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
-2-
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.
-3-
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.
-4-
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).
-5-
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).
-6-
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
-7-
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,
-8-
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
-9-
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
-10-
"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.
-11-
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
-12-
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
-13-
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
-14-
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
-15-
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.
-16-
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
-17-
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
-18-
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.
-19-