The USDA is amending the NAD rules of procedure in 7 CFR part 11, subpart A. The EAJA is 5 U.S.C. 504. “Prior to publication of this final rule, the position of USDA was that EAJA and the provisions of the APA applicable to formal adjudicative proceedings (5 U.S.C. 554-557) did not apply to NAD proceedings except where required by judicial ruling.” (see 64 FR 33367, 33368 (June 23, 1999).
The rulings from the cases that the new rule is supposed to reflect found that the EAJA did apply to NAD proceedings despite the previous USDA rule. The 7th, 8th, and 9th Circuit Court of Appeals have all issued rulings since 1997 contradicting the previous USDA rule. (see Lane v. USDA, 120 F. 3d 106 (8th Cir. 1997); Five Points Rd. Joint Venture v. Johanns, 542 f. 3d 1121 (7th Cir. 2008); Aageson Grain & Cattle v. USDA, 500 F. 3d 1038 (9th Cir. 2007)). On May 1, 2009 a U.S. District Court in the 5th Circuit “entered a decision following the 7th, 8th, and 9th Circuits (see Rosenbaum v. USDA, No. 07-02808 (S.D. Tex. May 1, 2009) (final judgment).”
While the four decisions cited above addressed only the issue of whether EAJA applies to NAD proceedings, the applicability of EAJA is derivative of the applicability of the APA and thus, by extension, the court rulings apply to the applicability of the APA as well. Therefore, the provisions of the APA generally applicable to agency adjudications (5 U.S.C. 554–557) also will apply generally to NAD proceedings regardless of the judicial Circuit in which the proceeding arises. However, it is the position of USDA that the applicability of the APA does not require any changes to existing NAD administrative procedures.To read the Federal Register document on this rule change click here.
Posted: 11/06/09
