James v. Hurson Associates, Incorporated v. Glickman

229 F.3d 277 (D.C. Cir. 2000)

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Nature of the Case

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Facts

D is the Secretary of the USDA. The USDA's Food Safety Inspection Service (FSIS) is charged with reviewing the labels affixed to certain commercial food products to ensure that they are truthful, not misleading, and otherwise comply with relevant regulations. Approval of a proposed label used to be done by mailing an application, by personally visiting the FSIS, or by hiring courier/expediter firms whose employees would meet with FSIS representatives during office hours. The 'face-to-face' method enabled producers to secure instant approval of their labels, whereas other methods could take days or even weeks. On July 27, 1998, the USDA announced its intention to do away with 'routine, daily, time-set, face-to-face appointments with courier/expediting firms,' although FSIS employees would be available for irregular meetings with industry representatives to discuss novel issues and provide regulatory guidance. D claimed it needed more time to evaluate labeling involving complex issues, more time to consult internally or with other agencies, the food industry's declining need for immediate label approval and the unfairness of face-to-face to food producers who submit by mail rather than through courier/expediter firms. P is a courier/expediter firm whose very livelihood was threatened. P filed a motion for a temporary restraining order against the agency alleging only that USDA had violated the APA by abolishing face-to-face without engaging in notice-and-comment rulemaking. D did not submit [an answer, and simply moved to dismiss. The District Court concluded that D's new rule was a procedural one. It was, therefore, exempt from the APA's notice-and-comment requirement. P appealed.