Yeutter

MEMORANDUM AND ORDER

This matter is before the court on defendants’ motion to dismiss for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), based on plaintiff’s failure to exhaust its administrative remedies. The matter was heard and submitted on January 28, 1991.

I

PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff (“Cal-Almond”) is an almond “handler” as defined in the Almond Marketing Order (“Order”) 7 C.F.R. § 981.1 et seq. Defendants are the Secretary of the United States Department of Agriculture (“Secretary”), the United States Department of Agriculture (“USDA”) and the Almond Board of California (“Board”). On October 19, 1990, Cal-Almond filed the underlying complaint for declaratory judgment, preliminary and permanent injunction, mandatory injunction, writ of mandamus, compensatory damages, and attorney’s fees. Cal-Almond is subject to the Order which was promulgated by the USDA pursuant to the Agricultural Mar keting Agreement Act of 1937 (“AMAA”), 7 U.S.C. §§ 601-674 . Congress enacted the AMAA to stabilize the marketing conditions of food commodities. See 7 U.S.C. § 602 . The Order is administered by the USDA and the Secretary through the Board which…