Full opinion text
MEMORANDUM OPINION & ORDER RE: UNITED STATES’ MOTION TO DISMISS WANGER, District Judge. I. BACKGROUND These 27 partially consolidated False Claims Act (FCA) cases are before the court on the United States’s motion to dismiss under 31 U.S.C. § 3730(e)(2)(A). The motion presents a question of first impression. A. Statutory Background. The claims arise from alleged violation of prorate restrictions and reporting requirements in navel and valencia orange marketing orders (7 C.F.R. §§ 907 and 908) and the lemon marketing order (7 C.F.R. § 910). The relators, Sequoia Orange Company, a handler (processor) and, Lisle Babcock, a grower of oranges, are competitors of defendants. Defendants are Sunkist Growers, Inc., an agricultural cooperative corporation and packinghouses, most of whom are Sunkist affiliates. Relators contend that despite the defendants’ support for marketing orders, defendants for some ten years have consistently violated prorate and other regulations of the orders by overshipping oranges and failing to accurately report, account, and pay assessments for those overshipments which give rise to the asserted false claims. A bitter ideologic dispute over citrus industry regulations between relators and defendants has continued for more than ten years. For the purposes of the motion, the parties assume the merit of the FCA claims, subject to the United States’ objection to subject matter jurisdiction that FCA claims based on alleged violations of the Agricultural Marketing Agreement Act (AMAA) implicate a regulatory fine that cannot support a claim as a matter of law. Relators have prosecuted these lawsuits and relentlessly waged a campaign of public criticism against Sunkist and its members’ alleged economic domination of the industry, claimed to have been effectuated primarily through government regulation under the AMAA. To decide the dismissal motion, the long and complex history of disputes over Marketing Orders in the California-Arizona citrus industry must be analyzed. The parties disagree on whether the applicable standard for decision is: (1) an unre-viewable prosecutorial discretion standard; (2) a rational relation standard; or (3) a Federal Rule of Civil Procedure Rule 41(a) non-prejudice standard. 1. The Agricultural Marketing Agreement Act of 1937. The underlying law requires us to “delve into one of the more byzantine, and all-encompassing, areas of federal administrative regulation — that governing fruits and vegetables.” Wileman Bros. & Elliott, Inc. v. Espy, 58 F.3d 1367, 1372 (9th Cir.1995). The Agricultural Marketing Agreement Act of 1937 (AMAA) was enacted “to establish and maintain ... orderly marketing conditions for agricultural commodities in interstate commerce.” 7 U.S.C. § 602(1). Congress believed that improved marketing conditions for agricultural products would benefit both producers and consumers by ensuring “an orderly flow of the supply [of fruits and vegetables] to market throughout [their] normal marketing season to avoid unreasonable fluctuations in supplies and prices.” 7 U.S.C. § 602(4). “The Act contemplates a cooperative venture among the Secretary, handlers, and producers the principal purposes of which are to raise the price of agricultural products and to establish an orderly system for marketing them.” Block v. Community Nutrition Inst., 467 U.S. 340, 346, 104 S.Ct. 2450, 2454, 81 L.Ed.2d 270 (1984). To achieve these goals the AMAA provides the Secretary and the industry with a powerful tool, the marketing order. Through marketing orders the Secretary and the industry may regulate, inter alia, the quality, size, and quantity of a particular commodity shipped to market. Marketing orders are essentially self-help mechanisms to advance the economic interests of the industry. The Secretary is not required to promulgate marketing orders in each fruit or vegetable industry that is eligible under the AMAA. Clayton 107:7 — 10. The Secretary generally does not advocate marketing orders in unregulated industries unless industry participants request assistance in obtaining an order. Clayton, at 110. Marketing orders become effective upon approval by the Secretary and the industry. When the Secretary believes a proposed order will tend to effectuate the declared policy of the AMAA, the industry must be provided notice and an opportunity for a hearing on the proposed order. 7 U.S.C. § 608c(3), (4). If after the hearing the Secretary issues an order finding that the proposed order will effectuate AMAA policies then an industry referendum is conducted. In the citrus industry marketing orders must be approved by (1) handlers marketing eighty percent of the volume of the commodity and (2) either three-quarters of the affected growers or by growers who market at least two-thirds of the volume of the particular commodity (navels, valencias, or lemons). 7 U.S.C. § 608e(8). The Secretary may waive the necessity for handler support by finding that handler refusal to sign the agreement tends to prevent the effectuation of the AMAA. 7 U.S.C. § 608c(9); see also United States v. Sunny Cove Citrus Ass’n, 854 F.Supp. 669, 676 (E.D.Cal.1994). Once effective, marketing orders are implemented by committees composed of industry members. 7 U.S.C. §§ 608e(7)(C), 610. Committee members are nominated by industry groups, appointed by the Secretary, and supervised by the Agricultural Marketing Service (AMS), an agency within the United States Department of Agriculture (USDA). See, e.g., 7 C.F.R. §§ 907.22, 907.28. The committees recommend rules and regulations to effectuate the marketing orders, to govern matters such as fruit quality and flow to market restrictions, which the Secretary may adopt through informal rule-making. 7 C.F.R. §§ 907.52, 907.64. The expenses to administer the marketing orders are funded through assessments imposed upon fruit handlers based on the volume of fruit they ship. 7 U.S.C. § 610(b)(2)(ii). The committees annually submit budgets and a recommendation for the rate of assessment to the Secretary. 7 C.F.R. §§ 907.41. The Secretary approves the committees’ budgets and the assessments to be imposed on handlers each year in the form of a regulation. Marketing orders have regulated the California-Arizona orange industry since 1954. Cecelia Packing Corp. v. U.S. Dept. of Agriculture, 10 F.3d 616, 618 (9th Cir.1993). Each citrus order contained prorate provisions, which limited the weekly volume of fruit shipped to market. The efficacy of prorate has been bitterly disputed by industry members, particularly Sequoia. Defendant Sunkist is an agricultural cooperative corporation, a protected form of entity under the AMAA. It has affiliated packinghouses and member growers. Through bloc-voting, Sunkist allegedly perpetuated prorate, while many independent growers and packinghouses, as well as some Sunkist members, opposed prorate and other forms of federal regulation of the industry. Rela-tors have for over ten years claimed that defendants, particularly Sunkist, exercise enhanced access to and influence over the USDA and members of Congress, by virtue of defendants’ political influence, lobbying efforts, and campaign contributions to elected officials. These efforts allegedly resulted in the adoption of marketing orders with prorate and appointment of defendants and their supporters to industry AMAA commodity (navel and valencia orange) committees (NOAC and VOAC). Under prorate, the commodity committees meet each week during the harvest season to recommend a total quantity of oranges and lemons for shipment to market the following week. 7 C.F.R. §§ 907.51, 908.51, 910.51. Producers pay assessments to the committees based on the volume of fruit shipped to market. 7 C.F.R. §§ 907.41, 908.41, 910.41. Handlers who ship quantities of citrus in excess of their allocated prorate are subject to criminal fines of up to $5,000 per violation and civil penalties of $1,000 per violation. 7 U.S.C. § 608c(14). They are also subject to civil forfeitures for quantities of fruit shipped in excess of prorate. The amount of the forfeiture is “a sum equal to the value of such excess at the current market price for such commodity at the time of violation.” 7 U.S.C. § 608a(5). The United States is authorized to initiate criminal prosecutions and forfeiture suits against handlers who violate prorate. 7 U.S.C. § 608a(7). The most onerous result of prorate is the dumping of fruit required when supply exceeds available prorate quotas. 2. The False Claims Act. The FCA creates liability for those who defraud the government. One species of fraud claim under the FCA, the so-called “reverse false claim,” makes liable any person who “knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government.” 31 U.S.C. § 3729(a)(7). The penalty for violation of the FCA is a fine of not less than $5,000 and not more than $10,000 per false report plus three times the amount of damages the government sustains as a result of the fraud. 31 U.S.C. § 3729(a). The FCA includes provisions to encourage “whistleblowing” by private individuals with knowledge of fraud on the government. Under these qui tarn provisions, a private party, called a relator, may initiate a suit under the FCA in the name of the federal government. 31 U.S.C. § 3730(b). However, the complaint must be filed under seal for 60 days before it is served on the defendant. During this time the government can elect to intervene in the action or decline to take over the action. Id. In the latter case, the relator may proceed with the ease. 31 U.S.C. § 3730(e)(1). If the government ultimately obtains a recovery the relator is entitled to a percentage of the proceeds, which depends upon the relator’s involvement in the case, as well as reasonable costs and attorneys’ fees. 31 U.S.C. § 3730(d). In these FCA cases, relators allege the defendants created false reports and documents to conceal fruit shipments in excess of their prorate allotment and intentionally avoided payment of assessments for unreported overshipments and forfeitures payable for undocumented shipments. The government has steadfastly maintained no claim can be stated under the FCA for. violation of AMAA prorate regulations. Originally the government prosecuted Sequoia and other orange growers and handlers for alleged AMAA violations and sought to deny Sequoia’s participation as relator in these cases. Under the citrus marketing orders,, handlers are required to complete and submit reporting documents to the commodity committee when shipping firdt. They must provide daily (form 3) and weekly (form 4) reports of fruit shipped. See, e.g., 7 C.F.R. §§ 908.140 and 908.141. They must also complete an assignment of allotment certificate (form 8). E.g. 7 C.F.R. § 908.58. Finally, the marketing orders require handlers to keep other records such as truck manifests and customer invoices. E.g. 7 C.F.R. § 908.173. Relators allege that a mismani-fested shipment of fruit could result in as many as five false records, forms 3, 4, and 8, plus a shipping manifest and a customer invoice. At a minimum, an unrecorded shipment results in two false records, forms 3 and 4. The loss to the government is claimed to be unpaid assessments calculated on unreported volume of overshipped fruit, 7 U.S.C. § 610(b)(2)(H), and the AMAA forfeiture (market value of the excess fruit). Re-lators also seek penalties of up to $10,000 for each false record made in connection with a prorate violation and three times the market value of the fruit shipped in excess of prorate. Total claims are estimated to approach four hundred million dollars. B. History of the Litigation. Sequoia, an independent packinghouse that competes with defendants in the citrus industry, has been accused of shipping oranges in excess of its prorate allotment in a 1983 AMAA forfeiture action brought by the government. Sequoia was sanctioned in that litigation for intentional document destruction in violation of court order. Although Sequoia is a vehement critic and opponent of the California-Arizona citrus marketing orders, particularly the prorate feature, Sequoia denies it cheated on prorate. It complains that the USDA ignored widespread cheating by other members of the industry, particularly Sunkist, the dominant co-op in the California-Arizona citrus industry, and its associated packinghouses and members, Sequoia counterclaimed against the USDA charging it was being selectively prosecuted for its opposition to the marketing orders. The counterclaim was dismissed on the ground that the government is not barred from selectively prosecuting prorate cheaters in its exercise of prosecutorial discretion. See United States v. Sequoia, CV-F-83-510, order filed March 14,1994. In December of 1988 Sequoia filed the first of these FCA cases alleging violation of the navel and valencia orange marketing orders. In 1989 it filed 22 more orange cases naming Sunkist and Sunkist-affiliated packinghouses. The government moved to dismiss those cases, arguing no FCA claim could be stated for false statements made in connection with AMAA prorate regulations. The government’s motion was denied on July 5, 1989. The government elected not to intervene in the cases. In 1991, Sequoia filed four additional FCA cases alleging violations of the lemon marketing order. The government again moved to dismiss the cases for failure to state a claim. The motion was denied by a different judge. Unlike the orange cases, the government elected to intervene in the lemon cases. The last FCA case was filed in 1993 by Lisle Babcock, an orange grower, against Dole Citrus, although Sequoia has nine additional cases. The government conducted its own investigations into alleged prorate violations between 1989 and 1991. It began filing AMAA cases based upon the evidence it uncovered. In June of 1993 the government decided to seek a “global” settlement of all AMAA and FCA eases alleging prorate violations to end industry turmoil. To facilitate FCA settlements the government moved to intervene in the orange cases. The relators opposed the government’s motion to intervene, claiming intervention would lead to a “sweetheart” settlement, that the government would not vigorously pursue the cases by reason of its opposition to use the FCA for AMAA enforcement, and because the USDA was under the alleged political influence of Sunkist and other of the packinghouse defendants. At an August 9, 1993, hearing on the government’s intervention motion, the government’s trial counsel, in response to specific inquiry from the court whether it would prosecute the FCA claims if the cases were not settled, stated that the government intended to litigate the FCA claims if necessary. (Trans, pp. at 22-24). A high level of mistrust and hostility, actual and legal, has existed between relators and the government from the inception of these cases. The government’s motion to intervene was granted based upon its trial counsel’s representation that it would pursue the FCA claims if no settlement was reached. Settlement procedures were then established which required that relators be allowed to object to any settlement of the FCA cases. However, based upon allegations that rela-tors were using the cases to destroy the businesses of the defendants and to create sufficient disruption in the industry to facilitate the demise of prorate and marketing orders, relators were not allowed to participate directly in settlement negotiations. 31 U.S.C. § 3730(c)(2)(C) and (D). The defendants and the government believed that confidential financial and transactional information about the defendants, to be provided during the settlement process, could be used by the relators to the detriment of the defendants, to harass them in existing FCA cases and to obtain facts to support new FCA cases. The defendants opposed disclosing confidential operating data and evidence of their financial condition. See 7 U.S.C. § 608d. However, court-ordered settlement procedures required that the government disclose terms of any settlement reached by it with the defendants to allow the relators the opportunity to exercise their right to object to any settlement under 31 U.S.C. § 3730(c)(2)(B). In June of 1993 the USDA suspended the prorate feature of the citrus marketing orders. It requested that members of the industry propose amendments to the current marketing orders. Although some proposals were submitted to the Secretary, he concluded that none of them had sufficient support within the industry to justify a hearing. On April 18, 1994, this court issued a ruling on summary judgment motions in United States v. Sunny Cove Citrus Ass’n, 854 F.Supp. 669 (E.D.Cal.1994), which held the 1984 navel and valencia orange marketing orders, Nos. 907 and 908, were unlawfully promulgated. The Sunny Cove decision was the final chapter of a controversy that began in July of 1984 when the Secretary of Agriculture proposed 21 amendments to the orange marketing orders. 49 Fed.Reg. 19,-071 (1984). The Secretary issued a finding that all 21 amendments tended to effectuate the policies of the AMAA and that the existing orders did not. Sunny Cove, 854 F.Supp. at 681. Initially, the Secretary required that the industry vote on the amendments as a package. If the package was defeated in the referendum then the existing orange marketing orders would be terminated and the industry would go unregulated. Id. After intense lobbying by Sunkist in Congress and of the USDA, the Secretary reversed his decision and allowed growers to vote on each amendment separately. 49 Fed.Reg. 32,080 (1984); see also Sequoia Orange Co. v. Yeutter, 973 F.2d 752, 754, 757-58 & n. 5 (9th Cir.1992). Only 13 of the amendments were ratified in the referendum. The Secretary issued a new finding, made without notice or opportunity for comment, that the newly amended orange marketing orders tended to effectuate the policy of the AMAA. Sunny Cove, 854 F.Supp. at 681. Sequoia filed a petition challenging the validity of the valencia orange order. Judge Price invalidated the valencia order, because the Secretary did not follow the requirements of the Administrative Procedure Act (APA) when he reversed the finding that the orders did not tend to effectuate AMAA policy absent all 21 amendments without notice or comment. The Ninth Circuit affirmed in Sequoia Orange Co. v. Yeutter, 973 F.2d at 759. Both the Appeals and trial courts afforded the Secretary opportunity to cure any deficiencies in the orders. After the Ninth Circuit decision, the Secretary announced, again without notice or opportunity for comment, that the pre-amendment orders promoted AMAA policy and would remain in effect. Sunny Cove Citrus Association sued, in 1991, challenging the validity of the pre-amendment orders. The Sunny Cove decision held that the Secretary was bound by the implicit tendency finding that the unamended orders did not effectuate the AMAA without adoption of all 21 proposed amendments. The Secretary was ordered to comply with the APA’s notice and comment requirements before changing this negative tendency finding. Sunny Cove found that the pre-amendment orders were not terminated and gave the Secretary a third opportunity to address defects in the orders that resulted from the Secretary’s 1984 tendency finding. On May 16,1994, the USDA announced its decision to terminate all three California-Arizona citrus marketing orders, 59 Fed.Reg. 44020 (Aug. 26, 1994), dismiss all pending AMAA enforcement actions, and withdraw from the FCA cases. The USDA’s justification was to end the divisiveness in the citrus industry caused by over ten years of acrimonious litigation. See Ex. G-15 (USDA press release, May 16,1994). No one disputes that the citrus industry was rife with strident disputes among independents, led by relators on one side, and Sunkist and its members, over continuance of prorate and the disputed marketing orders. After the May 16, 1994, decision, defendants intensely lobbied Congressional representatives and USDA officials to dismiss the FCA cases. The USDA requested that the U.S. Department of Justice (DOJ) move to dismiss the FCA cases. The DOJ studied the request and then invited all of the parties to present their views. After reviewing legal briefs and written arguments from the rela-tors and the defendants, Exs. G-30 to G-32, the government moved for dismissal of the FCA cases in August of 1994. Following briefing, and oral argument on the motion to dismiss on October 24, 1994, an evidentiary-hearing was ordered. C. The Evidentiary Hearing. A four-day evidentiary hearing was conducted in June of 1995. All of the parties were afforded the opportunity to present evidence and cross-examine witnesses. The parties also submitted deposition testimony, documentary evidence, and post-hearing legal memoranda. The following additional facts were adduced. In 1988 the USDA received complaints from Sequoia and Jack Stetson, a former NOAC and YOAC auditor of citrus marketing order compliance, of widespread prorate violations. Mr. Stetson charged that prorate violations by Sunkist packinghouses were swept under the rug by corrupt committee members who represented Sunkist and committee auditors. Dave Lewis, the Director of the Office of Compliance for the AMS testified that Stetson’s claims were carefully investigated. Lewis, at 291-93. The AMS found no evidence of discriminatory enforcement or corruption in the commodity committees. Id. at 293-94. During its investigation of Mr. Stetson’s claims the AMS discovered that the citrus committees were not adequately enforcing compliance with prorate: their auditors lacked expertise; audit coverage was spotty and shallow; and audit documentation insufficient. The AMS urged the committees to improve their investigative capabilities, increased its oversight of the committees’ enforcement efforts, and became directly involved in investigations of possible prorate violations. Lewis, at 295-304. Subsequent roadside inspections of shipping manifests and examination of third party records uncovered evidence of systematic prorate cheating by Sunkist packinghouses and independent packinghouses. Lewis, at 306-13; Exs. G-58, G-59, G-60. ' Based upon the growing evidence of widespread prorate cheating throughout the industry, in 1992 the USDA initiated “Operation Fair Enforcement,” in conjunction with the U.S. Attorney’s Office and the Office of the Inspector General. Clayton, at 52. The AMS paid the salary of a Special Assistant United States Attorney who instituted numerous AMAA forfeiture actions against defendant packinghouses and others for alleged prorate violations. The USDA concluded during 1992 and 1993, that the industry-wide cheating was indicative of dissatisfaction with and divisiveness over the marketing orders. There was a particularly strong difference of opinion over the need for prorate restrictions. Clayton, at 58. In December of 1992 Secretary Madigan informed the citrus industry that he would not entertain prorate recommendations from the commodity committees for the remainder of the season. Clayton, at 56. Sunkist, the strongest proponent of prorate, filed suit in U.S. District Court in Washington D.C. challenging the Secretary’s decision. The Secretary’s decision was judicially affirmed. In June of 1993 the USDA announced suspension of prorate and invited the industry to propose amendments to the California-Arizona citrus marketing orders. In response to the USDA’s call for amendments the commodity committees held industry meetings to determine whether there was consensus for an amended order. Several proposed amendments were submitted, but considerable division in the industry existed over whether prorate should be retained and whether a generic advertising program should be implemented. Clayton, at 61. A significant segment of the industry expressed an interest in amending the orders. Notes of NOAC and VOAC meetings show navel and valencia advisory committees made substantial efforts to build consensus around amendments to the citrus marketing orders. Exs. G-49 to G-55. In December of 1993, the NOAC and VOAC sent a joint letter to the USDA requesting assistance with the amendatory process. Ex. G-69. USDA policy makers were informed by staff who attended the industry committee meetings that the litigation pending in the industry was impeding the amendatory process. Clayton, at 135. The government in June 1993 proposed a global settlement package to all industry members sued for or suspected of prorate violations, whether under the AMAA or the FCA. The DOJ’s trial counsel attempted to negotiate settlements in all pending AMAA and FCA cases. USDA officials concluded that counteroffers proposed by some defendants were too low. Clayton, at 156. By February of 1994, USDA officials believed the settlement process was moving very slowly and that the likelihood of settlement was remote. The USDA viewed Sunkist as culpable and that it should participate in any settlement. Rominger, at 196-97. However, Sunkist denied liability and adopted a stonewall position refusing to consider settlement. After the April 1994 Sunny Cove decision invalidating orders 907 and 908, USDA officials doubted they could address the 1984 tendency finding without speculating as to the reasons for Secretary Block’s decision or without considering the subsequent industry division and turmoil over the orders. Clayton, at 77-78; Rominger, at 199-200. They worried any attempt to reestablish the 1984 tendency finding would only spawn more litigation. Rominger, at 200. The USDA concluded it could not continue to prosecute the AMAA orange forfeiture cases without curative rulemaking. USDA rejected amending the AMAA cases to state FCA claims in deference to the DOJ’s belief FCA claims could not be stated as a matter of law. After the Sunny Cove decision, defendants were unwilling to offer settlements. USDA officials reevaluated their citrus industry policies after Sunny Cove. Based upon failure to settle the AMAA enforcement and FCA litigation, futile attempts to achieve consensus for an amended order, and the prospect of either dismissing the AMAA cases or facing more litigation after Sunny Cove, USDA decided it was no longer in the interest of the citrus industry to pursue AMAA enforcement actions. The Secretary concluded that the best way to advance the interests of the industry was to “clean the slate.” This meant terminating the citrus marketing orders, dismissing the pending AMAA cases, and withdrawing from the FCA cases. USDA officials wanted to “wipe the slate clean” to the maximum extent-possible. Clayton, at 82. However, USDA believed it lacked authority to dismiss the FCA cases and only sought to withdraw from the FCA cases. Clayton, at 82; Rominger, at 238; Golden, at 644-45. The USDA’s primary motivation was to end the divisiveness and lawlessness it perceived within the industry and to foster the development of new marketing orders. However, USDA officials considered several other factors, including the detrimental economic impact on the industry of the cost of defending against enforcement litigation and the potentially destructive effect of liability faced by defendants in the FCA litigation. Deputy Secretary Rominger was informed by staff that potential FCA liability could bankrupt some packinghouses. Rominger, at 203. No analysis of the packinghouses’ litigation expenses and financial exposure based on defendants’ financial capacity was performed. Id.; Clayton, at 170-71. The harmful financial impact of the litigation on the industry, though not a “determining factor,” was a concern. Rominger, at 265. Several other reasons were considered: “the message that would be sent to other industries with marketing orders;” Clayton, at 86; Rominger, at 202; the negative reaction of innocent handlers, who were harmed by prorate cheating, and of those handlers who cheated but previously settled with the USDA; Schnoor, at 104; Clayton, at 88; the USDA’s investment in the cases; Clayton, at 85; Rominger, at 203; and the importance of enforcement to the success of marketing orders. Clayton, at 92. These factors were of lesser importance compared to the goal of achieving industry cooperation. Clayton, at 92. Termination of the 1984 marketing orders did not affect the USDA’s pending AMAA ease against Sequoia, because those claims arose out of violations of orders in effect prior to 1984. However, consistent with global amnesty, USDA dismissed the case against Sequoia, although the government viewed Sequoia as the most culpable prorate cheater. Sunkist representatives met with Deputy Secretary Rominger the morning the USDA announced termination of the marketing orders and the AMAA cases. When told the government would not dismiss the FCA cases, Sunkist requested a second meeting with Deputy Secretary Rominger. At that meeting they told him they believed the USDA’s decision “was creating a gross injustice, unfairness in the extreme.” Hanlin, at 605:6-7. Mr. Rominger responded the USDA believed it did not have authority to dismiss the FCA cases. Hanlin, at 605. The Sunkist Board of Directors in correspondence to the USDA expressed them “outrage[ ]” over the government’s failure to dismiss the FCA cases. On May 20, 1994, Sunkist requested that its growers, packinghouses, and district exchanges call the USDA and their representatives in Congress to tell them of the unfairness of not dismissing the FCA cases. Quarles, at 682; Ex. R-110. So many phone calls were placed to the USDA that shortly after making the request Sunkist sent a second letter asking its members to stop calling the USDA because “they got the message.” See id. Numerous letters were also sent to the members of Congress by Sunkist growers and packinghouses. Ex. R-111. Sunkist’s counsel in Washington D.C. wrote to the USDA to inform it of 31 U.S.C. § 3730(c)(2)(A), which Sunkist believed gave the government statutory authority to dismiss the FCA cases. Ex. R-95. Counsel for the packinghouse defendants wrote letters to members of Congress stating that the failure to dismiss the FCA cases created unfairness and threatened to destroy Sunkist and other defendants. These letters requested assistance in obtaining dismissal of the FCA cases pursuant to § 3730(c)(2)(A). See Exs. R-91, R-96, R-101. The extent of defendants’ access to members of Congress is in part reflected by the adoption by members of Congress of a letter to the USDA, the substance of which was drafted by attorneys for the defendants. Ex. R-158. In late May and early June, Mr. Quarles, Sunkist vice president for corporate relations, met with members of Congress and their staff to express his views on the USDA’s decision to allow the FCA cases to go forward. Quarles, at 680-82. He also informed them of defendants’ view that statutory authority permitted government dismissal of FCA claims. Several members of Congress contacted the USDA to inquire about the status of the FCA cases and to recommend that the USDA request the DOJ to dismiss the FCA cases. Rominger, at 208-09. On May 20, 1994, the USDA requested that the DOJ consider dismissing the FCA eases. Rominger, at 210-11; Ex. G-24. The DOJ took the USDA’s request under advisement and asked the parties to the FCA cases for their views on dismissal. All parties, including the relators, who personally met with the DOJ, submitted legal briefs and argument. Sunkist and the packinghouse defendants continued to contact members of Congress, the USDA and the DOJ to gain support for dismissal. Several members of Congress contacted the Department of Justice to state their support for dismissal. Exs. G-26 (Senator DeConcini); G-27 (Representative Gallegly); G-28 (Senator Fein-stein). On June 22,1994, Assistant Attorney General Frank W. Hunger responded to each of these communications with a letter stating that the DOJ was “not in a position to respond at this time because this is a pending matter and no final decision has been reached.” Exs. G-34 to G-36. In August of 1994 the DOJ, as lawyer for the United States, 28 U.S.C. §§ 516 et seq., following its independent analysis, moved to dismiss all pending FCA cases. At the hearing, the packinghouse defendants presented expert testimony concerning the financial impact of potential FCA damage awards on twelve packinghouses. Their first expert, Dr. Sexton, testified that the average FCA penalty in these cases could be as high as $14,157,000, excluding attorneys’ fees. Dr. Sexton was provided with anonymous summary financial information for 12 defendant packinghouses. In his opinion, none of these packinghouses had sufficient liquid assets and net equity to withstand a judgment of the magnitude sought by relators. Sexton, at 434:9-14. Only three of the twelve packinghouses could afford a $3 million judgment. Sexton, at 433. Dr. Sexton opined that any judgment that significantly exceeded the liquid assets of a packinghouse, requiring it to increase its long term debt, would force the packinghouse to increase the fees charged its growers. Consequently, such growers would switch to other packinghouses with less debt to avoid increased costs, putting the penalized packinghouses out of business. Sexton, at 436-38. Cooperative packinghouses are particularly susceptible to this cycle of disintegration. Sexton, at 439. The packinghouse defendants’ second expert, Dr. Carman, described the indirect economic effects a large penalty would have on the counties in which packinghouses operate. Dr. Carman based his analysis on “multipliers” that estimate the effect of increasing or decreasing spending in a particular county on employment, value added, and personal income. This “input-output” model estimates the effects of diffuse economic activity, such as the imposition of a new tax on a community. Carman, at 496-97. Dr. Carman offered his opinion that a one million dollar judgment would cause the loss of 14-17 jobs in the county of the particular packinghouse. He also estimated that such a judgment would reduce personal income in the community by $428,000 to $606,800. Carman, at 489-90. However, Dr. Carman testified he was unaware of any published or reported instance in which this economic model has been used to estimate the secondary effects on an entire community from a judgment against a particular business. Carman, at 497. Relators’ evidence established that fractious views are held by independent growers and packinghouses on the subjects of marketing orders and prorate. Relators and independent handlers and growers who support them are estimated to represent fifteen percent (15%) of the industry. They continue to hold contentious and hostile views toward Sunkist and its members. Roth, at 552:11-13; Elliott, at 401-02; see also Han-lin, at 629:14-21. Relators’ proof raises serious doubt about the premise that dismissal of the FCA cases will bring “peace” to the citrus industry. Several of relators’ witnesses stated dismissal of the FCA eases would inhibit the industry from reaching eon-sensus for a new marketing order and will only exacerbate divisiveness in the industry. II. THE MERITS A. Standard of Review. The government initially maintained its decision to dismiss FCA cases is unreviewable, as an exercise of its prosecutorial discretion. The court rejected this argument and required proof to show dismissal is rationally related to a legitimate government interest and not arbitrary and capricious, fraudulent, or illegal. All parties have submitted authority on alternative standards of review of dismissal: absolute prosecutorial discretion, rational relation, and Rule 41(a) prejudice. A two part analysis applies to identify the standard of review: (1) What did Congress intend to be the standard of review for dismissals under § 3730(c)(2)(A)?; (2) Does that standard violate separation of powers by improper vesting of executive authority in the judiciary or the relator? 1. Unreviewable Prosecutorial Discretion The government exercise of prosecutorial discretion to dismiss in criminal cases is governed by Fed.R.Crim.P. 48, and in civil eases by Fed.R.Civ.P. 41. The criminal rule contains no express standard for judicial review. The civil rule vests the court with discretion to determine proper terms and conditions if the government seeks to dismiss a case after the defendant has answered or filed a motion to dismiss. Fed.R.Civ.P. 41(a). Voluntary dismissal of a FCA case is authorized by the express provision of § 3730(e)(2)(A) under a unique statutory scheme, which does not refer to the Federal Rules of Civil Procedure. Where two statutes are inconsistent, generally, the more specific statute prevails. Hellon & Assocs., Inc. v. Phoenix Resort Corp., 958 F.2d 295, 297 (9th Cir.1992). This case is governed by the specific FCA dismissal authority, § 3730(c)(2)(A). Congress is presumed to be knowledgeable of existing law pertinent to legislation it enacts. Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85, 108 S.Ct. 1704, 1711-12, 100 L.Ed.2d 158 (1988). It could have incorporated by reference the standards of Fed.R.Civ.P. 41(a) if it so intended, but did not. See Hellon & Assocs., 958 F.2d at 298. In their post-hearing brief the packinghouse defendants argue that on its face § 3730(c)(2)(A) gives the executive the discretion to dismiss FCA cases for any reason (or no reason at all) so long as dismissal is not based upon constitutionally impermissible considerations such as race, religion, or exercise of Firsb-Amendment rights. The statute provides no express standard of review for dismissal. The most that can be determined from the face of the statute is that Congress intended to provide the relator an opportunity to object to dismissal of a FCA case and to be heard by the court. That the statute requires a judicial hearing directly implies the decision to dismiss under § 3730(c)(2)(A) is reviewable by the court. The defendants claim the statute is susceptible of only one interpretation is belied by the legal interpretation the USDA gave the dismissal section prior to filing these motions. John Golden, Associate General Counsel to the USDA, testified that prior to May 16, 1994, “the Department was of the view that some independent legal basis had to be adduced in order to seek dismissal of these cases and that [§ 3730](c)(2)(A) provided an opportunity for the government to seek to dismiss the cases if there was some other independent legal basis to do so.” Golden, at 647:15-19. The USDA paper entitled “Overview of False Claims Act Issues” stated, “the government does not have authority to dismiss the qui tam cases unilaterally.” Ex. G-1. Although statutory interpretations by the agency for whose benefit the ease was prosecuted are not binding on the government in this motion, they undercut the defendants’ argument that the only plausible interpretation of § 3730(c)(2)(A) is to give the government unreviewable discretion. Because the statutory language of the dismissal section is ambiguous it is appropriate to consider legislative history. See, e.g., Funbus Systems, Inc. v. California Pub. Utils. Comm’n, 801 F.2d 1120, 1125-26 (9th Cir.1986). The legislative history of § 8730(c)(2)(A) and the 1986 amendments to the FCA provide insight to Congressional concern about the government’s lack of resolve or willingness to prosecute FCA eases. See also U.S. ex rel. Schumer v. Hughes Aircraft Company, 63 F.3d 1512, 1519 (9th Cir.1994); Senate Judiciary Committee, False Claims Amendments Act of 1986, S.Rep. No. 345, 99th Cong., 2d Sess. 25-26 (1986), reprinted in, 1986 U.S.C.C.A.N. 5266, 5291. The Senate Report states that the relator’s right to object to dismissal is intended to serve, “as a check that the Government does not neglect evidence, cause undue delay, or drop the false claims cases without legitimate reasons.” Id. (emphasis added). The report articulates that an evi-dentiary hearing is appropriate “if the relator presents a colorable claim that the settlement or dismissal is unreasonable in light of existing evidence, that the Government has not fully investigated the allegations, or that the Government’s decision was based on arbitrary or improper considerations.” Id. Congressional concern about the government’s improper dismissal of FCA eases was addressed by a hearing requirement and reference to a legitimate reason for dismissal. All of this directly contravenes an unreviewable discretion standard. Defendants implicitly suggest that Congress violated the constitutional principle of separation of powers by providing for judicial intervention to review the exercise of prosecutorial discretion in dismissal of an FCA case. The government argues that judicial review of prosecutorial discretion is limited to a determination of whether the government’s conduct infringes constitutional guarantees, such as equal protection or First Amendment freedoms. The government and defendants are correct, the separation of powers doctrine places significant limits on the judiciary’s power to review prosecutorial decisions, see United States v. Microsoft, 56 F.3d 1448, 1457-62 (D.C.Cir.1995), as does the language of the dismissal statute. Congress could have, but did not, provide a “fair, adequate and reasonable” review standard as it did in the FCA settlement approval section. § 3730(c)(2)(B). The court does not substitute its judgment for that of the executive on matters of policy, just as the court does not “sit as a ‘superlegislature to weigh the wisdom of legislation.’ ” Ferguson v. Skrupa, 372 U.S. 726, 731, 83 S.Ct. 1028, 1032, 10 L.Ed.2d 93 (1963) (quoting Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423, 72 S.Ct. 405, 407, 96 L.Ed. 469 (1952)). However, the constitutional separation of powers does not require that the government’s exercise of prosecutorial discretion to dismiss a FCA case remain completely insulated from judicial review. See United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 757 (9th Cir.1993); cf. Microsoft, 56 F.3d at 1462 (“the district judge is not obligated to accept a [consent decree] that, on its face and even after government explanation, appears to make a mockery of judicial power”). In Boeing the Ninth Circuit addressed several constitutional challenges to the FCA including, inter alia, that the provisions limiting government intervention in and dismissal of FCA cases improperly vest the judiciary with executive authority. Boeing, 9 F.3d at 755-57. The court recognized these provisions “may affect the government’s prosecu-torial discretion to some degree,” but concluded: “the FCA does not authorize the judiciary to infringe on prosecutorial discretion beyond the bounds established” by the Supreme Court in Morrison v. Olson, 487 U.S. 654, 691-93, 108 S.Ct. 2597, 2619-20, 101 L.Ed.2d 569 (1988). Id. at 757. Morrison upheld the provisions of the Ethics in Government Act of 1978, 28 U.S.C. §§ 49, 591 et seq., which allow for the appointment of an “independent counsel” to investigate and prosecute government officials for violations of federal criminal laws. The Act was attacked because it required the Attorney General to show “good cause” to remove an independent counsel. The Court found this provision constitutional: We see no constitutional problem in the fact that the Act provides for judicial review of the removal decision. § 596(a)(3). The purpose of such review is to ensure that an independent counsel is removed only in accordance with the will of Congress as expressed in the Act. The possibility of judicial review does not inject the Judicial Branch into the removal decision, nor does it, by itself, put any additional burden on the President’s exercise of executive authority. Morrison, 487 U.S. at 693 n. 33, 108 S.Ct. at 2620 n. 33 (emphasis added). Morrison’s analysis is applicable here. Congress provided for judicial review of FCA dismissal motions to ensure that the executive enforces the FCA in accordance with the intent of Congress. Congress intended that FCA claims be dismissed for legitimate government purposes, and not as a result of fraud, illegality, or lack of political will. S.Rep. No. 345, 99th Cong., 2d Sess. 25-26 (1986), reprinted in, 1986 U.S.C.C.A.N. 5266, 5291. Judicial review does not inject the court into the executive’s decision to dismiss. Nor does it place an additional burden on the executive’s exercise of prosecutorial discretion, because the constitution itself prohibits arbitrary or irrational prosecutorial decisions. United States v. Redondo-Lemos, 955 F.2d 1296, 1299-1300 (9th Cir.1992). Although courts are reluctant to scrutinize prosecutorial charging decisions, which involve many practical considerations outside the purview of judicial review, review of a decision to dismiss an FCA case is limited to determining whether the government has a legitimate government interest that will be achieved by dismissal, which is not arbitrary or otherwise illegal. Historically courts have made such determinations of the lawfulness of executive function under a rational-basis standard. See Reno v. Flores, 507 U.S. 292, 301-06, 113 S.Ct. 1439, 1447-49, 123 L.Ed.2d 1 (1993) (applying rational basis review to substantive due process claim involving non-fundamental rights). The standard of review is deferential to preserve the traditional authority of the executive branch to make policy choices about the litigation it pursues. The court’s limited review of the motion to dismiss does not permit the court “to infringe on prosecutorial authority to a degree beyond the bounds established by Morrison” and therefore does not violate the separation of powers. Boeing, 9 F.3d at 757. 2. Rational Relation Standard For FCA Dismissal The motion to dismiss is based not only on the USDA’s decision, but also the independent judgment of its litigation counsel, the DOJ. Although under the APA the court determines whether agency action is arbitrary or capricious by examining: whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment ... Athough this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. Citizens to Presene Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971); such an analysis does not directly apply to an agency’s decision to institute, prosecute, and dismiss litigation. This is not APA review of agency action under 7 U.S.C. § 608c(15)(B), rather the motion tests the United States’ decision to terminate FCA litigation, implemented by the DOJ. The parties have argued, assumedly by analogy to the APA, that an agency decision is arbitrary if the agency “has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Hawaii Helicopter Operators Ass’n v. F.A.A., 51 F.3d 212, 214-15, (9th Cir.1995). However, if the agency examines the relevant facts and reaches a conclusion that is rationally supported by the facts then its decision is not arbitrary, Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443. (1983), even if the decision is a “stupid” one, Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th Cir.) (Under APA review, “[s]o long as it explains its reasons, [an agency] may adopt a rule that all commentators think is stupid or unnecessary.”), cert. denied, 506 U.S. 999, 113 S.Ct. 598, 121 L.Ed.2d 535 (1992). The extent of factual support required is “enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn is one of fact for the jury.” United States v. Sunny Cove Citrus Ass’n, 854 F.Supp. at 673 (quoting Association of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of the Fed.Res.Sys., 745 F.2d 677, 683 (D.C.Cir.1984)). Dismissal of litigation by the executive branch is governed by different rules. If dismissal serves a legitimate government purpose it is in the interests of justice, a ground long recognized in criminal law as supporting government dismissal of a case, except where the prosecutor’s actions indicate a betrayal of the public interest. United States v. Gonzalez, 58 F.3d 459, 461-62 (9th Cir.1995). In analogous situations, courts have applied the “rational relationship” test to determine whether legislation is constitutional or executive action violates substantive due process. See Lockary v. Kayfetz, 917 F.2d 1150, 1155 (9th Cir.1990); Jackson Water Works, Inc. v. Public Utilities Comm’n, 793 F.2d 1090, 1094 (9th Cir.1986), cert. denied, 479 U.S. 1102, 107 S.Ct. 1334, 94 L.Ed.2d 184 (1987). “Application of the rational basis standard requires a two-step analysis.” Jackson Water Works, 793 F.2d at 1094. First, the court must determine whether the challenged action has a legitimate purpose. Id. Second, there must be a'reasonable fit between the governmental purpose and the agency action. Reno v. Flores, 507 U.S. 292, 303-05, 113 S.Ct. 1439, 1448-49, 123 L.Ed.2d 1 (1993). There need not be a “tight fitting relationship” between the two; it is enough that there are “plausible,” or “arguable,” reasons supporting the agency decision. See Jackson Water Works, 793 F.2d at 1094. The action need not be the best choice among competing alternatives, but merely a rational choice. See Vermouth v. Corrothers, 827 F.2d 599, 603 (9th Cir.1987). A two step analysis applies here to test the justification for dismissal: (1) identification of a valid government purpose; and (2) a rational relation between dismissal and accomplishment of the purpose. B. The Government’s Reasons For Dismissal. In support of the motion Deputy Secretary Rominger submitted a declaration that in paragraph 11, stated: The USDA based its decision on a desire to end divisiveness over the marketing orders, to terminate protracted and burdensome litigation, to protect the United States’ taxpayers from continuing and escalating litigation expenses, to curtail the drain on private resources resulting from the litigation, and to allow the growers, agricultural cooperatives, handlers and others to work together in shaping new marketing tools. Rominger dec. ¶ 11. 1. Peace In The Industry. The first .interest identified, under the AMAA of 1937 and of 1947, is “a desire to end divisiveness over the marketing orders.” The relators counter: neither Act is a legislative mandate that the USDA encourage cooperation in industries not regulated by marketing orders, and dismissal of these cases will not bring industry peace. The AMAA seeks to achieve orderly market conditions and stabilize supplies and prices of agricultural commodities for the benefit of farmers and consumers. The principal mechanism to achieve these goals is the marketing order. The success of marketing orders depends upon industry support for and compliance with the regulations. Clayton, at 199:1-13. In the words of the Supreme Court, the AMAA “contemplates a cooperative venture among the Secretary, handlers, and producers.” Block v. Community Nutr. Inst., 467 U.S. 340, 346, 104 S.Ct. 2450, 2454, 81 L.Ed.2d 270 (1984). There is no requirement that any agricultural industry have a marketing order. Nonetheless, cooperation among industry participants is a purpose of the Act. The AMAA does not specify that the Secretary must achieve cooperation, consensus, or peace in industries that do not have active marketing orders. The AMAA does not oblige the Secretary to mediate disputes in industries that have not chosen regulation, nor to make peace among competitors who do not wish to cooperate with each other. The government’s interest is limited to facilitating cooperation and enforcing compliance with existing marketing orders so that the benefits of orderly marketing processes, stable markets, and higher prices, which the super-majority of the industry seek to achieve, are not thwarted by a minority of industry members who oppose regulation. The government also argues that the Agricultural Marketing Act (AMA) of 1946, 7 U.S.C. § 1621, et seq., creates an interest in eliminating divisiveness in the industry. The AMA was enacted to improve marketing of agricultural products by encouraging: (1) continuous research to improve the marketing, handling, storage, processing, transportation, and distribution of agricultural products; (2) cooperation among Federal and State agencies, producers, industry organizations, and others in the development and effectuation of research and marketing programs to improve the distribution processes; (3) an integrated administration of all laws enacted by Congress to aid the distribution of agricultural products .... 7 U.S.C. § 1621. Despite the AMA’s reference to “cooperation”, the Act does not direct the Secretary to achieve industry cooperation in the abstract. Rather, the statute directs the USDA to cooperate with other government agencies, industry participants and others in development of research and marketing programs to improve the distribution processes. No evidence was presented that the existence or nonexistence of the terminated marketing orders, prorate, or the existence of dissension or a lack of cooperation has had any deleterious effect on marketing programs, distribution processes, prices, handling, storage, processing, or transportation of fruit in the Califomia-Arizona citrus industry. Ending divisiveness among industry participants to achieve peace is not a stated AMA goal. No witness identified any stated policy of the AMA of 1946, 7 U.S.C. § 1621, et seq., as a ground for dismissal. The evidence proved that dissension and a lack of cooperation in the citrus industry were caused by the adverse economic effects of the disputed marketing orders, particularly prorate. Rominger, at 202. The Secretary believed industry divisiveness was frustrating the purposes of the AMAA, Clayton, at 59, that there was a need to restore stability and cooperation to permit operation of a marketing order, which was needed to protect orderly markets in times of unusual weather or other adverse conditions. Rom-inger, at 219-220; Clayton, at 59. The goal of achieving industry cooperation to permit the development of new marketing methods and to stabilize markets are legitimate concerns of the USDA, which may be incidentally advanced by dismissal of these cases. The evidence did not establish that dismissal of these eases will necessarily bring “peace” to the industry. To the contrary, adoption by dominant industry members of unfair regulations under the bloc voting provisions of the AMAA guarantee perpetuation of divisiveness and lack of cooperation. Industry cooperation to improve distribution processes, industry market stability, and increased prices are valid interests. That dismissal to achieve a “clean slate” may not achieve industry cooperation or peace does not prevent a finding that dismissal is reasonably related to achievement of these interests under the AMAA. 2. Facilitating A New Marketing Order. A second alleged interest is achieving industry consensus for new citrus marketing orders. The relators argue the USDA has no authority to affirmatively build support for a new marketing order in industries that have not reached consensus favoring an order. The government concedes the AMAA does not require the USDA to “take steps to institute new orders or to replace terminated orders with new ones.” (Gov’t brief, at 27:15-17). According to Dr. Clayton, “the way the 1937 Act works it is up to industry to approach the Department and seek authorization to use the tools available through Marketing Orders.” Clayton, at 110:10-12. There are active marketing orders in less than half the fruit and vegetable industries authorized to establish marketing orders. Clayton, at 107. The USDA has not sought to achieve consensus around a marketing order in those unregulated industries. Clayton, at 107-10. Although AMAA regulations authorize the USDA to propose marketing orders, 7 C.F.R. § 900.3, the USDA generally waits for industry participants to propose an order. It cannot impose orders that are not supported by the industry. The government suggests it has greater responsibility to perpetuate marketing orders in the citrus industry, based on forty years of regulation under orders 907, 908, and 910. Dr. Clayton characterized the USDA as a “partner” with the industry that had “some ownership” of the lack of consensus for a new marketing order. Clayton, at 110-11. However, the USDA has made no efforts to establish new orders in approximately ten other industries in which AMAA marketing orders were terminated in recent years. Clayton, at 111. Termination of the citrus orders was said to be unique, because unlike the other industries, in which there was consensus marketing orders were not needed, many members of the citrus industry indicated support for a new marketing order. The USDA terminated the citrus marketing orders to send a message to the citrus industry and others that widespread intentional violations of a marketing order will result in the order’s termination. Rom-inger, at 202:8-19. NOAC and VOAC reports show considerable efforts toward amending the orders that bogged down over concerns about this litigation. These committees went so far as to request the USDA’s help in developing new marketing orders. Ex. G-69. Athough there was no consensus, many different segments of the industry preferred amending the existing orders or creating a new marketing order to having no orders. For example, Growers for Modern Marketing, a group opposed to prorate, stated that it believed “a new marketing order is essential.” Ex. G-57, at 5; see also R-225, R-250. The USDA also referenced the 1991 referendum to continue the orders. Rominger, at 272-73. Under USDA regulations the Secretary-can propose- a marketing order for listed commodities. 7 C.F.R. § 900.3. However, neither the AMAA nor the regulations specifically address whether the USDA may take actions to encourage an industry to approve a marketing order, once an order is proposed. The USDA interprets its mandate under the AMAA to include facilitating the approval of marketing orders in industries that support the adoption of an order. When industry members propose an order, the USDA provides information and assistance. Golden, at 639:7-14. USDA officials work to foster the development of marketing orders when they believe an order will promote the policies of the AMAA. The government argues that encouraging consensus for a new beneficial marketing order is a legitimate interest under the USDA. The government claims this interpretation of the AMAA is entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-46, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984): When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress had directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the abse