maintains that the $225,000 fine in totality is excessive under a number of legal theories. A. Small Business Regulatory Enforcement Fairness Act Claim To Fine As A Whole On March 29, 1996 Congress enacted the Small Business Regulatory Enforcement Fairness Act of 1996 ("the SBREFA"). Section 223(a) of that Act states that administrative agencies "regulating the activities of small entities shall establish a policy or program within 1 year of enactment of this section [Mar. 29, 1996] to provide for the reduction, and under appropriate circumstances for the waiver, of civil penalties for violations of a statutory or regulatory requirement by a small entity. Under appropriate circumstances, an agency may consider ability to pay in determining penalty assessments on small entities." Balice contends that neither the ALJ nor the Judicial Officer considered his ability to pay the fine in question. He therefore asks this court to wave or substantially reduce the penalty pursuant to the SBREFA. The court finds that the SBREFA is inapplicable to this action. The SBREFA does not contain any indication that its substantive provisions were directed at administrative agencies acting in their adjudicative capacity. Instead it appears that Congress intended that agencies comply with the SBREFA when engaging in rulemaking. See Southern Offshore Fishing Ass'n v. Daley, 995 F. Supp. 1411, 1417 (M.D. Fla. 1998) (the SBREFA "requires an agency in the process of rule-making to the effect of the agency's proposed regulation on small enterprises and to prescribe pertinent mitigating measures"). Further even if the SBREFA could be interpreted as requiring an administrative law judge or a judicial officer with the USDA to consider a small entity's ability to pay a fine as part of the hearing process, the statute was enacted over four years after the Judicial Officer assessed the fine in question. Balice presents no legal argument as to why the SBREFA has retroactive effect, and the court declines to so hold. B. Eighth Amendment Claim To Fine As A Whole Balice maintains that the $225,000 fine violates the Eighth Amendment in that 57 Agric. Dec. 841 the penalty is excessive compared to the conduct. Assuming without deciding that the civil penalty in question could be characterized as "punishment,"10 the fine is not excessive in the constitutional sense given the relationship between the profit available to Balice due to his violations of the Marketing Order and the actual fine imposed. Looking solely at the reserve regulation violation the Judicial Officer explained that placing the reserve on the market before the reserve release date would have resulted in a profit to Balice of somewhere in the vicinity of $241,196 to $246,677. Judicial Officer's Decision and Order, p. 42. C. Due Process Claims To Fine As A Whole Balice also states that the fine, as a whole, violates his due process rights. The court concludes that imposition of the fine did not violate Balice's procedural due process rights in that he had full notice of the USDA's intent to impose a fine well over $225,000, and exercised his opportunity to be heard in opposition to the complaint before the ALJ and the Judicial Officer. Neither can it be said that imposition of the fine violated Balice's substantive due process rights. To show that a government action, which would include imposition of a civil fine, violates substantive due process, the plaintiff would need to show that the challenged action was "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926). Congress has declared that the institution and implementation of marketing orders, in part, is necessary "in the interests of producers and consumers [for] an orderly flow of the supply of [an agricultural product] to market throughout its normal marketing season to avoid unreasonable fluctuations in supplies and prices." 7 U.S.C. § 602(4). Fining a handler who violates a marketing order by not maintaining the required reserve, not "The USDA asserts that Balice did not specifically argue before the Judicial Officer that the ALJ's $216,000 fine violated the Eighth Amendment, and that therefore he cannot argue before this court that the Judicial Officer's fine, even though it was higher, violated the Eighth Amendment. The court is not convincing by this logic as Balice could not know in advance of the Judicial Officer's decision what amount, if any, the Judicial Officer would impose. In any event a review of Balice's Appeal Petition to the Judicial Officer establishes that Balice expressly challenged the fines imposed by the ALJ relative to the reserve regulation violation and the inedible disposition regulation violation as constituting cruel and unusual punishment. 10 Austin v. United States, 509 U.S. 602, 621 (1993) suggests that, unless a civil monetary penalty solely serves remedial purposes, it may be considered punishment and thus subject to scrutiny under the Excessive Fines Clause. maintaining proper records to verify handling activity, not filing timely reports with the overseeing Board, and not meeting inedible disposition requirements is a government action that is rationally related to public health and general welfare interests. D. Administrative Procedure Act Based Claims To Fine As A Whole Balice contends that the Judicial Officer acted in a arbitrary and capricious manner within the meaning of the Administrative Procedure Act, as well as abused the discretion granted him by that Act, by failing to consider Balice's offered mitigating circumstance evidence. The court, having reviewed the record below, that the Judicial Officer did consider the evidence and argument posed by Balice, but simply did not accept it to the extent suggested by Balice. CONCLUSION The court, having reviewed the parties' cross-motions for summary judgment and the administrative record, finds that the Judicial Officer's decision was not arbitrary and capricious. The decision is based on substantial evidence, and the particular fines imposed as to each of the four violations found to have occurred were within the scope of the discretion granted to the Judicial Officer by 7 U.S.C. § 608c(14)(B). The Judicial Officer's Decision and Order filed June 25, 1992 is affirmed. ORDER For the reasons stated in the above Memorandum Opinion, IT IS HEREBY ORDERED that 1. Balice's motion for summary judgment is DENIED; 2. the USDA's motion for summary judgment is GRANTED; and 3. the Clerk of the Court is to close the case. 57 Agric. Dec. 857 KREIDER DAIRY FARMS, INC. v. DAN GLICKMAN, SECRETARY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE. The District Court held that petitioner's Amended Complaint, in which it first appealed the Judicial Officer's Order Denying Late Appeal and Order Denying Petition for Reconsideration, was not filed within 20 days of the Judicial Officer's Orders, as required by 7 U.S.C. § 608c(15)(B). Nonetheless, the Court found that it had jurisdiction to review the Judicial Officer's Orders because the Amended Complaint relates back to the filing date of the timely Complaint, which makes explicit reference to the Judicial Officer's Orders. Moreover, the Court held that the Judicial Officer's determination, that the word "postmarked" in 7 C.F.R. § 900.69(d) does not include a Federal Express label, is not in accordance with law. The Court vacated the Judicial Officer's Order Denying Late Appeal and Order Denying Petition for Reconsideration, remanded the case to the Judicial Officer, and ordered the Judicial Officer to treat petitioner's appeal petition as timely and to rule on the merits of the appeal petition. United States District Court MEMORANDUM Cahn, C.J. This case is back before the court following a remand. Currently pending is the Secretary's motion to dismiss Kreider's Amended Complaint. For the reasons that follow, the court will deny the motion. The court will also vacate the Judicial Officer's ("JO") January 12, 1998, and February 20, 1998, decisions (respectively, the "January 12 decision" and the "February 20 decision") and remand this case to the Secretary for a decision on the merits of Kreider's appeal of the Administrative Law Judge's ("ALJ") August 12, 1997, decision (the "August 12 decision"). I. BACKGROUND The background of this case prior to the remand is set forth in Kreider Dairy Farms, Inc. v. Glickman, No. CIV. A. 95-6648, 1996 WL 472414 (E.D. Pa. Aug. 15, 1996) ("Kreider I") (denying motions for summary judgment and remanding).' In Kreider I, Kreider challenge[d] the ruling of the [JO] who affirmed the decision of the Market Administrator ("MA") for the New York-New Jersey Milk Marketing Order ("Order 2") to regulate Kreider as a handler under Order 2 rather than designating Kreider as a producer-handler exempt from paying certain fees for sales of fluid milk. Id. at *1 (footnote omitted). The court held that neither the plain language of Order 2 nor its promulgation history supports a finding that Kreider should be denied producer-handler status without further factual findings that Kreider is riding the pool' in this factual context. Thus, the refusal to designate Kreider as a producer-handler appears arbitrary on the record before this court. Id. at *11. Therefore, the court remanded this case to the Secretary and directed the Secretary "to hold such further proceedings necessary to determine whether in fact Kreider is 'riding the pool."" Id. at *9. On remand and following an evidentiary hearing, the ALJ issued the August 12 decision, in which he found, inter alia, that Kreider was 'riding the pool' and receiving an unearned economic benefit. Accordingly, the decision of the Market Administrator to deny Kreider producer-handler status must be upheld and the petition [challenging the MA's decision] must be denied. In re: Kreider Dairy Farms, Inc., No. 94 AMA M-1-2, at 10 (U.S.D.A. ALJ 8/12/97 Decision & Order) (Admin. R., Tab 55). The ALJ therefore dismissed Kreider's petition. At the end of the August 12 decision, the ALJ notified the parties that the decision "shall become final and effective without further procedure thirty-five (35) days after service upon the parties unless appealed to the Judicial Officer by a party to the proceeding within thirty (30) days after service." Id.; see Rules of Practice Governing Proceedings on Petitions to Modify or To Be Exempted From 'Unless otherwise indicated, the court uses the same abbreviated terms used in Kreider I. |