464
Opinion of the Court
Brief in Opposition 393a.6 In a comparably detailed decision, the Judicial Officer of the Department of Agriculture entirely reversed the ALJ. Wileman, along with 15 other handlers, then sought review of the Judicial Officer's decision by filing this action in the District Court pursuant to 7 U. S. C. § 608c(15)(B). A number of enforcement actions brought by the Secretary to collect withheld assessments were consolidated with the review proceeding. Acting on cross-motions for summary judgment, the District Court upheld both marketing orders and entered judgment of $3.1 million in past due assessments against the handlers.
In the Court of Appeals the handlers challenged the generic advertising provisions of the orders as violative of both the APA and the First Amendment. The court rejected the statutory challenge, concluding that the record contained substantial evidence justifying both the original decision to engage in generic advertising 7 and the continuation of the program. It explained:
6 The ALJ indicated that if respondents "were not to succeed in their nonconstitutional arguments" she would rule in their favor on the First Amendment claim. App. to Brief in Opposition 393a.
7 The Court of Appeals quoted the following as a "typical excerpt": " 'The record shows a wide consensus among the peach and pear industries that promotional activities have been beneficial in increasing demand and should be continued.
. . . . . " 'Media generally is expensive but some things can be done selectively in this field that are inexpensive and yet create an impact on the buying trade as well as the consuming public. Trade paper ads, particularly at the beginning of the season, together with the editorial support which trade papers are willing to accord an advertiser are helpful in launching a program for seasonal fruits such as peaches and pears. Spot radio or TV commercials in the principal markets during peak movement periods have proved to be successful. It has been found in many fresh promotional programs that spot announcements, particularly when developed with a "dealer tag" at the end of each spot, have considerable influence in triggering retail promotions. 41 Fed. Reg. 14,375, 14,376-77 (1976).' " Wileman Bros. & Elliott, Inc. v. Espy, 58 F. 3d 1367, 1375 (CA9 1995).
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