United States v. Johnson, Civ. A. No. 638.

• Decision Date: 23 October 1957
• Docket Number: Civ. A. No. 638.
• Parties: UNITED STATES of America, Plaintiff, v. Paul J. JOHNSON, Defendant.
• Court: U.S. District Court — Western District of Arkansas

155 F. Supp. 898

UNITED STATES of America, Plaintiff, v. Paul J. JOHNSON, Defendant.

Civ. A. No. 638.

United States District Court W. D. Arkansas, Texarkana Division.

October 23, 1957.

Charles W. Atkinson, U. S. Atty., Henry M. Britt, Asst. U. S. Atty., Ft. Smith, Ark., Dan P. Chisholm, Patrick C. Murphy, Attys., U. S. Dept. of Agriculture, Little Rock, Ark., for plaintiff.

Shaver, Tackett & Jones, Ben Shaver, Paul Jones, Texarkana, Ark., for defendant.

LEMLEY, Chief Judge.

This cause, which is an action for the recovery of a civil penalty under the Agricultural Adjustment Act of 1938, as supplemented and amended (7 U.S.C.A. § 1281 et seq., particularly Sections 1331-1340, which relate to wheat),¹ is before the Court upon the plaintiff's motion for judgment on the pleadings, which we treat as a motion for summary judgment, the defendant's response thereto, and his motion for summary judgment, which matters have been submitted upon written briefs.

The defendant is a farmer who resides in Little River County, Arkansas. During 1956 marketing and acreage controls were in effect with respect to wheat under the provisions of the statute that has been mentioned and the regulations issued pursuant thereto. In that year the defendant, without having a wheat acreage allotment, planted 50.5 acres of his land to a mixed crop of wheat and Singletary peas; the mixed crop was harvested, and thereafter the wheat was separated from the peas and was fed to the defendant's hogs.

The Little River County Agricultural Stabilization and Conservation Committee, which was the local body administering the wheat program in that county, acting under the statute and the regulations, determined that the defendant had no wheat acreage allotment, that he had planted 50.5 acres of wheat, that the normal yield of that acreage was 5 bushels per acre, and that defendant had a "farm marketing excess" subject to penalty of 252 bushels. Defendant was notified of those determinations, of his right to petition for a downward revision of his farm marketing excess and of his right to an administrative review of his farm marketing excess or any other determination of the county committee made in connection therewith. The defendant, however, never sought any downward revision of his farm marketing excess, and never sought any administrative review of any of the committee's determinations, but simply harvested the crop and fed the wheat to his hogs.

The Government contends that during 1956 the defendant was a producer of wheat, that he produced wheat without having an acreage allotment therefor, that as a result of his operations he produced a farm marketing excess which was subject to the statutory penalty at the rate of 45% of the parity price of wheat, determined as of May 1, 1956, which amounted to $1.07 per bushel, or a total of $269.64, the amount sued for.²

The defendant admits that he had no wheat acreage allotment in 1956, and that he planted a mixed crop of wheat and Singletary peas and fed the wheat to his hogs. And while he does not dispute the amount of penalty claimed, if any is due, he earnestly contends that his operations were not such as to subject him to any penalty. In that connection, although he concedes, as indeed he must in the light of the authorities, that a producer of wheat is not relieved from penalties to which he is otherwise liable merely because he does not intend to market and does not market his wheat but consumes it himself or feeds it to his livestock,³ he argues that the crop planted by him was not "wheat" within the meaning of the statute and regulations, and that consequently he was not such a producer of wheat as to be subject to the statutory penalty. It is his position that the wheat which he planted along with the Singletary peas was what he calls "hog wheat," as contrasted to what he calls "flour wheat," that is to say that it was low grade wheat unfit for milling into flour and never intended to be so milled, and that it was not the intent of Congress to make the growing of such wheat subject to the restrictions or penalties of the Act.

The short answer to that contention is that it amounts to a collateral attack on the determinations of the county committee which have been mentioned, and as such is prohibited by the direct judicial review provisions of 7 U.S.C.A. §§ 1365-1367, which sections set up a judicial review procedure available to a dissatisfied producer after he has utilized the administrative review authorized by the statute. The remedy provided by those sections of the Act has been held to be exclusive, Miller v. United States, 6 Cir., 242 F.2d 392; Larkin v. Roseberry, D.C.Ky., 54 F.Supp. 373; Lee v. Roseberry, D.C.Ky., 94 F.Supp. 324; United States v. Stangland, D.C.Ind., 137 F.Supp. 539, affirmed 7 Cir., 242 F.2d 843; United States v. Bonderer, D.C. Mo., 139 F.Supp. 391; and in the case last cited the Court said:

"A review by a review committee of the farm marketing quota, as defined in 7 U.S.C.A., § 1340, would also provide a review of all of the pertinent facts determined by the County Committee. Not having sought a review of the allotment, or of the farm marketing excess of wheat, the defendant has clearly failed to exhaust the administrative remedies provided in the Act and Regulations, and he is, therefore, barred from now making any contention that the action of the County Committee was improper. The court is entirely without legal power to grant any relief to the defendant or others similarly situated." 139 F.Supp. 396.

The determinations of the county committee with regard to the defendant's 1956 crop necessarily involved the determinations that what he planted was "wheat" and that he was a "producer of wheat." Had the defendant chosen to do so, he could have urged before the review committee the same contentions that he advances here, and had he obtained no relief from that committee, he could have gone directly into either a state or federal court and have obtained a judicial review of the administrative action. He did not seek any administrative review, however, and his failure to do so precludes him from now questioning in the instant case the correctness of the determinations of the county committee.

While the conclusion just stated actually disposes of the case, we prefer not to base our decision upon that ground alone since we are satisfied that the contention of the defendant is invalid on its merits. As has been indicated, it is now well settled that wheat produced on excess acreage is subject to the statutory penalty even though it is never marketed, but is consumed on the farm by feeding to livestock or otherwise; the reason for this rule is that such wheat overhangs the market and tends to act as a price depressant, and, further, that such wheat supplies a need which would otherwise be supplied by purchases on the market and thus competes with wheat in commerce. Wickard v. Filburn, supra, 317 U.S. 111, 128, 63 S.Ct. 82, 91, 87 L.Ed. 122. Al...