Although the standard of review is deferential, the JO's ruling regarding the postmark requirement cannot be upheld. The court first notes that the question of whether the Appeal Petition satisfies the postmark requirement is a legal one. Therefore, the court must determine whether the JO's ruling-pursuant to which a party that sends a document to the hearing clerk via the U.S. Postal Service satisfies the postmark requirement, whereas a party that sends a document to the hearing clerk via Federal Express does not―is in accordance with law. The court finds that the JO's ruling is not in accordance with law for two reasons.

8

First, the JO's ruling elevates form over substance. The purpose of the postmark requirement is to ensure that there is reliable evidence of the date a party sends a document to the hearing clerk before the document will be deemed filed on such date. By ruling that the only way a party can satisfy the postmark requirement is to send a document to the hearing clerk via the U.S. Postal Service, the JO construes the postmark requirement too literally and, as a result, too narrowly. Although Federal Express (also known as "FedEx") is not affiliated with the U.S. Postal Service, it is nevertheless a well-known delivery service, and there is no reason to doubt the reliability of a Federal Express label, especially one generated and affixed by Federal Express employees, insofar as it establishes the date a party gives an item to Federal Express for delivery."

Moreover, in light of the fact that the applicable regulations do not define the term "postmark," a party that sends a document to the hearing clerk via Federal Express has made at least a reasonable effort to comply with the postmark requirement, and consequently should be permitted to consider the document filed on the date it was given to Federal Express for delivery. Cf. State of Oregon v.

"The court's explanation of the postmark requirement's purpose is consistent with the outcome in Sequoia Orange Co. At issue in that case was the reliability of the date shown by the Pitney Bowes, Inc., meter stamp. As the JO noted, a private individual applying the stamp could manipulate it to show any desired date. See 1992 WL 139549, at *1.

'Federal Express follows certain procedures that make it possible to reliably determine the date a party gives an item to Federal Express for delivery.

All items [Federal Express] delivers carry an electronically generated label that includes the date on which the item was given to FedEx for delivery. . . . The information in FedEx's database can be used to show when the item was given to or picked up by a FedEx employee if (1) there is a customer-generated label or (2) there is a FedEx-generated label but the date is illegible or otherwise unavailable.

Four Private Delivery Services Okayed, 86 J. Tax'n 259 (1997) (summarizing Notice 97-26, 1997-17 I.R.B. 6).

57 Agric. Dec. 857

FCC, 102 F.3d 583, 585 (D.C. Cir. 1996) (Ginsburg, J.) (holding that "the FCC acts arbitrarily and capriciously when it rejects an application as untimely based on an ambiguous cut-off provision, not clarified by FCC interpretations, if the applicant made a reasonable effort to comply") (citation, brackets, and internal quotation marks omitted). Such a result is particularly appropriate when a literal construction of the postmark requirement would prevent the party from having its claims. decided by the Secretary on the merits. As the Supreme Court explained with respect to the Federal Rules of Civil Procedure, "[i]t is too late in the day . . . for decisions on the merits to be avoided on the basis of such mere technicalities." Foman v. Davis, 371 U.S. 178, 181 (1962).10

Second, the JO's ruling is at odds with the realities of the modern practice of law. Over the past several years, the court has observed that lawyers' use of delivery services such as Federal Express is rising steadily. Because delivery services can reliably deliver documents worldwide, and often faster than the U.S. Postal Service, it appears to the court that in at least some legal markets, delivery services have supplanted the U.S. Postal Service as the normal means of document delivery." As a New York lawyer recently said in response to the court's suggestion that he send a document by "regular mail" (the U.S. Postal Service) instead of Federal Express, which costs more, "Out here, FedEx is regular mail."

The JO's construction of the postmark requirement bucks the current trend favoring the use of delivery services, because the JO's construction effectively compels a party that sends a document to the hearing clerk on the date the filing is due to use the U.S. Postal Service. Ironically, the use of a delivery service in such a situation, while it may effect delivery of the document sooner, will result in a document that the JO deems to be filed later and, as in this case, too late to be considered.

In the instant case, the correct approach-one that elevates substance over form and is more in tune with the practices of today's legal community as the court perceives them-is to construe the postmark requirement to cover use of the U.S.

1oKreider alleges that it "served its notice of appeal of the 1995 ALJ decision by Federal Express on the date the filing was due and it [was] accepted [by the JO] without objection." (Br. Opp. Mot. at 16.) If true, the allegation suggests that the JO rejected a literal construction of the postmark requirement in the past.

"In fact, the Secretary sent a copy of the administrative record and the motion to dismiss the Complaint to Kreider's counsel via Federal Express.

12

Postal Service and Federal Express for purposes of determining a filing date.12 The court notes that statutes and regulations regarding "postmarks" in some other contexts already take this approach. See, e. g., 26 U.S.C.A. § 7502(f)(1) (West 1989 & Supp. 1998) (Internal Revenue Code) ("[A]ny reference... to a postmark by the United States Postal Service shall be treated as including a reference to any date recorded or marked... by any designated delivery service."13); 50 C.F.R. § 285.2 (1998) (Wildlife and Fisheries) (defining postmark as, inter alia, "independently verifiable evidence of date of mailing, such as U.S. Postal Service postmark, United Parcel Service (U.P.S.) or other private carrier postmark"); but see 38 U.S.C.A. § 7266(a)(3)(B) (West 1991 & Supp. 1998) (Veterans' Benefits) ("[A] notice of appeal shall be deemed to be received by the Court [of Veterans Appeals] ... on the date of the United States Postal Service postmark.").

The Appeal Petition bears two Federal Express labels, one generated by Federal Express and the other apparently generated by Kreider. (See Resp't Opp'n to Pet'r Appeal Pet., Ex. A) (Admin. R., Tab 59). Each of the labels is dated September 19, 1997, indicating that Kreider gave the Appeal Petition to Federal Express on that date for delivery to the hearing clerk. On these facts, the court holds that the Appeal Petition is postmarked for purposes of section 900.69(d) of the Rules of Practice. The court further holds that the Appeal Petition has a postmark date of September 19, 1997, is deemed filed on that date, and is timely.

14

C. Jurisdiction to Review the ALJ's August 12 Decision

The Secretary's final argument is that even if the court has jurisdiction to review the JO's January 12 and February 20 decisions, and the decisions are incorrect, the court lacks jurisdiction to review the ALJ's August 12 decision because the August 12 decision is not a ruling of the Secretary for purposes of 7 U.S.C. § 608c(15)(B)

12The court expresses no opinion on whether use of delivery services other than Federal Express satisfies the postmark requirement.

"Pursuant to 26 U.S.C.A. § 7502(f)(2), one of the requirements of a "designated delivery service" is that it "is at least as timely and reliable on a regular basis as the United States mail." Id. at § 7502(f)(2)(B). Federal Express is a designated private delivery service for purposes of § 7502(f). See Notice 97-26, 1997-17 1.R.B. 6, modified, Notice 97-50, 1997-37 I.R.B. 21 (providing that "the list [in Notice 97-26] of private delivery services... will remain in effect until further notice").

14The court's holding does not cover situations in which customer-generated and FedEx-generated labels have conflicting dates, or in which one of the labels is missing or illegible. The court notes, however, that these scenarios are addressed in the tax context. See Notice 97-26, 1997-17 I.R.B. 6.

57 Agric. Dec. 857

or a "final decision issued by the Secretary" for purposes of 7 C.F.R. § 900.64(c). This argument, which Kreider does not dispute, is correct. Pursuant to 7 U.S.C. § 608c(15)(B), the court may review a ruling of the Secretary as described in § 608c(15)(A). Section 608c(15)(A), in turn, describes such a ruling as a final ruling made by the Secretary after holding a hearing in accordance with applicable regulations. See 7 U.S.C.A. § 608c(15)(A) (West 1980). The applicable regulations provide that "no decision shall be final for the purpose of judicial review except a final decision issued by the Secretary pursuant to an appeal by a party to the proceeding." 7 C.F.R. § 900.64(c) (1998).

Here, the JO, as the Secretary's delegatee, did not consider the Appeal Petition's merits. As a result, for the purpose of judicial review, there has not been a "final decision issued by the Secretary," 7 C.F.R. § 900.64(c), or a ruling of the Secretary, 7 U.S.C. §§ 608c(15)(A)-(B), concerning the ALJ's August 12 decision. Accordingly, the court lacks jurisdiction to review the ALJ's August 12 decision. The court will, however, remand this case to the Secretary. As provided in 7 U.S.C.A. § 609c(15)(B) (West 1980),

[i]f the court determines that [the Secretary's] ruling is not in accordance with law, it shall remand such proceedings to the Secretary with directions either (1) to make such ruling as the court shall determine to be in accordance with law, or (2) to take such further proceedings as, in its opinion, the law requires.

Because the court has found that the JO's ruling regarding the postmark requirement is not in accordance with law, the court will vacate the JO's January 12 and February 20 decisions and remand this case to the Secretary. The court will also direct that on remand the JO treat the Appeal Petition as timely and consider and rule on the Appeal Petition's merits.

III. CONCLUSION

Kreider has sought producer-handler status for almost five years. Because a substantial amount of money is at stake, Kreider's persistence is understandable. What is surprising to the court, however, is the number of times during the litigation that Kreider has needlessly risked dismissal of its claims on the basis of late filings. Continued procrastination can only lead to more disputes such as the instant one that consume the parties' time and resources, and, at best, will further delay the merits determination that Kreider seeks.

For all the foregoing reasons, the court will deny the Secretary's motion to

dismiss Kreider's Amended Complaint. In addition, the court will vacate the JO's January 12 and February 20 decisions and remand this case to the Secretary for further proceedings consistent with the court's decision.

An appropriate order follows.

ORDER

AND NOW, this 7 day of August, 1998, upon consideration of: Defendant's Motion to Dismiss (Dkt. 4); Defendant's Motion to Dismiss Plaintiff's Amended Complaint (Dkt. 5); Plaintiff's response; and Defendant's reply; and for the reasons set forth in the court's memorandum of even date herewith in this case, it is hereby ORDERED as follows:

1. Defendant's Motion to Dismiss (Dkt. 4) is DENIED as MOOT.

2. Defendant's Motion to Dismiss Plaintiff's Amended Complaint (Dkt. 5) is DENIED.

3. The Judicial Officer's ("JO") January 12, 1998, and February 20, 1998, decisions in this case are VACATED.

4. This case is REMANDED to the Secretary. On remand, the JO shall treat Kreider's Appeal Petition, (Admin. R., Tab 57), as timely filed on September 19, 1997, and shall consider and rule on the Appeal Petition's merits.

5. The Clerk shall close the docket for statistical purposes.