Harvey v. Johanns, Civil No. 02-216-P-H.
| Decision Date | 02 November 2006 |
| Docket Number | Civil No. 02-216-P-H. |
| Citation | 462 F.Supp.2d 69 |
| Parties | Arthur HARVEY, Plaintiff v. Mike JOHANNS, Secretary of Agriculture, Defendant. |
| Court | U.S. District Court — District of Maine |
Martica S. Douglas, Christine Kennedy-Jensen, Douglas, Denham, Buccina & Ernst, Portland, ME, Paula Dinerstein, Public Employees For Environmental Responsibility, Washington, DC, for Plaintiff.
Halsey B. Frank, Assistant United States Attorney, Portland, ME, for Defendant.
The latest installment of this dispute under the Organic Foods Production Act ("OFPA") of 1990, 7 U.S.C. § 6501 et seq., presents two questions: (1) Has an intervening Act of Congress relieved the Secretary of Agriculture from complying with a consent decree to which the Secretary previously acceded? (2) Is the plaintiff requesting relief beyond the scope of the consent decree and his original lawsuit? I conclude that the answer to both is yes. I therefore DENY the plaintiff's motion to enforce judgment and GRANT the Secretary's motion for relief from judgment.
Magistrate Judge Kravchuk and I ruled initially on the plaintiff Harvey's challenge to Department of Agriculture ("UDSA") regulations. Harvey v. Veneman, No. 02cv-216-P-H, 2003 WL 22327171 (D.Me. Oct. 10, 2003); Harvey v. Veneman, 297 F.Supp.2d. 334 (D.Me.2004) (). In 2005, the First Circuit reversed us as to Count 3 of Harvey's Complaint. It declared that two USDA regulations, 7 C.F.R. §§ 205.600(b) and 605(b), were "contrary to the plain language of OFPA and therefore exceed the Secretary's statutory authority." Harvey v. Veneman, 396 F.3d 28, 40 (1st Cir. 2005). On remand, the plaintiff and the Secretary agreed upon relief. Accordingly, on June 9, 2005, I entered the Final Judgment that they proposed. Consent Final Judgment and Order, No. 02-cv-216-P-H (Docket Item 88) (Consent Decree). That consent decree ordered the Secretary to revise the regulations within 360 days, a time period that now has passed. Id. at 4.
In the meantime, in November 2005, Congress amended the OFPA in the 2006 Agricultural Appropriations bill through language added in conference committee without recorded discussion or debate. Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act of 2006, Pub.L. No. 109-97, 119 Stat. 2120 (2005). The Secretary maintains that the amendment corrected the statutory language upon which the First Circuit relied to invalidate the regulations in Harvey. The Secretary, therefore, has declined to revise the original regulations. In the agency statement accompanying the final rule implementing other portions of the judgment in Harvey, the Secretary explained:
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 [invalidated regulations].... Therefore, USDA is not revising the [] regulations to prohibit the use of synthetic ingredients in processed products labeled as organic. ...
71 Fed.Reg. 32803, 32803-04 (June 7, 2006) ().
As a result, Harvey has moved to enforce and the Secretary has moved to vacate a portion of the Consent Decree. Harvey has also asked that I order the USDA to revoke or revise its 2002 Policy Statement on food contact substances. He complains that the Policy Statement permits the use of food contact substances in organic foods without proper review. The Secretary responds that this request is for new relief not encompassed by either the Consent Decree or the original lawsuit.
(1) The 2005 OFPA amendments supersede the Consent Decree and Final Judgment in this case.
A court has power to enforce its judgment. U.S.I. Properties Corp. v. M.D. Const. Co., 230 F.3d 489, 496 (1st Cir. 2000). But a court is also permitted to grant relief from a final judgment if "it is no longer equitable that the judgment should have prospective application." Fed. R.Civ.P. 60(b)(5). Supreme Court precedent makes clear that subsequent legislation changing the law upon which a decree originally was based is just such a case. Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421, 432, 18 How. 421, 15 L.Ed. 435 (1855) (). The First Circuit has said that the Wheeling Bridge approach "is not only mandated by precedent but also makes logical sense." Inmates of Suffolk County v. Rouse, 129 F.3d 649, 656 (1st Cir.1997) (). Therefore, the decision whether to enforce or vacate the pertinent provision of the Consent Decree here depends upon the meaning and effect of the 2005 OFPA amendments.
The challenged regulations that the First Circuit struck down have permitted the use of synthetic substances in the handling of organic foods. Regulation section 205.600(b) provides that synthetic substances may be used "as a processing aid or adjuvant" if they meet six criteria. 7 C.F.R. § 205.600(b). Regulation section 205.605(b) is the so-called National List of synthetics permitted in organic products, including ingredients, processing aids, and other types of substances. 7 C.F.R. § 205.605(b).
The First Circuit invalidated the regulations because of statutory language appearing in 7 U.S.C. §§ 6510 and 6517. Before the 2005 amendments, section 6510(a)(1) provided that certified handling operations for organic food "shall not, with respect to any agricultural product covered by this chapter ... add any synthetic ingredient during the processing or any postharvest handling of this product." (Emphasis added). The relevant part of section 6517(c)(1) provided:
The National List may provide for the use of substances in an organic farming or handling operation that are otherwise prohibited under this title only if ... (B) the substance (iii) is used in handling and is non-synthetic but is not organically produced ....
(Emphasis added). The First Circuit held that these two sections prohibited the use of synthetic substances in the handling of organically labeled products. 396 F.3d at 39. Upon remand to this court, the parties agreed upon the text of a consent decree and final judgment and I entered it accordingly: "7 C.F.R. §§ 205.600(b) and 605(b) are contrary to the OFPA and exceed the Secretary's rulemaking authority to the extent that they permit the addition of synthetic ingredients and processing aids in handling ..." Consent Decree at 3 (emphasis added).
The OFPA amendments in 2005 made three relevant changes to the statute. Congress added language to section 6510 to limit the scope of its prohibition on synthetic ingredients. Now section 6510 prohibits only the addition of "any synthetic ingredient not appearing on the National List during processing or any post harvest handling of the product" (emphasis on language added by amendment). Congress also demonstrated its intent to allow the National List to exempt substances used in handling by changing the title to section 6517(c)(1). Now it reads: "Exemption for prohibited substances in organic production and handling operations" (emphasis on language added by amendment). Congress also eliminated the language of subsection 6517(c)(1)(B)(iii) altogether. This is the language I quoted above that the First Circuit relied upon in striking down the regulations, language that previously provided that a substance had to be non-synthetic in order to be listed for use in handling operations.
Congress's objective in making these amendments is clear: synthetic substances can be permitted in handling.
But Harvey argues that the amendments only address synthetic ingredients, whereas the consent decree clearly prohibited the use of both synthetic ingredients and processing aids. Pl.'s Mot. to Enforce the Judgment ("Mot. to Enforce") at 2 (Docket Item 89). He points to the fact that section 6504(1) prohibits the use of any synthetic substance in handling "except as otherwise provided in this chapter," 7 U.S.C. § 6504(1), and argues that although the OFPA amendments may have "otherwise provided for" the use of synthetic ingredients in handling, nothing in the amendments has authorized the use of synthetic processing aids. USDA regulations define "ingredients" and "processing aids" separately,1 and, according to Harvey, "Congress could have included processing aids in its amendments if it had chosen do so." Pl.'s Reply at 9 (Docket Item 106). "[I]t must be assumed," Harvey contends, "that Congress' choice of the term `ingredients' was intentional and means what it says." Mot. to Enforce at 8. Therefore, he concludes, the 2005 amendments "otherwise provide" for the use of synthetic ingredients in handling, but not synthetic processing aids.
I am not persuaded. First, Harvey relies on a distinction between "processing aid" and "ingredient" that appears nowhere in the statute either before or after the 2005 amendments. See 7 U.S.C. § 6502 (); see also 7 U.S.C. § 6501 et. seq. ()2 Second, the OFPA amendment did not add the word "ingredient" to the statute; the word "ingredient" was already there, and the First Circuit's decision in Harvey dealt with that language. In the 2005 amendments, Congress simply inserted the words "appearing on the National List" after the word "ingredient" in section 6510. Harvey's claim that Congress intentionally chose the word "ingredient" as distinct from "processing aid" is farfetched.
Third, Harvey's focus on the distinction between "ingredients" and "processing aids" made in the consent decree is misplaced. He argues...
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