goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity.

More recently, in Southworth, 529 U.S. at 232-35, 120 S.Ct. 1346, the Supreme Court determined that the germaneness standard was "unmanageable" in the context of a state university, "particularly where the State undertakes to stimulate the whole universe of speech and ideas." Thus, the Court held in that particular case that "[t]he proper measure, and the principal standard of protection for objecting students ... is the requirement of viewpoint neutrality in the allocation of funding support." Id. at 233, 120 S.Ct. 1346. The Court explained:

Viewpoint neutrality is the justification for requiring the student to pay the fee in the first instance and for ensuring the integrity of the program's operation once the funds have been collected. We conclude that the University of Wisconsin may sustain the extracurricular dimensions of its programs by using mandatory student fees with viewpoint neutrality as the operational principle.

Id. at 233-34, 120 S.Ct. 1346.

As observed above, the Court also alluded to the government speech doctrine in Southworth by stating:

Our decision ought not to be taken to imply that in other instances the University, its agents or employees, or--of particular importance--its faculty, are subject to the First Amendment analysis which controls in this case. Where the University speaks, either in its own name through its regents or officers, or in myriad other ways through its diverse faculties, the analysis likely would be altogether different. The Court has not held, or suggested, that when the government speaks the rules we have discussed come into play.

Id. at 234-35, 120 S.Ct. 1346 (emphasis added) (internal citations omitted).

The Supreme Court has repeatedly warned that, when assessing the nature of the speech in the compelled speech context--whether based upon germaneness, viewpoint neutrality, or some other benchmark--the analysis often comes down to a difficult line-drawing exercise. See Keller, 496 U.S. at 15, 110 S.Ct. 2228 ("Precisely where the line falls between those State Bar activities in which the officials and members of the Bar are acting essentially as professional advisers to those ultimately charged with the regulation of the

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legal profession, on the one hand, and those activities having political or ideological coloration which are not reasonably related to the advancement of such goals, on the other, will not always be easy to discern."); Abood, 431 U.S. at 236, 97 S.Ct. 1782 ("There will, of course, be difficult problems in drawing lines between collective-bargaining activities, for which contributions may be compelled, and ideological activities unrelated to collective bargaining, for which such compulsion is prohibited."). In the case at bar, however, we need not, ourselves, engage in such a line-drawing exercise. The Supreme Court has already drawn the relevant line for us. In United Foods, the Supreme Court explained:

The statutory mechanism as it relates to handlers of mushroom is concededly different from the scheme in Glickman; here the statute does not require group action, save to generate the very speech to which some handlers object. In contrast to the program upheld in Glickman, where the Government argued the compelled contributions for advertising were "part of a far broader regulatory system that does not principally concern speech," there is no broader regulatory system in place here. We have not upheld compelled subsidies for speech in the context of a program where the principal object is speech itself. Although greater regulation of the mushroom market might have been implemented, ... the compelled contributions for advertising are not part of some broader regulatory scheme. The only program the Government contends the compelled contributions serve is the very advertising scheme in question. Were it sufficient to say speech is germane to itself, the limits observed in Abood and Keller would be empty of meaning and significance. The cooperative marketing structure relied upon by a majority of the Court in Glickman to sustain an ancillary assessment finds no corollary here; the expression respondent is required to support is not germane to a purpose related to an association independent from the speech itself; and the rationale of Abood extends to the party who objects to the compelled support for this speech.

533 U.S. at 415-16, 121 S.Ct. 2334 (internal citation omitted); see also id. at 418, 121 S.Ct. 2334 (Stevens, J., concurring) ("As we held in Glickman, Keller, and a number of other cases, such a compelled subsidy is permissible when it is ancillary, or 'germane,' to a valid cooperative endeavor. The incremental impact on the liberty of a person who has already surrendered far greater liberty to the collective entity (either voluntarily or as a result of permissible compulsion) does not, in my judgment, raise a significant constitutional issue if it is ancillary to the main purpose of the collective program.

This case, however, raises the open question whether such

compulsion is constitutional when nothing more than commercial advertising is at stake. The naked imposition of such compulsion, like a naked restraint on speech itself, seems quite different to me. We need not decide whether other interests... might justify a compelled subsidy like this, but surely the interest in making one entrepreneur finance advertising for the benefit of his [or her] competitors, including some who are not required to contribute, is insufficient.") (internal footnote omitted).

This court is duty-bound to reconcile and apply the precedents of the Supreme Court to the best of our ability. The beef checkoff program is, in all material respects, identical to the mushroom checkoff program at issue in United Foods. See 207 F.Supp.2d at 1002. Therefore, notwithstanding the reasoned counterpoints advanced by the dissent in United Foods, see 533 U.S. at 419-31, 121 S.Ct. 2334 (Breyer, J., dissenting), we conclude that the government's interest in protecting the welfare of the beef industry by compelling all beef producers and importers to pay for generic beef advertising is not sufficiently substantial to justify the infringement on appellees' First Amendment free speech right. Accordingly, the district court did not err in holding that the Beef Act and the Beef Order are unconstitutional and unenforceable.

IV.

Having carefully reviewed the arguments asserted by the parties concerning the scope of the injunction imposed by the district court, we further hold that the district court did not abuse its discretion in fashioning its relief. Our holding that the Beef Act is unconstitutional is not limited solely to the plaintiffs in the present case. See, e.g., United Foods, 533 U.S. at 416, 121 S.Ct. 2334 (holding that "the assessments are not permitted under the First Amendment"). We also reject the suggestion that a portion of the assessments may continue to be collected because some of the funds are spent on activities other than commercial or political speech. When the Beef Act was amended in 1985, Congress specifically deleted a pre-existing severability provision. The legislative history of that deletion is described as follows:

Separability of Provisions

Section 19 of Pub. L. 94-294, which provided that if any provision of this Act [enacting this chapter and provisions set out as notes under this section] or

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the application thereof to any person or circumstances is held invalid, the validity of the remainder of the Act and of the application of such provision to other persons and circumstances shall not be affected thereby, was omitted in the general revision of sections 2 through 20 of Pub. L. 94-294 by Pub.L. 99-198, Title XVI, § 1601(b), Dec. 28, 1985, 99 Stat. 1597.

7 U.S.C.A. § 2901 (West 1985) (Historical and Statutory Notes) (emphasis added). In view of this clear expression of non-severability and the fact that the "principal object" of the Beef Act is the very part that makes it unconstitutional (i.e., compelled funding of generic advertising), no remaining aspects of the Act can survive.

Conclusion

For the reasons set forth above, the order of the district court is affirmed.

512

EQUAL ACCESS JUSTICE ACT

DEPARTMENTAL DECISION

DONALD J. AND DIANA KLOSTERMAN.

EAJA-FSA Docket No. 202WEA0855.

Decision and Order.

Filed September 24, 2003.

Failure to follow procedures when filing a Petition for Review is excused additional fees and expenses is not a new EAJA application and is not untimely.

Request for

The Director of the National Appeals Division affirmed the Adjudicating Officer's award of $7,424.73 to Equal Access to Justice Act Applicants. Moreover, the Director concluded that Applicants did not follow USDA regulations for filing a Petition for Review. However, because the Adjudicating Officer provided incorrect instructions to Applicants for filing a review, the Director accepted Applicants' March 14, 2003 letter as a Petition for Review. In that Petition for Review, Applicants requested an amendment of $992.84 for additional fees and expenses. The Director awarded Applicants $8,417.57 for legal fees and expenses.

Margit Halvorson, for Respondent.

Adam W. Hamm, for Respondent.

Initial decision issued by Carol Christianson, Adjudicating Officer.

Decision and Order issued by Roger Klurfeld, Director, National Appeals Division.

Donald J. and Diana Klosterman [hereinafter Applicants] instituted this proceeding under the Equal Access to Justice Act (5 U.S.C § 504) [hereinafter EAJA] and the Procedures Relating to Awards under the Equal Access to Justice Act in Proceedings Before the Department (7 C.F.R. §§ 1.180.203 ( 2003) [hereinafter the EAJA Rules of Practice] by filing an Equal Access to Justice Act Application [hereinafter EAJA Application] with the United States Department of Agriculture [hereinafter USDA], National Appeals Division [hereinafter NAD] on November 4, 2002. Applicants seek fees and other expenses incurred in connection with Donald J. and Diana Klosterman, NAD Case No. 2002W000855.

INTRODUCTION

On March 21, 2002, the Farm Service Agency [hereinafter Respondent] issued an adverse decision in which Respondent determined that Diana Klosterman did not meet the producer eligibility requirements for the 2001 Sugar PIK program. Respondent determined that Ms. Klosterman owed $9,995.75 plus interest for sugar already received. Liquidated damages of