ALJ's decision was subsequently appealed to the USDA Judicial Officer. On August 27, 1997, the Judicial Officer issued a decision holding that Glickman v. Wileman, 117 S.Ct. 2130 (1997) disposed of Plaintiff's First Amendment claim and upheld the ALJ's decision that the Mushroom Promotion Act was not violative of the Equal Protection provisions of the Fifth Amendment. D. Plaintiff's Complaint DBM initiated this suit on September 17, 1997 seeking review of, pursuant to 7 U.S.C. § 6106(b) and 5 U.S.C. §§ 702-706, the USDA Judicial Officer's rejection of Plaintiff's constitutional challenges to the Mushroom Promotion Act. Plaintiff "vehemently" disagrees with the use of assessments to fund generic advertising and believes it receives no benefit from the promotional messages and generic advertising strategies formulated by the Mushroom Council. Plaintiff alleges that the Mushroom Promotion Act encroaches on its First Amendment right to freedom of speech and association and its Fifth Amendment right to equal protection of the laws. Plaintiff seeks a declaratory judgment that the Mushroom Promotion Act violates Plaintiff's constitutional rights, an exemption from the payment of assessments and attorneys' fees and costs. III. LEGAL STANDARD Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. Anderson v. Liberty Lobby, 477 U.S. 242, 252-56 (1986). The nonmoving party cannot simply rest on its allegation without any significant probative evidence tending to support the complaint. Id. at 249. [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning 57 Agric. Dec. 11 an essential element of the non-moving party's case necessarily renders all other facts immaterial. Celotex, 477 U.S. at 322-23. Nevertheless, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in its favor." Liberty Lobby, 477 U.S. at 255. Even where the basic facts are undisputed, if reasonable minds could differ as to the inferences to be drawn from those facts, summary judgment should be denied. Hopkins v. Andaya, 958 F.2d 881, 888 (9th Cir. 1992). Evidence submitted in support of or in opposition to a motion for summary judgment must be admissible under the standard articulated in Rule 56(e). Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). Documents, including discovery documents, can be used on a motion for a summary judgment if appropriately authenticated by affidavit or declaration although such documents are not admissible in that form at trial. United States v. One Parcel of Real Property, 904 F.2d 487, 491-492 (9th Cir. 1990); Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 883 (9th Cir. 1982), cert. denied, 460 U.S. 1085 (1983). Supporting and opposing affidavits must be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Fed. R. Civ. P. 56(e); see also Taylor v. List, 880 F.2d 1040, 1045 n.3 (9th Cir. 1989). "Questions of statutory construction and legislative history present legal questions which are properly resolved by summary judgment." Coyote Valley Band of Pomo Indians v. United States, 639 F. Supp. 165, 167 (E.D. Cal. 1986); see also Asuncion v. District Director, 427 F.2d 523, 524 (9th Cir. 1970). IV. DISCUSSION A. Glickman v. Wileman is Dispositive of Plaintiff's First Amendment Challenges In Glickman v. Wileman, 117 S. Ct. 2130 (1997), the Supreme Court held that requiring "handlers" to finance a generic advertising program did not offend or infringe upon the handlers' constitutional rights under the First Amendment. Id. at 2137-2142 (there exists "no First Amendment right to be free of coerced subsidization of commercial speech"). This unambiguous principle governs and disposes of Plaintiff's First Amendment challenge to the Mushroom Promotion Act. Plaintiff nonetheless argues that Glickman is factually distinguishable from this case. Plaintiff observes Glickman is an advertising case decided under the comprehensive scheme of the federal Agricultural Marketing Agreement Act, whereas the Mushroom Promotion Act does not regulate supply or otherwise fetter Plaintiff's ability to act "independently" and exists only to collect funds for "purely collective expressive activity." Specifically, Plaintiff refers to the following language from the Glickman opinion: In [determining whether coerced subsidization of the advertising program raises a First Amendment issue or is simply a question of economic policy] we stress the importance of the statutory context in which [this question] arises. California nectarines and peaches are marketed pursuant to detailed marketing orders that have displaced many aspects of independent activity that characterize other portions of the economy in which competition is fully protected by the anti-trust laws. The business entities that are compelled to fund the generic advertising at issue in this litigation do so as part of a broader collective enterprise in which their freedom to act independently is already constrained by the regulatory scheme. Id. at 2138. Plaintiff suggests that the Glickman holding governs only if it is factually identical to the case to which it is to be applied. Plaintiff's narrow, restrictive interpretation and application of the Glickman opinion is wholly unconvincing and contravenes the foundational principles of common law and stare decisis. Contrary to Plaintiff's suggestion, it is the underlying reasoning and principles announced in Glickman that govern the issues before the court. Nothing in Glickman dictates that a contrary outcome is mandated for a "stand-alone" advertising program. Cf. Glickman, 117 S.Ct. at 2138 ("Thus, none of our First Amendment jurisprudence provides any support for the suggestion that the promotional regulations should be scrutinized under a different standard than that applicable to the other anticompetitive features of the marketing orders" (emphasis added).). At issue in Glickman, was a "species of economic regulation" promulgated by Congress designed to "stimulate" consumer demand for an agricultural product through generic advertising. Id. at 2143. The Supreme Court stated that it would not override "the judgment of the majority of market participants, bureaucrats, and legislators who have concluded that such programs are beneficial." Similarly here, Congress has concluded that the Mushroom Promotion Program would "strengthen the mushroom industry's position in the marketplace" by maintaining and expanding existing markets for mushrooms, while 57 Agric. Dec. 11 endeavoring to establish new markets and uses for mushrooms. 7 U.S.C. § 6101(b). Expansion of consumer demand and the development of new markets for mushrooms is itself a "regulatory" objective and generic advertising is a rational means to fulfilling that objective. See United States v. Frame, 885 F.2d 1119, 1126-27 (3d Cir. 1989); see also 7 U.S.C. § 6102(7) (the purpose of "industry information" is "to lead to the development of new markets and marketing strategies, increased efficiency, and activities to enhance the image of the mushroom industry."); In re Donald B. Mills, Inc., 1997 WL 577545, at *13 (USDA Aug. 27, 1997) ("Generic promotion is a cooperative effort by sellers of a relatively homogenous commodity" designed to increase the overall demand for that commodity.). The fact that supply is not regulated does not diminish from the demand management aspects of the regulation. The court is not authorized to evaluate the wisdom, or lack thereof, of the economic philosophies underlying this legislation or to substitute judicial judgment for that of Congress. In its complaint, Plaintiff asserts it "vehemently disagrees" with the promotional messages issued under the Mushroom Promotion Act. For example, during the administrative proceedings, Plaintiff criticized the Mushroom Council's Valentine's Day promotion of mushrooms as an aphrodisiac because the Plaintiff had unsuccessfully promoted mushrooms as aphrodisiacs. Plaintiff also criticized the Mushroom Council's "Blueprint for Profit" promotion, primarily because the Plaintiff believed that the advertisement spelled the word "portobello" incorrectly. Plaintiff's objection to the wisdom or efficacy of the advertising strategies implemented does not raise a cognizable claim under the First Amendment. Glickman, 117 S.Ct. at 2140 (citing Ellis v. Railway Clerks, 466 U.S. 435, 456, 104 S.Ct. 1883, 1896, 90 L.Ed.2d 428 (1984) ("The mere fact that objectors believe their money is not being well spent `does not mean [that] they have a First Amendment complaint."")). "These complaints, if they have any merit, are all challenges to the administration of the program that are more properly addressed to the Secretary." Id. at 2137 n.11. Nor has Plaintiff presented any evidence that the promotional messages approved by the Mushroom Council engender a "crisis of conscience" that offends the First Amendment. That is, Plaintiff has not shown that the advertising programs: 1) Restrain the freedom of speech of any producer to communicate any message to any audience. 2) Compel any person to engage in any actual or symbolic speech. 3) Compel the producer to endorse or to finance any political or ideological views. Id. at 2138. Absent such a showing, Plaintiff has not demonstrated that the generic advertising programs at issue run afoul of the First Amendment. Plaintiff also argues its claim is grounded on a violation of associational rights. While the First Amendment does not expressly protect a right of association, the Supreme Court has recognized such a right in "certain circumstances." City of Dallas v. Stanglin, 490 U.S. 19, 24 (1989). Those circumstances include the freedom "enter into and maintain certain intimate human relationships" and "to associate for the purpose of engaging in those activities protected by the First Amendment--speech, assembly, petition for the redress of grievances, and the exercise of religion." Id. (citing Roberts v. United States Jaycees, 468 U.S. 609 (1984)). This case involves no intimate human relationships, but rather, is a legislative effort to strengthen and increase the fresh mushroom domestic market through a collective research, promotion and marketing program. Nor does this case involve Plaintiff's own attempts to associate for First Amendment purposes. Cf. Frame, 885 F.2d at 1131. Glickman held that using assessments to fund collective advertising programs, "do not, as a general matter, impinge on speech or association rights." 117 S. Ct. at 2140 n. 16 (emphasis added) (citing Roberts v. United States Jaycees, 468 U.S. 609, 643, 635, 104 S. Ct. 3244, 3256, 82 L. Ed. 2d 462 (1984) (O'Connor, J., concurring) (Finding "only minimal constitutional protection of the freedom of commercial association" and that an association whose "activities are not predominantly of the type protected by the First Amendment" is subject to "rationally related state regulation of its membership")). Indeed, the Glickman court noted that the handlers "are not required themselves to speak, but are merely required to make contributions for advertising." Id. at 2139. Also, "the advertising is attributed not to them, but to the California Tree Fruit Agreement or "California Summer Fruits." Similarly here, Plaintiff merely finances the generic advertising program. It does not personally disseminate the advertising programs it so "vehemently" opposes nor is there evidence that the advertisement. is directly attributed to Plaintiff. Plaintiff suggests that little weight should be accorded this language from Glickman because the proposition is bolstered only by Justice O'Connor's |