Horne et al v. United States Department of Agriculture et al, No. 1:2009cv01790 - Document 20 (E.D. Cal. 2011)
Court Description: MEMORANDUM DECISION DENYING plaintiffs' Motion for Summary Judgment, document 14 , and GRANTING defendant USDA's Motion for Summary Judgment, document 15 ; USDC to lodge form of order consistent with this order within five (5) days of electronic service of same; order signed by Judge Oliver W. Wanger on 2/7/2011. (Rooney, M)
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Horne et al v. United States Department of Agriculture et al Doc. 20 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 1:09-cv-01790-OWW-SKO MARVIN D. HORNE, et al., 9 MEMORANDUM DECISION REGARDING CROSS-MOTIONS FOR SUMMARY JUDGEMENT (Docs. 14, 15) Plaintiffs, 10 11 12 v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., 13 Defendants. 14 I. INTRODUCTION. 15 16 Plaintiffs Marvin D. Horne, Laura R. Horne, and Raisin Valley 17 Farms Marketing, LLC proceed with this action for declaratory and 18 injunctive 19 Agriculture (“USDA”). 20 aside the USDA’s denial of Plaintiffs’ petition for rule-making. 21 The parties have filed cross-motions for summary judgment. relief against the (Doc. 2). United Department of Plaintiffs seek an order setting 22 (Docs. 14, 15). 23 summary judgment on October 26, 2010. 24 November 15, 2010. 25 States Plaintiffs filed opposition to USDA’s motion for USDA filed a reply on (Doc. 17). II. FACTUAL BACKGROUND. 26 USDA’s Rules of Practice (“Rules of Practice”) provide that a 27 final order issued by the Secretary shall be filed with the hearing 28 clerk, who shall serve it upon the parties. 7 C.F.R. § 900.66(b). 1 Dockets.Justia.com 1 2 The Rules of Practice provide several methods for service: 10 Service shall be made either (1) by delivering a copy of the document or paper to the individual to be served or to a member of the partnership to be served or to the president, secretary, or other executive officer or any director of the corporation, organization, or association to be served, or to the attorney or agent of record of such individual, partnership, corporation, organization, or association; or (2) by leaving a copy of the document or paper at the principal office or place of business of such individual, partnership, corporation, organization, or association, or of his or its attorney or agent of record; or (3) by registering and mailing a copy of the document or paper, addressed to such individual, partnership, corporation, organization, or association, or to his or its attorney or agent of record, at his or its last known principal office, place of business, or residence. 11 7 C.F.R. § 900.69(b). The Rules do not provide for electronic 12 service. 3 4 5 6 7 8 9 13 Plaintiffs were the victims of a failed notice attempt 14 effected under section 900.69(b), and as a result, lost the ability 15 to challenge a decision adverse to them. 16 U.S. Dist. LEXIS 95094 * 16 (E.D. Cal. Nov. 10, 2008) aff’d, 2010 17 U.S. App. LEXIS 19393 (9th Cir. Sept. 17, 2010). 18 December 31, 2008, Plaintiffs filed a petition with USDA seeking, 19 inter alia, that USDA “engage in rule making to amend the Rules of 20 Practice located at 7 C.F.R. § 900.50 Et Seq [sic] to require 21 prompt notice, such as facsimile or e-mail, or even overnight 22 delivery” of decisions by the Administrative Law Judge or Judicial 23 Officer (“the Petition”). 24 USDA’s Agricultural Marketing Service denied the Petition. On or about By letter dated September 18, 2009, III. LEGAL STANDARD. 25 26 See Horne v. USDA, 2008 Pursuant to 5 U.S.C. § 533(e), “[e]ach agency shall give an 27 interested person the right to 28 amendment, or repeal of a rule.” As the Senate Judiciary Committee 2 petition for the issuance, 1 noted in its report on the APA: 2 3 the mere filing of a petition does not require an agency to grant it, or to hold a hearing, or engage in any other public rule making proceedings. The refusal of an agency to grant the petition or to hold rule making proceedings, therefore, would not per se be subject to judicial reversal. However, the facts or considerations brought to the attention of the agency by [a petition for rulemaking] might be such as to require the agency to act to prevent the rule from continuing or becoming vulnerable to judicial review. 4 5 6 7 8 9 WWHT, Inc. v. Federal Communications Com., 656 F.2d 807, 813 (Ct. 10 App. D.C. 1981) (citing S. REP. NO. 752, 79th Cong., 1st Sess. 11 (1945), reprinted in LEGISLATIVE HISTORY, at 201-02 (1946)). 12 An Agency’s denial of a petition for rule-making is subject to 13 judicial review, but such review is "extremely limited" and "highly 14 deferential." Massachusetts v. EPA, 549 U.S. 497, 527 (2007) 15 (citing National Customs Brokers & Forwarders Ass'n. v. United 16 States, 883 F.2d 93, 96 (D.C. Cir. 1989)); see also Preminger v. 17 Sec'y of Veterans Affairs, 2011 U.S. App. LEXIS 1559 *16-17 (Ct. 18 App. Fed. Cir. 2011). 19 issues as defined by the denial of the petition for rule-making, 20 and does not extend to substantive review of the merits of the 21 policies implicated by the rule-making petition. See id., see also 22 Digiovanni v. FAA, 249 Fed. Appx. 842, 843 (2nd Cir. 2007) (citing 23 Nat'l Labor Relations Bd. Union v. Fed. Labor Relations Auth., 834 24 F.2d 191, 196 (D.C. Cir. 1987)). 25 an 26 administrative record consists of the petition for rule-making, 27 comments pro and con where deemed appropriate, and the agency's 28 explanation of its decision to reject the petition. WWHT, 656 F.2d agency’s denial Review is necessarily limited to the narrow of a For purposes of a challenge to petition 3 for rule-making, the 1 at 817; Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 920 (D.C. 2 Cir. 2008)(same); see also 3 FCC, 564 F.2d 458, 472 n.24 (D.C. Cir. 1977) (in cases where the 4 agency has decided against promulgation of a rule, the scope of 5 review is very limited because the "record" will likely be a simple 6 statement of reasons for non-adoption). 7 Action for Children's Television v. The “arbitrary and capricious” standard set forth in section 8 706(2)(A) of the 9 applicable standard of review for challenges to denial of rule- 10 making petitions, e.g. Weight Watchers Int'l v. FTC, 47 F.3d 990, 11 992 (9th Cir. 1994), but the standard is applied in an especially 12 deferential manner as a decision to deny a rule-making petition “is 13 essentially a legislative one,” WWHT, 656 F.2d at 817; accord EMR 14 Network v. FCC, 391 F.3d 269, 273 (D.C. Cir. 2004) (“[a]s applied 15 to refusals to initiate rulemakings, this standard is ‘at the high 16 end of the range’ of deference” to the agency) (citations omitted); 17 Brown v. Secretary of Health and Human Serv., 46 F.3d 102, 110 (1st 18 Cir. 1995) (agency’s “refusal to institute rule-making ‘is to be 19 overturned 20 circumstances.’”) (citations omitted). A reviewing court should do 21 no more than assure itself that the agency acted "in a manner 22 calculated 23 irrationality” in denying a petition for rule-making. 24 F.2d at 817.1 25 /// only to Administrative in negate the the rarest Procedure and dangers Act most of provides compelling arbitrariness the of and WWHT, 656 26 27 1 28 Plaintiffs do not allege that the USDA did not comply with relevant procedural rules applicable to petitions for rule-making. 4 IV. DISCUSSION. 1 2 A. Plaintiff’s Motion for Summary Judgement 3 The Petition is predicated on Plaintiffs’ contention that the 4 Rules of Practice “have no provision for promptly and expeditiously 5 notifying Petitioners with various rulings,” and that failure to 6 provide prompt notice is a denial of due process. 7 1, Petition for Rule-Making at ¶¶ 25, 27). 8 presented 9 consisted of a single instance in which Plaintiffs did not receive 10 timely notice because a decision that was sent to Plaintiffs’ 11 counsel did not arrive until after the time to file for judicial 12 review had expired. (Complaint, Ex. 1, Petition for Rule-Making). 13 USDA denied Plaintiff’s petition, finding that “procedures 14 under the applicable Rules of Practice are adequate to effectuate 15 service 16 (Complaint, 17 capricious in light of the scant evidence Plaintiffs presented to 18 show that the Rules of Practice are inadequate. Plaintiffs did not 19 present sufficient evidence of service failures to establish the 20 need for rule-making as the problem is exceptional and has not been 21 shown to be one that reoccurs. 22 in of the Petition department Ex. 2). in support decisions This and finding of (Complaint, Ex. The only evidence Plaintiffs’ other legal was neither request documents.” arbitrary nor In challenging an agency’s denial of a petition for rule- 23 making, a party must establish 24 arbitrary and capricious in light of the facts and considerations 25 presented in the petition. See, e.g., WWHT, 656 F.2d at 817 (scope 26 of review limited to petition and decision). 27 Agriculture’s record, which included a judicial decision confirming 28 the constitutional adequacy of the Rules of Practice in place, 5 that the agency’s denial was The Secretary of 1 establishes 2 procedures are adequate and to deny the Petition. 3 At that oral it was argument, reasonable Plaintiffs’ to find that counsel the argued current it was 4 inappropriate for the USDA to rely on this court’s decision in 5 denying the Petition. 6 Petition was based, in part, on Plaintiffs’ contention that the 7 current Rules of Practice lead to due process violations.2 The 8 record 9 considered it, and issued a reasoned written decision based on the demonstrates Plaintiffs’ argument lacks merit, as the that USDA received Plaintiff’s 10 record before it. 11 evidence 12 Plaintiffs motion for summary judgment is DENIED. 13 B. USDA’s Motion for Summary Judgment to petition, Plaintiffs’ Petition did not contain sufficient require USDA to change its notice procedures. 14 The factual record in this action is limited to the Petition 15 and the decision denying the Petition. Because, given state of the 16 record before the USDA, the court cannot say that denial of the 17 Petition was arbitrary and capricious, and because Plaintiffs 18 cannot adduce additional evidence in this court that was not raised 19 in 20 GRANTED. the Petition, USDA’s motion for summary judgment must be ORDER 21 22 For the reasons stated, IT IS ORDERED: 23 1) Plaintiffs’ motion for summary judgment is DENIED; 24 25 26 27 28 2 Had Plaintiffs produced sufficient evidence to establish that the Rules of Practice create too great a risk of repeated failed notice attempts, reliance on the court’s decision may have been problematic. Based on the limited administrative record, however, the court cannot say that USDA’s finding was arbitrary and capricious. Were a single anecdotal instance of injustice sufficient to permit court intervention in administrative rule-making, the broad discretion agencies enjoy in crafting appropriate policies and procedures would be eviscerated. 6 1 2) USDA’s motion for summary judgment is GRANTED; and 2 3) USDA shall lodge a form of order consistent with this 3 memorandum decision within five (5) days of electronic service 4 of this decision. 5 IT IS SO ORDERED. 6 Dated: hkh80h February 7, 2011 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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