Cornucopia Institute, et al v. AGRI, et al
Filed opinion of the court by Judge Easterbrook. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Diane S. Sykes, Circuit Judge; Elaine E. Bucklo, District Court Judge. [6909814-1]  [17-2422]
United States Court of Appeals
For the Seventh Circuit
THE CORNUCOPIA INSTITUTE, DOMINIC MARCHESE, and
UNITED STATES DEPARTMENT OF AGRICULTURE and SONNY
PERDUE, Secretary of Agriculture,
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.
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.
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
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 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.
To 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 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 organic farmers’ interests, Beck and Swaﬀar have called the
organic-farming industry into disrepute and reduced organic 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 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).
On 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.
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 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 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 staﬀ of the Department of Agriculture’s organic-farming bureau, is an “interested person”
who can make a nomination, the Secretary may conﬁne
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 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
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 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
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). Swaﬀar’s term continues,
though she has changed jobs and now operates her own organic farm. Plaintiﬀs 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.
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