Barlow v. Collins, No. 24886.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtDYER, Circuit
Citation398 F.2d 398
Docket NumberNo. 24886.
Decision Date16 July 1968
PartiesClemon 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.

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...

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8 practice notes
  • Saxon v. Georgia Ass'n of Independent Ins. Agents, Inc., No. 25050
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 28, 1968
    ...(1958 ed.); Wright, Federal Courts § 13 at 38 (1963 ed.), and seems to have passed out of vogue. But see Barlow v. Collins, 5th Cir. 1968, 398 F.2d 398 July 16,...
  • Association of Data Processing Service Organizations, Inc v. Camp Barlow v. Collins, Nos. 85
    • United States
    • United States Supreme Court
    • March 3, 1970
    ...invades any legally protected interest of the plaintiffs.' The Court of Appeals for the Fifth Circuit affirmed, one judge dissenting. 398 F.2d 398. It held that petitioners lacked standing not only because they alleged Page 164 no invasion of a legally protected interest but also because pe......
  • Eastex Aviation, Inc. v. Sperry & Hutchinson Co., No. 74-1235
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 14, 1975
    ...had violated the antitrust laws," suggested that its "conduct (was) so wrongful that it should not enjoy the fruits of its misconduct." 398 F.2d at 398. Rejecting the contention, we declined to employ Schwinn in this tangential manner to erode the FPC's well-supported findings that the tari......
  • Cox v. Cason, No. 46681
    • United States
    • United States State Supreme Court of Kansas
    • April 7, 1973
    ...wheat marketing certificates for rent, but assignment of other government farm payments for rent has been litigated. (Barlow v. Collins, 398 F.2d 398 (5 Cir. 1968), 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192; Caulfield v. U. S. Department of Agriculture, supra.) The public policy sought to ......
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8 cases
  • Saxon v. Georgia Ass'n of Independent Ins. Agents, Inc., No. 25050
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 28, 1968
    ...(1958 ed.); Wright, Federal Courts § 13 at 38 (1963 ed.), and seems to have passed out of vogue. But see Barlow v. Collins, 5th Cir. 1968, 398 F.2d 398 July 16,...
  • Association of Data Processing Service Organizations, Inc v. Camp Barlow v. Collins, Nos. 85
    • United States
    • United States Supreme Court
    • March 3, 1970
    ...invades any legally protected interest of the plaintiffs.' The Court of Appeals for the Fifth Circuit affirmed, one judge dissenting. 398 F.2d 398. It held that petitioners lacked standing not only because they alleged Page 164 no invasion of a legally protected interest but also because pe......
  • Eastex Aviation, Inc. v. Sperry & Hutchinson Co., No. 74-1235
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 14, 1975
    ...had violated the antitrust laws," suggested that its "conduct (was) so wrongful that it should not enjoy the fruits of its misconduct." 398 F.2d at 398. Rejecting the contention, we declined to employ Schwinn in this tangential manner to erode the FPC's well-supported findings that the tari......
  • Cox v. Cason, No. 46681
    • United States
    • United States State Supreme Court of Kansas
    • April 7, 1973
    ...wheat marketing certificates for rent, but assignment of other government farm payments for rent has been litigated. (Barlow v. Collins, 398 F.2d 398 (5 Cir. 1968), 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192; Caulfield v. U. S. Department of Agriculture, supra.) The public policy sought to ......
  • Request a trial to view additional results

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