ILNews

7th Circuit addresses challenges under the RFA

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

ADVERTISEMENT