FILED
NOT FOR PUBLICATION SEP 17 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARVIN HORNE, et al., No. 09-15071
Plaintiffs - Appellants, D.C. No. 1:08-cv-00402-OWW-SMS
v.
UNITED STATES DEPARTMENT MEMORANDUM *
OF AGRICULTURE,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Argued and Submitted March 10, 2010
San Francisco, California
Before: B. FLETCHER and CLIFTON, Circuit Judges, and ANELLO, ** District
Judge.
Plaintiffs appeal the district court’s dismissal of their complaint, which
appealed the dismissal of an administrative petition they had filed before the
*
This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
**
The Honorable Michael M. Anello, United States District Judge for
the Southern District of California, sitting by designation.
Secretary of Agriculture pursuant to 7 U.S.C. § 608c(15)(A). Defendant, the
United States Department of Agriculture (“USDA”), argues that this appeal is moot
in light of the decision of the district court in Horne v. United States Department of
Agriculture, No. CV-F-08-1549, 2009 U.S. Dist. LEXIS 115464 (E.D. Cal. Dec.
11, 2009), currently on appeal to this court. The practical effect of the dismissal by
the judicial officer (“JO”) of the 15(A) petition deprived Plaintiffs of the
opportunity to challenge the constitutionality of the Raisin Marketing Order
(“RMO”) and denied them immunity for violations that occurred while the petition
was pending. Accordingly, this appeal is not moot.
In dismissing Plaintiffs’ complaint, the district court held that it lacked
subject matter jurisdiction because Plaintiffs failed to file the action within twenty
days of the entry of the judicial officer’s decision dismissing the petition, as
required by 7 U.S.C. § 608c(15)(B). We review dismissals for lack of subject
matter jurisdiction de novo. Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1156
(9th Cir. 2007).
Plaintiffs failed to file their complaint within 20 days after the hearing clerk
entered the JO’s decision, thus their complaint was untimely. Plaintiffs argue that
the district court should have created an exception because the USDA failed to
provide Plaintiffs with notice of the JO’s decision until after the statutory period
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lapsed, depriving Plaintiffs of due process. It is well established that the Due
Process Clause merely requires notice that is “reasonably calculated” to apprise
interested parties of a ruling or action and does not require actual notice in every
case. Jones v. Flowers, 547 U.S. 220, 225 (2006). Notice here was sent by
certified mail, which we have held is usually sufficient, see id., and Plaintiffs do
not dispute that they typically receive adequate notice through certified mail.
Accordingly, the district court did not err in concluding that Plaintiffs’ complaint
was untimely.
Plaintiffs alternatively argue that the Administrative Procedure Act (“APA”)
provides an independent basis for the district court's subject matter jurisdiction.
See 5 U.S.C. § 702. However, the APA cannot serve as an independent basis for
subject matter jurisdiction because it merely “prescribes standards for judicial
review of an agency action, once jurisdiction is otherwise established.” Gallo
Cattle Co. v. U.S. Dep’t of Agriculture, 159 F.3d 1194, 1198 (9th Cir. 1998); see
also Califano v. Sanders, 430 U.S. 99, 105-07 (1977). Accordingly, the district
court did not have an independent basis for subject matter jurisdiction under the
APA.
Finally, Plaintiffs argue that because they are not “handlers,” they are not
required to proceed under 7 U.S.C. § 608c(15) and can therefore mount a direct
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challenge to the RMO in a district court without having to comply with the 20-day
time period in the statute. A similar argument was rejected by the Supreme Court
in Block v. Community Nutrition Institute, 467 U.S. 340, 348 (1984), and we do not
find that Plaintiffs are entitled to claim the limited exception set forth in Stark v.
Wickard, 321 U.S. 288 (1944). Thus, the district court did not err in finding that
Plaintiffs could not mount a direct challenge to the RMO in the district court.
We recognize that the application of this law to the unique circumstances of
this case produces an unfortunate result. It is undisputed that Plaintiffs did not
receive actual notice of the JO's decision until after the time for filing a complaint
in district court had expired. The USDA has known all along that Plaintiffs did not
in fact receive timely notice of the JO's decision; the envelope originally sent to
Plaintiffs' attorney was returned to the USDA, in shredded condition. Yet despite
the obvious unfairness of the result, the USDA has declined to do anything to fix
the problem. Instead, it has insisted that the court lacks jurisdiction because the
notice was properly mailed, even though it was not received, and because Plaintiffs
did not file a complaint in district court within twenty days of a decision that they
did not know about.
Unfortunately, in response to our explicit inquiry, the USDA has taken the
position that it lacks discretion to remedy the problem, for instance by reissuing the
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JO's decision or by extending the time for Plaintiffs to file a motion to the USDA
for reconsideration of that decision. That position seems dubious. See, e.g.,7
C.F.R. § 900.69(b) (the "time for the filing of any documents or papers . . . may be
extended . . . upon the request of a party . . . by the Secretary at any . . . time if, in
the judgment of the Secretary . . . there is good reason for the extension."). Nor do
we see who would or could object if the USDA recognized that actual notice failed
here and exercised its discretion in such a way as to let Plaintiffs bring the legal
challenge the statute intends to provide. But that is the province of the Department
and not this court. Similarly, it is the province of Congress, and not this court, to
make changes to this law to avoid similar outcomes in the future.
AFFIRMED.
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