The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
CROSS-MOTIONS FOR SUMMARY
MEMORANDUM DECISION REGARDING JUDGMENT (Docs. 14, 15)
Plaintiffs Marvin D. Horne, Laura R. Horne, and Raisin Valley Farms Marketing, LLC proceed with this action for declaratory and injunctive relief against the United States Department of Agriculture ("USDA"). (Doc. 2). Plaintiffs seek an order setting aside the USDA's denial of Plaintiffs' petition for rule-making.
The parties have filed cross-motions for summary judgment. (Docs. 14, 15). Plaintiffs filed opposition to USDA's motion for summary judgment on October 26, 2010. USDA filed a reply on November 15, 2010. (Doc. 17).
USDA's Rules of Practice ("Rules of Practice") provide that a final order issued by the Secretary shall be filed with the hearing clerk, who shall serve it upon the parties. 7 C.F.R. § 900.66(b).
The Rules of Practice provide several methods for service:
Service shall be made either (1) by delivering a copy of the document or paper to the individual to be served or to a member of the partnership to be served or to the president, secretary, or other executive officer or any director of the corporation, organization, or association to be served, or to the attorney or agent of record of such individual, partnership, corporation, organization, or association; or (2) by leaving a copy of the document or paper at the principal office or place of business of such individual, partnership, corporation, organization, or association, or of his or its attorney or agent of record; or (3) by registering and mailing a copy of the document or paper, addressed to such individual, partnership, corporation, organization, or association, or to his or its attorney or agent of record, at his or its last known principal office, place of business, or residence. 7 C.F.R. § 900.69(b). The Rules do not provide for electronic service.
Plaintiffs were the victims of a failed notice attempt effected under section 900.69(b), and as a result, lost the ability to challenge a decision adverse to them. See Horne v. USDA, 2008 U.S. Dist. LEXIS 95094 * 16 (E.D. Cal. Nov. 10, 2008) aff'd, 2010 U.S. App. LEXIS 19393 (9th Cir. Sept. 17, 2010). On or about December 31, 2008, Plaintiffs filed a petition with USDA seeking, inter alia, that USDA "engage in rule making to amend the Rules of Practice located at 7 C.F.R. § 900.50 Et Seq [sic] to require prompt notice, such as facsimile or e-mail, or even overnight delivery" of decisions by the Administrative Law Judge or Judicial Officer ("the Petition"). By letter dated September 18, 2009, USDA's Agricultural Marketing Service denied the Petition.
Pursuant to 5 U.S.C. § 533(e), "[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule." As the Senate Judiciary Committee noted in its report on the APA: the mere filing of a petition does not require an agency to grant it, or to hold a hearing, or engage in any other public rule making proceedings. The refusal of an agency to grant the petition or to hold rule making proceedings, therefore, would not per se be subject to judicial reversal. However, the facts or considerations brought to the attention of the agency by [a petition for rule-making] might be such as to require the agency to act to prevent the rule from continuing or becoming vulnerable to judicial review.
WWHT, Inc. v. Federal Communications Com., 656 F.2d 807, 813 (Ct. App. D.C. 1981) (citing S. REP. NO. 752, 79th Cong., 1st Sess. (1945), reprinted in LEGISLATIVE HISTORY, at 201-02 (1946)).
An Agency's denial of a petition for rule-making is subject to judicial review, but such review is "extremely limited" and "highly deferential." Massachusetts v. EPA, 549 U.S. 497, 527 (2007) (citing National Customs Brokers & Forwarders Ass'n. v. United States, 883 F.2d 93, 96 (D.C. Cir. 1989)); see also Preminger v. Sec'y of Veterans Affairs, 2011 U.S. App. LEXIS 1559 *16-17 (Ct. App. Fed. Cir. 2011). Review is necessarily limited to the narrow issues as defined by the denial of the petition for rule-making, and does not extend to substantive review of the merits of the policies implicated by the rule-making petition. See id., see also Digiovanni v. FAA, 249 Fed. Appx. 842, 843 (2nd Cir. 2007) (citing Nat'l Labor Relations Bd. Union v. Fed. Labor Relations Auth., 834 F.2d 191, 196 (D.C. Cir. 1987)). For purposes of a challenge to an agency's denial of a petition for rule-making, the administrative record consists of the petition for rule-making, comments pro and con where deemed appropriate, and the agency's explanation of its decision to reject the petition. WWHT, 656 F.2d at 817; Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 920 (D.C. Cir. ...