July 22, 2019

July 22, 2019

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Sixth Circuit Court Dismisses Claims of Plaintiff Subject to Tart Cherry Order: Leaving a Tart Taste in the Mouth

Agricultural law can often be complicated, but it is not always this tart. Imagine having a successful tart cherry crop (or any crop for that matter), thinking that the successful crop will allow you to make more money, but then you are told that you cannot sell all of your tart cherries. Thus far, Burnette Foods, a tart cherry processor in Michigan, finds itself in that position, and the Western District of Michigan recently ruled that many of its challenges to the law must be dismissed.

Burnette Foods, Inc. v. United States Department of Agriculture, Case No 1:16-cv-21, is a case that arises out of Burnette Foods' request to the USDA to be exempt from the "Tart Cherry Order," which the USDA created. Pursuant to the Tart Cherry Order, an administrative board, the Cherry Industry Administrative Board, sets the "optimum supply level" of tart cherries to be introduced into the market. If a handler of tart cherries has more inventory than the optimum level, the handler is required to withhold some of its product from the market. Because of the Tart Cherry Order, Burnette Foods has about $3 million worth of inventory that it cannot sell. 

The complaint filed by Burnette Foods in the Western District of Michigan is a challenge to an administrative judge's finding that Burnette Foods must adhere to the Tart Cherry Order. Although Burnette Foods asserted various claims as to why the administrate judge was incorrect, Judge Quist's opinion finds that Burnette Foods' challenge only has one claim that can continue forward: whether the administrative judge had sufficient evidence to find that the composition of the Cherry Industry Administrative Board violates the Tart Cherry Order. Judge Quist granted the USDA's 12(b)(6) Motion to Dismiss in all other regards.

© 2019 Varnum LLP


About this Author

Kyle Konwinski, Litigation lawyer, Varnum

Kyle’s practice is commercial litigation. He has represented clients in a wide array of litigation, including trials, administrative trials, and on appeal. He has unique experience in environmental/land-use litigation and Employee Retirement Income Security Act litigation. Kyle has recovered millions of dollars for companies throughout the state that were victims of Blue Cross Blue Shield of Michigan's ERISA violations.

As for the environmental and land use area, Kyle has trial and appellate experience with contested case hearings in the Michigan Administrative...