C.F.R. » Title 7 » PART 1—ADMINISTRATIVE REGULATIONS › Subpart H—Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes

7 C.F.R. § 1.145

Appeal to Judicial Officer

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(a) Filing of petition. Within 30 days after receiving service of the Judge's decision, if the decision is a written decision, or within 30 days after issuance of the Judge's decision, if the decision is an oral decision, a party who disagrees with the decision, any part of the decision, or any ruling by the Judge or who alleges any deprivation of rights, may appeal the decision to the Judicial Officer by filing an appeal petition with the Hearing Clerk. As provided in § 1.141(h)(2), objections regarding evidence or a limitation regarding examination or cross-examination or other ruling made before the Judge may be relied upon in an appeal. Each issue set forth in the appeal petition and the arguments regarding each issue shall be separately numbered; shall be plainly and concisely stated; and shall contain detailed citations to the record, statutes, regulations, or authorities being relied upon in support of each argument. A brief may be filed in support of the appeal simultaneously with the appeal petition.

(b) Response to appeal petition. Within 20 days after the service of a copy of an appeal petition and any brief in support thereof, filed by a party to the proceeding, any other party may file with the Hearing Clerk a response in support of or in opposition to the appeal and in such response any relevant issue, not presented in the appeal petition, may be raised.

(c) Transmittal of record. Whenever an appeal of a Judge's decision is filed and a response thereto has been filed or time for filing a response has expired, the Hearing Clerk shall transmit to the Judicial Officer the record of the proceeding. Such record shall include: the pleadings; motions and requests filed and rulings thereon; the transcript or recording of the testimony taken at the hearing, together with the exhibits filed in connection therewith; any documents or papers filed in connection with a prehearing conference; such proposed findings of fact, conclusions, and orders, and briefs in support thereof, as may have been filed in connection with the proceeding; the Judge's decision; such exceptions, statements of objections and briefs in support thereof as may have been filed in the proceeding; and the appeal petition, and such briefs in support thereof and responses thereto as may have been filed in the proceeding.

(d) Oral argument. A party bringing an appeal may request, within the prescribed time for filing such appeal, an opportunity for oral argument before the Judicial Officer. Within the time allowed for filing a response, appellee may file a request in writing for opportunity for such an oral argument. Failure to make such request in writing, within the prescribed time period, shall be deemed a waiver of oral argument. The Judicial Officer may grant, refuse, or limit any request for oral argument. Oral argument shall not be transcribed unless so ordered in advance by the Judicial Officer for good cause shown upon request of a party or upon the Judicial Officer's own motion.

(e) Scope of argument. Argument to be heard on appeal, whether oral or on brief, shall be limited to the issues raised in the appeal or in the response to the appeal, except that if the Judicial Officer determines that additional issues should be argued, the parties shall be given reasonable notice of such determination, so as to permit preparation of adequate arguments on all issues to be argued.

(f) Notice of argument; postponement. The Hearing Clerk shall advise all parties of the time and place at which oral argument will be heard. A request for postponement of the argument must be made by motion filed a reasonable amount of time in advance of the date fixed for argument.

(g) Order of argument. The appellant is entitled to open and conclude the argument.

(h) Submission on briefs. By agreement of the parties, an appeal may be submitted for decision on the briefs, but the Judicial Officer may direct that the appeal be argued orally.

(i) Decision of the judicial officer on appeal. As soon as practicable after the receipt of the record from the Hearing Clerk, or, in case oral argument was had, as soon as practicable thereafter, the Judicial Officer, upon the basis of and after due consideration of the record and any matter of which official notice is taken, shall rule on the appeal. If the Judicial Officer decides that no change or modification of the Judge's decision is warranted, the Judicial Officer may adopt the Judge's decision as the final order in the proceeding, preserving any right of the party bringing the appeal to seek judicial review of such decision in the proper forum. A final order issued by the Judicial Officer shall be filed with the Hearing Clerk. Such order may be regarded by the respondent as final for purposes of judicial review without filing a petition for rehearing, reargument, or reconsideration of the decision of the Judicial Officer.

[42 FR 743, Jan. 4, 1977, as amended at 60 FR 8456, Feb. 14, 1995; 68 FR 6341, Feb. 7, 2003]
Notes of Decisions
Cited in 19 cases (2 in the last 5 years), 1982–2024 · leading case: Joe Fleming v. AGRI, 987 F.3d 1093 (D.C. Cir. 2021).
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Joe Fleming v. AGRI, 987 F.3d 1093 (D.C. Cir. 2021). · cites it 16× “To begin with, 7 C.F.R. § 1.145 (a) requires that “[e]ach issue set forth in the appeal petition [to the Judicial Officer] and the arguments regarding each issue .”
PMD Produce Brokerage Corp. v. United States Dep't of Agric., 234 F.3d 48 (D.C. Cir. 2000). · cites it 3× “145 of the Rules of Practice ( 7 C.F.R. § 1.145 ).” The Judge thereafter excerpted his oral decision and filed the written excerpt on November 30,1999.”
John J. Conforti, Doing Bus. as C & C Produce v. United States, 74 F.3d 838 (8th Cir. 1996). “USDA regulations allow the JO to take official notice of “such matters as are judicially noticed by the courts of the United States,” 7 C.”
Marine Mammal Conservancy, Inc. v. Dep't of Agric., 134 F.3d 409 (D.C. Cir. 1998). “In denying the motion to intervene and the petition for review of the consent decree, the ALJ said that 7 C.F.R. § 1.145 (a) (1997) prohibits anyone other than “a party” to a decision “to appeal or otherwise seek the review or modification” of the decision.”
Utica Packing Co. & David Fenster v. John R. Block, Sec'y, United States Dep't of Agric., 781 F.2d 71 (6th Cir. 1986). “The Judicial Officer renders a decision under procedures set forth in 7 C.F.R. § 1.145 (i): (i) Decision of the Judicial Officer on Appeal.”
Pearson v. United States Dep't of Agric., 411 F. App'x 866 (6th Cir. 2011). · cites it 4× “Petitioner argues that Respondents’ cross-appeal contravenes 7 C.F.R. § 1.145 (a) of the U.S.D.A. Rules of Practice, which provides that “[w]ithin 30 days after receiving service of the Judge’s decision .”
Robert E. Parchman Virgil R. (Ray) Lemons Jack E. Hamilton v. United States Dep't of Agric., 852 F.2d 858 (6th Cir. 1988). “7 C.F.R. § 1.145 (d). Campbell denied the request stating, “inasmuch as the issues are not novel or difficult, the case has been thoroughly briefed, and oral argument would seem to serve no useful purpose.”
Wayne Cusimano, Inc. v. John R. Block, Sec'y, United States Dep't of Agric., 692 F.2d 1025 (5th Cir. 1982). “This argument is based upon the provision of 7 C.F.R. § 1.145 (a) that a party who disagrees with a “decision” or “with any ruling” of the ALJ “may" appeal to the agency’s Judicial Officer within thirty days.”
McConnell v. United States Dep't of Agric., 198 F. App'x 417 (6th Cir. 2006). “See 7 C.F.R. § 1.145 (a). When appealing to the Judicial Officer, the McConnells raised the following issues: (1) whether Cynthia “shipped” a sore horse; (2) whether Cynthia served an appropriate penalty; (3) whether Cynthia was subject to malicious prosecution and selective…”
Lancelot Kollman Ramos v. US Dept. of Agric., 322 F. App'x 814 (11th Cir. 2009). · cites it 3× “The letter instructs me to refer to 7C.F.R.1.145. Where can I find this information? If this letter is not sufficient to request an oral hearing and file an appeal, Please send information as how to do so.”
Blackfoot Livestock Comm'n, Co. v. Dep't of Agric., Packers & Stockyards Admin., 810 F.2d 916 (9th Cir. 1987). “7 C.F.R. § 1.145 (e) (1985). This court has sustained the increase of an administrative sanction.”
Holiday Food Serv., Inc., a Corp. & Nat Rocker, an Individual v. Dep't of Agric., 820 F.2d 1103 (9th Cir. 1987). “§ 557 (b), the Department’s regulations, 7 C.F.R. § 1.145 (e), and the case law, Stamper v.”
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— 7 C.F.R. § 1.145(i) — 3 cases
John J. Conforti, Doing Bus. as C & C Produce v. United States, 74 F.3d 838 (8th Cir. 1996). “USDA regulations allow the JO to take official notice of “such matters as are judicially noticed by the courts of the United States,” 7 C.”
John J. Conforti, Doing Bus. as C & C Produce v. United States, 69 F.3d 897 (8th Cir. 1995).
John J. Conforti etc v. United States (8th Cir. 1996).
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