United States v. Kopf

• Decision Date: 28 June 1967
• Docket Number: No. 18651.,18651.
• Citation: 379 F.2d 8
• Parties: UNITED STATES of America, Appellant, v. Norman KOPF et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

379 F.2d 8 (1967)

UNITED STATES of America, Appellant, v. Norman KOPF et al., Appellees.

No. 18651.

United States Court of Appeals Eighth Circuit.

June 28, 1967.

COPYRIGHT MATERIAL OMITTED

Robert V. Zener, Attorney, Dept. of Justice, Washington, D. C., for appellant; Barefoot Sanders, Asst. Atty. Gen., Dept. of Justice, and Alan S. Rosenthal, Attorney, Dept. of Justice, Washington, D. C. and Theodore L. Richling, U. S. Atty., Omaha, Neb., on the brief.

John Wightman, of Smith Brothers, Lexington, Neb., for appellees; Bernard B. Smith of Smith Brothers, Lexington, Neb., on the brief.

Before VAN OOSTERHOUT, BLACKMUN and LAY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

The defendant, United States of America, has appealed from judgment of the District Court awarded plaintiffs for $3924.34 as a balance due them for their participation in the 1962 and 1963 Feed Grain Programs established under the Soil Conservation and Domestic Allotment Act, 16 U.S.C.A. § 590a et seq.

The Government filed a motion for summary judgment; plaintiff filed a cross-motion for summary judgment. The Government's motion was overruled; plaintiff's motion was sustained. Stipulation was filed fixing the amount plaintiffs were entitled to recover in event they prevailed. Judgment was entered for such amount. No contention is made upon this appeal that material issues of relevant fact are in dispute.

Jurisdiction existed in the District Court under 28 U.S.C.A. § 1346(a) (2). See Aycock-Lindsey Corp. v. United States, 5 Cir., 171 F.2d 518.

The primary issue presented is whether the Secretary of Agriculture under the applicable statutes and regulations can alter a crop yield determination which has become final and binding as to the producer after the producer has substantially participated and complied with the program. The trial court in a well-reasoned (unreported) opinion sets out the pertinent facts, the applicable statutes and regulations, and the basis for its conclusion that such redetermination of yield cannot be made. We affirm.

Many statutes and regulations have been adopted governing the varying feedgrain programs that have been in operation for many years. The language of the statutes and regulations operative as to programs for particular years vary somewhat. We are here concerned with corn yield determinations with respect to the 1962 and 1963 programs. The feedgrain programs for such years are authorized by 16 U.S.C.A. § 590p (d) and (g). Provision for reduction of corn acreage and benefit payments to the producers for compliance is made. The program is a voluntary one. Payments to producers who participate in diverting corn acreage are authorized. Important considerations in determining benefits to be paid producers are the corn acreage allotments, the acres diverted and the yield. Only the yield is here in controversy. Section 590p (d) and (g) each provides that the yield is to be determined upon the basis of adjusted average yield per acre, and, inter alia, provides: "To the extent that a producer proves the actual acreages and yields for the farm for the 1959 and 1960 crop years, such acreages and yields shall be used in making determinations." Such provisions are repeated in substance in 7 C.F.R. 775.117 and 775.216. These regulations give the producer the right to apply to the county committee for reconsideration of yield and other determinations within fifteen days of receipt of Form 471 notice.

The regulations relating to the 1962 program appear in 7 C.F.R. 775.101 to .177 and those of the 1963 program in 7 C.F.R. 775.201 to .228.

Average yields by counties and payment rates are set out for 1962 at 7 C. F.R. 775.152 and for 1963 at 7 C.F.R. 775.228. Such average yield for Dawson County, Nebraska, the county here involved, was fixed at 70.5 bushel for each year. It is apparent that the various farms in the county will vary as to production. The regulations contemplate that yields and productivity indexes be initially established by the County ASC Committee. 7 C.F.R. 775.104; 7 C.F.R. 775.204. Notice of the determinations by the county committee shall be mailed to the producers on Form 471. 7 C.F.R. 775.116 and 7 C.F.R. 775.215. Form 471 contains all of the factual determinations which the county committee is required to determine by the regulations and such determination affords the basis for mathematical calculations as to the benefits to be paid for participation in the program.

Plaintiffs Norman Kopf and Harold Kopf operated two farms in Dawson County, Nebraska, eligible to participate in the corn program, the farms being known in the record as L-60 and L-61. On March 2, 1962, the County ASC Committee, pursuant to the statutes and regulations, issued and mailed to plaintiffs Form 471 establishing a corn yield of 71 bushels per acre on L-60 and 79 bushels per acre on L-61.

Plaintiffs timely exercised their legal right to request a redetermination of the 1962 yield as fixed by the county committee. An evidentiary hearing was held before the committee at which evidence was introduced, after which the committee redetermined the corn yield at 118 bushels per acre for each farm upon the basis that the evidence introduced established such yield for the years 1959 and 1960. New notices on Form 471 were mailed to plaintiffs on May 9, 1962, fixing the yield of each farm at 118 bushels per acre. No proceedings for further appeal or review were taken by either the producer or the Government or any agency thereof. Upon the basis of such yield redetermination made pursuant to law, plaintiffs filed with the county committee with respect to each farm for the year 1962 Form 477 entitled, "Intention to Participate and Application for Advance Payment," which were approved by the county committee. Such form contains computation of the payments to plaintiffs on the basis of the 118 bushels per acre yield. The yield is an important factor in determining the amount to be paid. Plaintiffs fully complied with the 1962 program and were in regular course paid the benefits provided for as stated in Form 477. Subsequently in 1963 the portion of the 1962 payment based upon the increased yield allowed as a result of the redetermination was offset against the sums due to plaintiffs for their participation in the 1963 program.

With respect to 1963, the County ASC Board in the performance of the duties imposed upon it by the Act and regulations and without any affirmative action on the part of the plaintiffs fixed the corn yield for 1963 as to each farm at 118 bushels and so notified the plaintiffs on Form 471. No reconsideration of the 1963 yield was sought by plaintiffs or any one else. Thereafter, plaintiffs filed compliance Form 477 and fully complied with the 1963 program.

The first notice which plaintiffs received of any intent or movement upon the part of the Secretary or his representatives to alter the yields previously determined for the years 1962 and 1963 was in the form of a letter from the county committee reading as follows:

"During our recent audit, an exception was discovered in regard to our documentation of evidence furnished by you in support of the increase in yield granted you by this office on your farms for the 1962 and 1963 Feed Grain Programs.

"In view of this, it will be necessary that you resubmit to this office for reappraisal and documentation the evidence used for the 1959 and 1960 crop years on which the increase was based on the farm numbers listed above.

"Types of evidence used, which will be used again, are warehouse receipts, sales receipts, loan documents, assessors records, and other tax receipts, plus other available, reliable evidence which you possess that can be considered.

"A meeting at this office has been arranged for you on Monday, June 3, 1963, 9:30 a. m. to 10:10 a. m., at which time the above indicated evidence may be presented. * * *"

Plaintiffs appeared before the committee pursuant to such notice and resubmitted their available evidence. On August 6, 1963, plaintiffs were advised by the Board that Plaintiffs' evidence was accepted except with respect to the amount of corn used for feed and that the yields for 1962 and 1963 were set as first established for 1962 at 79 bushels per acre for farm L-61 and 71 bushels for farm L-60, and demand was made for repayment of benefits paid for 1962 in the amount of $1290.16 on farm L-61 and $535.68 on farm L-60. Such is the difference between the amount payable on the 118 bushel yield as redetermined and the reduced yield adopted in the Board's letter of August 6, 1963. The 1963 payments were also adjusted on the basis of the reduced yields.

Upon timely appeal, the State committee upheld the reduction made by the county committee and upon appeal to the Deputy Administrator, relief was denied on May 28, 1964 — more than two years after the 1962 yield had been redetermined and more than one year after the yield had been fixed for 1963 by the County Board.

Plaintiffs base their contention that the 1962 and 1963 yield determinations shown by the Form 471 notices are final under 7 U.S.C.A. § 1385, which reads:

"The facts constituting the basis for any payment under the Soil Conservation and Domestic Allotment Act, as amended, parity payment, payment under section 1339 of this title, loan, or price support operation, or the amount thereof, when officially determined in conformity with the applicable regulations prescribed by the Secretary or by the Commodity Credit Corporation, shall be final and conclusive and shall not be reviewable by any other officer or agency of the Government. * * *"

We believe that such statute applies to our factual situation. As to 1962, as heretofore shown, the 118 bushels per acre yield was established upon plaintiffs' application for reconsideration after a full evidentiary hearing, whereupon a new Form 471 for 1962 was issued fixing the 118 bushel yield for each farm. Such proceeding was authorized by the...