Barlow v. Collins

• Decision Date: 16 July 1968
• Docket Number: No. 24886.,24886.
• Citation: 398 F.2d 398
• Parties: Clemon BARLOW et al., Appellants,v.B. L. COLLINS, State Executive Director of the AlabamaAgricultural Stabilization and Conservation Service; HoraceGodfrey, Administrator of the Agricultural Stabilization andConservation Service of the United States Department ofAgriculture; and Orville L. Freeman, Secretary of the UnitedStates Department of Agriculture, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

398 F.2d 398

Clemon BARLOW et al., Appellants, v.B. L. COLLINS, State Executive Director of the AlabamaAgricultural Stabilization and Conservation Service; HoraceGodfrey, Administrator of the Agricultural Stabilization andConservation Service of the United States Department ofAgriculture; and Orville L. Freeman, Secretary of the UnitedStates Department of Agriculture, Appellees.

No. 24886.

United States Court of Appeals Fifth Circuit.

July 16, 1968.

Alvin J. Bronstein, Jackson, Miss., Donald A. Jelinek, Selma, Ala., Armeand Derfner, Jackson, Miss., Howard Thorkelson, George Cooper, New York City, Charles S. Conley, Montgomery, Ala., Richard B. Sobol, New Orleans, La., of counsel, for appellants.

W. McLean Pitts, Selma, Ala., Alan S. Rosenthal, Norman Knopf, Washington, D.C., Ben Hardeman, Montgomery, Ala., Edwin L. Weisl, Jr., Asst. Atty. Gen., Ben Hardeman, U.S. Atty., Alan S. Rosenthal, Norman Knopf, Attys., Dept. of Justice, Washington, D.C., for appellees.

Before TUTTLE and DYER, Circuit Judges, and MEHRTENS, District Judge.

DYER, Circuit Judge:

Appellants, tenant farmers receiving benefits under the Food and Agriculture Act of 1965, 7 U.S.C.A. 1444, appeal from the District Court's decree granting the motion of defendant-appellees Collins, Godfrey and Freeman to dismiss appellant's complaint. The District Court held that appellants did not have standing to challenge an amendment to regulations issued by the Secretary of Agriculture defining permissible assignments by tenant farmers of land diversion payments made to them under the Act. We agree and affirm.

The assignment of diversion payments is governed by the provisions of 16 U.S.C.A. 590h(g). 7 U.S.C.A. 1444(d)(13). At the time the regulation in question was amended section 590h(g) provided, in pertinent part, that a farmer could assign his payments 'as security for cash or advances to finance making a crop.' From 1938 to 1966 the Secretary of Agriculture's policy and regulations excluded from the term 'making a crop' cash or commodity rent for a farm. 20 Fed.Reg. 6511 (1955). In February, 1966, the regulation was amended to allow a tenant to assign his payments to secure rent for his farm. 31 Fed.Reg. 2815 (Feb. 17, 1966). Appellants' complaint asserts that they 'are suffering irreparable injury' because, under the amended regulation, they 'were each year required (by their landlord) to execute a rent note as security for the cash rent of this land' and thus were deprived of the bargaining power the payment had given with various merchants and suppliers in previous years. They argue that the regulation in its present form violates the intent of Congress and constitutes illegal action by the Secretary.

In the case of REA v. Central La. Elec. Co., 5 Cir. 1966, 354 F.2d 859, cert. denied, 385 U.S. 815, 87 S.Ct. 34, 17 L.Ed.2d 54, this Court set forth specific criteria for determining whether appellants have standing to challenge an administrative regulation.¹ These criteria are based upon and designed to implement the basic premise of section 10(a) of the Administrative Procedure Act, 5 U.S.C.A. 702.² Thus, in the absence of an express or implied statutory grant of standing, mere economic harm to an appellant 'made possible by government action (even if allegedly illegal) does not give standing to sue to restrain such action.' REA v. Central La. Elec. Co., supra, 354 F.2d at 863, and authorities cited therein.

When the Fifth Amendment is invoked, as it is here, it must be determined whether appellants have established 'any legally protected property right, ' Id., i.e., any legal right to be restrained from assigning their diversion payments to their landlord. See Braude v. Wirtz, 9 Cir. 1965, 350 F.2d 702, 707; Pennsylvania RR. v. Dillon, 1964, 118 U.S.App.D.C. 257, 335 F.2d 292, 294, cert. denied sub nom., American-Hawaiian S.S. Co. v. Dillon, 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543. Appellants contend that they have such a right because the statute in question was enacted for their benefit. However, a policy of protecting a class of persons does not, without more, grant a legal right to those persons to enforce the policy. REA v. Northern States Power Co., 8 Cir. 1967, 373 F.2d 686, 695. Furthermore, 'allegation of a legally protected right is a constitutional predicate of standing to attack governmental action.' Pennsylvania R.R. v. Dillon, supra, 335 F.2d at 294. We have found no such allegation in appellants' complaint.

Here, as in REA v. Central La. Elec. Co., a long standing administrative policy has been reversed. However, there is nothing in this record to show a statute or contract between the government and appellants granting them a property right in being restrained from assigning their payments to their landlord. Appellants attempt to show that the statutory phrase 'making a crop' precludes assignment for land rent because it is a technical phrase meaning 'to prepare a crop for use or storage at the last stage of development.' Appellants' Brief, p. 24 (citing Oxford English Dictionary M-64 (1908)). We are unwilling to accept such technical niceties, especially in light of a recent amendment to the statute which added, after the phrase 'to finance making a crop' the words 'handling or marketing an agricultural commodity, or performing a conservation practice.' 16 U.S.C.A. 590h(g) (Supp.1967).³ The substance of the amendment clearly evinces a Congressional willingness to expand areas of permissible assignment. Furthermore, over the years the Secretary has amended the assignment regulation to allow assignment as security for such items as food and clothing for the tenant and his family when in the Secretary's expert judgment practical considerations have warranted such changes. Appellants challenge only the farm rental portion of the regulation and have failed to show any statutory or contractual right to challenge that provision of the regulation allowing them to assign for rent on the land upon which their crops are grown while taking advantage of the same regulation to assign for food, clothing, etc. to be used while that crop is growing.

Appellants' final argument, that by the adoption of 16 U.S.C.A. 590h(g) as part of the Food and Agriculture Act of 1965, Congress approved and adopted the administrative construction of that statute so that the regulation cannot now be changed by administrative action, is totally without merit. The regulation was amended in February, 1966. In November, 1966, some ten months later, Congress reconsidered and amended section 590(g). Thus, if any administrative construction of the statute could be said to have been approved by Congress, it would be the interpretation then in effect, i.e., that diversion payments may be assigned as security for farm rent.

The remaining criteria set forth in REA v. Central La. Elec. Co., supra, may be summarized as follows: Have appellants shown that the case presents more than mere economic harm made possible by government action; and, if not, that Congress expressly or impliedly in the Act gave them standing to challenge the Secretary's action, or that it gave the Courts jurisdiction to review that action? Without reiterating the facts developed above, appellants have shown only that their landlord has, under the amended regulation, demanded that they assign their diversion payments over to him as security for the rent of the farmland, and that this has deprived them of economic bargaining power. This is nothing more than an economic consequence permitted, but not required, by government action. Appellants have not shown us, nor have we found, any provision of the Food and Agriculture Act of 1965⁴ which either expressly or impliedly gives appellants standing to challenge this administrative regulation or gives the Courts authority to review such administrative action. To the contrary, the Act is replete with references to the Secretary's power to implement its...