Koretoff v. Vilsack
| Decision Date | 18 January 2012 |
| Docket Number | Civil Action No. 08–1558 (ESH). |
| Citation | 841 F.Supp.2d 1 |
| Court | U.S. District Court — District of Columbia |
| Parties | Nick KORETOFF, d/b/a Nick Koretoff Ranches, et al., Plaintiffs, v. Thomas VILSACK, Secretary, United States Department of Agriculture, Defendant. |
OPINION TEXT STARTS HERE
John H. Vetne, John H. Vetne, Attorney at Law, New Portland, ME, Susan Clare Silber, Silber, Perlman, Sigman & Tilev, P.A., Takoma Park, MD, for Plaintiffs.
Jennie Leah Kneedler, U.S. Department of Justice, Washington, DC, for Defendant.
In 2007, in response to Salmonella outbreaks in 2001 and 2004 that were linked to raw almonds, the United States Department of Agriculture (USDA) promulgated a rule requiring that almonds produced domestically be pasteurized or chemically treated against the bacteria. Almonds Grown in California; Outgoing Quality Control Requirements, 72 Fed.Reg. 15,021, 15,034 (Mar. 30, 2007) (codified at 7 C.F.R. § 981.442(b)) (the “ Salmonella Rule”). Plaintiffs, California almond producers, brought suit against the Secretary of Agriculture in 2008 to challenge the Salmonella Rule. (Complaint, Aug. 9, 2008 [Dkt. No. 1]; First Amended Complaint, Dec. 5, 2008 [Dkt. No. 9].)
Pending before the Court are plaintiffs' and defendant's cross-motions for summary judgment. ( See Plaintiffs' Motion for Summary Judgment, Aug. 8, 2011 [Dkt. No. 46] ( ); Defendant's Motion for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment, Sept. 15, 2011 [Dkt. No. 47] (“Def.'s Mot.”); Plaintiffs' Opposition to Defendant's Motion for Summary Judgment and Reply in Support of Plaintiffs' Motion for Summary Judgment, Oct. 31, 2011 [Dkt. No. 51] ( ); Defendant's Reply in Support of Defendant's Motion for Summary Judgment, Nov. 18, 2011 [Dkt. No. 54] (“Def.'s Reply”).) For the reasons stated below, the Court will deny plaintiffs' motion for summary judgment and grant defendant's motion for summary judgment.1
In a prior decision in this matter, the D.C. Circuit described the relevant background:
This case involves the Agricultural Marketing Agreement Act of 1937, a landmark piece of legislation that arose out of the farming catastrophe during the Great Depression. The AMAA authorizesthe Secretary of Agriculture to promulgate marketing orders that regulate the production and sale of agricultural commodities. 7 U.S.C. §§ 601–674. It seeks to “avoid unreasonable fluctuations in supplies and prices” of various farm commodities. Id. § 602(4). The AMAA is currently applied to about three dozen agricultural commodities, such as milk, avocados, oranges, and peanuts. Agricultural marketing orders may dictate the “total quantity” of a regulated commodity sold in a particular region, as well as the “grade, size, or quality thereof.” Id. § 608c(6)(A)....
In 1950, acting pursuant to the AMAA, the Secretary of Agriculture promulgated the California Almond Marketing Order, 7 C.F.R. pt. 981. The Almond Order has been amended often in the 60 years since. Among other things, the Order sets quality standards for commercially sold almonds and regulates the quantity of almonds that may be sold in a given year.
In the wake of two [S]almonella outbreaks in 2001 and 2004, the Secretary in 2007 issued [the Salmonella Rule] under the Almond Order....
The [ Salmonella Rule] required the use of one of several approved methods for reducing [S]almonella bacteria in almonds, all involving either pasteurization or chemical treatment of nearly all almonds sold. 7 C.F.R. § 981.442(b)....
The current dispute arises primarily because the [ Salmonella Rule] had the effect of largely eliminating the domestic raw almond market. [Plaintiffs] are California almond producers who grew raw almonds for domestic U.S. consumption. Because the [ Salmonella Rule] devastated the market for domestic raw almonds, those producers allege that they lost both their expected profits from the premium price paid for raw almonds and the return on investments they had made in production equipment.
Koretoff v. Vilsack, 614 F.3d 532, 534–35 (D.C.Cir.2010) (“Koretoff II ”) (emphasis added; citation omitted).
Plaintiffs' First Amended Complaint alleges that the Secretary exceeded his authority under the AMAA and the Almond Order when promulgating the Salmonella Rule (first and third causes of action); that the Salmonella Rule is void because it was promulgated by notice and comment rulemaking without a hearing and without being subject to a vote by almond producers (second cause of action); and that the Salmonella Rule is void because the Almond Order, under which the Rule was issued, was itself not lawfully promulgated (fifth cause of action).2
The Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (“APA”), “establishes a cause of action for those ‘suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action.’ ” Id. at 536 (quoting 5 U.S.C. § 702). As relevant here, the APA requires a reviewing court to “hold unlawful and set aside agency action, findings, and conclusions” that are in excess of statutory authority, 5 U.S.C. § 706(2)(C), or “without observance of procedures required by law.” Id. § 706(2)(D).
Under the APA, summary judgment “serves as the mechanism for deciding, as a matter of law, whether agency action is ... consistent with the APA standard of review.” Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C.2006) (citing Richards v. INS, 554 F.2d 1173, 1177 & n. 28 (D.C.Cir.1977)). Accordingly, “when a party seeks review of agency action under the APA,” the usual summary judgment standard does not apply and “the district judge” instead “sits as an appellate tribunal.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir.2001).3
A central tenet of administrative law requires those who challenge agency action to raise their claims before the agency prior to bringing them in court. Nat'l Wildlife Fed'n v. EPA, 286 F.3d 554, 562 (D.C.Cir.2002) (). Where, as here, the challenged agency action followed notice and comment rulemaking, “issues not raised in comments before the agency are waived and this Court will not consider them.” Id. There is no exception for lawsuits alleging that an agency has exceeded its statutory authority or committed a procedural error. See Lake Carriers' Ass'n v. EPA, 652 F.3d 1, 7 (D.C.Cir.2011) (); Orion Reserves Ltd. P'ship v. Salazar, 553 F.3d 697, 707 (D.C.Cir.2009) (). The waiver doctrine reflects the deference courts owe to agency interpretations, respects agency autonomy, and promotes judicial efficiency. Ohio v. EPA, 997 F.2d 1520, 1528–29 (D.C.Cir.1993) (per curiam).
The government argues that plaintiffs have waived all of their claims by not presenting them to the USDA during the public notice and comment period that preceded the promulgation of the Salmonella Rule. ( See Def.'s Mot. at 17–19 & n. 12; Def.'s Reply at 1–5.) Plaintiffs have failed to respond to the government's waiver argument with regard to their fifth cause of action, alleging that Salmonella Rule is void because the Almond Order was not lawfully promulgated. Plaintiffs have therefore conceded the government's argument that they have waived these claims. See Three Lower Counties Cmty. Health Servs., Inc. v. U.S. Dep't of Health & Human Servs., 517 F.Supp.2d 431, 434 n. 2 (D.D.C.2007). Moreover, even if the Court were to address the merits of the government's waiver argument, it would grant defendant summary judgment on plaintiffs' fifth cause of action because there is no evidence in the administrative record that this claim was pressed before the USDA.
Whether plaintiffs are barred from seeking judicial review of their remaining claims presents a closer question. Courts “ ‘excuse[ ] the exhaustion requirements for a particular issue when the agency has in fact considered the issue,’ ” Ohio v. EPA, 997 F.2d at 1529 (quoting Natural Resources Defense Council v. EPA, 824 F.2d 1146, 1151 (D.C.Cir.1987)), and plaintiffs have put forward at least some evidence to suggest that the agency considered whether the Salmonella Rule was within its statutory authority and whether it could be promulgated by notice and comment rulemaking. Regarding the former, one commenter “question[ed] the authority to impose [a treatment requirement] through this rulemaking” (AR at 55), and in issuing the Salmonella Rule, USDA responded by stating that it was “implementing this rulemaking action under the quality control authority contained in the [Almond Order].” 72 Fed.Reg. at 15,031. Regarding the latter, a July 2005 “Action Plan Update” issued by the Almond Board of California 4 contrasted the “informal rule making ” required for promulgation of a treatment rule with the “formal rule making ” which would be required in order to modify the Almond Order. (AR at 895 (emphasis in the original).)
The government counters that neither citation suffices to show that the USDA “actually considered” plaintiffs' claims. As to the issue of statutory authority, defendant suggests that the above-quoted statement “is so tangential to the principal thrust of the comment that it cannot fairly be said to have been presented to [the agency] for resolution,” Ohio v. EPA, 997 F.2d at 1550, and as to the propriety of...
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