Harvey v. Johanns

• Decision Date: 24 July 2007
• Docket Number: No. 06-2738.,06-2738.
• Citation: 494 F.3d 237
• Parties: Arthur HARVEY, Plaintiff, Appellant, v. Mike JOHANNS, Secretary of Agriculture, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

494 F.3d 237

Arthur HARVEY, Plaintiff, Appellant, v. Mike JOHANNS, Secretary of Agriculture, Defendant, Appellee.

No. 06-2738.

United States Court of Appeals, First Circuit.

Heard June 5, 2007.

Decided July 24, 2007.

Paula Dinerstein, with whom Public Employees for Environmental Responsibility was on brief, for appellant.

Halsey B. Frank, Assistant United States Attorney, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

William J. Friedman, with whom Richard D. Dietz and Covington & Burling LLP were on brief, for Organic Trade Association, International Dairy Foods Association, and United Fresh Produce Association, amici curiae.

Before LIPEZ and NEWMAN^*, Circuit Judges, and SELYA, Senior Circuit Judge.

SELYA, Senior Circuit Judge.

This appeal has many of the characteristics of a civics lesson. One principal characteristic is that it offers a window on the interaction of the three branches that comprise our tripartite system of government. The lesson began when the Legislative Branch — Congress — enacted a consumer protection statute. It continued when the Executive Branch — in the person of the Secretary of Agriculture (the Secretary) — promulgated implementing regulations under that statute. It soon implicated the Judicial Branch, where this court ultimately passed upon the validity of the regulations and found that some of them conflicted with the plain language of the statute.

That was not the end of the lesson; Congress, apprised of our decision, amended the statute in an obvious effort to save some of the challenged regulations. It now falls to us to determine whether the amended statute and the original regulations can coexist.

The specifics of the situation are easily summarized. In Harvey v. Veneman, 396 F.3d 28 (1st Cir.2005) (Harvey I), we reviewed several regulations promulgated by the Secretary under the Organic Foods Production Act (OFPA), 7 U.S.C. §§ 6501-6523 (2000). We declared a number of those regulations invalid and gave others limiting constructions. Congress responded to this opinion by passing a series of amendments to the OFPA. The central issue in this appeal involves the extent to which those amendments vitiate our earlier invalidation of two such regulations.

I. BACKGROUND

The OFPA establishes a national certification program for producers and handlers of organic products and regulates the labeling of such products. See 7 U.S.C. §§ 6503(a), 6504, 6505(a)(1)(A). As a general matter, an agricultural product must be produced and handled without the use of synthetic substances in order to be labeled or sold as organic. See id. §§ 6504, 6505, 6510. Nevertheless, the OFPA contemplates that there will be a National List through which non-organic substances can be approved for use in organic products. Id. § 6517. The statute specifies the types of substances that can be included on the National List and limns a procedure for obtaining inclusion of substances. See id. It also authorizes the Secretary to promulgate implementing regulations. Id. § 6521.

In December of 2000, the Secretary published a final rule pursuant to that power. See 7 C.F.R. pt. 205. Plaintiff-appellant Arthur Harvey took umbrage with various aspects of the final rule, which he viewed as overly tolerant of non-organic substances. Thus, in 2002, he filed suit in Maine's federal district court seeking declaratory and injunctive relief under the Administrative Procedure Act, 5 U.S.C. § 702.

The appellant's nine-count complaint alleged that several provisions of the final rule were inconsistent with the OFPA and impermissibly diluted its organic standard. The only claims relevant to this appeal are those embodied in count 3. That count alleged that two sections of the final rule, 7 C.F.R. §§ 205.600(b) and 205.605(b),¹ contravened OFPA § 6510(a)(1) by too freely permitting the use of synthetic substances in the processing of organic foods.

For present purposes, the travel of the case in the district court is of no moment. What happened on appeal is, however, of decretory significance. There, we agreed with the appellant as to the gist of count 3 and invalidated both of the challenged regulations. See Harvey I, 396 F.3d at 40. We based this decision on our interpretation of OFPA § 6510(a)(1), which we described as "a general prohibition against adding synthetic ingredients in handling operations." Id. at 39. In rejecting the Secretary's argument that the National List provision authorized the agency to create such exemptions, we noted that section 6517(c)(1)(B)(iii) allowed inclusion on the National List of an otherwise prohibited substance for use in handling only if the substance "[was] non-synthetic." Id. This led to the conclusion that section 6517(c)(1)(B)(iii) "simply [did] not say what the Secretary need[ed] it to say." Id. Because the regulations challenged in count 3 were contrary to the plain language of the OFPA, we ruled that the Secretary had exceeded her statutory authority. Id. at 40.

On remand, the parties agreed upon a consent decree and final judgment, which the district court entered on June 9, 2005. The judgment purposed to remand the matter to the Secretary to "conduct notice and comment rulemaking and to publish in the federal register final rules implementing [the court's order] with regard to Count 3." The judgment gave the Secretary a one-year period within which to develop new regulations.

Before the Secretary took responsive action, Congress intervened. In November of 2005, Congress amended the OFPA. See Pub.L. No. 109-97, § 797, 119 Stat. 2120, 2165 (2005) [hereinafter 2005 Amendments]. In so doing, it added language to section 6510 authorizing the use in handling operations of synthetic ingredients appearing on the National List.² Congress simultaneously modified section 6517 in two respects. First, it changed the subtitle of section 6517(c)(1) to clarify that the National List relates to processing and handling as well as to production.³ Second it eliminated subsection 6517(c)(1)(B)(iii), the provision that we had singled out as limiting the inclusion of non-organic substances used in handling to non-synthetics. See Harvey I, 396 F.3d at 39. No legislative history accompanied these alterations. Finally, Congress directed the Secretary to prepare a report detailing the impact of Harvey I and describing whether restoring OFPA's regulatory scheme to its pre-Harvey I status would negatively impact farmers, processors, or consumers. 2005 Amendments, § 724, 119 Stat. at 2153.

The Secretary proceeded to revise the final rule to comply with other aspects of the judgment in Harvey I. See 71 Fed. Reg. 32,803 (June 7, 2006). With regard to the subject matter of count 3, however, the Secretary stated:

Congress amended the OFPA by permitting the addition of synthetic substances appearing on the National List for use in products labeled "organic." The amendment restores the NOP regulation for organic processed products containing at least 95 percent organic ingredients on the National List and their ability to carry the USDA seal. Therefore, the USDA is not revising the NOP regulations to prohibit the use of synthetic ingredients in processed products labeled as organic nor restrict these products' eligibility to carry the USDA seal.

Id. at 32,804.

This statement displeased the appellant. On June 30, 2006, he asked the district court to enforce the judgment vis-à-vis count 3. The Secretary opposed this motion and cross-moved for relief from the judgment. The essence of the Secretary's position was that the 2005 Amendments had made any revisions to the regulations in question unnecessary.

The district court denied the appellant's motion to enforce and granted the Secretary's cross-motion for relief from judgment. Harvey v. Johanns, 462 F.Supp.2d 69 (D.Me.2006) (Harvey II). This timely appeal ensued. The amici, whose assistance we appreciate, have filed a brief in support of the Secretary's position.

II. STANDARD OF REVIEW

Typically, we would review both a motion to enforce a judgment and a motion for relief from judgment for abuse of discretion. See, e.g., McDowell v. Phila. Hous. Auth., 423 F.3d 233, 238 (3d Cir. 2005) (motion to enforce a judgment); Honneus v. Donovan, 691 F.2d 1, 2 (1st Cir.1982) (motion for relief from judgment). In this instance, however, the main issue on appeal concerns whether the two "count 3" regulations invalidated in Harvey I have been salvaged by the 2005 Amendments. That issue turns on a question of statutory interpretation, involving the significance and effect of the 2005 Amendments. Thus, appellate review is de novo. See United States v. Leahy, 473 F.3d 401, 405 (1st Cir.2007); Bonano v. E. Carib. Airline Corp., 365 F.3d 81, 83 (1st Cir.2004). If the statute is found to be unclear, however, an inquiring court should defer to the Secretary's reasonable interpretation. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12, 15 (1st Cir.2006).

There is a second issue bound up in this appeal—an issue that involves the scope of the final judgment. Thus, whether to enforce the judgment on this ground turns entirely on a question of law concerning the scope of the judgment itself. Consequently, we employ de novo review as to that issue as well. See Fafel v. DiPaola, 399 F.3d 403, 409-10 (1st Cir.2005); cf. Goya Foods, Inc. v. Wallack Mgmt. Co., 290 F.3d 63, 75 (1st Cir.2002) (explaining that "an error of law is the functional equivalent of an abuse of discretion").

III. THE EFFECT OF THE 2005 AMENDMENTS

We begin this segment of our analysis by revisiting the procedural posture in which this appeal arises. After our decision in Harvey I, the district court entered a final judgment. "Final" is a relative term; even though a judgment is denominated as final, a court may grant relief from it in a variety...