CA FMMO Decision – Don’t Hold Your Breath

Modesto, Calif., (February 13, 2018) – The final decision for a California Federal Milk Marketing Order (FMMO) was expected sometime before the end of 2017. At least that appeared to be a reasonable timeline for the agency in charge of working on the extensive document since releasing its draft in February 2017. Then the holidays have come and gone with complete radio silence from the U.S. Department of Agriculture (USDA). Rumors of “any day now” peppered the first few weeks of 2018 in coffee shops throughout the state. Government may not have a reputation for speed, but this seemed to be pushing the limits. Then this week, the Federal Register published an announcement from USDA regarding the timing of the release of the final decision, clarifying why we have not seen a final decision yet. It turns out, it has nothing to do with USDA staff’s typing speed but instead a completely separate court case (Lucia v. Securities and Exchange Commission).

You may wonder what that has to do with milk, and the answer is nothing. It has to do, however, with administrative law judges (ALJ). If you participated in the 2015 California hearing proceeding in Clovis, you may remember Judge Clifton who presided over the process. Judge Clifton was an ALJ. In short, there is ambiguity around ALJs and if they should be nominated or simply appointed. According to USDA’s release “at the time of the hearing, USDA believed ALJ Clifton to be an employee of the Department and her appointment was completed in accordance with agency procedures, however, if the Court determines that ALJs are inferior officers of the United States rather than employees, then ALJ Clifton’s original appointment as an ALJ would be brought into question”.

Early in January, the Supreme Court agreed to hear the case. USDA will be delaying the final decision for a California FMMO until after the U.S. Supreme Court rules on the challenge to the use of ALJs throughout the federal government agencies. The timeline for a Supreme Court decision is determined by the scheduled adjournment date of the court’s term which is at the end of June each year. The court generally releases decisions in a number of cases just as the term is ending. WUD will be contacting Secretary Perdue to urge USDA to release the final decision before the Supreme Court issues its ruling.

By Annie AcMoody, Director of economic analysis

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