U.S. v. O'Neil, s. 81-1541

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation709 F.2d 361
Docket NumberNos. 81-1541,s. 81-1541
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Alvin O'NEIL and Thurston O'Neil, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Charles MEDLIN, B.A. McFarland and B.E. McFarland, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. DOKO FARMS, a partnership, James Porter, Allison V. Barnett, L.D. Smith and William T. Curry, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Paul MORGAN, P & B Morgan Trust, Morgan Farms, Inc. and Wayne Greaves, Defendants-Appellees. to 81-1544.
Decision Date11 July 1983

Judith E. Rabinowitz, Marc Richman, Civil Div., Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Renner & Snell and Robert B. Snell, Lamesa, Tex., for defendants-appellees in Nos. 1541 and 1544.

Huffaker & Green, Gerald Huffaker, Tahoka, Tex., for defendants-appellees in No. 81-1542.

Crenshaw, Dupree & Milam, James H. Milam, Cecil Kuhne, Lubbock, Tex., for defendants-appellees in Nos. 1543 and 1544.

John L. Shepherd, Seminole, Tex., for Wayne Greaves.

Appeals from the United States District Court for the Northern District of Texas.

Before THORNBERRY, GEE and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

In this appeal we consider procedural and jurisdictional issues initially arising out of four suits brought by the United States Department of Agriculture ("USDA") against the appellees to recover alleged overpayments made to them under the Upland Cotton Price Support Program, 7 U.S.C. Sec. 1444(e). The issues before us are (1) whether the government has made a timely appeal to this Court in its suits against appellees, (2) whether the district court abused its discretion in denying the government's Fed.R.Civ.P. 60(b) motions for relief from the court's judgments of April 3, 1981 in those cases, and (3) whether the district court erred in granting summary judgment and affirmative relief to the appellees in the severed suits on their counterclaims against the government. For the reasons stated below, we hold the government's appeal was untimely as respects its suits against appellees, affirm the district court's denial of the Rule 60(b) motions, and reverse the summary judgment granted the appellees in the severed suits on their counterclaims against the government.

I. FACTUAL AND PROCEDURAL BACKGROUND

The government brought these cases (the "O'Neil" cases) along with seven others, recently decided by us under the style of United States v. Batson, et al., 706 F.2d 657 (5th Cir.1983) (the "Batson" cases). The general factual background of each of these O'Neil cases and of the seven Batson cases is basically similar and is set out in detail in the Batson opinion. Since procedural issues are controlling in the O'Neil cases considered here, we will only generally outline the background facts.

The appellees were participants in the Upland Cotton Price Support Program in Gaines County, Texas. Under this program the USDA was authorized to make loans and subsidy payments to cotton producers through the Commodity Credit Corporation and to require the "set aside" of cropland, if necessary, to avoid excessive supplies of cotton. 7 U.S.C. Sec. 1444(e). The program was administered locally by the County Committees of the Agricultural Stabilization and Conservation Service ("ASCS") within the USDA. 7 C.F.R. Sec. 718.4 (1974). In 1973 the appellees, as participants in the program, were eligible for subsidy payments of fifteen cents per pound of cotton. This subsidy was based upon the number of cotton allotments owned or leased and the "average yield" of those allotments in pounds per acre. 7 C.F.R. Sec. 722.812.

In the spring of 1973 the USDA began investigating the cotton payments in Gaines County, which in 1972 had been abnormally high, about five times the level experienced in other counties. It suspected that cotton allotments or their yield figures were being manipulated to inflate payments in violation of program regulations. In November 1973, as a result of the investigation, the USDA suspended the members of the Gaines County ASCS Committee, who were responsible for administering and enforcing the regulations governing the upland cotton program, and sent Clifton Adams, Acting Assistant to the ASCS Deputy Administrator, from the ASCS Washington, D.C. office to assume the County Committee's functions.

Adams subsequently rendered "determinations" against certain of the participants in the Gaines County program, including the appellees, finding that they had violated In June and July 1979 the government filed several suits in federal district court for the refunds ordered by these administrative determinations. The four sets of appellees in the present appeals counterclaimed in the respective suits against them for the damages they had suffered from having been placed on the Federal Debt Register because of the disputed refunds. 1 All parties in each of the suits moved for summary judgment, and on April 3, 1981 the district court granted the defendants' motions in each of the four O'Neil cases, and in each of the seven Batson cases which were also before it. It included in the separate judgments issued in each of the four O'Neil cases the statement that "[t]he defendants' counterclaim against the plaintiff is severed from the cause of action alleged by plaintiff and will be tried separately and at a later date."

program regulations and requiring refunds of all payments received in connection with the program. Adams found that the appellees in some cases had adopted a "scheme or device" to defeat the purpose of the upland cotton program by manipulating transfers of their allotments and allotment yields in violation of 7 C.F.R. Sec. 722.817(b) (1974) and in others had avoided payment limitations in violation of 7 C.F.R. Part 795. The appellees maintained that all of their transfers had been in accordance with the regulations. Some also claimed they had not, or had not directly, received program payments. As required by program regulations, 7 C.F.R. Part 780, Adams held hearings and subsequently issued "redeterminations," which affirmed his original findings. The appellees then took appeals, also provided for by the program regulations, to the State ASCS Committee and then to a USDA hearing officer in Washington, D.C. Adams' "redeterminations" were affirmed at each of these levels. Similar administrative determinations and proceedings were taken respecting the various parties involved in the Batson cases.

The government filed a timely appeal in each of the seven Batson cases on May 29, 1981, but took no action with respect to appeal of any of the O'Neil cases. On September 15, 1981 the district court, in response to motions filed by appellees in the severed cases during August 1981, ruled in a "Memorandum and Order" that the April 3, 1981 judgments in the original four O'Neil cases had become final at the expiration of the sixty-day appeal period, and rendered judgments against the government in the severed cases dealing with the counterclaims of these appellees. It stated that the April 3 judgments became final notwithstanding the unresolved counterclaims because those claims had been severed under Fed.R.Civ.P. 21, and were thus no longer a part of the same suits.

On October 27, 1981 the government filed in each of the original O'Neil cases a Rule 60(b) motion for relief from the April 3, 1981 judgment, alleging a good-faith belief that it had not been a final, appealable order because of the pending counterclaims. The district court denied each of these motions on November 2, 1981, holding that "a Rule 60(b) motion may not substitute for a timely appeal," and that "an attorney's misunderstanding of the law is not the type of mistake or excusable neglect contemplated by Rule 60(b)."

In November 1981 the government took timely appeal from the judgments entered, pursuant to the September 15, 1981 "Memorandum and Order," in the severed counterclaim suits and from the district court's November 2, 1981 denial of its Rule 60(b) motions.

On appeal the government levels three attacks against the district court's actions in these O'Neil cases. First, it argues that the district court's severance order was improper. Second, it argues that the district court abused its discretion in denying the government's Rule 60(b) motions. Finally, it argues with respect to the judgments in

the severed counterclaim suits that the Tucker Act and sovereign immunity preclude affirmative relief against the United States in those cases.

II. THE LAW
A. THE RULE 21 SEVERANCE.
1. The Intent of the District Court in its April 3, 1981 Judgments.

Although the government on appeal does not contest the district court's labeling of each of the four April 3 judgments as ordering a "severance," 2 we examine this characterization because of the important consequences that flow from it. As stated, each of the district court's April 3, 1981 judgments in the original four O'Neil cases contained the following sentence: "The defendants' counterclaim against the plaintiff is severed from the cause of action alleged by plaintiff and will be tried separately and at a later date." By its terms this order "severed" the appellees' counterclaims from the government's "cause of action," which clearly suggests that the district court was invoking Rule 21. Courts and commentators have noted that "sever" and "severance" are sometimes used to denote the separation of trials under Fed.R.Civ.P. 42(b), which confuses the important differences between the effects of Rule 21 and Rule 42(b). Spencer, White & Prentis, Inc. v. Pfizer, Inc., 498 F.2d 358, 361 (2d Cir.1974); Hebel v. Ebersole, 543 F.2d 14, 17 (7th Cir.1976); 3A Moore's Federal Practice p 21.05 n. 44 at 21-50. However, the fact that the court's order "severed" the appellees' counterclaims "from the cause of action alleged by plaintiff" should...

To continue reading

Request your trial
194 cases
  • Chrysler Credit Corp. v. Country Chrysler, Inc.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • March 29, 1991
    ...absent a Rule 54(b) certification. See Vann v. Citicorp Sav. of Ill., 891 F.2d 1507, 1511 (11th Cir.1990); United States v. O'Neil, 709 F.2d 361, 368 & n. 6 (5th Cir.1983); Belmont Place Assoc. v. Blyth, Eastman, Dillon & Co., 565 F.2d 1322, 1323 (5th Cir.1978); 3A Moore's Federal Practice ......
  • Gaffney v. Riverboat Services of Indiana
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • June 16, 2006
    ...cannot by this characterization of its order create a severance under Rule 21 where one did not exist before," United States v. O'Neil, 709 F.2d 361, 368 (5th Cir.1983), we necessarily must examine whether the district court erred in classifying its severance order as a Rule 21 order rather......
  • Alhassid v. Bank of Am., N.A.
    • United States
    • U.S. District Court — Southern District of Florida
    • November 17, 2014
    ...separately in a manner which avoids substantial prejudice (e.g., nunc pro tunc to the original filing date). See United States v. O'Neil, 709 F.2d 361, 367 (5th Cir.1983) ; Hartley v. Clark, 2010 WL 1187880, at *4 (N.D.Fla. Feb. 12, 2010) (Rule 21 permits dismissals of parties only if dismi......
  • Abu-Awad v. U.S.
    • United States
    • U.S. District Court — Southern District of Texas
    • August 14, 2003
    ...act can only be described as clearly improper." Beall v. United States, 336 F.3d 419, 425 (5th Cir.2003) (citing United States v. O'Neil, 709 F.2d 361, 372 n. 11 (5th Cir.1983)). The issues to which Awad briefly alludes in the Attachment to his Request for a CDP Hearing are conclusory in na......
  • Request a trial to view additional results
2 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Preparing for Trial in Federal Court
    • May 4, 2010
    ...(E.D.N.Y. 1979), §4:138 United States v. Nixon , 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), §4:118 United States v. O’Neil , 709 F.2d 361 (5th Cir. 1983), §7:40 United States v. One 1977 Mercedes Benz , 708 F.2d 444, 452 (9th Cir. 1983), §2:16 United States v. One 1986 Chevrolet V......
  • Motions
    • United States
    • James Publishing Practical Law Books Preparing for Trial in Federal Court
    • May 4, 2010
    ..., 965 F.2d 34, 36 (5th Cir. 1992). FRCP 21 severance is different from bifurcation pursuant to FRCP 42(b). See United States v. O’Neil , 709 F.2d 361 (5th Cir. 1983) (discussing differences between severance and separate trials). Rule 21 is also different from Rule 25. Rule 25 is specific a......

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