Carlin
Carlin v. DairyAmerica, Inc.
Opinion
Concurring Opinion
Fisher, J.
concurring in the judgment:
I agree with the majority that the USDA’s minimum prices for raw milk are subject to the filed rate doctrine. I also agree with the majority that, based on the allegations in the complaint and the handful of documents properly included within the Rule 12(b)(6) record, the plaintiffs have adequately alleged the USDA’s rejection of the FMMO prices. I would vacate the dismissal of the plaintiffs’ claims because, assuming the facts are as alleged, the filed rate doctrine does not apply in this case.
I part company, however, with the majority’s conclusion that the plaintiffs have proven the USDA’s rejection of the FMMO prices. The majority errs by resolving disputed factual questions and making conclusive factual findings on a Rule 12(b)(6) motion to dismiss. Dair-yAmerica contends in its petition for rehearing that, if given the opportunity to conduct discovery, it would produce evidence to show that the USDA did not, in fact, reject the FMMO prices. Pet. 12. DairyAmerica has the right to make that showing. Accordingly, I would hold only that the plaintiffs have adequately alleged the USDA’s rejection of the FMMO prices. I would not foreclose DairyAmerica…
Lead Opinion
Wu, J.
Opinion by Judge WU; Concurrence by Judge FISHER.
ORDER
The opinion filed August 7, 2012 and published at 688 F.3d 1117 , is amended as follows:
Rather than joining the opinion, Judge Fisher concurs in the judgment.
The amended opinion and separate concurrence by Judge Fisher will be filed concurrently with this order. There are no changes to the text of the majority opinion.
Judge Rawlinson and Judge Wu have voted to deny the petition for rehearing. Judge Rawlinson has voted to deny the petition for rehearing en banc and Judge Wu so recommends. Judge Fisher has voted to grant the petition for rehearing and rehearing en banc.
The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
Appellee DairyAmerica Inc.’s petition for rehearing and rehearing en banc, filed September 20, 2012, and joined in by ap-pellee California Dairies, Inc., on September 21, 2012, is DENIED.
*858 No further petitions for rehearing or rehearing en banc may be filed.
OPINION
This appeal raises two issues: (1) whether the judicially created “filed rate doctrine,” 1 which typically has been…