Order, In re Cal-Almond, 56 Agric. Dec. (Dec. 24, 1997)]. Petitioner contends that Lehnert holds that when funds are collected from unwilling participants pursuant to a legislatively mandated arrangement, [the funds] may not be used for litigation because litigation is clearly protected political speech. But this was not the holding in Lehnert. As the Supreme Court... stated in Glickman v. Wileman Bros. & Elliott, Inc., supra, [117 S. Ct. at 2140]:

Thus, in Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991), while we held that the cost of certain publications that were not germane to collective-bargaining activities could not be assessed against dissenting union members, id., at 527-528, 111 S.Ct., at 1963-1964, we squarely held that it was permissible to charge them for those portions of "the Teachers' Voice that concern teaching and education generally, professional development, unemployment, job opportunities, award programs..., and other miscellaneous matters." Id., at 529, 111 S.Ct., at 1964. That holding was an application of the rule announced in Abood and further refined in Keller v. State Bar of Cal., 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990), a case involving bar association activities.

As we pointed out in Keller, "Abood held that a union could not expend a dissenting individual's dues for ideological activities not `germane' to the purpose for which compelled association was justified: collective bargaining. Here the compelled association and integrated bar are justified by the State's interest in regulating the legal profession and improving the quality of legal services. The State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity." Id., at 13-14, 110 S.Ct., at 2236. This test is clearly satisfied in this case because (1) the generic advertising of California peaches and nectarines is unquestionably germane to the purposes of the marketing orders and, (2) in any event, the assessments are not used to fund ideological activities.

It follows that, inasmuch as the use of assessments for generic advertising is germane to the purposes of a marketing order and thus meets the Lehnert test, the use of assessments to defray the costs of litigation to defend a marketing order from a legal challenge leveled against the use of assessments for generic advertising is likewise germane and equally satisfies the Lehnert test. . . .

57 Agric. Dec. 24

Petitioner also asserts that it should be allowed to amend its Petition to assert a challenge to the credit-back advertising regulations that came into effect for the 1997-98 crop year. But again, this challenge would be a challenge to a "speech related" action of the Almond Board which, according to Wileman Bros., is not subject to scrutiny under the standards of First Amendment jurisprudence. For that reason, a Petition amended as Petitioner proposes would also necessarily be dismissed and therefore shall not be permitted.

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER

Petitioner raises three issues in Petitioner's Appeal to the Judicial Officer [hereinafter Petitioner's Appeal Petition] which were not addressed by the Chief ALJ.

First, Petitioner contends that:

[T]he Judicial Officer currently has before it an appeal by USDA from Chief ALJ Palmer's decision in Cal-Almond, 94 AMA Docket No. F&V 981-1, wherein the ALJ found that the Almond Board's advertising program violated Cal-Almond (and the other joined Petitioners[']) First Amendment rights, and that the Almond Board's credit-back advertising regulation violated those handler's First Amendment rights. The Judicial Officer has not ruled on that petition, but instead held it in abeyance pending the outcome of Wileman. Since the outcome of Wileman, the Judicial Officer has not yet ruled. Therefore, it was entirely premature for the ALJ to dismiss this petition until at least the Judicial Officer's ruling in the just referenced case.

Petitioner's Appeal Petition at 2-3.

I disagree with Petitioner's contention that the Chief ALJ dismissed the Petition prematurely. Section 900.52(c)(2) of the Rules of Practice provides that an administrative law judge's decision upon a motion to dismiss must be made after due consideration of the motion and any opposition to the motion but, otherwise, leaves the timing of a decision on a motion to dismiss to the discretion of the administrative law judge, as follows:

§ 900.52 Institution of proceeding.

....

(c) Motion to dismiss petition— .

(2) Decision by Administrative Law Judge. The Judge, after due consideration [of the motion to dismiss and any opposition to the motion to dismiss], shall render a decision upon the motion stating the reasons for his action. Such decision shall be in the form of an order and shall be filed with the hearing clerk who shall cause a copy thereof to be served upon the petitioner and a copy thereof to be transmitted to the Administrator. Any such order shall be final unless appealed pursuant to § 900.65. . . .

7 C.F.R. § 900.52(c)(2).

Administrative proceedings should be conducted as expeditiously as possible consistent with the requirements of due process, the Administrative Procedure Act, and the Rules of Practice. While, for purposes of administrative economy, the Chief ALJ could have awaited the issuance of a final decision and order in In re Cal-Almond, 56 Agric. Dec. (Dec. 24, 1997), prior to issuing the Initial Decision and Order in this proceeding, the Chief ALJ was not required by due process, the Administrative Procedure Act, or the Rules of Practice to do so. Second, Petitioner contends that:

Respondent should not be entitled to a dismissal of the petition unless, all of the factual allegations in the petition are assumed true, and that, with that assumption, [Petitioner] could not prove any set of facts in support thereof which would entitle it to relief.

Petitioner's Appeal Petition at 3.

When considering a motion to dismiss filed in accordance with the Rules of Practice, allegations of material fact in a petition must be construed in the light most favorable to a petitioner. However, even if the allegations of material fact in the Petition are construed in the light most favorable to Petitioner, I find that

"See In re Midway Farms, Inc., 56 Agric. Dec. 102, 113-14 (1997) (stating that allegations of material fact in a petition must be construed in the light most favorable to a petitioner claiming handler status when considering a motion to dismiss filed pursuant to 7 C.F.R. § 900.52(c)); In re Asakawa Farms, Inc., 50 Agric. Dec. 1144, 1149 (1991) (stating that allegations of material fact in a petition must be construed in the light most favorable to a petitioner claiming handler status when considering a motion to dismiss for want of standing filed pursuant to 7 C.F.R. § 900.52(c)), dismissed, No. CV-F-91-686-OWW (E.D. Cal. Sept. 28, 1993). See also In re United Foods, Inc., 57 Agric. Dec. , slip op. at 20-21 (Mar. 4, 1998) (stating that allegations of material fact in a petition must be construed in the light most favorable to a petitioner when considering a motion to dismiss filed pursuant to 7 C.F.R. § 1200.52).

57 Agric. Dec. 24

Glickman v. Wileman Bros. & Elliott, Inc., 117 S. Ct. 2130 (1997), is dispositive of Petitioner's First Amendment claims and that the Petition fails to state a claim upon which relief can be granted. Therefore, I agree with the Chief ALJ's Initial Decision and Order in which he granted Respondent's Motion to Dismiss and dismissed Petitioner's Petition with prejudice.

Third, Petitioner contends that the Chief ALJ should have allowed Petitioner to amend its Petition rather than dismissing the Petition, as follows:

At page 5 of the ALJ's decision, the ALJ rejected Petitioner's request to amend the petition to allege First Amendment violations for the 1997-1998 crop year as a result of the Almond Board reinstituting the credit-back advertising regulations, but the ALJ erroneously claimed that "speech related" actions of the Almond Board is not subject to scrutiny under the standards of First Amendment jurisprudence. The ALJ clearly erred.

Under the newly adopted credit-back regulations that are in effect for the 1997-1998 crop year... Petitioner must expend more money than in the previous year in assessments, or only be allowed a partial credit provided that its promotion and advertising efforts are consistent with restrictions of § 981.441. Thus, the "new" regulations again being implemented by the Almond Board for the 1997-1998 crop year would violate the First Amendment, as set forth in Wileman, because the Marketing Order does restrain the freedom of Petitioner to "communicate any message to any audience". Thus, instead of dismissing this case, the Chief Administrative Law Judge should permit the Petitioner to amend the Complaint to include the 1997-1998 crop year.

Petitioner's Appeal Petition at 6-7.

I disagree with Petitioner's contention that the Chief ALJ's denial of Petitioner's motion to amend the Petition was error." The Chief ALJ denied

"The record does not clearly establish that Petitioner filed a motion to amend the Petition. Petitioner states in Petitioner's Response to Respondent's Motion to Dismiss, at 6, that "the Chief Administrative Law Judge should permit the Petitioner to amend the Complaint to include the 1997-1998 crop year" [and] "Petitioner is entitled to amend its Petition to allege the new facts and new implementation of the Almond Board regulations with respect to the 1997-1998 crop year." However, Petitioner's statements in Petitioner's (continued...)

Petitioner's motion to amend the Petition based on the fact that the amendment requested by Petitioner would be a challenge to a "speech related" action of the Almond Board which, according to Wileman Bros., is not subject to scrutiny under the standards of First Amendment jurisprudence.

However, Petitioner contends that, under the newly adopted credit-back regulations, Petitioner is required to expend more money than in previous years and is restrained from communicating "any message to any audience" (Petitioner's Appeal Petition at 7.) The Court specifically addressed Petitioner's contention in Wileman Bros., supra, 117 S. Ct. at 2138-39, holding that a reduction in resources available to conduct advertising caused by compelled assessments does not implicate the First Amendment, as follows:

.. Respondents argue that the assessments for generic advertising impinge on their First Amendment rights because they reduce the amount of money that producers have available to conduct their own advertising. This is equally true, however, of assessments to cover employee benefits, inspection fees, or any other activity that is authorized by a marketing order. The First Amendment has never been construed to require heightened scrutiny of any financial burden that has the incidental effect of constraining the size of a firm's advertising budget. The fact that an economic regulation may indirectly lead to a reduction in a handler's advertising budget does not itself amount to a restriction on speech.

Moreover, neither the credit-back program nor the creditable program requires almond handlers to advertise, but rather both programs give the handler the option to advertise and receive credit for promotional expenditures as provided in the Almond Order. While both the credit-back and creditable programs limit the type of promotion for which a handler may receive credit, neither the credit-back program nor the creditable program prohibits or restricts a handler from promoting or advertising almonds in any other way or from communicating any

(...continued)

Response to Respondent's Motion to Dismiss do not appear to operate as an application or request for a ruling, viz., a motion. In re United Foods, Inc., 57 Agric. Dec. slip op. at 29-31 (Mar. 4, 1998). Nonetheless, the formalities of court practice do not apply to motions filed in administrative proceedings, and the Chief ALJ treated Petitioner's statements in Petitioner's Response to Respondent's Motion to Dismiss as a motion to amend the Petition and ruled on those statements. Respondent was not prejudiced by the Chief ALJ's treatment of Petitioner's statements as a motion, and I do not find that the Chief ALJ erred by exercising his authority under section 900.59(a)(2) of the Rules of Practice (7 C.F.R. § 900.59(a)(2)) to rule on Petitioner's "motion" to amend its Petition.