Hein Hettinga v. Thomas Vilsack , 428 F. App'x 732 ( 2011 )

FILED
NOT FOR PUBLICATION APR 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HEIN HETTINGA, DBA Sarah Farms; No. 10-15140
ELLEN HETTINGA, DBA Sarah Farms,
D.C. No. 2:09-cv-00204-JWS
Plaintiffs - Appellants,
v. MEMORANDUM *
THOMAS J. VILSACK, in his capacity as
Secretary of the United States Department
of Agriculture,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
John W. Sedwick, District Judge, Presiding
Submitted April 14, 2011 **
Pasadena, California
Before: REINHARDT, HAWKINS, and GOULD, Circuit Judges.
Hein and Ellen Hettinga (“the Hettingas”) d/b/a Sarah Farms appeal the adverse
grant of summary judgment in their action challenging the Secretary of the U.S.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Department of Agriculture’s (“USDA”) interpretation of the 2006 amended Arizona-
Las Vegas Milk Marketing Order (“Amended Order”) as applied to them and seeking
refund of $324,211.60 in assessments paid for the month of April 2006. We affirm.
The USDA’s interpretation of its own regulation is entitled to substantial
deference and must be given controlling weight “unless an ‘alternative reading is
compelled by the regulation’s plain language or by other indications of the agency’s
intent at the time of the regulation’s promulgation.’” Thomas Jefferson Univ. v.
Shalala, 512 U.S. 504, 512 (1994) (quoting Gardebring v. Jenkins, 485 U.S. 415, 430
(1988)); see Auer v. Robbins, 519 U.S. 452, 461 (1997); Miller v. Cal. Speedway
Corp., 536 F.3d 1020, 1028 (9th Cir. 2008).
Here, the agency’s interpretation of the Amended Order is contradicted by
neither its plain language nor other evidence of regulatory intent. The Hettingas did
not lose their producer-handler exemption status in April 2006 due to failure to meet
one of the five “designation requirements” or fulfillment of one of the three
“cancellation conditions,” and therefore the Amended Order’s new cancellation
provision, providing for a one-month enforcement grace period, does not, on its face,
apply. See 7 C.F.R. § 1131.10(a), (c). Rather, USDA claims the Hettingas were
immediately and automatically disqualified from producer-handler exemption status
for the month of April 2006 because they exceeded the monthly three-million pound
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sales cap. See id. § 1131.10 pmbl. Reading the regulation as a whole, we cannot say
the agency’s interpretation of its own regulation is unreasonable. See Or. Paralyzed
Veterans of Am. v. Regal Cinemas, Inc., 339 F.3d 1126, 1131 (9th Cir. 2003).
AFFIRMED.
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