USDA Reply to Motion to Enforce

Dated September 12, 2006.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

ARTHUR HARVEY,
Plaintiff,
v. Civil No. 02-216-P-H
MIKE JOHANNS,
SECRETARY OF AGRICULTURE,
Defendant.
REPLY IN SUPPORT OF DEFENDANT’S
MOTION FOR RELIEF FROM JUDGMENT
I. The Secretary should be relieved from the Judgment with
respect to Count 3
because Congress clearly authorized the listing of synthetic
substances in the
processing and handling of 95+% organic foods.
In his consolidated Reply and Opposition, Mr. Harvey argues
that the 2005 amendments
to the Organic Foods Production Act of 1990, 7 U.S.C. §§ 6501
et seq. (OFPA or Act) are not
ambiguous. Rather, they are so clear that they do not allow the
Secretary of Agriculture any
discretion.1 They only allow the National Listing of synthetic
ingredients for use in processing
2
and handling 95+% organic products; not processing aids or
food contact substances. They do
not supersede the Final Judgment entered in this case with
respect to processing aids. Plaintiff
opposes relieving Defendant from the Judgment to the extent
that doing so would allow
Defendant to list synthetic processing aids for use in the
handling and processing of 95+%
organic products. In the process, Mr. Harvey notes that the
2005 amendments to the OFPA were
made as a rider to an appropriations bill. He argues that they
are undemocratic and must be
strictly construed. He argues that the amendments are repeals
by implication contained in an
appropriations bill which are doubly disfavored.
However, Congress can legislate in an appropriation bill. It can
repeal pre-existing
legislation in an appropriations bill. See Robertson v. Seattle
Audubon Society, 503 U.S. 429,
440 (1992)(Congress can repeal legislation in an
appropriations bill so long as it does so clearly);
Auburn Housing Authority v. Martinez, 277 F.3d 138 144-5 (2d
Cir. 2002)(both cited in
Plaintiff’s Reply and Opposition at pp. 10-11). Here, Congress
did not repeal the OFPA in an
appropriations bill. Congress modified the Act in response to a
court decision that invalidated
the way that the Secretary of Agriculture had been
implementing the Act.
Congress did not amend the OFPA by implication. It did not
pass another, separate
provision that conflicts with the OFPA and requires resolution
of that conflict. Congress
operated directly on the OFPA. It removed and added language
to the OFPA itself. It did not do
so in a vacuum. The amendments strike out language that the
Court of Appeals held prohibited
the listing of synthetic substances for use in processing and
handling. They add language to the
OFPA that clearly allows the National Listing of synthetics for
use in processing and handling.
2If there is any lingering doubt about the meaning of the OFPA
as amended, then the
Secretary is all the more empowered to resolve that ambiguity
by exercising his discretion in
rulemaking as he has done.
3
See generally Robertson, 503 U.S. 429 and at 432-3
(construing legislative compromise enacted
in response to litigation).2
Plaintiff argues that the amendment of 7 U.S.C. § 6517(c)(1)
involves a change in the
language of a title which does not deserve any significance
when understanding the meaning of
the amended statute. To the contrary, titles have meaning and
can be used to understand statutes.
See United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805)
(“[w]here the mind labours to
discover the design of the legislature, it seizes everything from
which aid can be derived; and in
such case the title claims a degree of notice”). They can shed
light on a section’s basic thrust.
See Almendarea-Torres v. United States, 523 U.S. 224, 234
(1998)(words “criminal penalties” in
section heading are one indication that the section does not
define a new crime); INS v. National
Center for Immigrants’ Rights, 502 U.S. 183, 189 (1991) (text’
s generic reference to
“employment” should be read as a reference to the
“unauthorized employment” identified in the
paragraph’s title). They can help resolve ambiguity in the
language of legislation. See id.
It is clear from the context in which this change in the
language of the title of section
6517(c)(1) occurs that it is operative language. It coordinates
with the other change that
Congress made to section 6517 by deleting section 6517(c)(1)
(B)(iii). Taken together, these
changes are clearly responsive to the appellate decision in this
case and mean that Congress
intended to allow the listing of synthetic substances for use in
processing and handling 95+%
organic foods without regard to whether they were used as
ingredients or processing aids.
3Although Mr. Harvey also argues that “the issue is not
whether the food contact
substance policy statement was addressed in this litigation.”
Reply and Opposition at p. 20.
4
II. The Secretary’s food contact substances policy was not a
subject of this litigation,
was not addressed by the Court of Appeals, is not a subject of
the Judgment, and
is not fit for review.
Mr. Harvey seems to argue that the Court of Appeals did not
address his food contact
substances (FCS) argument because it was misled by the
Secretary into thinking that policy was
not operational; that, as a result, the Final Judgment only
applies to ingredients and processing
aids; and that his Motion to Enforce is only directed at food
contact substances that are in fact
really processing aids and not permissible under his
interpretation of the law of this case.3 Mr.
Harvey offers his views as to which food contact substances
are in reality processing aids and
ingredients that have a technical effect on food and must be
prohibited to the extent that they are
not in compliance with the Act and rules applicable to
processing aids and ingredients.
This is a new claim that is not ripe for review. It has not been
litigated or decided. The
parties have only addressed it in the most cursory fashion. See
Robertson, 503 U.S. at 441
(refusing to address theories that were not raised or squarely
considered below). Neither the
Court of Appeals nor this Court addressed the Secretary’s food
contact substances policy in their
decisions.
The Secretary did not mislead the Court of Appeals into
believing that his food contact
substances policy was not operative. To the extent that he has
addressed the argument, the
Secretary has always described his policy as operative. See
Appellant’s Brief at p. 23, n. 11;
Opposition to Motion to Enforce at pp. 15-16. Rather, in
response to Mr. Harvey’s belated,
5
undeveloped and changing arguments, the Secretary has
consistently argued that his food contact
substances policy was not otherwise ripe or fit for review. See
id.
It is not ripe for review because the Secretary has not
completed his decision making
process regarding food contact substances. It is in
development and evolving. See Port of
Boston Marine Terminal Assn. v. Rederiaktiebolaget, 400 U.S.
62, 71 (1970)(one reason judicial
review is limited to final agency action is in order to prevent
disruption of orderly process of
administrative decision making). The Secretary posted the FCS
policy on the Internet and
sought the input of the National Organic Standards Board. He
intends to take further
administrative action and to seek comments from other
interested parties. See Cohen v. Rice 992
F.2d 376, 381 (1st Cir. 1993)(Base Closure Committee
recommendation not reviewable final
agency action); National Head Start Assn v. DHHS, 297 F. Supp.
2d 242, 247 (D. D.C.
2004)(information-gathering survey not reviewable final
agency action). In the meantime, the
Secretary is deferring to the FDA regulatory scheme regarding
FCS to set a threshold below
which substances that do not have a technical effect on food
do not have to go through the
National List process.
The Secretary’s FCS policy could change in ways that might
obviate or alter any
objection Mr. Harvey has. See 5 U.S.C. § 704 (APA review
limited to final agency actions);
McKart v. United States, 395 U.S. 185, 194 (1969)(final agency
action requirement serves
separation of powers by requiring people to respect agency
authority and procedure, and by
allowing executive branch to solve its own problems before the
judiciary steps in)(cited in
Woodford v. Ngo, 126 S. Ct. 2378, 2384-6 (2006)); Hells
Canyon Preservation Council v.
Richmond, 841 F. Supp. 1039, 1044-5 (D. Or. 1993)(avoids
premature interruption of agency
4This seems to make Mr. Harvey’s challenge to the FCS policy
one to the policy “as
applied” as opposed to one to the policy on its face.
6
process and conserves scarce judicial resources by giving the
agency a chance to exercise its
expertise, develop an administrative record, discover and
correct errors thereby possibly
rendering challenge moot).
Moreover, it is apparent from both Mr. Harvey and Amicus Mr.
Riddle’s arguments that
this technical issue is not ripe for review in the sense that it
requires factual development that has
not been done and is not a part of the administrative record of
this closed case. See Ohio
Forestry Association, Inc. v. Sierra Club, 523 U.S. 726, 736-7
(1998)(focus on particular logging
proposal could provide focus for judicial review of elaborate,
technical plan for logging forest).
Judicial review would benefit from focus on the particular
substances that Mr. Harvey challenges
and why. See id. at 736; Abbott Labs v. Gardner, 387 U.S. 136,
148 (1967) (ripeness doctrine
designed to avoid abstract disagreements over administrative
policies).
Mr. Harvey states that he is not challenging all food contact
substances. He disclaims
“incidental substances not encompassed by this litigation,”
synthetics use as equipment cleansers
or in utensils, processing machinery and implements. Reply and
Opposition at pp. 11 and 19,
and n. 6. Mr. Harvey states that he only challenges those FCS
that are in fact ingredients that
have not been listed or processing aids that have a technical
effect on finished food.4 However,
there is no evidence in the administrative record relative to
these matters and no principled basis
to permit the listing of some FCS and not others. These are
matters that need to be developed at
the administrative level, where the Secretary will have an
opportunity to better explain and fairly
5Amicus Mr. Riddle’s Brief consists of his personal opinions
about the meaning of the
First Circuit’s decision, this Court’s Final Judgment, the OFPA
as amended, the Secretary’s rules
and policies, what effect certain substances have on food and
whether certain substances are
ingredients, processing aids, or food contact substances. His
pos hoc opinions are of no moment
to this closed administrative review case.
7
defend his policy in the first instance, or even alter that policy
in response to any meritorious
claims Mr. Harvey might make.5
WHEREFORE, Defendant respectfully requests that the Court
DENY Plaintiff’s Motion
to Enforce AND GRANT Defendant judgment with respect to
Count 3 on the grounds that an
intervening change of law has eliminated any inconsistency
between law and regulation.
Dated September 12, 2006.
Respectfully submitted,
Paula D. Silsby
United States Attorney
Halsey B. Frank
Assistant United States Attorney
of counsel: Frank Martin, Esq.
Kenneth Vail, Esq.
United States Department of Agriculture
8
CERTIFICATE OF SERVICE
I hereby certify that a copy of Defendant’s Opposition to
Plaintiff’s Motion to Enforce
and Cross Motion for Relief were served by U.S. mail upon the
following:
Plaintiff Arthur Harvey, RFD, Canton, Maine 04221,
Plaintiff’s counsel Martica S. Douglas, Douglas, Denham,
Buccina & Ernst, 103
Exchange Street, P.O. Box 7108, Portland, Maine 04112-7108,
Plaintiff’s counsel Paula Dinerstein, Public Employees for
Environmental Responsibility,
2000 P Street, N.W., Suite 240, Washington, D.C. 20036,
Amicus counsel Richard L. O’Meara, Murray, Plumb & Murray, P.
O. Box 9785,
Portland, Maine 04104-5085,
William J. Friedman, Covington & Burling, 1201 Pennsylvania
Ave., N.W., Washington,
D.C. 20004,
Amicus James Riddle, 31762 Wiscoy Ridge Road, Winona, MN
55987.
this th day of September, 2006.
Melody A. Richardson