Summary of a Recent
Judicial Development in

Denial of Certifying Agent's
Right to Appeal Upheld

Jennifer Fiser
Research Associate

Summary

In In re Massachusetts Independent Certification Inc., 486 F. Supp. 2d 105 (D. Mass. 2007), the United States District Court for the District of Massachusetts dismissed the appeal of Massachusetts Independent Certification, Inc. (MICI), a private certifying agent under the National Organic Program. The USDA had previously dismissed MICI's challenge to the certification requirements of the National Organic Program.

Background

MICI, an independent certifying agent of organic products, denied certification to The Country Hen, a Massachusetts egg producer, in 2002. Id. at 112. The Country Hen appealed MICI's denial to the Administrator of the Agricultural Marketing Service. Id. The Country Hen's appeal was sustained and MICI was directed to grant organic certification to The Country Hen. Id. MICI appealed this decision, but the case was dismissed for lack of jurisdiction. OFPA Docket No. 03-0001, 2004 WL 909533 (USDA Apr. 27, 2004). MICI then appealed the dismissal, arguing that it did have standing to appeal and that the denial of an opportunity to appeal the order to certify The Country Hen was a violation of its right to due process. 486 F. Supp. 2d 105, at 113.

Analysis and Holdings

The court found that, although MICI did have standing based on its interests in maintaining the integrity of the organic program and its reputation as a certifying agent, the regulations denying the right to appeal did not violate the Organic Foods Production Act (OFPA), 7 U.S.C. §§ 6501-6522. Id. at 114-21. The court noted that section 6506(a)(3) of the OFPA specifically states that "producers and handlers" may appeal, and that the Secretary could find that Congress intended certifying agents to be excluded. Id. at 119. The court also noted that Congress intended that certifying agents would be a subordinate decision-maker rather than an independent party. Id. at 119-20. Also, the certifying agent must provide a written notice of denial stating the reasons for its decision, so the Secretary could reasonably conclude that an additional opportunity to restate those reasons would be unnecessary. Id. at 120.

MICI's due process claim regarding its property interest in the use of its name was also dismissed. Id. at 120. The court found that MICI "voluntarily surrendered a portion of those rights in exchange for consideration: the right to participate in the NOP and to charge fees for its certification services." Id. MICI also alleged that its First Amendment rights were being violated because it was being forced to certify entities which it did not believe were in compliance. Id. at 121. The court also dismissed this count, noting that certification transmits a governmental message rather than a personal belief. Id.

The case was decided on March 30, 2007; this summary was posted September 27, 2007.