Gross v. United States

• Decision Date: 09 March 1981
• Docket Number: Civ. No. 74-4030.
• Citation: 508 F. Supp. 1085
• Parties: John C. GROSS, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of South Dakota

508 F. Supp. 1085

John C. GROSS, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 74-4030.

United States District Court, D. South Dakota, S. D.

March 9, 1981.

Dennis C. McFarland and John N. Gridley III, Sioux Falls, S. D., for plaintiff.

Raymond P. Murley, Asst. U. S. Atty., Sioux Falls, S. D., for defendant.

MEMORANDUM DECISION

NICHOL, District Judge.

This action was instituted under the Federal Tort Claims Act (FTCA), 28 U.S.C. section 2671 et seq. (1976) and section 1346 of the same title, by the plaintiff, John C. Gross, against the defendant, United States of America, for the intentional infliction of emotional distress allegedly suffered by the plaintiff. More specifically, Gross alleges that the actions of the defendant's employees and agents, the Lake County Committee of the Agricultural Stabilization and Conservation Service (ASCS), concerning his participation in the Feed Grain Program (FGP) for the years of 1965, 1968-1971 constitute the intentional infliction of emotional distress. Plaintiff seeks monetary relief.¹

Trial was had before the Court without a jury. After consideration of all the evidence and arguments of counsel the Court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

The plaintiff in this action, John C. Gross, is a farmer in Lake County, South Dakota. In March, 1965, Gross purchased 320 acres of land from Robinson. Robinson had a tenant farming the north quarter of his land. At the time of the sale the tenant, Sederstrom, had a first option to purchase the land. The option was never exercised. When Gross purchased the land he continued to rent the north quarter to Sederstrom. The south quarter, which Gross custom farmed, was put into the Soil Conservation Program.

Gross applied for and was denied participation in the FGP for 1965. The Lake County ASCS Committee stated that he had reduced tenants in violation of the regulations.² Since he did not have any tenants in 1964, Gross did not understand how he could have eliminated tenants. Therefore, he appealed to the state committee. The state committee reversed the county committee's decision. When Gross returned to the county committee they informed him that they did not care what was said by the state committee, Gross would not be allowed to participate in the 1965 FGP. No reasons were given for their decision. At the same time, however, the county committee was sending reasons for Gross' denial to the state committee and the Washington office of ASCS.

Further perplexed, Gross then wrote to the Deputy Administrator of State and County Operations (DASCO) asking for an official reason for his denial. He received two replies. The first reply was a letter dated October 6, 1965, from Bob Bergland, then DASCO, stating that he was denied entry to the FGP because he was a custom farmer. The evidence shows that Gross was a custom farmer at this time although he offered, for incentive purposes, ten percent of the gross profits to his custom operators. It was Bergland's opinion that this action by the county committee was improper, since there was no regulation providing for the denial of FGP participation for custom farmers. Of greater importance to this case, however, is that Gross applied for FGP benefits in March, 1965, and was denied, yet he did not enter his farming arrangements until May of that year.

The second reply received by Gross on December 1, 1965, was from C. E. McAdam, acting DASCO. McAdam states in his letter that Gross was rightfully denied participation in the FGP based on the county committee's determination that Gross' contractual agreement with his tenant was contrary to the intent of the program that each tenant should receive a fair share of the program's benefits. The agreement referred to by McAdam was Gross' incentive policy with his custom operators. Since they were to receive ten percent of the gross profit, the ASCS viewed them as tenants with at least a ten percent interest in the FGP. Thus, up to this point Gross was given three totally different reasons for his denial to the 1965 FGP.

At the direction of Bergland a meeting was set for March 11, 1966, between Gross and the county and state committees in order to clear up the problems involved in the 1965 denial. According to Gross only his farm plans for 1966 were discussed. It was Gross' testimony that the meeting was intended for a discussion on the 1965 denial. This testimony is supported by the memorandum of Bergland to the state committee directing that the meeting be arranged. Yet three members of the county committee who were interviewed by an Agent Torbert from the Office of the Investigator General (OIG) of the United States Department of Agriculture stated that Carvel Johnson, the Lake County ASCS Office Manager, informed them that the meeting was set up to discuss Gross' 1966 participation in the FGP. Further, the minutes of the March 11th meeting contain no discussion of the 1965 denial. Gross testified that he attempted to discuss the 1965 problems to no avail. He was told that he would receive the committee's determination.

Even though uninformed of the results of the March 11th meeting, on March 25, 1966, Gross signed up for participation in the 1966 FGP. After completing his application Gross picked up his mail. Included in his mail was a letter dated March 24, 1966, from the state ASCS committee stating that the state committee affirmed the denial by the county committee of Gross' application for the 1966 FGP. At the time the letter was written Gross had not even applied for the 1966 FGP.

Gross then called Washington and spoke with Ray Fitzgerald, who told him he could see his file. Upon reviewing his ASCS file Gross found two letters signed by his previous tenant, Sederstrom, attesting to Gross' unreasonable renting terms, which effectively denied him his 1965 FGP benefits, and that he was forced off the land in 1966. Sederstrom later repudiated the statements. He testified in a deposition that the chairman and vice chairman of the county committee visited him and egged him on with statements concerning Gross' unreasonable renting terms, and that the committee did not want custom farmers in the program. At that time Hanneman and Meyers gave Sederstrom the two statements, which they had written, and asked him to recopy them in his own writing. He did this and signed them. These were the statements that were in Gross' file and were used to deny him participation in the FGP for 1965 and 1966.

In the Torbert report, which was an investigation of the Lake County ASCS office, Sederstrom states that he signed the 1965 lease with Gross with full knowledge of its terms. He also states that the second statement with the allegation that Gross forced him to give up his land in 1966 was completely false. He further told Torbert that he never planned on remaining on Gross' land after 1965 because he had negotiated to purchase his own land.

With this information Gross appealed his denial for the 1966 FGP to Washington where the state and county committees' decisions were reversed. The Washington committee stated that a new owner is not bound by a previous owner's landlord-tenant relationships, and that custom farming, alone, is not sufficient reason to keep Gross out of the FGP. The county was instructed to take action without delay. On April 29, 1966, the county committee notified Gross that he could participate in the FGP. It is interesting to note that after the meeting in Washington where the state and county decisions were reversed, Charles Cox, who conducted the hearing, advised Gross that he should be aware of the possible adverse results in his future dealings with those committees.

In September, 1966, the county committee sent Gross a notice of noncompliance for the 1966 FGP. According to Gross' testimony it was then far too late in the crop season to get back into compliance. When he asked at the county office what he could do, Carvel Johnson told him that maybe he could go back to Washington.³

In 1969 Gross was again denied FGP participation.⁴ In a letter dated April 16, 1969, the county committee denied Gross participation because the committee claimed to have evidence that Gross had eliminated tenants in anticipation of participation in the FGP, that his agreements with his tenants required unfairly that they pay over their FGP payments, that he changed the status of his tenants to deprive them of payments under the FGP, and that he reduced the tenant's unit size. At the time in question Gross had four tenants.

The county committee failed to inform Gross of his right to receive reconsideration at the county level, nor did the committee supply him with the evidence upon which they relied in making their determination.⁵ When he requested the evidence he was informed that there were no signed statements from the tenants involved, only the notes of Carvel Johnson, the county office manager, taken during interviews with the tenants. Subsequently it was learned that the tenants refused to sign any statements. Gross then requested that the evidence be forwarded to the state committee for use in his appeal. Yet when he appeared before the state committee, there was no evidence concerning his 1969 denial. The state committee, however, affirmed the county committee's decision.

Gross appealed to Washington. There he was told that if he obtained statements from the tenants involved which refuted the county committee's factual findings, he should be allowed in the program. Gross obtained the statements from three of the four tenants. Although the fourth tenant, Ray Hanneman, refused to give either Gross or the county committee a signed statement, Gross had a letter from him that stated he was giving up the land for health reasons. The Washington committee, however, affirmed the state and county committee.

It is interesting to note that although the...