ORDER ACCEPTING REPORT AND RECOMMENDATION
DENISE PAGE HOOD, District Judge.
This matter is before the Court
II. STANDARD OF REVIEW
"A final determination of the National Appeals Division shall be reviewable and enforceable by any United States district court of competent jurisdiction." 7 U.S.C. § 6999. "Judicial review of the USDA's final determination ... is governed by the Administrative Procedures Act." McElmurray v. U.S. Dept. of Agriculture, 535 F.Supp.2d 1318, 1324 (S.D. Ga. 2008). "An agency's decision, including its actions, findings, and conclusions, should not be overturned unless the decision is arbitrary, capricious, and an abuse of its discretion, or otherwise not in accordance with law or unless it is unsupported by substantial evidence." Id. "The reviewing court should not attempt itself to make up for such deficiencies " and "may not supply a reasoned basis for the agency's actions that the agency itself has not given." Motor Vehicles Mfrs. Assoc. v. State Farm Mutual Auto Ins. Co., 463 U.S. 29 (1983). "We will, however, uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Id. "Substantial evidence review gives the agency the benefit of the doubt, since it requires not the degree of evidence which satisfies the court that the requisite fact exist, but merely the degree which could satisfy a reasonable fact finder." Wilson Air Center, LLC v. F.A.A., 372 F.3d 807 (6
This court has had an opportunity to review this matter and finds that the Magistrate Judge reached the correct conclusion for the proper reasons. The Court agrees with the Magistrate Judge that the Director's failure to consider the Plaintiff's July 12, 2003 response before issuing his Review determination on July 21, 2003 constitutes a "clear procedural error" and a substantive one as well. As noted by the Magistrate Judge, the injustice suffered by the Plaintiff by the Director's failure to review Plaintiff's Response was not cured by the Deputy Director's review of the document. In coming to this conclusion that the Deputy Director's review could not and did not in fact "cure" the procedural error, the Court is in agreement with the Magistrates Judge's interpretation of the first paragraph of the "reconsideration" letter which states:
The Director's decision to reverse absent any review of Plaintiff's timely filed arguments against reversal was arbitrary and capricious. This Court agrees with the Magistrate Judge that the Director's Review unreasonably discounted the Hearing Officer's credibility determination. The Hearing Officer did not fail to apply the appropriate measure of weight to the Plaintiff's testimony and the evidence that were submitted by both parties in support of his decision. The Hearing Officer found that based on all the evidence before him the testimony of the Plaintiff and his employee was substantially corroborated by the extrinsic facts proffered by both parties.
For the reasons set forth above,
IT IS ORDERED that the Report and Recommendation of Magistrate R. Steven Whalen
IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment