UNITED STATES DEPARTMENT OF AGRICULTURE 

BEFORE THE SECRETARY OF AGRICULTURE 

AGRICULTURAL MARKETING SERVICE 

In re: 

Milk in the Northeast and Other Docket No. 23-J-0067; AMS-DA-23-0031 

Marketing Areas 

ORDER DENYING REQUESTS TO CONSIDER 

ADDITIONAL PROPOSALS AT HEARING 

Appearances: 

On Behalf of the U.S. Department of Agriculture, Agricultural Marketing Service: 

Brian Hill, Esq. and Michelle McMurtray, Esq., Office of the General Counsel, United States 

Department of Agriculture, Washington, DC 20250 

On Behalf of Milk Innovation Group: 

Charles M. English, Jr., Esq., Ashley L. Vulin, Esq., and Grace Bulger, Esq., of Davis Wright 

Tremaine LLP, Seattle, WA 98104 

On Behalf of National All-Jersey: 

John H. Vetne, Esq., and Wendy M. Yoviene, Esq., of Baker, Donelson, Berman, Caldwell, & 

Berkowitz PC, Washington, DC 20001 

On Behalf of National Milk Producers Federation: 

Bradley R. Prowant, Esq., and Nicole C. Hancock, Esq., of Stoel Rives LLP, Boise, ID 83702 

Pursuant to Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. §§ 

601–674); the Administrative Procedure Act (5 U.S.C. § 553); the applicable rules of practice 

and procedure governing amendments to milk marketing agreements and marketing orders (7 

CFR part 900); and a notice published in the Federal Register (“Hearing Notice”),1

 a hearing on 

proposed amendments to the pricing formulas in the 11 Federal Marketing Orders (“FMMOs”) 

1

 Milk in the Northeast and Other Marketing Areas; Notice of Hearing on Proposed Amendments 

to Marketing Agreements and Orders, 88 Fed. Reg. 47396 (July 24, 2023). 

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has been underway since August 23, 2023 in Carmel, Indiana.2

 The undersigned presided over 

the first five weeks of hearing, from August 23, 2023 to September 20, 2023. As of September 

25, 2023, Administrative Law Judge Jill S. Clifton is presiding; however, the present issue was 

raised before the undersigned. As I understand it, the hearing recessed on December 8, 2023 and 

will resume on January 16, 2024. 

In the Hearing Notice, the Secretary of the United States Department of Agriculture 

(“USDA”), through the Agricultural Marketing Service (“AMS”), set for the above-referenced 

hearing twenty-two proposals previously submitted to AMS by various entities and identified in 

the Hearing Notice, or “any appropriate modifications to such proposals.”3 

The Hearing Notice does not so state, but AMS excluded from the hearing certain 

proposals submitted to it, among them certain of the proposals by the Milk Innovation Group 

(“MIG”) and certain of the proposals of National All-Jersey (“NAJ”). MIG and NAJ object to the 

exclusion of these proposals from consideration in the current hearing and request that their 

proposed exhibits pertaining thereto be accepted for such consideration at the hearing, as set out 

in documents marked and entered into the record at the hearing.4

 National Milk Producers 

2

 The hearing recessed on October 11, 2023 and reconvened on November 27, 2023 in Carmel, 

Indiana. See Milk in the Northeast and Other Marketing Areas; Notice of Hearing on Proposed 

Amendments to Marketing Agreements and Orders, 88 Fed. Reg. 76143 (Nov. 16, 2023). From 

December 4, 2023 through December 8, 2023, the hearing was held in Zionsville, Indiana. See 

id. 

3

 88 Fed. Reg. at 47397-99. 

4 See documents marked and appearing in the record at the hearing as Exhibit Nos. 60 (for MIG, 

designated MIG-1 prior to being marked for identification at the hearing) and 61(for NAJ, 

designated NAJ-8 prior to being marked for identification), and available on-line on the AMS 

web site established for this proceeding (“Hearing Web Site”): https://www.ams.usda.gov/rulesregulations/moa/dairy/hearings/national-fmmo-pricing-hearing/exhibits (last visited Dec. 8, 

2023). 

2 
 

Federation (“NMPF”) submitted a response in opposition5

 to these MIG and NAJ objections and 

requests. Orally, in argument on these MIG and NAJ requests, AMS also opposed them.6 

These MIG and NAJ objections were discussed on the record the first day of the hearing, 

August 23, 2023.7 I also heard argument on this matter from representatives of interested hearing 

participants on August 29, 2023.8 

I. MIG and NAJ Proposals Excluded from Consideration at the Hearing by AMS 

MIG proposed, among other things, to update shrink allowance for extended-life 

shrinkage products9

 and to exempt organic milk from FMMO pooling requirements.10 On July 

24, 2023, Dana H. Coale, the AMS Deputy Administrator (“Deputy Administrator”),11 

determined that because those proposals “do[] not seek to amend the uniform FMMO pricing 

formulas,” they “do[] not fall within the scope of this hearing and will not be heard at this 

5

 Exhibit No. 107 in the record, which was previously designated NMPF-96. See Hearing Web 

Site. 

6

 AMS was invited to submit its arguments in writing but did not do so. Tr. at 45-46, 1239-40. 

7

 Tr. at 28-51. In addition to those individuals listed in the above “Appearances” section, who 

filed the written objections and response discussed herein, the following representatives 

participated in oral arguments: Steven J. Rosenbaum, Esq., for the International Dairy Foods 

Association, and Ryan K. Miltner, Esq., for Select Milk Producers, Inc. 

8

 Tr. at 1224-277. 

9 See MIG June 14, 2023 Proposals at 24-25 (“MIG PROPOSAL 5 – Adjust ESL shrinkage.”). 

10 See MIG June 14, 2023 Proposals at 25-26 (“MIG PROPOSAL 6 – Organic Milk 

Exemption”). 

11 See 7 C.F.R. § 2.79(a)(8)(viii) (delegating to the Administrator, Agricultural Marketing 

Service, the authority to “[e]xercise the functions of the Secretary of Agriculture contained in the 

. . . Agricultural Marketing Agreement Act of 1937”); 7 C.F.R. § 900.2(e) (“The term 

Administrator means the Administrator of the Agricultural Marketing Service or any officer or 

employee of the Department to whom authority has been delegated or may hereafter be delegated 

to act for the Administrator.”). 

3 
time.”12 MIG objects to the Deputy Administrator’s decision.13 

NAJ proposed, among other things, “to amend the four remaining FMMOs that utilize 

skim and fat pricing so that they utilize MCP [multiple-component pricing] for Classes II, III, 

and IV” milk14 and to value Class I milk “on the actual pounds of protein, other solids, and 

nonfat solids pooled.”15 On July 24, 2023, the Deputy Administrator determined those proposals 

“will not be heard at this time” because they relate to regional, rather than national, pricing and 

“do[] not fall within the scope of this hearing.”16 NAJ objects to the Deputy Administrator’s 

decision.17 

MIG and NAJ contend that the Deputy Administrator’s determinations to exclude these 

particular proposals of theirs from consideration at the hearing were arbitrary and capricious and 

must be reversed.18 They contend that, contrary to the Deputy Administrator’s determination that 

they are not, their proposals are within the scope of the hearing as set out in the official Hearing 

Notice published in the Federal Register.19 MIG and NAJ contend that earlier pronouncements 

by AMS are pertinent to interpreting the scope of the hearing.20 They also contend that the 

Deputy Administrator provided that certain other proposals similar in relevant aspects to theirs 

were approved for consideration at the hearing, and therefore it was arbitrary and capricious, and 

12 USDA Response to Milk Innovation Group at 2. 

13 Tr. at 29. 

14 NAJ June 20, 2023 Proposals at 13 (“NAJ Proposal 2”). 

15 NAJ June 20, 2023 Proposals at 19 (“NAJ Proposal 3”). 

16 USDA Response to National All-Jersey at 1-2. 

17 Tr. at 42. 

18 Ex. No. 60 at 6-7; Ex. No. 61 at 2; see Tr. at 29-30, 1254, 1257. 

19 Ex. No. 60 at 8; Ex. No. 61 at 2. 

20 Ex. No. 60 at 3, 8; Ex. No. 61 at 2-3. 

4 
 

 

fair to say, unduly discriminatory, to set those proposals for hearing but not the MIG and NAJ 

proposals.21 

MIG and NAJ contend, among other things, that the undersigned Administrative Law 

Judge has the authority to allow consideration of these proposals at the hearing, despite the 

Deputy Administrator’s determination that they should not be.22 They therefore “request a 

modification of matters open for hearing and/or reversal of the decision to exclude” the instant 

proposals.23 Or, apparently, as an alternative, by referencing that under 7 C.F.R. § 900.7(b) I 

may in my discretion“ certify to the Secretary for determination any motion, request, objection, 

or other question addressed to the judge” suggest or contend that I should so certify the question 

of whether these MIG and NAJ proposals may be considered at the hearing to the Secretary.24 

NAJ’s counsel explained in oral argument:25 

The rules of practice, your Honor, in 7 CFR, Part 900.7 . . . provides your Honor 

with two options: Rule on the objection and the motion, which might require 

reopening the hearing or reissuing the notice by virtue of the self-imposed handtying that Dairy Programs has effected; the Judge may also under 900.7 certify the 

question to the Secretary. . . . Based on prior hearing experience, a ruling on 

these motions could be made today; it could be made at the end of the hearing. In 

all likelihood, it would – it may require a reopening of the hearing or an amended 

notice of hearing, which has been done before by USDA. I think that’s probably 

the solution. 

NMPF, which contended to the Deputy Administrator that these MIG and NAJ proposals 

should not be considered at this hearing because the hearing should be limited to pricing formula 

21 Ex. No. 60 at 5, 8; see Tr. at 30, 34, 37-38, 1238, 1249, 1254, 1257. 

22 Ex. No. 60 at 7, 9; Tr. at 1249. 

23 Tr. at 29-30. 

24 Tr. at 1249, 1259, 1265-66. 

25 Tr. 1259. 

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matters,26 contends that under the applicable statutes and regulations, the Administrator (or 

Deputy Administrator) is to determine what is to be considered at a hearing in a formal 

rulemaking proceeding to consider amendments to Federal Milk Marketing Orders,27 and that the 

Deputy Administrator’s decision to exclude these MIG and NAJ proposals were reasoned and 

reasonable and not arbitrary and capricious.28 NMPF contends that the Deputy Administrator’s 

determination to set for hearing only “pricing formulas,” and not other matters, was appropriate 

and within the Deputy Administrator’s discretion, as was the Deputy Administrator’s 

determination that the MIG and NAJ proposals were beyond the scope of the hearing set by the 

Deputy Administrator.29 

Similarly, AMS contends that it was within the Deputy Administrator’s discretion, and 

reasonable and supported by the circumstances, to establish the scope of the hearing as she did, 

and to determine that the MIG and NAJ proposals were beyond that scope.30 AMS points out 

that the 2008 Farm Bill established tight deadlines for the completion of USDA consideration of 

amendments to FMMOs, and that this supports that the Deputy Administrator was reasonable in 

limiting the scope of the proceeding in order to complete this process in the time frame required 

by Congress.31 

II. Authority of Presiding Administrative Law Judge to Countervail Administrator 

Determinations 

Under the applicable regulations I am to conduct the hearing as established by 

26 Ex. No. 107 at 4-5. 

27 Ex. No.107 at 4, 6. 

28 Ex. No.107 at 7-8. 

29 Ex. No. 107 at 5-8; Tr. at 1238. 

30 Tr. at 1233-34, 1269-70. 

31 Tr. at 1225-26, 1228-29, 1234. 

6 
 

Administrator, or Deputy Administrator.32 Among other things, I am to manage the introduction 

of evidence in the form of witness testimony and documents supported by such testimony.33 

Crucially for present purposes I am to exclude from the record testimony that is beyond the 

scope of the hearing as established by the Notice of Hearing.34 I am to rule on motions made to 

me but, as noted above, may, in my discretion, certify questions to the Secretary.35 

As to establishing the scope of the proceeding, the Administrator is a delegate of the 

Secretary and, as such, speaks for the Secretary.36 Under this authority, the Administrator is 

charged with establishing the scope of the hearing before me.37 I am bound by that scope and 

specifically required by the rules to exclude evidence not within that scope.38 But as is true for 

any Administrative Procedure Act Administrative Law Judge in any proceeding, my 

determinations are to be made consistent with the Administrator/Secretary’s determinations, and 

my determinations are subject to review by the Administrator/Secretary.39 In this instance, the 

Deputy Administrator specifically determined that the MIG and NAJ proposals are beyond the 

32 See 7 C.F.R. § 900.8(c)(2). 

33 See 7 C.F.R. §§ 900.8(d)(1)(d)(4). 

34 See 7 C.F.R. §§ 900.8(d)(1)(iii), (d)(3); 7 C.F.R. § 900.6(b)(5). 

35 See 7 C.F.R. § 900.7(b) (“The judge may in his discretion submit or certify to the Secretary for 

decision any motion, request, objection, or other question addressed to the judge.”). 

36 See 7 C.F.R. § 2.22(a). 

37 See 7 C.F.R. §§ 900.3, 900.4(a); Nat’l Farmers Org., Inc. v. Lyng, 695 F. Supp. 1207, 1209 

n.12 (D.D.C. 1988) (“By regulation the scope of the hearing is determined by the Administrator 

of AMS.”). 

38 See 7 C.F.R. §§ 900.6(b), 900.8(c), and 900.8(d)(iii). The regulations specify that the 

Administrative Law Judge shall receive evidence “with respect to the matters specified in the 

notice of the hearing.” 7 C.F.R. § 900.8(c)(2) (emphasis added). They do not authorize the Judge 

to amend that notice. 

39 See 7 C.F.R. § 2.27(a)(1); 7 C.F.R. § 900.6(b). See also Fleming v. U.S. Dep’t of Agric., 987 

F.3d 1093, 1103 (D.C. Cir. 2021); Valkering, U.S.A., Inc. v. U.S. Dep’t of Agric., 48 F.3d 305, 

308-09 (8th Cir. 1995). 

7 
scope of the hearing I am charged with conducting. 

In other instances, I might be called upon to interpret and apply the scope of the 

proceeding as determined by the Administrator. But here the Deputy Administrator has already 

ruled on the specific matter at hand when setting this matter for hearing. I find no basis for me to 

find that I have authority to make a ruling contrary to the Deputy Administrator’s determinations 

of the scope of this proceeding. Rather it is my duty to enforce those determinations as made by 

the Administrator, via the Deputy Administrator, under authority delegated by the Secretary. 

This is consistent with the role of Administrative Law Judges in general. The Supreme 

Court has determined that Administrative Law Judges are “inferior officers” under Article II of 

the United States Constitution.40 As inferior officers, Administrative Law Judge determinations 

are subject to review by principal officers.41 The Secretary of Agriculture, “sitting in review of 

an ALJ’s initial decision, is authorized by statute ‘to substitute its judgment for that of the 

40 See Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018); see also Fleming v. U.S. Dep’t of Agric., 987 

F.3d 1093, 1103-04 (D.C. Cir. 2021) (holding that USDA Administrative Law Judges are 

inferior officers). 

41 See United States v. Arthrex, Inc., 141 S. Ct. 1970, 1986-87 (2021) (holding that 

administrative patent judges qualify as inferior officers if their decisions are subject to review by 

a principal officer); United States v. Donziger, 38 F. 4th 290, 301 (2d Cir. 2022) (“A principal 

officer ‘need not review every decision of the [inferior officer]. What matters is that the 

[principal officer] have the discretion to review decisions rendered by [the inferior officer].’”) 

(quoting Arthrex, 141 S. Ct. at 1988)); Fleming v. U.S. Dep’t of Agric., 987 F.3d 1093, 1103 

(D.C. Cir. 2021) (“Moreover, the Secretary (a principal officer) has considerable influence over 

whether an ALJ’s decision becomes the final decision of the agency.”); Landry v. FDIC, 204 

F.3d 1125, 1142 (D.C. Cir. 2000) (Randolph, J., concurring) (“The fact that an ALJ cannot 

render a final decision and is subject to the ultimate supervision of the FDIC shows only that the 

ALJ shares the common characteristic of an ‘inferior Officer.’” (quoting Edmond v. United 

States, 520 U.S. 651, 653 (1997)); see, e.g., Duenas v. Garland, No. 18-71987, 2023 WL 

5487957, at *3 (9th Cir. Aug. 24, 2023); In re Palo Alto Networks, Inc., 44 F. 4th 1639, 1376-77 

(Fed. Cir. 2022). 

8 
ALJ.’”42 I do not find a provision under which I am authorized to substitute my judgment for the 

clearly expressed judgments of the Secretary’s delegates. 

To the extent MIG and NAJ’s requests ask that I, as an alternative, in my discretion, 

certify their requests to the Secretary under 7 C.F.R. § 900.7(b), for determination, I decline to 

do so. As noted above, NAJ’s counsel stated at oral argument that “[b]ased on prior hearing 

experience, a ruling on these motions could be made today; it could be made at the end of the 

hearing” and that the requested relief “may require a reopening of the hearing or an amended 

notice of hearing, which has been done before by USDA.”43 The Secretary can take up MIG and 

NAJs requests when considering the decision in this case, without an interlocutory certified 

question. 

Accordingly, the following Order shall be entered. 

ORDER 

1. Milk Innovation Group’s request for “modification of the matters open for hearing and/or 

reversal of the [Deputy Administrator’s] decision to exclude”44 the identified MIG proposals 

is DENIED. 

2. National All-Jersey’s motion to include the identified NAJ proposals “and related evidence in 

this proceeding”45 is DENIED. 

Copies of this Order shall be served upon the parties by the Hearing Clerk. I request that 

AMS also post it on the web site established by AMS for this proceeding, and copies will be 

42 Farrow v. U.S. Dep’t of Agric., 760 F.2d 211, 213 (8th Cir. 1985) (quoting Mattes v. United 

States, 721 F.2d 1125, 1129 (7th Cir. 1983)); see 5 U.S.C. § 557(b) (1988). 

43 Tr. 1259. 

44 Exhibit No. 60 at 1. 

45 Exhibit No. 61 at 1. 

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made available at the hearing. 

Done at Washington, D.C., 

this 11th day of December 2023 

CHANNING Digitally signed by CHANNING

STROTHER

STROTHER Date: 2023.12.11 12:43:04 -05'00' 

Channing D. Strother 

Chief Administrative Law Judge 

U.S. Department of Agriculture 

South Building, Room 1031 

1400 Independence Avenue, SW 

Washington, D.C. 20250-9203 

Tel: 1-202-720-4443 

Fax: 1-844-325-6940 

SM.OHA.HearingClerks@USDA.GOV 

10 
CERTIFICATE OF SERVICE 

Eleven Federal Milk Marketing Orders 

Docket No.: 23-J-0067 

Having personal knowledge of the foregoing, I declare under penalty of perjury that the 

information herein is true and correct, and this is to certify that a copy of the ORDER DENYING 

REQUESTS TO CONSIDER ADDITIONAL PROPOSALS AT HEARING has been furnished 

and was served upon the following parties on December 12, 2023 by the following: 

USDA (OGC) – Electronic Mail 

Brian Hill, OGC 

Brian.Hill1@usda.gov 

Michelle McMurtray, OGC 

Michelle.McMurtray@usda.gov 

Donna Erwin, OGC 

Donna.Erwin@usda.gov 

Carla Wagner, OGC 

Carla.Wagner@usda.gov 

USDA (AMS) Dairy Programs – Electronic Mail 

Dana H. Coale, Deputy Administrator 

Room 2350 South 

Erick Metzger 

General Manager 

National All-Jersey, Inc. 

6486 East Main Street 

Reynoldsburg, OH 43068 

Dana.Coale@usda.gov 

Erin Taylor, Director Order Formulation and

 Enforcement Division 

Erin.Taylor@usda.gov 

E-mail: emetzger@usjersey.com 

Counsel for National All-Jersey, Inc. 

John H. Vetne 

E-mail: johnvetne@comcast.net 

Wendy M. Yoviene 

Baker, Donelson, Berman, Caldwell, 

 & Berkowitz PC 

901 K Street, NW, Suite 900 

Washington, DC 2 0001 

E-mail: wyoviene@bakerdonelson.com 

Page 1 of 2 
 

 

CERTIFICATE OF SERVICE (cont’d) 

Eleven Federal Milk Marketing Orders 

Docket No.: 23-J-0067 

Counsel for National Milk Producers 

Federation 

Stoel Rives LLP 

101 S. Capitol Blvd., Suite 1900 

Boise, ID 83702 

Bradley R. Prowant 

E-mail: bradley.prowant@stoel.com 

Nicole C. Hancock 

E-mail: nicole.hancock@stoel.com 

Counsel for Milk Innovations Group 

Davis Wright Tremaine LLP 

920 Fifth Ave he, Suite 3300 

Seattle, WA 98104 

Charles M. English, Jr. 

E-mail: chipenenglish@dwt.com 

Ashley L. Vulin 

E-mail: ashleyvulin@dwt.com 

Grace Bulger 

E-mail: gracebulger@dwt.com 

Counsel for International Dairy Foods 

Association 

Steven J. Rosenbaum 

Covington & Burling LLP 

1201 Pennsylvania Avenue, NW 

Washington, DC 20004 

E-mail: srosenbaum@cov.com 

Counsel for Select Milk Producers, Inc. 

Ryan K. Miltner 

The Miltner Law Firm, LLC 

100 North Main Street 

P.O. Box 477 

New Knoxville, OH 45871 

E-mail: ryan@miltnerlawfirm.com

 Respectfully Submitted, 

____________________________________ 

Wanda Mosby, Legal Assistant 

USDA/Office of Administrative Law Judges 

Hearing Clerk’s Office, Room 1031-S 

1400 Independence Ave., SW 

Washington, DC 20250-9203 

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