Gladney v. Review Committee, Civ. A. No. 11945.

• Decision Date: 16 August 1966
• Docket Number: Civ. A. No. 11945.
• Parties: Edward L. GLADNEY v. REVIEW COMMITTEE, Composed of Harvey H. Howington, Jr., Harry E. Mock, and William Yerger, duly appointed by the United States Secretary of Agriculture pursuant to the Agricultural Adjustment Act of 1938, as amended.
• Court: U.S. District Court — Western District of Louisiana

257 F. Supp. 57

Edward L. GLADNEY v. REVIEW COMMITTEE, Composed of Harvey H. Howington, Jr., Harry E. Mock, and William Yerger, duly appointed by the United States Secretary of Agriculture pursuant to the Agricultural Adjustment Act of 1938, as amended.

Civ. A. No. 11945.

United States District Court W. D. Louisiana, Monroe Division.

August 16, 1966.

James L. Dennis, Hudson, Potts & Bernstein, Monroe, La., for plaintiff.

Edward L. Shaheen, U. S. Atty., and Edward V. Boagni, Asst. U. S. Atty., Shreveport, La., for defendants.

OPINION ON MOTIONS FOR SUMMARY JUDGMENT

BEN C. DAWKINS, Jr., Chief Judge.

This case arises under the Agricultural Adjustment Act of 1938 (hereinafter referred to as the Act) as amended (7 U.S.C. § 1281 et seq.), jurisdiction of this Court being specifically provided by 7 U.S.C. § 1365.

Our review of the administrative record is limited to questions of law, and the findings of fact by the Review Committee are conclusive if supported by substantial evidence. 7 U.S.C. § 1366; Chandler v. David, 350 F.2d 669 (5 Cir. 1965), cert. denied 382 U.S. 977, 86 S.Ct. 548, 15 L.Ed.2d 469; Crolley v. Tatton, 249 F.2d 908 (5 Cir. 1958); Davis v. Joyner, 240 F.Supp. 689 (D.C. N.C.1964); Gladney v. Review Committee, 230 F.Supp. 35 (D.C.La.1964); Kephart v. Wilson, 219 F.Supp. 801 (D.C. Tex.1963).

The actions of the Review Committee here challenged by the petitioner are fruits of previous litigation over his cotton allotment. Thus initially, in order to place the case in perspective, a chronological review is necessary for proper disposition.

In Gladney v. Review Committee, 230 F.Supp. 35 (D.C.La.1964), we held that the County and Review Committees had abused their discretion by improperly using the county reserve acreage and by failing to adjust petitioner's cotton allotment by taking into consideration the factors prescribed by 7 U.S.C. § 1344(e) and (f) (3). As authorized by 7 U.S.C. § 1366, we remanded the case for a new determination by the Review Committee not inconsistent with our opinion.

On April 23, 1964, the Review Committee issued a revised determination, increasing petitioner's 1964 allotment to 141 acres, but attaching a rider providing that the order of this Court was subject to appeal. On June 15, 1964, the Review Committee appealed the decision to the United States Court of Appeals for the Fifth Circuit.

When it became necessary for the County Committee to issue the 1965 cotton allotments, the appeal was still pending, and petitioner was issued an allotment notice for 141 acres in accordance with the Review Committee's revised determination of April 23, 1964. Under 7 U.S.C. § 1344 (f) (8), this allotment was properly based on the farm acreage allotment for the immediately preceding year. Since the appeal remained undecided when the 1966 allotments were being determined and issued, the County Committee issued to petitioner a notice of his cotton allotment for 1966 of 141 acres on November 10, 1965.

On January 12, 1966, an opinion affirming this Court's decision was issued. Review Committee v. Gladney, 354 F.2d 990 (5 Cir. 1966). Since the last three sentences of that per curiam opinion ignited the flame of the present controversy, it may be advisable to quote them here:

"* * * We therefore affirm its judgment but with the caveat that the increased allotment resulting from and required by its judgment is not binding as a basis for future allotments. The motion to dismiss the appeal for mootness is denied. The judgment is affirmed." Review Committee v. Gladney, 354 F.2d 990, 991 (5 Cir. 1966).

After receiving a letter from the Director of the South Central Area, ASCS, Washington, D. C., advising him of the actions which should be taken as a result of the opinion of the Court of Appeals, the State Executive Director transmitted a copy of that letter to the Morehouse Parish County Office, and advised the County Committee of the steps which should be taken for a downward revision of petitioner's cotton allotment for 1966.

March 10, 1966, petitioner and his tenant executed an Intention to Participate and Payment Application for the 1966 Upland Cotton Program establishing a farm domestic allotment of 91.6 acres based on the acreage allotment of 141 acres and establishing the price support and diversion payment rates per acre for the farm. Advance diversion payments to petitioner and his tenant were initially approved by the County Committee March 10, 1966.

March 17, 1966, the Morehouse Parish County Office received through the State Committee advice by the Area Director that the Court of Appeals' decision would not be appealed and that the revised cotton acreage allotment should be issued. March 18, 1966, the County Committee issued to petitioner a revised notice of his 1966 cotton allotment, reducing it from 141 acres to 39.6 acres (his allotment before the 1964 revised allotment issued pursuant to the order of this Court). The County Committee, however, not only reduced the previously issued 1966 allotment, but also retroactively reduced the allotments of 141 acres in 1964 and 1965 to 39.6 acres.

Under 7 U.S.C. § 1363, petitioner appealed timely to the Review Committee on March 30, 1966, asking for reinstatement of his 141-acre allotment.

April 8, 1966, the County Committee issued more revised notices of allotment, allocating five additional acres to the farm from the county reserve, and 11.4 acres from release and reapportionment acreage.

April 13, 1966, the Review Committee determined that the revised allotments of March 18 and April 8 were correct, but since imposition of the revised allotments for 1966 at such a late date would cause undue hardship for the petitioner and his tenant, it reinstated the 141-acre 1966 allotment and held that the revised allotments would be used as the farm base for establishing the 1967 allotment.

As provided by 7 U.S.C. § 1365, petitioner filed an appeal of the determination of the Review Committee in this Court. Cross-motions for summary judgment have been filed.

Petitioner contests the legality of the revised allotments on the following grounds:

(1) That the determinations of his 1964-1966 allotments had become final under 7 U.S.C. § 1363, and in the absence of express congressional authority, the County Committee did not have the power to revoke the determinations and substitute therefor new determinations;

(2) That the caveat in the decision of the Court of Appeals did not order a reduction of his allotments for 1964-1966 since the decision merely affirmed the judgment of the District Court without reversing and remanding the case as is required under 7 U.S.C. § 1366;

(3) That the action of the County Committee pursuant to the decision of the Court of Appeals denied him due process of law since its determination was secretly made without notifying him; and

(4) That the County Committee was improperly influenced by the Area and State Director.

(1)

Of course, petitioner's first contention will be considered here without reference to the decision of the Court of Appeals and its applicability to the controversy, which will be discussed infra. Under 7 U.S.C. § 1363 a farmer who is dissatisfied with the determination of the County Committee may have that determination reviewed by the local Review Committee. Unless application for review is made within fifteen days after mailing of the notice required by § 1362, the determination by the County Committee "shall be final."¹ Petitioner contends that since no application for review was filed after the revised determination of 1964 and the original determinations of 1965 and 1966, these determinations are final as to the administrative agency as well as the farmer. Defendant, however, contends that the finality provision merely bars any appeal by the farmer and does not preclude correction and revision of allotments by the administrative agency.

It seems well settled that the County Committee, as an administrative agency, cannot retroactively revise allotments without an express congressional grant of such power. Civil Aeronautics Board v. Delta Air Lines, 367 U.S. 316, 81 S.Ct. 1611, 6 L.Ed.2d 869 (1961); United States v. Seatrain Lines, 329 U.S. 424, 67 S.Ct. 435, 91 L.Ed. 396 (1947); Pan American Petro. Corp. v. Pierson, 284 F.2d 649 (10 Cir. 1960), cert. denied 366 U.S. 936, 81 S.Ct. 1661, 6 L.Ed.2d 848.

In Chandler v. David, 350 F.2d 669 (5 Cir. 1965), cert. denied 382 U.S. 977, 86 S.Ct. 548, 15 L.Ed.2d 469, the Court permitted the reconsideration and subsequent cancellation of an approval of a farmer's transfer of his cotton allotment. However, the Court noted there that Amendment 11 to 7 C.F.R. § 719.12 permitted the reconsideration only in a relatively limited situation where the transfer had been obtained by misrepresentation or fraud.²

Thus the administrative agency, as well as the farmer, is prohibited from re-opening proceedings unless an appeal has been filed timely under § 1363 or there is an allegation of fraud or misrepresentation permitting the invocation of 7 C.F.R. § 719.11(f) (6) (formerly contained in Amendment 11 to 7 C.F.R. § 719.12). Since in this case there was no appeal filed from the revised determination of 1964 or the original determinations of 1965 and 1966, and there is obviously no issue of fraud or misrepresentation, the determinations were final as to both the administrative agency and the farmer. It does not follow, however, that the Court of Appeals should have dismissed the Committee's appeal on the basis of mootness since petitioner had already planted and harvested the 1964 crop. Although the Court gave no reasons for its denial of the motion, the case was not moot since 1964 would be used as a base year for establishing the allotment for the 1965 cotton crop.³

(2)

In order to facilitate discussion of the application of Review Committee v. Gladney, 354 F.2d 990 (5 Cir. 1966) to the present controversy, we will separately investigate the two...