Lapas attēli
PDF
ePub

62 Agric. Dec. 699

As an initial matter, I find Respondent's Petition for Reconsideration of Order Lifting Stay, Ruling Denying Motion for Permanent Stay, and Ruling Granting Motion to Amend Case Caption cannot be considered pursuant to section 1.146 of the Rules of Practice (7 C.F.R. § 1.146), which provides that a party to a proceeding under the Rules of Practice may file a petition for reconsideration of the decision of the Judicial Officer. Section 1.132 of the Rules of Practice defines the word decision as follows:

§ 1.132 Definitions.

As used in this subpart, the terms as defined in the statute under which the proceeding is conducted and in the regulations, standards, instructions, or orders issued thereunder, shall apply with equal force and effect. In addition and except as may be provided otherwise in this subpart:

Decision means: (1) The Judge's initial decision made in accordance with the provisions of 5 U.S.C. 556 and 557, and includes the Judge's (i) findings and conclusions and the reasons or basis therefor on all material issues of fact, law or discretion, (ii) order, and (iii) rulings on proposed findings, conclusions and orders submitted by the parties; and

(2) The decision and order by the Judicial Officer upon appeal of the Judge's decision.

7 C.F.R. § 1.132.

(Sept. 8, 2003) (Order

In re William J. Reinhart, 62 Agric. Dec. Lifting Stay, Ruling Denying Motion for Permanent Stay, and Ruling Granting Motion to Amend Case Caption), is not a decision and order by the Judicial Officer upon appeal of an administrative law judge's decision. Therefore, the September 8, 2003, Order Lifting Stay, Ruling Denying Motion for Permanent Stay, and Ruling Granting Motion to Amend Case Caption is not a decision as defined in section 1.132 of the Rules of Practice (7 C.F.R. § 1.132), and section 1.146 of the Rules of Practice (7 C.F.R. § 1.146), which provides that a party may file a petition for reconsideration of the Judicial Officer's decision, is not the proper section of the Rules of Practice under which to request reconsideration of the September 8, 2003, Order Lifting Stay, Ruling Denying Motion for Permanent Stay, and Ruling Granting Motion to Amend Case

Caption. However, I find Respondent may request reconsideration of the September 8, 2003, Order Lifting Stay, Ruling Denying Motion for Permanent Stay, and Ruling Granting Motion to Amend Case Caption pursuant to section 1.143(b)(1) of the Rules of Practice (7 C.F.R. § 1.143(b)(1)), which provides that any motion will be entertained other than a motion to dismiss on the pleading. Therefore, I treat Respondent's Petition for Reconsideration of Order Lifting Stay, Ruling Denying Motion for Permanent Stay, and Ruling Granting Motion to Amend Case Caption as motions filed pursuant to section 1.143 of the Rules of Practice (7 C.F.R. § 1.143).

RESPONDENT'S MOTION TO SET ASIDE ORDER LIFTING STAY

I issued the June 20, 2001, Stay Order to postpone the effective date of the Order issued in In re William J. Reinhart, 60 Agric. Dec. 241 (2001) (Order Denying William J. Reinhart's Pet. for Recons.), pending the outcome of proceedings for judicial review. Proceedings for judicial review are concluded and the time for filing further requests for judicial review has expired. Therefore, Respondent's motion to set aside the September 8, 2003, order lifting stay is denied.

RESPONDENT'S MOTION FOR PERMANENT STAY

Respondent asserts the Office of the Hearing Clerk's delay in mailing Respondent a copy of the Order Denying William J. Reinhart's Petition for Reconsideration is the sole cause for his untimely appeal to the United States Court of Appeals for the Sixth Circuit and deprived him of the right to judicial review. Respondent requests the issuance of a permanent stay based upon the Office of the Hearing Clerk's alleged deprivation of his right to judicial review. (Respondent's Petition for Reconsideration of Order Lifting Stay, Ruling Denying Motion for Permanent Stay, and Ruling Granting Motion to Amend Case Caption at 3-8.)

As an initial matter, Respondent presents no argument that the appropriate remedy for the Office of the Hearing Clerk's purported deprivation of Respondent's right to judicial review, is my granting Respondent's motion for a permanent stay of an order that is warranted in law and justified by the facts.

'See note 3.

62 Agric. Dec. 703

Moreover, the United States Court of Appeals for the Sixth Circuit considered and rejected Respondent's contention that the Office of the Hearing Clerk's delay in mailing Respondent a copy of the Order Denying William J. Reinhart's Petition for Reconsideration was the sole cause for his untimely appeal and dismissed Respondent's untimely appeal for lack of jurisdiction." Respondent reiterates the argument that he made to the United States Court of Appeals for the Sixth Circuit in Respondent's Petition for Reconsideration of Order Lifting Stay, Ruling Denying Motion for Permanent Stay, and Ruling Granting Motion to Amend Case Caption. Respondent presents no basis for my disagreeing with the Sixth Circuit's finding in Reinhart v. United States Dep't of Agric. that the Office of the Hearing Clerk's delay in mailing Respondent a copy of the Order Denying William J. Reinhart's Petition for Reconsideration does not excuse Respondent's untimely appeal. Therefore, I deny Respondent's motion for a permanent stay.

MOTION FOR TAKING DEPOSITIONS

Respondent moves to take the depositions of the Hearing Clerk, the legal technician in the Office of the Hearing Clerk who mailed Respondent a copy of the Order Denying William J. Reinhart's Petition for Reconsideration, and Complainant's attorney (Respondent's Petition for Reconsideration of Order Lifting Stay, Ruling Denying Motion for Permanent Stay, and Ruling Granting Motion to Amend Case Caption at 5).

As an initial matter, the salient facts regarding the Office of the Hearing Clerk's delay in mailing Respondent a copy of Order Denying William J. Reinhart's Petition for Reconsideration are not in dispute. Moreover, Respondent's motion for taking depositions does not comply with the requirements for motions for taking depositions in section 1.148 of the Rules of Practice (7 C.F.R. § 1.148). Therefore, Respondent's motion for taking depositions must be denied.

In re: MASSACHUSETTS INDEPENDENT CERTIFICATION, INC. OFPA Docket No. 03-0001.

Order Dismissing Complaint.

'See note 4.

Filed November 4, 2003.

Nazima Razick, for Respondent.

Petitioner, Jill Krueger.

Order issued by Jill S. Clifton, Administrative Law Judge.

[ocr errors]

OFPA Cerrtifying agent - Producer Organic - Jurisdictions, subject matter appeal of certification.

On February 26, 2003, Petitioner Massachusetts Independent Certification, Inc. (MICI) filed a multi-page, multi-count Complaint, seeking to appeal an action by the Administrator of Agricultural Marketing Service, United States Department of Agriculture (USDA) (Administrator), who, on or about October 25, 2002, sustained The Country Hen's appeal of MICI's denial of organic certification. Respondents, the Administrator and the Secretary of Agriculture (Secretary), moved to dismiss MICI's Complaint on March 14, 2003, for lack of subject matter jurisdiction.

Petitioner MICI is a "certifying agent" for the National Organic Program under 7 U.S.C. § 6514 and 7 C.F.R. § 205.500 et seq. The Country Hen had on or about July 15, 2002, applied for certification as a producer of organic eggs under the USDA organic seal. For various reasons, on or about October 4, 2002, MICI issued a notice of noncompliance to The Country Hen and in an additional procedure, MICI's certification committee denied organic certification to The Country Hen and on October 22, 2002, issued a formal ruling of its decision to The Country Hen.

A certifying agent such as MICI acts on behalf of the Secretary of Agriculture (and not adverse to the Secretary), and, as is pertinent here, is defined:

7 U.S.C. § 6502 (3) Certifying agent

The term "certifying agent" means . . . any person (including private entities) who is accredited by the Secretary as a certifying agent for the purpose of certifying a farm or handling operation as a certified organic farm or handling operation in accordance with this chapter.

Respondents raise a preliminary issue, that the Office of Administrative Law Judges lacks subject matter jurisdiction to decide this case, citing in particular 7 C.F.R. § 205.681 (a)(1):

62 Agric. Dec. 705

7 C.F.R. §205.681 Appeals.

(a) Certification Appeals ...

(1) If the Administrator... sustains a certification applicant's or certified operation's appeal of a certifying agent's decision, the applicant will be issued organic certification, or a certified operation will continue its certification, as applicable to the operation. The act of sustaining the appeal shall not be an adverse action subject to appeal by the affected certifying agent. (emphasis added)

The issues have been well-briefed. I accept as filed the following documents submitted by Petitioner MICI: Complaint, filed February 26, 2003; Opposition to Motion to Dismiss, filed April 3, 2003; Opposition to Respondents' Motion to Dismiss filed May 27, 2003; and Motion to Strike and Motion to File Surreply, filed May 27, 2003. I accept as filed the following documents submitted by Respondents Secretary and the Administrator: Motion to Dismiss Complaint, filed March 14, 2003; Response to Petitioner's Opposition, filed May 8, 2003; and Supplemental Memorandum to Clarify Issues, filed October 28, 2003.

In cases where a denial of certification is appealed, the prefatory comments in the final rule (65 Fed. Reg. 80636, col. 1) state:

"The Administrator ... will review the case and render an opinion on the appeal. When the appeal is sustained, the certified operation and certifying agent are notified and the case ends." (emphasis added)

I conclude that the Office of Administrative Law Judges lack subject matter jurisdiction and that the Complaint must be and is hereby ordered DISMISSED.

Copies of this Order shall be served by the Hearing Clerk upon each of the parties.

In re: KINH NGUYEN.

P.Q. Docket No. 03-0018.

Order Granting Motion to Dismiss Without Prejudice.
Filed November 14, 2003.

« iepriekšējāTurpināt »