Nick Koretoff v. Tom Vilsack
2013 U.S. App. LEXIS 3695
D.C. Cir.2013Background
- California almonds were subject to a marketing order under AMAA, allowing quality controls including processing requirements.
- The Secretary proposed a rule to treat domestically sold almonds to prevent salmonella contamination.
- The Treatment Rule was adopted as an outgoing quality control requirement under the Almond Order.
- Producers challenged the rule under the APA, arguing excess authority and lack of required ‘only practical means’ finding.
- District court granted summary judgment for the Secretary, holding waiver of those arguments; producers appealed.
- Court addresses whether waiver applies and whether agency addressed authority during rulemaking.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of challenges to rulemaking authority | Producers argued issues were presented to agency and thus not waived. | Waiver applies if arguments were not raised during rulemaking. | Waiver applies; arguments not raised are barred. |
| Agency addressed authority during rulemaking enough to avoid waiver | Agency considered authority; issues were implicitly raised at a meeting. | Insufficient to preserve specific challenge; not raised in the agency record. | Not preserved; waiver still applies. |
| APA sua sponte addressing of statutory authority | Agency obligated to address authority sua sponte in rulemaking. | No obligation to anticipate every argument absent a comment. | Agency had no such obligation; authority stated in rulemaking. |
| Need for an 'only practical means' determination | Secretary needed to determine Almond Order was the only practical means. | No suggestion in rulemaking that such determination was required. | Claim waived; no such determination analyzed during rulemaking. |
| Effect of waiver on ability to challenge in later forum | Waiver should not bar challenges in later proceedings. | Waiver governs direct rulemaking challenges; other avenues may exist. | Waiver does not bar later challenges; separate forum remains available. |
Key Cases Cited
- Advocates for Highway & Auto Safety v. FMCSA, 429 F.3d 1136 (D.C. Cir. 2005) (waiver for grounds not raised in comment period)
- NRDC v. EPA, 25 F.3d 1063 (D.C. Cir. 1994) (requirement to raise arguments in agency forum)
- Nuclear Energy Institute, Inc. v. EPA, 373 F.3d 1251 (D.C. Cir. 2004) (limits on congruity between agency and court review)
- Murphy Exploration & Production Co. v. U.S. Department of Interior, 270 F.3d 957 (D.C. Cir. 2001) (timeline for facial challenge vs. application challenge)
- City of Seabrook v. EPA, 659 F.2d 1349 (5th Cir. 1981) (discussion of waiver and rulemaking participation)