Intercitrus Ibertrade Commercial Corp. v. United States Department of Agriculture, CIVIL ACTION NO. 02-1061 (E.D. Pa. 8/13/2002)

Decision Date13 August 2002
Docket NumberCIVIL ACTION NO. 02-1061.
CourtU.S. District Court — Eastern District of Pennsylvania


I. Introduction

Plaintiffs are involved in the business of exporting clementines from Spain to the United States for distribution throughout the country. They contend that defendant's order of December 5, 2001, reaffirmed on December 26, 2001, suspending importation of Spanish clementines after the reported detection of live Medfly larvae in clementines shipped from Spain was arbitrary, capricious and contrary to law, particularly the Plant Protection Act ("PPA"), 7 U.S.C. § 7701 et seq.

Plaintiffs seek an order vacating the decision to suspend importation under the Administrative Procedures Act ("APA"). They seek declaratory relief and a preliminary injunction against enforcement of the suspension order to permit the importation and distribution of Spanish clementines within 33 states. They also assert a claim for breach of contract for defendant's withdrawal of inspectors from Spain following the suspension which plaintiffs allege was in derogation of the Spain Citrus Preclearance Program Work Plan to which defendant and plaintiff Ibertrade were signatories.

The administrative record has been produced. The parties have filed cross-motions for summary judgment.

II. Applicable Legal Standards

In addressing a request for a preliminary injunction, a court assesses whether there is a reasonable probability the movant will succeed on the merits; whether denial of relief will result in irreparable harm to the movant; whether granting relief will result in greater harm to the non-movant; and, whether granting relief would be in the public interest. See ACLU v. Reno, 217 F.3d 162, 172 (3d Cir. 2000). The movant bears the burden of demonstrating each of these elements. See Adams v. Freedom Forge Corp., 204 F.3d 475, 486 (3d Cir. 2000). All four factors should favor a preliminary injunction before such exceptional relief is granted. See Nutrasweet Co. v. Vit-Mar Enterprises, Inc., 176 F.3d 151, 153 (3d Cir. 1999).

As a practical matter, a determination regarding likelihood of success in the context of an APA claim will often effectively resolve the merits of the underlying claim as well. This is because an APA claim is resolved on a review of the administrative record, see 5 U.S.C. § 706, and the court must generally review that record to resolve conscientiously the request for injunctive relief. Thus, when the request for injunctive relief can be resolved, the case will generally be ready for disposition on the merits.1

There are generally no genuine issues of material fact in an APA case. See Clairton Sportsmen's Club v. Pennsylvania Turnpike Comm'n, 882 F. Supp. 455, 463 (W.D.Pa. 1995). As a practical matter, "when a plaintiff who has no right to a trial de novo brings an action to review an administrative record which is before the reviewing court, the case is ripe for summary disposition, for whether the order is supported by sufficient evidence, under the applicable statutory standard, or is otherwise legally assailable, involve matters of law." Bank of Commerce of Laredo v. City Nat'l Bank of Laredo, 484 F.2d 284, 289 (5th Cir. 1973).

Under the APA, "[t]he reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). An agency decision "is entitled to a presumption of regularity." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971). "{T]he court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. at 416. A choice of action made by an agency upon consideration of the relevant factors and rationally related to the facts found is not arbitrary or capricious. See Baltimore Gas and Elec. Co. v. National Res. Def. Council, Inc., 462 U.S. 87, 105 (1983).

While the "inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one." Id. A court may not substitute its own judgment for that of the agency. See Fertilizer Inst. v. Browner, 163 F.3d 774, 777 (3d Cir. 1998).

The court's review is limited to the whole administrative record before the relevant agency at the time of its decision. See 5 U.S.C. § 706; Overton Park, 401 U.S. at 420; Higgins v. Kelly, 574 F.2d 789, 792-94 (3d Cir. 1978); Twiggs v. U.S. Small Bus. Admin., 541 F.2d 150, 152-53 (3d Cir. 1976). However, "[a] document need not literally pass before the eyes of the final agency decisionmaker to be considered part of the administrative record." Clairton Sportsmen's Club, 882 F. Supp. at 465. Pertinent information upon which administrative decisionmakers may have relied may be considered although not included in the record as filed. See Higgins, 574 F.2d at 792-93.

In making an administrative decision, an agency may rely on its own experts and counter expert opinions or suppositions about the mental processes of the decisionmakers are not cognizable absent "a strong showing of bad faith or other improper behavior by the agency. See Overton Park, 401 U.S. at 420; Society Hill Towers Owners' Ass'n v. Rendell, 20 F. Supp.2d 855, 863 (E.D.Pa. 1998). A party may not undermine an agency decision even with an affidavit of unquestioned integrity from an expert expressing disagreement with the views of other qualified experts relied on by the agency, and a court may not weigh the contrary views of such experts to assess which may be more persuasive. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989); Price R. Neighborhood Ass'n v. U.S. Dept. of Transp., 1125 F.3d 1505, 1511 (9th Cir. 1997). An agency is entitled to select any reasonable methodology and to resolve conflicts in expert opinion and studies in its best reasoned judgment based on the evidence before it. See Hughes River Watershed v. Johnson, 165 F.3d 283, 289-90 (4th Cir. 1999); Oregon Environmental Council v. Kunzman, 817 F.2d 484, 496 (9th Cir. 1987). As a practical matter, were it otherwise, virtually every agency action involving expertise or technical analyses could be obstructed by a party who engaged an expert willing to disagree with the views or conclusions of the experts utilized by the agency.

III. Factual Background

Defendant received reports that live Mediterranean Fruit Fly ("Medfly") larvae were found in clementines purchased on November 20, 2001 in Avon, North Carolina and on November 27, 2001 in Bowie, Maryland. An investigation by the Systematic Entomology Laboratory at the Smithsonian Institute determined that the larvae infested clementines were the "Nadal" brand, a Spanish brand of clementines that had entered the United States on November 10, 2001 at a Philadelphia port.2

In response, the Animal Plant Health Inspection Service ("APHIS"), an agency of the United States Department of Agriculture ("USDA"), temporarily suspended the entry of Spanish clementines into the United States on November 30, 2001. APHIS inspectors began examining and cutting Spanish clementines throughout the United States. By December 3, 2001, APHIS concluded that the live Medfly findings were attributable to a flaw in the cold treatment process employed aboard the vessels used to transport clementines from Spain to the United States.

On December 4, 2001 additional live Medfly larvae were found in clementines in Shreveport, Louisiana which were determined to have originated from Spain.3 On December 5, 2001, APHIS informed the Spanish government that the suspension order was reimposed and was applicable to shipments of clementines that had not yet left Spain, shipments in transit from Spain and shipments that had arrived at U.S. ports but had not been unloaded.4 The Spanish government was also notified that clementines currently in the southern tier states, where warmer temperatures increase the survival rate of Medfly larvae, were subject to internal recall and destruction or reshipment to northern locations. The USDA did permit clementines in southern states to be shipped to northern tier states and one shipload to be transported to Canada with appropriate safeguards. Three unloaded vessels were redirected to foreign ports.

A team of APHIS officials traveled to Spain on December 9, 2001 to identify possible causes for the Medfly larvae finds in the United States. While the inspectors were in Spain, the Spanish government made several proposals which were rejected by APHIS inspectors.5

Following the initial suspension order on November 30, 2001, Medfly larvae findings in the United States were reported on almost a daily basis. Larvae examined were variously reported to be gray, brown and black in color. Some were curling, although none were jumping. Live Medfly larvae were found throughout the United States on December 3, 4, 6, 7 and 11, 2001. At least eighty dead Medlfy larvae were found between December 3 and 5, 2001 in Michigan, Connecticut, Oklahoma, Louisiana and Missouri. Over 200 dead larvae were found between December 5 and 13, 2001 at U.S. ports of entry in New Jersey and Philadelphia.

As a result of the multiple confirmed live Medlfy larvae findings, the Secretary of Agriculture declined a request to reconsider the suspension order by letter of December 26, 2001. APHIS concluded that the entire cold treatment process aboard the vessels needed to be reviewed before imports of Spanish clementines could safely resume. IV. Discussion

A. Requirements of Law

Plaintiffs contend that defendant ignored pertinent legal requirements in imposing the suspension.

1. "Sound science" and "transparent and accessible" requirements of 7 U.S.C. § 7712(b)

The suspension order was issued pursuant to 7 U.S.C. § 7712(a). This provision of...

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