Harvey v. Johanns

United States Court of Appeals
For the First Circuit

No. 06-2738

ARTHUR HARVEY,

Plaintiff, Appellant,

v.

MIKE JOHANNS, SECRETARY OF AGRICULTURE,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lipez and Newman*, Circuit Judges,
and Selya, Senior Circuit Judge.

Paula Dinerstein, with whom Public Employees for Environmental
Responsibility was on brief, for appellant.
Halsey B. Frank, Assistant United States Attorney, with whom
Paula D. Silsby, United States Attorney, was on brief, for
appellee.
William J. Friedman, with whom Richard D. Dietz and Covington
& Burling LLP were on brief, for Organic Trade Association,
International Dairy Foods Association, and United Fresh Produce
Association, amici curiae.

July 24, 2007

*
The Honorable Pauline Newman, of the Federal Circuit, sitting
by designation.
 SELYA, Senior Circuit Judge. This appeal has many of the

characteristics of a civics lesson. One principal characteristic

is that it offers a window on the interaction of the three branches

that comprise our tripartite system of government. The lesson

began when the Legislative Branch — Congress — enacted a consumer

protection statute. It continued when the Executive Branch — in

the person of the Secretary of Agriculture (the Secretary) —

promulgated implementing regulations under that statute. It soon

implicated the Judicial Branch, where this court ultimately passed

upon the validity of the regulations and found that some of them

conflicted with the plain language of the statute.

That was not the end of the lesson; Congress, apprised of

our decision, amended the statute in an obvious effort to save some

of the challenged regulations. It now falls to us to determine

whether the amended statute and the original regulations can

coexist.

The specifics of the situation are easily summarized. In

Harvey v. Veneman, 396 F.3d 28 (1st Cir. 2005) (Harvey I), we

reviewed several regulations promulgated by the Secretary under the

Organic Foods Production Act (OFPA), 7 U.S.C. §§ 6501-6523 (2000).

We declared a number of those regulations invalid and gave others

limiting constructions. Congress responded to this opinion by

passing a series of amendments to the OFPA. The central issue in

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this appeal involves the extent to which those amendments vitiate

our earlier invalidation of two such regulations.

I. BACKGROUND

The OFPA establishes a national certification program for

producers and handlers of organic products and regulates the

labeling of such products. See 7 U.S.C. §§ 6503(a), 6504,

6505(a)(1)(A). As a general matter, an agricultural product must

be produced and handled without the use of synthetic substances in

order to be labeled or sold as organic. See id. §§ 6504, 6505,

6510. Nevertheless, the OFPA contemplates that there will be a

National List through which non-organic substances can be approved

for use in organic products. Id. § 6517. The statute specifies

the types of substances that can be included on the National List

and limns a procedure for obtaining inclusion of substances. See

id. It also authorizes the Secretary to promulgate implementing

regulations. Id. § 6521.

In December of 2000, the Secretary published a final rule

pursuant to that power. See 7 C.F.R. pt. 205. Plaintiff-appellant

Arthur Harvey took umbrage with various aspects of the final rule,

which he viewed as overly tolerant of non-organic substances.

Thus, in 2002, he filed suit in Maine's federal district court

seeking declaratory and injunctive relief under the Administrative

Procedure Act, 5 U.S.C. § 702.

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 The appellant's nine-count complaint alleged that several

provisions of the final rule were inconsistent with the OFPA and

impermissibly diluted its organic standard. The only claims

relevant to this appeal are those embodied in count 3. That count

alleged that two sections of the final rule, 7 C.F.R. §§ 205.600(b)

and 205.605(b),1 contravened OFPA § 6510(a)(1) by too freely

permitting the use of synthetic substances in the processing of

organic foods.

For present purposes, the travel of the case in the

district court is of no moment. What happened on appeal is,

however, of decretory significance. There, we agreed with the

appellant as to the gist of count 3 and invalidated both of the

challenged regulations. See Harvey I, 396 F.3d at 40. We based

this decision on our interpretation of OFPA § 6510(a)(1), which we

described as "a general prohibition against adding synthetic

ingredients in handling operations." Id. at 39. In rejecting the

Secretary's argument that the National List provision authorized

the agency to create such exemptions, we noted that section

6517(c)(1)(B)(iii) allowed inclusion on the National List of an

otherwise prohibited substance for use in handling only if the

substance "[was] non-synthetic." Id. This led to the conclusion

1
Section 205.600(b) lists six criteria to be used in
determining whether a synthetic "processing aid or adjuvant" should
be included on the National List. Section 205.605(b) enumerates
synthetic substances already approved for inclusion on the National
List.

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that section 6517(c)(1)(B)(iii) "simply [did] not say what the

Secretary need[ed] it to say." Id. Because the regulations

challenged in count 3 were contrary to the plain language of the

OFPA, we ruled that the Secretary had exceeded her statutory

authority. Id. at 40.

On remand, the parties agreed upon a consent decree and

final judgment, which the district court entered on June 9, 2005.

The judgment purposed to remand the matter to the Secretary to

"conduct notice and comment rulemaking and to publish in the

federal register final rules implementing [the court's order] with

regard to Count 3." The judgment gave the Secretary a one-year

period within which to develop new regulations.

Before the Secretary took responsive action, Congress

intervened. In November of 2005, Congress amended the OFPA. See

Pub. L. No. 109-97, § 797, 119 Stat. 2120, 2165 (2005) [hereinafter

2005 Amendments]. In so doing, it added language to section 6510

authorizing the use in handling operations of synthetic ingredients

appearing on the National List.2 Congress simultaneously modified

2
Section 6510(a), with the newly added language underscored,
now provides in relevant part:
(a) In general. For a handling operation to be certified
under this title . . . , each person on such handling
operation shall not, with respect to any agricultural
product covered by this title . . .
(1) add any synthetic ingredient not appearing on the
National List during the processing or any postharvest
handling of the product.
7 U.S.C. § 6510(a)(1).

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section 6517 in two respects. First, it changed the subtitle of

section 6517(c)(1) to clarify that the National List relates to

processing and handling as well as to production.3 Second, it

eliminated subsection 6517(c)(1)(B)(iii), the provision that we had

singled out as limiting the inclusion of non-organic substances

used in handling to non-synthetics. See Harvey I, 396 F.3d at 39.

No legislative history accompanied these alterations. Finally,

Congress directed the Secretary to prepare a report detailing the

impact of Harvey I and describing whether restoring OFPA's

regulatory scheme to its pre-Harvey I status would negatively

impact farmers, processors, or consumers. 2005 Amendments, § 724,

119 Stat. at 2153.

The Secretary proceeded to revise the final rule to

comply with other aspects of the judgment in Harvey I. See 71 Fed.

Reg. 32,803 (June 7, 2006). With regard to the subject matter of

count 3, however, the Secretary stated:

Congress amended the OFPA by permitting the
addition of synthetic substances appearing on
the National List for use in products labeled
"organic." The amendment restores the NOP
regulation for organic processed products
containing at least 95 percent organic
ingredients on the National List and their
ability to carry the USDA seal. Therefore, the

3
Section 6517(c)(1), with the newly added language
underscored, now provides in relevant part:
The National List may provide for the use of substances
in an organic farming or handling operation that are
otherwise prohibited under this title . . . .
7 U.S.C. § 6517(c)(1).

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 USDA is not revising the NOP regulations to
prohibit the use of synthetic ingredients in
processed products labeled as organic nor
restrict these products' eligibility to carry
the USDA seal.

Id. at 32,804.

This statement displeased the appellant. On June 30,

2006, he asked the district court to enforce the judgment vis-à-vis

count 3. The Secretary opposed this motion and cross-moved for

relief from the judgment. The essence of the Secretary's position

was that the 2005 Amendments had made any revisions to the

regulations in question unnecessary.

The district court denied the appellant's motion to

enforce and granted the Secretary's cross-motion for relief from

judgment. Harvey v. Johanns, 462 F. Supp. 2d 69 (D. Me. 2006)

(Harvey II). This timely appeal ensued. The amici, whose

assistance we appreciate, have filed a brief in support of the

Secretary's position.

II. STANDARD OF REVIEW

Typically, we would review both a motion to enforce a

judgment and a motion for relief from judgment for abuse of

discretion. See, e.g., McDowell v. Phila. Hous. Auth., 423 F.3d

233, 238 (3d Cir. 2005) (motion to enforce a judgment); Honneus v.

Donovan, 691 F.2d 1, 2 (1st Cir. 1982) (motion for relief from

judgment). In this instance, however, the main issue on appeal

concerns whether the two "count 3" regulations invalidated in Harvey

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I have been salvaged by the 2005 Amendments. That issue turns on

a question of statutory interpretation, involving the significance

and effect of the 2005 Amendments. Thus, appellate review is de

novo. See United States v. Leahy, 473 F.3d 401, 405 (1st Cir.

2007); Bonano v. E. Carib. Airline Corp., 365 F.3d 81, 83 (1st Cir.

2004). If the statute is found to be unclear, however, an inquiring

court should defer to the Secretary's reasonable interpretation.

See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 842-43 (1984); Dominion Energy Brayton Point, LLC v.

Johnson, 443 F.3d 12, 15 (1st Cir. 2006).

There is a second issue bound up in this appeal — an issue

that involves the scope of the final judgment. Thus, whether to

enforce the judgment on this ground turns entirely on a question of

law concerning the scope of the judgment itself. Consequently, we

employ de novo review as to that issue as well. See Fafel v.

DiPaola, 399 F.3d 403, 409-10 (1st Cir. 2005); cf. Goya Foods, Inc.

v. Wallack Mgmt. Co., 290 F.3d 63, 75 (1st Cir. 2002) (explaining

that "an error of law is the functional equivalent of an abuse of

discretion").

III. THE EFFECT OF THE 2005 AMENDMENTS

We begin this segment of our analysis by revisiting the

procedural posture in which this appeal arises. After our decision

in Harvey I, the district court entered a final judgment. "Final"

is a relative term; even though a judgment is denominated as final,

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a court may grant relief from it in a variety of circumstances. One

such circumstance is when it is "no longer equitable that the

judgment should have prospective application." Fed. R. Civ. P.

60(b)(5). Thus, when subsequent legislation effects a change in the

applicable law, a judgment, legally correct when entered, may become

inequitable. See, e.g., Inmates of Suffolk County Jail v. Rouse,

129 F.3d 649, 656 (1st Cir. 1997) (explaining that "a forward-

looking judgment in equity can succumb to legislative action if the

legislature alters the underlying rule of law"). So here: to the

extent that the 2005 Amendments disturb the legal ground on which

our decision in Harvey I rested, it would be inequitable to enforce

the earlier judgment. We turn, then, to the import of those

amendments.

In Harvey I, we held, inter alia, that two regulations,

sections 205.600(b) and 205.605(b), contravened the plain language

of the OFPA, 7 U.S.C. § 6510(a)(1). The statute provided at that

time that certified handling operations "shall not, with respect to

any agricultural product . . . add any synthetic ingredient during

the processing or any postharvest handling of the product."

Congress responded swiftly and precisely by specifying that the

limitation should not apply to ingredients on the National List.

See supra note 2.

In Harvey I, we also rejected the Secretary's reliance on

7 U.S.C. § 6517, noting that section 6517(c)(1)(B)(iii) specified

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that the National List may provide for the use of otherwise

prohibited substances only if the substance "is used in handling and

i[s] non-synthetic but is not organically produced." Id. §

6517(c)(1)(B)(iii). Congress responded swiftly and precisely by

deleting that subsection, while amending the title of the provision

to clarify that handling is covered by the National List. See supra

note 3.

It seems incontrovertible that these changes were a direct

reaction to our decision in Harvey I. It seems equally

incontrovertible that, with respect to count 3, they were designed

to pull the legs out from under that decision. Any other conclusion

would ignore both Congress's expressions of interest (as indicated

by, among other things, the requested report) and the sequence of

events. Any other conclusion would, therefore, blink reality.

The appellant grudgingly acknowledges that Congress

intended to take away at least part of his bounty. He argues,

however, that the 2005 Amendments failed to effect a complete

resurrection of the invalidated regulations. He mounts this

argument on two constructs. We address each in turn.

First, the appellant points out that, by its terms, the

amended version of section 6510 only permits the use of

"ingredient[s]" found on the National List. He asserts that the

word "ingredient," though undefined in the OFPA itself, is a term

of art in the regulations; an "ingredient" is a substance that is

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"used in the preparation of an agricultural product that is still

present in the final commercial product as consumed." 7 C.F.R. §

205.2. This, he says, distinguishes ingredients from another subset

of substances, known as "processing aid[s]," which are used in

processing but are either removed or exist in only negligible

quantities in the final food product. See id. § 205.2. The

appellant adds that the final judgment refers to ingredients and

processing aids separately.4 Lastly, he notes that the OFPA creates

a presumption against non-organic substances. See 7 U.S.C. § 6504.

With this backdrop in place, the appellant posits that,

unless the new version of section 6510 explicitly authorizes the use

of processing aids found on the National List — which it does not

— the default rule applies and these substances cannot be used for

that purpose. Consequently, the challenged regulations cannot stand

insofar as they authorize the inclusion of synthetic processing aids

on the National List.

In defending this crabbed reading, the appellant offers

an explanation as to why Congress might have authorized the use of

synthetic ingredients but not synthetic processing aids. He

4
The final judgement reads in relevant part:
With respect to Count 3: 7 C.F.R. §§ 205.600(b) and
605(b) are contrary to the OFPA and exceed the
Secretary's rulemaking authority to the extent that they
permit the addition of synthetic ingredients and
processing aids in the handling and processing of
products which contain a minimum of 95% organic content
and which are eligible to bear the [U.S. Department of
Agriculture] seal.

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suggests that Congress limited its authorization because

"ingredients, but not processing aids, must be disclosed on a

product's label." Appellant's Br. at 25. Thus, Congress might

rationally have intended to permit the use of synthetic ingredients

while continuing to ban the use of processing aids.

This construct is too clever by half. Our opinion in

Harvey I did not distinguish between the terms "ingredient" and

"processing aid." The separate references in the final judgment

appear to reflect a casual word choice by the district court. It

attached no significance to the phraseology before the appellant

filed his enforcement motion. At that point, the court lost no time

in repudiating the appellant's attempted wordplay. See Harvey II,

462 F. Supp. 2d at 73-74. We must, of course, accord deference to

the district court's interpretation of the wording of its own order.

See Martha's Vineyard Scuba Headquarters, Inc. v. Unidentified,

Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1066-67 (1st Cir.

1987) (noting the "special role played by the writing judge in

elucidating the meaning and intendment of an order which he

authored").

Perhaps more important, there is not the slightest

indication that Congress intended to draw a distinction between the

two types of substances. The definition section of the statute, 7

U.S.C. § 6502, does not provide a definition for either "ingredient"

or "processing aid." Given that the word "ingredient" — and not the

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phrase "processing aid" — existed in section 6510(a)(1) prior to the

2005 Amendments, we agree with the district court, Harvey II, 462

F. Supp. 2d at 73, that it is "farfetched" to suppose that when

Congress amended section 6510, it understood the word "ingredient"

to have a narrow meaning distinct from, and exclusive of,

"processing aid." The fact that these two terms were used by the

Secretary in the implementing regulations does not alter this

reality.

In an effort to parry this thrust, the appellant cites the

Supreme Court's opinion in Lorillard v. Pons, 434 U.S. 575 (1978),

for the proposition that Congress presumably knew of the distinction

that the Secretary had made. Lorillard does not demand the result

that the appellant advocates.

The rule of Lorillard is that "Congress is presumed to be

aware of an administrative or judicial interpretation of a statute

and to adopt that interpretation when it re-enacts a statute without

change." Id. at 580. Here, however, Congress — whatever its

awareness of the regulations — was unarguably focused on

ameliorating the effects of the decision in Harvey I. In that

decision, we said that section 6510 stood as an obstacle to a

regulation providing that "synthetic substances may be used as a

'processing aid or adjuvant.'" Harvey I, 396 F.3d at 39 (quoting

7 C.F.R. § 205.600(b)). Given our suggestion that section 6510

related to processing aids, a Congress accounting for the full

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background of judicial precedent would not have concluded that

section 6510, as it stood, related only to ingredients as opposed

to processing aids. In the context of this case, then, Lorillard

argues eloquently against the appellant's position.

If more were needed — and we doubt that it is — the

amendments to section 6517 confirm that Congress wanted to leave

room for synthetics in the handling process. Congress not only

eliminated the section that previously had been interpreted by us

to forbid the use of synthetics in handling but also specified in

a new subtitle that the National List applies to handling. Statutes

must be viewed holistically, and statutory language must be read in

context. See Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50,

60 (2005). Here, there can be no doubt but that, when the amended

sections are read together, their language permits the use of

synthetics as both ingredients and processing aids.

This brings us to the appellant's second, more extreme

construct. He notes that section 6517(c)(1) allows inclusion of a

substance on the National List only in the event that it meets three

criteria, delineated in section 6517(c)(1)(A)-(C). Prior to the

2005 Amendments, the second criterion in this grouping specified

(subject to limitations not relevant here) that the substance had

to be related to production or, if it related to handling, had to

be non-synthetic. The 2005 Amendments struck the provision relating

to handling in its entirety. From this sequence of events, the

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appellant teases out the notion that, inasmuch as the amended second

criterion now speaks only to production, there is no procedure

through which any substance used in handling can be included on the

National List. In other words, the net effect of excising section

6517(c)(1)(B)(iii) was not to make the National List more accessible

to non-organics used in handling but, rather, to ban them lock,

stock, and barrel.

Were we to accept this perverse reading, we would be

guilty of outright defiance of Congress's easily discernible intent.

That reading renders null and void the amendment to section 6510 and

the titlular change to section 6517(c)(1), both of which

specifically note that the National List applies to handling.

Principles of judicial restraint counsel powerfully against

undertaking so confrontational a course.

We need not tarry. The amended version of the OFPA may

not be a perfect syntactical model, but any ambiguities are easily

resolved once one accounts for context. We consider "all available

evidence of Congress's true intent when interpreting its work

product." Koons Buick, 543 U.S. at 65 (Stevens, J., concurring).

After careful examination of the totality of the evidence in this

case, it is clear beyond hope of contradiction that there is only

one credible interpretation of the 2005 Amendments. That is the

interpretation urged by the Secretary and endorsed by the district

court. In the final analysis, no sensible person could credit the

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bizarre assertion that Congress amended one provision of the statute

to stress its applicability to handling operations while it

simultaneously eliminated the only vehicle through which handling

operations might be included.

To sum up, the timing and scope of the 2005 Amendments,

together with Congress's specific references to our decision in

Harvey I, make it transparently clear that Congress set out to

achieve the goal of restoring the "count 3" regulations to their

pre-suit status; after all, Congress amended both sections on which

Harvey I relied and, at the same time, took pains to excise the

language that we identified as an obstacle to the Secretary's

regulatory scheme. In light of these contextual trappings and the

plain language of the amendments, we conclude without serious

question that the district court did not err in denying the

appellant's motion to enforce the judgment and granting the

Secretary's cross-motion for relief from judgment.

IV. THE STATEMENT

In a largely unrelated assignment of error, the appellant

seeks to scuttle the Secretary's Food Contact Substances Policy

Statement (the Statement). He alleges that the Statement permits

the use of hundreds of synthetics in organic handling, some of which

are processing aids or ingredients, without review by the National

Organic Standards Board for inclusion on the National List.

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 As a part of his motion to enforce the judgment, the

appellant asked the district court to strike the Statement. That

court refused. See Harvey II, 462 F. Supp. 2d at 75. The appellant

challenges that ruling.

We pause to put this challenge into workable perspective.

In response to inquiries from the organic community, the Secretary

issued the Statement as an expression of policy. In terms, it

authorized the use of food contact substances classified as such by

the federal Food and Drug Administration. See

www.ams.usda.gov/nop/NOP/PolicyStatements/SyntheticSubstances.

The Secretary issued the Statement two months after the

appellant sued and almost two years after the promulgation of the

final rule. While some of the briefing in Harvey I apparently

alluded to the Statement, it was not the target of any of the

complaint's nine counts, nor was it mentioned in our opinion

(because, among other things, it was not ripe for review). Thus,

the Statement was neither part of our adjudication nor part of the

final judgment subsequently entered in the district court.

The appellant argues that the Statement was nonetheless

within the scope of the final judgment and, thus, can appropriately

be challenged on a motion to enforce the judgment. We disagree.

A court's power to enforce a judgment is confined to the

four corners of the judgment itself. Fafel, 399 F.3d at 411

(explaining that enforcement jurisdiction "extends only as far as

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required to effectuate a judgment"); see also Peacock v. Thomas, 516

U.S. 349, 359 (1996). Enforcement proceedings are summary in

nature; they cannot be used to take up matters beyond the contours

of the judgment and thereby short-circuit the usual adjudicative

processes. Consequently, when a matter is beyond the scope of a

judgment, no relief is available through a motion to enforce the

judgment. See Fafel, 339 F.3d at 411.

This case furnishes a paradigmatic example of the

operation of these principles. In essence, the appellant argues

that the Statement is within the scope of the final judgment because

it cannot be reconciled with the provisions of that judgment. That

argument is an exercise in boot-strapping and, as such, misses the

point. The Statement was not litigated in the original case, and

the relief that the appellant seeks is, therefore, inappropriate on

a motion to enforce the judgment.

Let us be perfectly clear. In affirming the denial of the

appellant's motion to enforce the judgment on this ground, we do not

decide whether the Statement does or does not contravene either the

current version of the OFPA or the regulations thereunder. By the

same token, we do not decide whether the rationale behind the final

judgment renders the Statement suspect. The answers to these

questions must await a new and separate suit, which the appellant

is free to initiate if he so chooses. We hold only that the

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appellant cannot alter the dimensions of his original suit in a

post-judgment enforcement proceeding.

V. CONCLUSION

We need go no further. For the reasons elucidated above,

we affirm the decision of the district court in all relevant

respects.

Affirmed.

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