A final decision regarding the California Federal Milk Marketing Order (FFMO) has encountered a further delay as announced by the United States Department of Agriculture (USDA). A decision was initially expected before the start of 2018, as a draft of the order was released in February 2017.
In the notice that was released through the Federal Register, USDA indicated that it will not issue a ruling on the FMMO until the Supreme Court makes a decision on a case involving the Securities and Exchange Commission. The case is not related to the dairy industry itself, but rather questions whether administrative law judges are federal agency employees. If it is determined that they are “inferior officers” of the government, then they would be required to be appointed by either the president, a department head or a court.
The connection between the Supreme Court case, Lucia v. Securities and Exchange Commission, and the USDA ruling stems from the 2015 California hearing proceeding in Clovis, which was presided over by an administrative law judge. USDA believed Judge Clifton to be its employee and thus not required to be appointed. If the court finds that administrative law judges are inferior officers, it would bring Judge Clifton’s validity into question.
The California Department of Food and Agriculture (CDFA) recently declined a petition for a hearing to increase dairy prices, citing the much-anticipated FMMO final announcement as one of the reasons for denial. Western United Dairymen, California Dairy Campaign, and the Milk Producers Council have all expressed disappointment at the extended delay. Dairymen throughout the state who are anxious to join the federal milk marketing order system will have to wait even longer than expected until a ruling is issued by the Supreme Court.
The court is expected to issue its decision on or before June 30 when the current term officially ends.