7th Circuit addresses challenges under the RFA

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The 7th Circuit Court of Appeals affirmed summary judgment in favor of the United States Department of Agriculture in a suit challenging the agency's rulemaking process and amendment to a milk marketing order. It was the first time the 7th Circuit had addressed who could bring a challenge to a regulatory flexibility analysis or certification under the Regulatory Flexibility Act.

The case, White Eagle Cooperative Association, et al. v. Charles F. Conner, acting secretary, United States Department of Agriculture, et al.,No. 07-3545, was filed by White Eagle Cooperative Association, a cooperative made up of milk producers, after the USDA amended the Mideast Milk Marketing Order. The Agricultural Marketing Agreement Act ensures producers receive a uniform minimum price for their product, regardless of how it is used; however, the AMAA only protects handlers, who prepare milk for resale. The country is divided into regional areas and governed by milk-marketing orders; White Eagle is part of the Mideast order. The orders provide the details for fixing and enforcing minimum prices handlers have to pay for the milk they buy on a monthly basis.

White Eagle challenged the regulation of diversion limits, which are the maximum percentage a handler can divert to plants that don't participate in the standards under the order. Limits prevent the inclusion in the pool of participating plants of excessive quantities of milk diverted to non-pool plants, which affects the prices paid. After hearing public comments on the issue, the USDA reduced diversion limits.

White Eagle filed suit, alleging various violations, including the USDA violated the Regulatory Flexibility Act by failing to undertake an analysis under the RFA and not supporting its RFA certification with any facts.

The 7th Circuit looked to decisions from the Court of Appeals of the District of Columbia on the RFA issue to adopt the rule that small entities directly regulated by the proposed statute may bring a challenge to the RFA analysis or certification of an agency. Because the amendment to the order concerning diversion limits expressly regulates only the handlers' conduct, White Eagle, as a producer, doesn't have standing to challenge the analysis under the RFA, wrote Judge Kenneth Ripple.

The 7th Circuit also affirmed the grant of summary judgment in favor of the USDA on White Eagle's other alleged violations by the USDA of the Agricultural Marketing Agreement Act, the USDA's rules of practice, the Administrative Procedure Act, and the Fifth Amendment's Due Process Clause. The USDA's adoption of the present order wasn't arbitrary or capricious and the agency considered relevant evidence in adopting the current rule, wrote the judge.


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  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.