United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 1998 Decided December 29, 1998
No. 98-5021
Deaf Smith County Grain Processors, Inc.,
Appellant
v.
Dan Glickman, Secretary,
United States Department of Agriculture,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 95cv01214)
Alexander J. Pires, Jr. argued the cause and filed the
briefs for appellant.
Anthony M. Alexis, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.
Lewis, U.S. Attorney, Mark E. Nagle and R. Craig Lawrence,
Assistant U.S. Attorneys, and Margaret Breinholt, Counsel,
U.S. Department of Agriculture.
Before: Edwards, Chief Judge, Silberman and Tatel,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: In this appeal, Deaf Smith County
Grain Processors, Inc. ("Deaf Smith" or "appellant") contests
the District Court's grant of summary judgment in favor of
the United States Department of Agriculture ("USDA" or
"appellee") on Deaf Smith's claim that it has not received the
farm subsidy and disaster relief payments to which it is
allegedly entitled under USDA regulations. Our review in
this case is identical to that of the District Court; that is, we
uphold the agency action so long as it was not arbitrary,
capricious, an abuse of discretion, or otherwise not in accor-
dance with law. We agree with the District Court that the
USDA acted reasonably in denying Deaf Smith the payments
it requests. Accordingly, we affirm the grant of summary
judgment in favor of the agency.
I. Background
A.Regulatory Background
The USDA administers the nation's major agricultural
commodity programs through a wholly-owned Government
corporation called the Commodity Credit Corporation
("CCC"). See 15 U.S.C. s 714c (1994). The day-to-day oper-
ations of the CCC are performed by local chapters of the
Farm Service Agency ("FSA"), formerly known as the Agri-
cultural Stabilization and Conservation Service ("ASCS").
Two CCC programs are at issue in this case: the Production
Adjustment Program ("PAP") and the Disaster Assistance
Program ("DAP").
The goal of the Production Adjustment Program is to
reduce the total nationwide acreage of farmland devoted to
the production of certain crops. To achieve this goal, the
CCC pays farmers to limit their production of those crops.
In order to participate in the PAP, and thereby receive
payments from the CCC, farmers enter into annual contracts
with the CCC, pursuant to which they agree to limit their
cropland acreage and devote a certain amount of their land to
conservation uses approved by the USDA. See 7 C.F.R.
s 1421.5 (1998). In exchange, the CCC provides price sup-
port in the form of "deficiency" payments and nonrecourse
loans. The amount of these payments is determined by the
amount of farmland that the farmer agrees to withhold from
crop harvest. A farm's eligible acreage for farming a particu-
lar crop is called the crop acreage base ("CAB"). Each year,
the USDA determines a percentage of the CAB on which
farmers participating in the PAP are restricted from growing
crops, and calculates its deficiency payments accordingly. As
a result, the higher a particular farmer's CAB, the greater
the payments are from the CCC.
The Disaster Assistance Program provides relief for farm-
ers whose crops have been destroyed by natural disasters.
When struck by a natural disaster, a farmer may file an
application for disaster credit with the CCC. The USDA,
through the local branch of the FSA, then establishes bench-
mark crop "yields" and "rates" in order to calculate a particu-
lar farmer's disaster payments. See 7 C.F.R. s 1477.5 (1988).
The purpose of the "yields" and "rates" is to approximate the
value of the crops lost by estimating what the farmer's crop
would have been absent the disaster. A percentage of the
estimated value of the lost crops is then paid to the farmer in
the form of disaster relief.
B.Factual Background
Appellant is a large farming enterprise that does business
in the southwestern United States. During the 1980s, appel-
lant participated in both the PAP and the DAP, in connection
with its farms in Colfax County and Union County, New
Mexico. Appellant's two claims are essentially unrelated to
each other.
1.Appellant's PAP Claim
Appellant bought the land at issue in this case in 1986. In
1982, however, the Colfax County ASCS erroneously desig-
nated 3005.1 acres of this land "non-cropland," thus signifi-
cantly diminishing the land's CAB for the purposes of calcu-
lating payments under the PAP. The parties now agree that
this 3005.1 acres was cropland, and was therefore potentially
"eligible" for consideration in calculating the land's total CAB.
Appellant concedes that when it bought the land, it knew that
the CCC's "data on Appellant's cropland acreage was much
less and inconsistent with the cropland actually on the farm."
Brief for Appellant at 5.
When appellant bought the land in 1986, and every year
thereafter through 1989, it entered into a PAP contract with
the CCC. Each time it entered into a new annual contract,
the CCC provided notice of the CAB calculated for the land,
and informed appellant of its right to appeal this calculation
within fifteen days of receipt of the notice. It is undisputed
that appellant never formally appealed the CAB figure as-
signed to its land, even though it knew that the figure was
inaccurate. Appellant did complain orally to local ASCS
officials about the erroneous CAB. Appellant claims, howev-
er, that it was discouraged from filing formal appeals, because
the local officials represented that the documents needed to
clarify the mistake had been inadvertently destroyed. See
Brief for Appellant at 5-8. Appellant eventually filed a
Freedom of Information Act ("FOIA") request for the rele-
vant documents. The documents had not been destroyed,
and they vindicated appellant's assertion that the 3005.1 acres
was, indeed, cropland.
Appellant argues that it is entitled to retroactive payments
for the years 1986 through 1989 to reflect the payments that
should have been made had the proper CAB been used
during those years. Appellee responds that appellant was
aware of its actual cropland acreage when it entered into the
contracts with the CCC each year, and that both parties fully
performed in accordance with those contracts. Appellee con-
tends that these contracts "cannot be performed retroactive-
ly," and that the court should not construct "implied in law"
contracts to reflect hypothetical contracts that the parties
might have entered into had the proper CAB been used.
Brief for Appellee at 24. Furthermore, appellee points out
that appellant has not established that the disputed acres
were in fact devoted to conservation during 1986 through
1989; since the Colfax County ASCS had designated the land
"non-cropland," those 3005.1 acres were theoretically "freed
up ... for other uses." Id. at 21.
2.Appellant's DAP Claim
Appellant farmed wheat grass in New Mexico from 1986 to
1989. When wheat grass farmers in that region experienced
severe droughts in 1988 and 1989, Congress activated the
DAP to provide relief for those farmers. The USDA estab-
lished wheat grass yields and payment rates to calculate the
disaster payments for wheat grass farmers in New Mexico.
Appellant applied for disaster relief and was awarded pay-
ments based on those yields and rates.
Appellant contends, however, that the selected yields and
rates were too low, precluding the CCC from realistically
approximating the value of the crops destroyed by the
droughts. Specifically, appellant challenges the yield selected
because the USDA relied upon data that was admittedly
seventeen to thirty-one years old, see Appendix for Appellant
("A.A.") 73, and failed to use data from Colorado farms that
arguably would have better reflected appellant's crop growth
potential, see id. at 39. Appellant also challenges the pay-
ment rate selected, primarily on the basis of affidavits from
other farming enterprises, which suggest that the USDA's
rate was lower than rates that were used elsewhere. See,
e.g., id. at 79.
Appellee responds that the use of the disputed data was
necessary and reasonable given the fact that wheat grass
"was not a common crop in New Mexico" and no better data
was readily available. Brief for Appellee at 25. Indeed,
appellant points to no other data for New Mexico. Further-
more, according to appellee, it was proper for the USDA to
use the New Mexico data, as opposed to data collected in
Colorado, because appellant's farm is, in fact, in New Mexico.
As for the rate selected, appellee maintains that as long as
the rate selected is reasonable, appellant "may not complain
merely because there are other rates which also may be
reasonable." Id. at 31.
C.Procedural History
1.The Office of Inspector General Report
At the USDA's request, the USDA Office of Inspector
General ("OIG") reviewed appellant's PAP and DAP com-
plaints. The OIG issued its report on May 3, 1990. See A.A.
37-42. With respect to appellant's PAP claim, the OIG
concluded that the Colfax County ASCS had indeed "under-
stated" appellant's cropland, resulting in an "inadvertent[]"
miscalculation of appellant's CAB. Id. at 41. The OIG
suggested that, in response to this error, "[a]pplicable pro-
gram payments should ... be corrected as necessary." Id. at
42. With respect to appellant's DAP claim, the OIG "recog-
nize[d] the Disaster Program was implemented under tight
time constraints and difficult conditions," but nevertheless
"question[ed] whether it was proper to use 17- to 31-year-old
data." Id. at 40. The OIG also noted that the "Colorado
yields may more closely reflect [appellant's] growth poten-
tial." Id. As for the rate selected, the OIG found "no basis
for questioning the [USDA's] payment rate since it is similar
to Colorado's ... rate and was based on rates obtained from
New Mexico seed companies." Id.
Despite the statements favorable to appellant in the OIG
Report, the CCC refused to make the requested payments.
See Brief for Appellant at 13.
2.The National Appeals Division Decision
Appellant then sought relief through the USDA's adminis-
trative procedures, which culminated in a March 1995 deci-
sion of the National Appeals Division ("NAD") of the USDA.
See Determination of the National Appeals Division, Appeal
of Clifford Skiles, Jr. (Mar. 13, 1995) ("NAD Decision"),
reprinted in A.A. 5.
The NAD noted the existence of, and considered, the OIG
Report, see NAD Decision at 1, reprinted in A.A. 5, but found
in favor of appellee on both the PAP and the DAP claims.
With respect to the PAP claim, the NAD held that the
"contracts in question cannot be revised and program pay-
ments cannot be issued that exceed what was actually earned
under the contracts signed by Appellant and approved by
[the] CCC." Id. at 7, reprinted in A.A. 11. With respect to
the DAP claim, the NAD agreed that the data used in
calculating the yield was "somewhat aged"; however, the
NAD found that the data used was "the best data available at
that time and reflects the cropping conditions of the geo-
graphical location where the crop was grown." Id. at 8,
reprinted in A.A. 12. Finally, as for the payment rate, the
NAD found no "conclusive evidence that the rate was improp-
erly established or that it did not reflect actual market
conditions at that time." Id.
3.The District Court Opinion
Appellant appealed the NAD decision to the District Court.
Appellant's complaint in the District Court requested a total
of approximately $95,000 in damages. See Complaint p 25.
In a memorandum decision, the court granted appellee's
motion for summary judgment on both claims. See Deaf
Smith County Grain Processors, Inc. v. Glickman, Civ. Ac-
tion No. 95-1214 (D.D.C. Dec. 29, 1997) ("Order"), reprinted
in A.A. 1.
With respect to the PAP claim, the court noted that
appellant had been aware of the "true acreage of its farm-
land" when it purchased the land and when it entered into the
contracts each year with the CCC. Order at 2, reprinted in
A.A. 2. Furthermore, the court held, appellant "would not be
able to certify that [from 1986 to 1989] it planted or set aside
additional acres and/or otherwise complied with the additional
contract requirements." Id. at 2-3, reprinted in A.A. 2-3.
With respect to the DAP claim, the court held that the
"administrative record in this case clearly demonstrates that
defendant's actions in establishing the yields in question were
reasonable and that defendant had a rational basis in its
selection of the yields." Id. at 2, reprinted in A.A. 2.
Likewise, the court found no unreasonable conduct in the
selection of the payment rate. See id.
II. Analysis
A.Jurisdiction
It has long been settled that the federal Government may
be sued in federal court only if Congress has waived sover-
eign immunity for the lawsuit. See Cohens v. Virginia, 19
U.S. (6 Wheat.) 264, 411-12 (1821); First Va. Bank v. Ran-
dolph, 110 F.3d 75, 77 (D.C. Cir. 1997). The District Court's
jurisdiction over this case is founded on Congress's waiver of
sovereign immunity in 7 U.S.C. s 6999, which states, in its
entirety:
A final determination of the [National Appeals] Division
shall be reviewable and enforceable by any United States
district court of competent jurisdiction in accordance
with chapter 7 of Title 5.
Were it not for s 6999's specific reference to the judicial
review provisions of the Administrative Procedure Act
("APA"), 5 U.S.C. ss 701-706, there would be no doubt that
s 6999 is an effective waiver of the Government's sovereign
immunity in cases involving challenges to a decision of the
NAD, and that the District Court properly exercised jurisdic-
tion over this case. See Randolph, 110 F.3d at 77-78 (recog-
nizing district court jurisdiction where there is an express
waiver of sovereign immunity coupled with an express grant
of jurisdiction). However, because s 6999 states that final
determinations of the NAD shall be reviewed in the district
court "in accordance with" the APA, there is some question
whether the limits on the APA's waiver of sovereign immuni-
ty apply to this case. This is significant, because the APA
exempts from its waiver of sovereign immunity claims seek-
ing "money damages" from the Government, see 5 U.S.C.
s 702, and claims for which an "adequate remedy" is available
elsewhere, see id. s 704. See Transohio Sav. Bank v. Di-
rector, Office of Thrift Supervision, 967 F.2d 598, 607 (D.C.
Cir. 1992).
It is not clear whether this particular suit for monetary
relief from the federal Government can be characterized as a
claim for "money damages" within the meaning of s 702 of
the APA. Compare Kidwell v. Department of the Army, 56
F.3d 279, 284 (D.C. Cir. 1995) (noting that "a claim is subject
to the Tucker Act and its jurisdictional consequences if, in
whole or in part, it explicitly or 'in essence' seeks more than
$10,000 in monetary relief from the federal government" and
explaining that " '[j]urisdiction under the Tucker Act cannot
be avoided by ... disguising a money claim' as a claim
requesting a form of equitable relief") (citation omitted), with
Esch v. Yeutter, 876 F.2d 976, 984 (D.C. Cir. 1989) (holding
that challenge to USDA's decision to suspend farmers from
participation in subsidy programs was not an action for
"money damages" under Bowen v. Massachusetts, 487 U.S.
879 (1988), and was therefore not subject to Tucker Act
jurisdiction). If s 6999 is read to incorporate the APA's
"money damages" exception to sovereign immunity, and if
appellant's claim is one for "money damages," the District
Court is not a court of "competent" jurisdiction, because
sovereign immunity has not been waived. As a result, the
District Court would not have jurisdiction over this suit.
Moreover, if s 6999 is read to incorporate the judicial
review provisions of the APA, then it would appear that the
Tucker Act--which waives sovereign immunity and provides
the United States Court of Federal Claims ("Claims Court")
with jurisdiction over certain claims for monetary relief from
the federal Government, see 28 U.S.C. s 1491--provides an
"adequate remedy" in the Claims Court, which would pre-
clude district court jurisdiction under s 704 of the APA.
This, too, would militate against the District Court asserting
jurisdiction over this lawsuit.
We must therefore determine whether the "in accordance
with" language of s 6999 suggests that Congress intended
the district court to have jurisdiction over appeals from the
NAD only to the extent that such appeals would be permitted
under the APA. If so, jurisdiction over this case may
properly lie in the Claims Court, depending upon the resolu-
tion of the complicated APA and Tucker Act issues just
described. We need not decide these APA and Tucker Act
issues, however, because we are confident that--as both
parties to this lawsuit contend--Congress intended s 6999's
reference to the APA to govern only the procedural and scope
of review aspects of any appeal from the NAD. It did not
intend for the APA to govern the jurisdiction of the district
court over these kinds of claims. Accordingly, we hold that
s 6999 provides the district court with jurisdiction over all
final determinations of the NAD.
In reaching this conclusion, we have little to guide us but
our common sense. The parties claim that the "plain lan-
guage" of s 6999 is controlling. See, e.g., Appellee's Re-
sponse to Court's Order at 6. We disagree. The language of
s 6999, standing alone, is subject to several plausible inter-
pretations. The judicial review provisions of the APA refer-
enced by s 6999 contain both scope of review limitations, see,
e.g., 5 U.S.C. s 706(2)(A) (establishing the "arbitrary and
capricious" standard of review), and substantive limitations
upon judicial review of agency action, see, e.g., id. ss 702, 704
(establishing the "money damages" and "adequate remedy"
exceptions to the APA's waiver of sovereign immunity). To
say, as s 6999 does, that final determinations of the NAD are
reviewable by the district court "in accordance with" the
judicial review provisions of the APA is to say one of three
things: (i) that the NAD determinations are reviewable to the
extent allowed by ss 702 and 704 of the APA; (ii) that NAD
determinations are reviewable under the procedures set forth
in s 706 of the APA; or (iii) that NAD determinations are
reviewable pursuant to all of the judicial review provisions of
the APA. If anything, the language supports the third
option, given that s 6999's reference to "chapter 7 of Title 5"
is unbounded.
The parties both assert that to adopt this third interpreta-
tion would be to render s 6999 meaningless. Appellant's
theory is that if s 6999 provides jurisdiction in the district
court only for claims that would be reviewable under the
APA, the district court would be effectively divested of juris-
diction over any NAD appeals, because all such appeals
would fall within the exceptions to the APA's grant of sover-
eign immunity. According to appellant, "all appeals from
NAD determinations could be held 'in essence' to involve
claims of entitlement to monetary relief from the federal
government ... and thus implicate Tucker Act jurisdiction."
Appellant's Supplemental Brief at 6. Appellee disagrees with
that contention. See Appellee's Response to Court's Order at
9 (asserting that appellant's DAP claim "would not meet the
narrow view of what is or is not 'money damages' "). Never-
theless, appellee agrees with appellant that an interpretation
that subjects s 6999 to the APA's limits on sovereign immuni-
ty would violate the "basic canon of statutory construction"
that "a proper interpretation of [a] legislative provision must
give all of the words of the provision meaning." Id. at 5.
Appellee's reasoning does not make sense in this context.
If it is true that some appeals from the NAD would not
involve claims for "money damages" and also would not be
subject to the Tucker Act--and we suspect that this is the
case, cf. Esch, 876 F.2d at 984-85 (holding that lawsuit filed
prior to the creation of the NAD was neither for "money
damages" nor subject to the Tucker Act)--then s 6999 may
plausibly be read to provide jurisdiction in district court only
for those appeals from the NAD that do not run afoul of the
APA's "money damages" and "adequate remedy" exceptions.
Such a reading would not render s 6999 meaningless. Nev-
ertheless, we agree that the statute is ambiguous. Therefore,
because the language of s 6999 provides no solution to the
jurisdictional problem in this case, we turn to the history of
s 6999--legislative and otherwise--in an effort to ascertain
Congress's intent.
Unfortunately, the little legislative history that exists for
s 6999 is as ambiguous as the statute itself. Section 209 of
the Senate version of the Department of Agriculture Reorga-
nization Act of 1994 contained a provision that was virtually
identical to the provision that eventually became s 6999. See
S. 1970, 103d Cong. s 209 (1994). The committee report
accompanying the bill contained the following discussion of
s 209:
This section provides that a final determination of the
[National Appeals] Division can be appealed to a U.S.
District Court. Analysis of which issues are subject to
judicial review shall conform with provisions of the Ad-
ministrative Procedure Act (APA).
S. Rep. No. 103-241, at 15 (1994). The parties make much of
this language. They claim that it unambiguously supports
the proposition that Congress "referred to the APA in the
judicial review provision not to specify the location of the
review but rather to specify the methodology of the review to
be conducted." Appellee's Response to Court's Order at 7;
see also Appellant's Supplemental Brief at 5.
Although the first sentence of the quoted paragraph is
quite straightforward, we do not agree that the meaning of
the second sentence is readily apparent. It is certainly far
from clear that an "[a]nalysis of which issues are subject to
judicial review" would involve only the APA's procedural and
scope of review provisions, such as s 706, and not, say, s 704,
which expressly describes the agency actions that are "sub-
ject to judicial review." Because the first sentence contains
no limitation on the right of appeal to the district court, we
are of the view that the committee's statement, read as a
whole, is ambiguous. However, we do not accept the parties'
contention that it positively supports their position.
Armed only with this single sentence of legislative history,
the parties urge us to consider as well "the clearest indication
of legislative intent," which is that the pre-s 6999 state of
affairs was marked by numerous "thorny and frustrating"
jurisdictional disputes, Appellee's Response to Court's Order
at 7-8, and that Congress enacted s 6999 in order to remove
the confusion surrounding this issue. Appellee contends that
"[i]t does not make sense that Congress intended, in a statute
that was designed to improve the conditions involved in the
review of farm program decisions, to leave jurisdictional
gridlock in place." Appellee's Response to Court's Order at
9-10. Although the lack of legislative history to support the
proposition is somewhat troubling, we do agree that, given
the history of the NAD, Congress most likely intended s 6999
to vest jurisdiction over appeals from the NAD in one, and
only one, forum--the district court.
Prior to 1994, claims such as appellant's were heard in an
administrative tribunal known as the National Appeals Divi-
sion, which is not to be confused with the present-day NAD.
See 7 U.S.C. s 1433e(c) (Supp. III 1991) (repealed 1994).
Final decisions of that National Appeals Division--generally
referred to as the "old NAD"--were, by statute, "reviewable
by a United States court of competent jurisdiction." Id.
s 1433e(d). As a practical matter, s 1433e(d) gave litigants
(usually farmers seeking benefits under particular USDA
programs) the choice of filing their claims in either the
Claims Court or in district court. See Christopher R. Kelley
& John S. Harbison, A Guide to the ASCS Administrative
Appeal Process and to the Judicial Review of ASCS Deci-
sions, 36 S.D. L. Rev. 435, 439 (1991). Apparently, due to the
perception that review in district court was generally more
favorable to farmers than review in the Claims Court, farm-
ers often attempted to draft their complaints to avoid the
Tucker Act. See Alexander J. Pires, Jr., Why the U.S.
Claims Court is Not a Viable Venue for Farmers: The U.S.
Claims Court's Handling of Agricultural Cases, 1980-1990,
15 U. Ark. Little Rock L.J. 223, 259 (1993) (suggesting
techniques for avoiding Claims Court jurisdiction, including
such advice as "do not plead a breach of contract count" and
"plead for equitable relief"). The USDA, for its part, fre-
quently challenged the district court's jurisdiction on the
ground that the farmers' claims were actually for "money
damages." See, e.g., Justice v. Lyng, 716 F. Supp. 1567,
1568-69 (D. Ariz. 1988); Alan R. Malasky et al., Resolving
Federal Farm Program Disputes: Recent Developments, 19
Wm. Mitchell L. Rev. 283, 327 & nn.361-62 (1993). It
appears that courts could not agree on the appropriate venue
for the farmers' claims; some were heard in the Claims
Court, see, e.g., Wardlaw Farms, Inc. v. United States, 32
Fed. Cl. 475 (1994), while others were heard in the district
court, see, e.g., Justice. In short, there was "considerable
confusion" over this jurisdictional question. Kelley & Harbi-
son, 36 S.D. L. Rev. at 440; see also Malasky et al., 19 Wm.
Mitchell L. Rev. at 326 (referring to this jurisdictional
question as a "recurring problem[]" in USDA litigation).
Against this backdrop, Congress created the "new" NAD in
1994, and concurrently enacted the judicial review provision
at issue in this case. Significantly, s 6999 differs from the
judicial review provision of the old NAD, in that it vests
authority to review NAD decisions in "any United States
district court of competent jurisdiction" (emphasis added).
By specifying that jurisdiction would lie in the district court,
Congress was arguably signaling its intent to remove the
specter of the Tucker Act--and the Claims Court--from the
judicial review of NAD decisions. Commentators appear to
have assumed that s 6999 "finally puts to rest the Govern-
ment's ... argument that all actions seeking judicial review
of USDA determinations denying farm program benefits are
really actions for 'money damages' which must be brought in
the [Claims Court] under the Tucker Act." Alan R. Malasky
& William E. Penn, USDA Reorganization--Fact or Fic-
tion?, 25 U. Mem. L. Rev. 1161, 1183 (1995). Moreover,
although certainly not dispositive, we find quite relevant the
fact that it is now "the position of the United States that 7
U.S.C. s 6999 provides district courts with jurisdiction to
conduct judicial review of all determinations made by the
NAD." Appellee's Response to Court's Order at 2. After all,
it was the United States that routinely challenged the district
courts' jurisdiction over these claims prior to the creation of
the new NAD, so the Government's present position is at
least noteworthy.
We are convinced that a contrary reading of s 6999--one
founded on the view that the district court had jurisdiction
over only those appeals from the NAD that were not claims
for "money damages"--would result in perhaps even greater
"jurisdictional gridlock" than existed prior to the passage of
s 6999. For example, if we determined that appellant's PAP
claim was one for "money damages," but its DAP claim was
not, jurisdiction over the NAD decision at issue in this case
could potentially lie in both the District Court and the Claims
Court. We agree with the parties that it is highly unlikely
that, given the jurisdictional confusion and uncertainty that
reigned prior to the creation of the new NAD, Congress
intended this result. In the end, although the evidence is not
overwhelming and the language of the statute is far from
unambiguous, it appears that the purpose of s 6999 was to
simplify appeals from the NAD by placing jurisdiction over
them solely in the district court. Accordingly, the District
Court properly exercised jurisdiction over this case, and we
may now address the merits.
B.Standard of Review
As we have just articulated, s 6999 mandates that the
District Court review, as it has, the final determination of the
NAD under the APA's "arbitrary and capricious" standard of
review. On appeal from the District Court, we review the
NAD's decision de novo, see Dr. Pepper/Seven-Up Cos. v.
FTC, 991 F.2d 859, 862 (D.C. Cir. 1993), and will uphold it
unless we find it to be "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5
U.S.C. s 706(2)(A); see also Motor Vehicles Mfrs. Ass'n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41-44 (1983).
C.The PAP Claim
Appellant contends that it is entitled to retroactive pay-
ments under the PAP, in order to compensate it for the
erroneous designation of 3005.1 acres of its land as "non-
cropland." Appellee admits that the Colfax County ASCS
incorrectly reduced the amount of cropland it attributed to
appellant. See Brief for Appellee at 20-21. However, it is
undisputed that appellant nevertheless knowingly entered
into contracts with the CCC each year to receive PAP
payments based on the erroneous amount of cropland that
was attributed to the farm. It is also undisputed that the
payments made under the contracts were correct pursuant to
the terms of those contracts. Although appellant would have
been entitled to additional payments had the contracts accu-
rately reflected the "eligible" cropland, the fact remains that
the contracts did not so reflect that cropland. And, signifi-
cantly, appellant never formally appealed the CABs that had
been attributed to its farm, despite adequate notice of its
ability to do so. See NAD Decision at 7, reprinted in A.A. 11
("The administrative record contains no evidence that Appel-
lant timely submitted an appeal concerning the CABs estab-
lished for the farm during the specified time period for
appeals to be filed.").
By neglecting to formally appeal the CABs, appellant failed
to exhaust its administrative remedies. Its action, at least
with respect to this claim, is therefore barred. See 7 U.S.C.
s 6912(e) (1994) ("[A] person shall exhaust all administrative
appeal procedures established by the Secretary [of Agricul-
ture] or required by law before the person may bring an
action in a court of competent jurisdiction against ... the
Secretary."). Appellant protests that it "orally contested the
accuracy of [the CABs] ... and that Appellee discouraged
any formal appeal by erroneously telling Appellant that the
history records needed to appeal the cropland acreage and
CAB[s] had probably been destroyed." Brief for Appellant at
19. Appellant's claim--that it failed to avail itself of the
procedures available to contest the assigned CAB because it
was induced not to by low-level USDA officials--is, at bottom,
an equitable estoppel claim against the Government. Under
clear precedent of the Supreme Court, we are constrained to
reject such a claim.
In Office of Personnel Management v. Richmond, 496 U.S.
414, 415-16 (1990), the Court emphatically dismissed the
notion that "erroneous oral and written advice given by a
Government employee to a benefits claimant" would "give rise
to estoppel against the Government and so entitle the claim-
ant to a monetary payment not otherwise permitted by law."
The Court noted that the "whole history and practice with
respect to claims against the United States reveals the impos-
sibility of an estoppel claim for money in violation of a
statute," id. at 430, and went on to say that "[t]o open the
door to estoppel claims would only invite endless litigation
over both real and imagined claims of misinformation by
disgruntled citizens, imposing an unpredictable drain on the
public fisc," id. at 433. Appellant in this case seeks to avoid
the exhaustion requirement on the ground that USDA offi-
cials erroneously advised him of the futility of pursuing his
administrative remedies. His claim, although not labeled as
such, falls squarely within the category of equitable estoppel
claims against the Government that the Court precluded in
Richmond.
In any event, even if appellant's claim were not barred for
failure to exhaust, we would be unable to grant appellant the
relief it seeks. As the District Court noted, the record does
not establish what appellant did with the land that was
erroneously designated "non-cropland." See Order at 2-3,
reprinted in A.A. 2-3. Thus, even if we could reconstruct the
contracts between appellant and the CCC--a question that
we need not address--appellant would still have the burden
of establishing not only that it did not farm the disputed acres
during the relevant period, but also that it "complied with the
additional contract requirements," such as setting aside a
portion of the land for certain USDA-approved conservation
uses. See id. at 3, reprinted in A.A. 3. Appellant has not
met its burden of proof on these points.
In sum, the NAD's decision to deny appellant's appeal on
the PAP claim was reasonable. The NAD was not compelled
to follow the recommendations of the OIG Report. The
question at issue here is whether the agency's decision mak-
ing was arbitrary and capricious, and we hold that it was not.
D.The DAP Claim
With respect to appellant's claim under the DAP, we agree
with the District Court that there is nothing in the record to
suggest that the agency acted arbitrarily or capriciously when
it set the yields and rates for wheat grass payments. See
Order at 1-2, reprinted in A.A. 1-2.
The USDA arguably could have selected yields and rates
that were more favorable to appellant. It may even be true
that the USDA failed to use the most accurate data that it
could have found in setting the yield. For example, according
to the OIG Report, USDA officials were told when they
received the New Mexico data that data from Colorado might
"better reflect[]" the actual crop growth in the area surround-
ing appellant's farm. A.A. 39. However, given the "tight
time constraints and difficult conditions" under which the
local USDA officials were operating, id. at 40, it was not
unreasonable for the officials to rely on the New Mexico data,
given that appellant's farm was located in that state. See
North Carolina v. FERC, 112 F.3d 1175, 1190 (D.C. Cir.
1997) (stating that although estimates agency used to select
growth rates might have been less reasonable than other
available data, "the fact that these estimates were less 'rea-
sonable' does not necessarily make them unreasonable or
arbitrary"); National Wildlife Fed'n v. Burford, 871 F.2d
849, 855 (9th Cir. 1989) (noting that under the arbitrary and
capricious standard, "[t]he action ... need be only a reason-
able, not the best or most reasonable, decision"). Further-
more, we are unconvinced that the agency's use of this data
was unreasonable merely because it was, in the words of the
NAD, "somewhat aged." NAD Decision at 8, reprinted in
A.A. 12. Appellant's talismanic repetition of the data's age,
see, e.g., Brief for Appellant at 21, does nothing to illuminate
why data of this type does not maintain its accuracy over
time.
As for the USDA's payment rate, even the OIG Report
found "no basis for questioning" it, because it was so similar
to other rates in the area, and was based on rates obtained
from New Mexico seed companies. A.A. 40. It is not
surprising that appellant can point to other rates in existence
at the time that were higher than the rate chosen by the
USDA. See, e.g., Complaint p 24. These comparative data
cannot carry the day, for the issue here is whether the rate
chosen was reasonable; and there is simply nothing in the
record to suggest that the rate chosen was anything but
reasonable. Appellant does not even claim that the method
by which the USDA calculated its rate was, in any way,
flawed. In fact, appellant concedes that the USDA used the
"methodology set forth" in the USDA's own handbook. Brief
for Appellant at 10.
In short, appellant has failed to establish that the agency's
action with respect to its DAP claim was unreasonable.
Accordingly, we uphold the determination of the NAD with
respect to this claim as well.
III. Conclusion
For the reasons stated above, we affirm the judgment of
the District Court.
So ordered.