Garvey v. Freeman, 9623

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtMURRAH, , HILL, Circuit , and CHRISTENSEN
Citation397 F.2d 600
PartiesJames S. GARVEY, Appellant, v. Orville L. FREEMAN, Secretary of Agriculture of the United States, W. Harold Tuttle, F. H. Hallock and Charles E. Buck, in their capacities as members of the Kiowa County, Colorado Agricultural Stabilization and Conservation Committee: Arthur Isgar, Charles Hanavan, Jr., and Dewey Carnahan, in their capacities as members of the Agricultural Stabilization and Conservation Committee of the State of Colorado, Appellees.
Docket Number9626.,No. 9623,9623
Decision Date28 June 1968



James L. White, Denver, Colo. (Dwight K. Shellman, Jr., William J. Carney, Jr., Denver, Colo., on brief) for appellant.

Robert V. Zener, Washington, D. C. (Edwin L. Weisl, Jr., New York City, Lawrence M. Henry, Denver, Colo., Alan S. Rosenthal, Washington, D. C., on brief) for appellees.

Before MURRAH, Chief Judge, HILL, Circuit Judge, and CHRISTENSEN, District Judge.

MURRAH, Chief Judge.

Garvey appeals from a summary judgment affirming an administrative determination of the normal per acre wheat yield for the 1965 crop year for five of his Colorado farms; such determinations formed the basis for the issuance of wheat marketing certificates upon which subsidies were paid under the 1964 voluntary wheat marketing certificate program. 78 Stat. 173, 178 amending the 1938 Agricultural Adjustment Act, 52 Stat. 31, 7 U.S.C. § 1281 et seq. The serious contention is that the applicable administrative procedures for the determinations were perverted by the departmental officials to deny Garvey the rudiments of a fair hearing on his right to participate ratably in the wheat marketing certificate program. He seeks judicial review of the administrative orders and an appropriate decree insuring due process.1

From the very outset the Government has challenged the jurisdiction of the court to review the administrative orders asserting that since the 1964 amendment did not expressly provide for judicial review and since factual determinations were made "final and conclusive" by applicable provisions of the basic act, judicial review is effectively precluded. The trial court was satisfied that by electing to participate in the voluntary program Garvey acquired the right to procedural due process of which the court could take judicial cognizance in accordance with the rule in Stark v. Wickard, 321 U.S. 288, 309, 64 S.Ct. 559, 88 L.Ed. 733, and that the departmental officials could not assert governmental immunity against a claim that they acted in excess of their authority to deprive Garvey of a fair hearing, citing Pan American Petroleum Corp. v. Pierson, 284 F.2d 649 (10 Cir.) Upon reviewing the record of the administrative proceedings and affidavits supporting the motion for summary judgment, the court was of the view that the administrative determinations of the critical normal farm yield were not arbitrary or capricious or the result of bias or prejudice; that Garvey had been accorded the fundamentals of due process; and that the orders were supported by the record. Summary judgment was entered. 263 F.Supp. 573, 579. We affirm.

The voluntary wheat certificate program involved here was enacted in 1964 after wheat farmers rejected the 1962 mandatory program, 76 Stat. 605, in a national referendum. The voluntary program required compliance only by those who elected to participate, whereas the antecedent mandatory program established certain "marketing quotas" for all farmers and penalties for failure to abide by them. Both programs were enacted by amendments to the Agricultural Adjustment Act of 1938, supra, which provides the statutory framework for various subsidy programs — both mandatory and non-mandatory.

With respect to wheat programs, the basic act provided that in determining the normal crop yield certain adjustments would be made to the average actual yield for the preceding five years. If data on actual yield was not available, the normal yield would then be determined by appraisal in accordance with the regulations of the Secretary of Agriculture, "taking into consideration abnormal weather conditions, trends in yields, the normal yield for the county, the yields obtained on adjacent farms during such year and the yield in years for which data are available." 7 U.S.C. § 1301 (b) (13) (E). The Secretary was required by statute to utilize the Community, County and State Committees elected by and from participants in the program.2 7 U.S.C. § 1388, 16 U.S. C. § 590h(b), and the implementing regulations necessarily required the County Committee to determine normal yields either by actual yield or appraisals. The regulations made no provision for a hearing on the initial determinations based on the Community Committee appraisals but did expressly provide for a reconsideration and informal hearing on any initial determination by the County Committee, 7 C.F.R. 780.3, and an appeal to and informal hearing by the State Committee, 7 C.F.R. 780.4 and by the Deputy Administrator — a departmental officer, 7 C.F.R. 780.5. The regulations also undertook to define the nature of the "informal hearing" which was to occur at all levels and provided for a "full opportunity to the aggrieved farmer to present relevant facts and evidence"; for the right of cross-examination of "persons other than those appearing in behalf of the farmer"; and for the preparation by the reviewing authority of a written record of the findings. 7 C.F.R. 780.8. The reviewing authority was authorized by the regulations to "develop additional evidence from other sources prior to making its determination". 7 C.F.R. 780.9. Final determinations of the Deputy Administrator were unappealable, i. e., appeal to the Deputy Administrator was the final step in the administrative hierarchy.

The original act provided that "The facts constituting the basis for any payment * * * when officially determined in conformity with the applicable regulations * * * shall be final." 7 U.S.C. § 1385. But, specific provision was made in the basic act for judicial review of administrative determinations of "marketing quotas", 7 U.S.C. §§ 1363, 1365-1368. It seems to be conceded, however, that the specific provision for review is inapplicable to the determination of "normal crop yield" involved here simply because the 1964 voluntary program was not concerned with mandatory marketing quotas, but rather with determinations of normal crop yield as the basis for the payment of subsidies.

The Secretary would have us hold that the absence of any provision for judicial review in the voluntary program, coupled with the finality provision of the basic law, indicate a congressional intent to preclude all judicial review of administrative determinations in cases like ours. Heavy reliance is placed on Caulfield v. U. S. Dept. of Agriculture, 293 F.2d 217 (5th Cir.), and Mario Mercado E Hijos v. Benson, 97 U.S.App.D.C. 298, 231 F.2d 251. We find no implication of congressional intent to preclude review in either the finality provision or the failure of Congress to carry forward the explicit provision for judicial review applicable to the mandatory programs.

Courts show "great deference to the interpretation given a statute by the officers or agency charged with its administration." Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L. Ed.2d 616; Gardner v. Brian, 369 F.2d 443 (10 Cir.). But failure to expressly provide for judicial review of administrative determinations raises no presumption that none was intended or authorized. "When Congress passes an Act empowering administrative agencies to carry on governmental activities, the power of those agencies is circumscribed by the authority granted. * * * The responsibility of determining the limits of statutory grants of authority in such instances is a judicial function entrusted to the courts by Congress by the statutes establishing courts and marking their jurisdiction." Stark v. Wickard, supra, 321 U.S. 309, 310, 64 S.Ct. 571. Surely the Secretary does not mean to contend that Congress intended to preclude judicial review of this claim of denial of procedural due process upon which the agency action was made to rest. And, if Judge Brown, speaking for the majority in Caulfield, supra, means to say that the failure of Congress to specify the right of judicial review frees administrative action of any judicial scrutiny for the claimed denial of due process of law, we must disagree with the majority for reasons stated by Judge Wisdom in dissent: "No legislative language can deprive a man of a fair hearing in the adjudication of his rights, or of his right to have a court decide whether the administrative agency acted within its jurisdiction; and, whether the agency through a lay tribunal applied the correct rule of law to the facts." Id. at 228. And see comment in footnote 22, Id., citing Jaffe, The Right to Judicial Review, 71 Harv.L.Rev. 401 (1958).

It must be obvious that the so-called finality provision making findings of fact "final and conclusive when made in conformity with the regulations" does not preclude judicial review of the question whether the findings of fact were in conformity with the regulations. This is a question of law reviewable under the Administrative Procedure Act, 5 U.S.C. § 704. Aycock-Lindsey Corp. v. United States, 171 F.2d 518 (5 Cir.), where only the finality of findings of fact was involved, is not contra. Nor is United States v. Kopf, 379 F.2d 8, which involved finality of payments made by the Secretary based on determinations of average per acre yield. The Eighth Circuit held that these payments and the supportive determinations were final under 7 U.S.C. § 1385, and that the Secretary was not authorized in these circumstances to alter or set aside these payments once made.

The regulations providing the procedural hierarchy for hearings and appeals were undoubtedly designed to insure due process in the...

To continue reading

Request your trial
39 cases
  • Century Arms, Inc. v. Kennedy
    • United States
    • U.S. District Court — District of Vermont
    • 26 Febrero 1971 St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 77, 56 S.Ct. 720, 80 L.Ed. 1033 (1936); Murrah, C. J. in Garvey v. Freeman, 397 F.2d 600, 612 (10th Cir. 1968).9 When Congress, as here has, as repeatedly pointed out above, made reasonable findings of fact and embodied them in a ......
  • Fitzgerald v. Hampton
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 15 Septiembre 1972
    ...(1965). 42 Id. at 293, 85 S.Ct. at 1469. 43 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938). 44 Id. at 14-15, 58 S.Ct. at 775. 45 397 F.2d 600 (10th Cir. 1968). 46 Id. at 612. 47 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960). 48 Id. at 442, 80 S.Ct. at 1514. 49 Id. 50 363 U.S. at 451, 8......
  • Olenhouse v. Commodity Credit Corp., 93-3012
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 20 Diciembre 1994
    ...Act of 1938 and later amended by the Food Security Act of 1985, Pub.L. 99-198, Secs. 1711, 1712 (1985)); see Garvey v. Freeman, 397 F.2d 600, 604 n. 2 (10th Cir.1968). Three levels of authority exist under the ASCS committee structure. See generally, 16 U.S.C. Sec. 590h(b) (fifth undesignat......
  • Thomas v. County Office Committee of Cameron County
    • United States
    • U.S. District Court — Southern District of Texas
    • 30 Abril 1971
    ...its revised decision in any manner it desires which is consistent with due process. Cf.: Crolley v. Tatton, supra; and Garvey v. Freeman, 397 F.2d 600 (10th Cir. 1968). In order to facilitate the Review Committee's determinations, the Court is of the view it should reiterate and expand upon......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT