bd. v. Fritz, 449 U.S. 116, 179 (1980) (holding that where there is a plausible reason for a legislative classification, the equal protection inquiry is at an end).

14 Vance v. Bradley, 440 U.S. 93, 112 (1979) (holding that the admission that the facts in support of a legislative classification are arguable immunizes the legislative classification from an equal protection attack); Rastv. Van Deman & Lewis Co., 240 U.S. 342, 357 (1916) (stating that a legislative classification is not arbitrary if any state of facts reasonably can be conceived that would sustain the classification and it makes no difference that the facts may be disputed or their effect opposed by argument and opinion of serious strength).

15 Heller v. Doe by Doe, 509 U.S. 312, 319-20 (1993) (stating that a classification must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification); FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993) (stating that in areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification); Vance v. Bradley, 440 U.S. 93, 111 (1979) (holding that those challenging legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker).

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similar to the purposes of the Dairy Production Stabilization Act," are legitimate."7 Therefore, I find that government's purposes, as declared in the Dairy Production Stabilization Act, are legitimate.

The second step in equal protection analysis is determining whether the challenged classification is rationally related to that legitimate governmental purpose. Petitioner challenges its inclusion in the classification of those from whom assessments are collected under the Dairy Production Stabilization Act because, while Petitioner sells one dairy product, cheese, the National Dairy

16Section 1(b) of the MPRCIA sets forth the purposes of the MPRCIA, as follows:

§ 6101. Findings and declaration of policy

(b) Policy

It is declared to be the policy of Congress that it is in the public interest to authorize the establishment, through the exercise of the powers provided in this chapter, of an orderly procedure for developing, financing through adequate assessments on mushrooms produced domestically or imported into the United States, and carrying out, an effective, continuous, and coordinated program of promotion, research, and consumer and industry information designed to(1) strengthen the mushroom industry's position in the marketplace; (2) maintain and expand existing markets and uses for mushrooms; and (3) develop new markets and uses for mushrooms.

7 U.S.C. § 6101(b).

Section 2(b) of the Beef Promotion Act sets forth the purposes of the Beef Promotion Act, as follows: § 2901. Congressional findings and declaration of policy

(b) It, therefore, is declared to be the policy of Congress that it is in the public interest to authorize the establishment, through the exercise of the powers provided herein, of an orderly procedure for financing (through assessments on all cattle sold in the United States and on cattle, beef, and beef products imported into the United States) and carrying out a coordinated program of promotion and research designed to strengthen the beef industry's position in the marketplace and to maintain and expand domestic and foreign markets and uses for beef and beef products. Nothing in this chapter shall be construed to limit the right of individual producers to raise cattle.

7 U.S.C. § 2901(b).

"In re Jerry Goetz, 56 Agric. Dec. 1470, 1507 (1997); In re Donald B. Mills, Inc., 56 Agric Dec. 1567, 1606 (1997), aff'd, No. CIV F-97-5890 OWW SMS (E.D. Cal. Mar. 26, 1998).