Bartlett v. United States Department of Agriculture

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 12-3087
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Peter Bartlett; Sara Boevers; Steven Boevers; Dale Busch; Duane Busch; Brad
Carlson; Matthew Carlson; Scott Chapin; Jeffrey Cook; Dimon Grain &
Livestock, Inc.; Doolittle Enterprises, LLC; Eric Doolittle; Brian Fonken;
Jacquelyn Fonken; Max Fonken; Hanson Corporation; Russell L. Hanson; Charles
A.D. Haywood; Paul Haywood; Terry Hennings; Hillcrest Stock Farms, Inc.; Kreg
Kantak

lllllllllllllllllllll Plaintiffs - Appellants

Kevin Luedtke

lllllllllllllllllllll Plaintiff

Larry Luhring; Richard Luhring; Brian Meyer; Moser Farms, Inc.; Mott Farms, Inc.

lllllllllllllllllllll Plaintiffs - Appellants

Jack Moulds

lllllllllllllllllllll Plaintiff

Kennerly N. Reece; Ridge View Stock Farms, Corp.; Nolan Rollene; Schwandt
Farms, Inc.; Dallas Thomas; Vierkandt Farms; Adam Wibholm; John Wibholm;
Jason Woodring

lllllllllllllllllllll Plaintiffs - Appellants

v.

United States Department of Agriculture; Thomas J. Vilsack, in his official
capacity as Secretary of the United States Department of Agriculture; Farm
Service Agency; Bruce Nelson, in his official capacity as Acting Administrator of
the Farm Service Agency; Iowa State Farm Service Agency; John Whitaker, in his
offical capacity as Executive Director of the Iowa State Farm Service Agency

lllllllllllllllllllll Defendants - Appellees
____________

Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
____________

Submitted: April 9, 2013
Filed: June 5, 2013
____________

Before LOKEN and GRUENDER, Circuit Judges, and PHILLIPS,1 District Judge.
____________

GRUENDER, Circuit Judge.

Plaintiffs are thirty-eight individuals and entities who farm corn and soybeans
in several counties in Iowa (collectively, the “Producers”). Each Producer claimed
eligibility to receive a payment under the Supplemental Revenue Assistance
Payments Program (“SURE Program”) for the 2008 crop year. In this lawsuit, the
Producers allege that the defendants, six government entities and officials, improperly
calculated SURE program payments allegedly owed to them under 7 U.S.C. § 1531.
The district court2 dismissed the lawsuit because the Producers failed to exhaust their

1
The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri, sitting by designation.
2
The Honorable Linda R. Reade, Chief United States District Judge for the
Northern District of Iowa.

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administrative remedies before filing suit and no equitable doctrine excused their
failure to exhaust. The Producers appeal, and we affirm.

I. BACKGROUND

The defendants are the United States Department of Agriculture (“USDA”); the
Farm Service Agency (“FSA”); the Farm Service Agency for the State of Iowa (“Iowa
FSA”); Secretary of Agriculture Thomas J. Vilsack; Acting Administrator of the Farm
Service Agency, Bruce Nelson; and Executive Director of the Iowa Farm Service
Agency, John Whitaker (collectively, the “Government”). The USDA, through its
division the FSA, implements the SURE Program on the federal level. Congress
created the SURE Program through the Food Conservation and Energy Act of 2008,
and the FSA has adopted regulations to administer the program. The SURE Program
provides disaster assistance payments to eligible producers for losses in crop
production or quality resulting from a natural disaster. Under the SURE Program,
eligible producers may receive sixty percent of the difference between the disaster
assistance program guarantee (“SURE guarantee”) and the total actual revenue of the
farm. 7 U.S.C. § 1531(b)(2)(A). Pursuant to a statutory formula, the SURE guarantee
is equal to 120 percent of the product of three factors, one of which is the “price
election for the commodity elected by the eligible producer” (“price election”). Id.
§ 1531(b)(3)(A)(ii). In turn, FSA regulations define “price election” as “the crop
insurance price elected by the participant multiplied by the percentage of price elected
by the participant.” 7 C.F.R § 760.602. State committees, such as the Iowa FSA, and
local county committees are responsible for administering FSA programs on the local
level. 7 C.F.R. § 7.2. As part of their responsibilities, these FSA subdivisions use
federal and statutory formulas to calculate and issue SURE Program payments under
the supervision of the FSA.

A program participant may seek administrative review of certain adverse
county committee determinations by requesting reconsideration by the county

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committee, appealing to the state committee, requesting reconsideration by the state
committee, agreeing to mediation, or appealing to the USDA National Appeals
Division (“NAD”). 7 C.F.R. § 780.6. The NAD is a separate subdivision within the
USDA and is independent of all other USDA agencies and offices, including local
department officials. 7 C.F.R. § 11.2(a). The Secretary of Agriculture appoints the
Director of the NAD, 7 U.S.C. § 6992(b)(1), and the NAD Director makes the final
administrative decision as to whether an agency decision is appealable. Id. § 6992(d);
7 C.F.R. §11.6. Notwithstanding the other avenues of administrative appeal, only
“final determination[s]” by the NAD are “reviewable and enforceable” by district
courts. 7 U.S.C. § 6999; 7 C.F.R. § 11.13(a).

However, not all county committee decisions are eligible for administrative
review. By regulation, neither the FSA nor the NAD has the authority to review
matters of “general applicability.” The relevant FSA regulations state that
unappealable county committee determinations include decisions regarding: “(1) Any
general program provision or program policy or any statutory or regulatory
requirement that is applicable to similarly situated participants; [or] (2) Mathematical
formulas established under a statute or program regulation and decisions based solely
on the application of those formulas.” 7 C.F.R. § 780.5(a). The administrative appeal
regulations applicable to the NAD further provide that “[t]he procedures contained
in this part may not be used to seek review of statutes or USDA regulations issued
under Federal Law.” 7 C.F.R. § 11.3(b). These regulations provide both the State
Executive Director and the NAD Director with the authority to determine whether an
adverse county committee decision is appealable. 7 U.S.C. § 6992(d); 7 C.F.R.
§ 11.6(a); 7 C.F.R. § 780.5(b). However, the State Executive Director’s
determination is not a final agency action; rather, it “is considered by FSA to be a
new decision.” 7 C.F.R. § 780.5(c). In other words, only the NAD Director has the
final authority to determine whether an FSA decision falls into the categories of
issues that are eligible for administrative appeal, and, as explained above, only a final
decision of the NAD is reviewable by a district court. 7 U.S.C. § 6999; 7 C.F.R.
§ 11.13.

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 The Producers each submitted an application for a SURE Program payment for
the 2008 crop year. The dispute here centers on the price election figure that the
county committees used to calculate the Producers’ SURE Program payments.
Specifically, the Producers contend that the price election should be determined by
using the price election figure in each of their individual crop insurance policies,
rather than the price election figures established by the USDA’s Risk Management
Agency (“RMA”). The Producers argue that the county committees’ decision to use
the RMA price election figures resulted in SURE Program payments that were
erroneously low, and in some cases, zero.

One of the Producers, Vierkandt Farms, contacted attorney Douglas E. Gross
after the local county committee in Hardin County, Iowa, informed it that no SURE
Program payment would be forthcoming for the 2008 crop year. Gross requested a
hearing before the Hardin County Committee to reconsider the matter. Gross averred
that at that hearing, Kevin McClure, Iowa FSA Chief Agricultural Program Specialist,
informed him that the issues raised at that hearing were matters of general
applicability and, thus, not eligible for administrative appeal.

Five days after the hearing, Gross spoke with McClure by telephone. Gross
stated that McClure agreed that the “FSA/NAD appealability review process” would
be a “wast[e of] everyone’s time and money” because it would be “fruitless and
futile.” He further testified that McClure stated that “he would ensure that the Hardin
County FSA’s letter denying Vierkandt Farms’s appeal would contain language
stating that Vierkandt Farms’ administrative appeal process had been exhausted at the
county level.” Gross’s firm then was retained by thirty-seven other clients, including
each of the Producers. The Producers all appealed their initial 2008 SURE Program
payment calculations to their respective county committees. The FSA county
committees heard each appeal at separate informal hearings and denied the appeals,
all finding the issues were non-appealable matters of general applicability. Following
each of the informal hearings, the Producers each received a letter from their
respective FSA county committee informing them of the committee’s decision. The

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letters explained how the SURE Program payments were calculated and stated that
there were no data entry errors. Each letter also stated:

The county committee has determined that the issues raised in this
appeal are not appealable. . . . You may seek a review of the county
committee’s determination by filing with either the FSA State Executive
Director or the National Appeals Division (NAD) Director a written
request no later than 30 calendar days after the date you receive this
notice according to the FSA appeal procedures found at 7 CFR Part 780
or the NAD appeal procedures found at 7 CFR Part 11. If you believe
that this issue is appealable, you must write to either the FSA State
Executive Director or the NAD Director at the applicable address shown
and explain why you believe this determination is appealable. . . . If you
request an appealability review by the State Executive Director and the
State Executive Director determines that the issue is not appealable, you
will be afforded the right to request an appealability review by the NAD
Director.

The letters then provided the addresses of the Iowa FSA Executive Director and the
NAD Director. Notwithstanding the body of the letters, a seemingly contradictory
concluding sentence stated: “If you do not file an appealability review request, your
administrative review process has been exhausted.”

After receiving these letters from their respective FSA county committees,
none of the Producers sought further review from the county committees, the FSA
State Executive Director, the NAD, or elsewhere within the USDA. Instead, the
Producers filed this lawsuit. The Government filed a motion to dismiss based on the
Producers’ failure to exhaust their administrative remedies pursuant to § 6912(e),
which, along with § 6992 and § 6999, requires parties to appeal adverse FSA
determinations to the NAD before filing suit in district court. The district court held
that the Producers failed to exhaust their administrative remedies and that no
equitable doctrine excused the Producers’ failure to exhaust. On appeal, the
Producers do not challenge the district court’s conclusion that they failed to exhaust

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their administrative remedies and challenge only whether an equitable doctrine
excuses their failure to exhaust.

II. DISCUSSION

“We review ‘de novo the grant of a motion to dismiss, taking all facts alleged
in the complaint as true.’” Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010) (quoting
Owen v. Gen. Motors Corp., 533 F.3d 913, 918 (8th Cir. 2008)). We also review the
district court’s decision on exhaustion de novo. Ace Prop. & Cas. Ins. Co. v. Fed.
Crop Ins. Corp., 440 F.3d 992, 1000 (8th Cir. 2006). As an initial matter, we must
address the Government’s argument that the Producers’ failure to satisfy the
exhaustion requirement in § 6912(e) is a jurisdictional bar to review. Exhaustion
statutes may be jurisdictional or nonjurisdictional. Id. at 996 (citing Weinberger v.
Salfi, 422 U.S. 749 (1975)). If a statute is jurisdictional, a court cannot excuse or
waive the exhaustion requirement, and a party’s failure to exhaust bars review. Id.
“In contrast, a non-jurisdictional statute codifies the common law exhaustion
principle under which exhaustion of administrative remedies is favored, but may be
excused by a limited number of exceptions to the general rule.” Id. (citing Salfi, 422
U.S. at 765-66).

Here, the applicable statute, 7 U.S.C. § 6912(e), provides that “a person shall
exhaust all administrative appeal procedures established by the Secretary or required
by law before the person may bring an action in a court of competent jurisdiction
against (1) the Secretary [of the USDA]; (2) the [USDA]; or (3) an agency office,
officer, or employee of the [USDA].” In Ace Property, we held “that § 6912(e) is
nothing more than ‘a codified requirement of administrative exhaustion’ and is thus
not jurisdictional.” 440 F.3d at 999 (quoting Salfi, 422 U.S. at 757).3 As a result, the

3
The Government correctly notes that the circuits are split on whether § 6912(e)
is jurisdictional—a split that existed when we first decided the issue in Ace Property.
Compare McBride Cotton & Cattle Corp. v. Veneman, 290 F.3d 973 (9th Cir. 2002)

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Producers’ failure to exhaust their administrative remedies is not a jurisdictional bar
to review and the court may consider whether exhaustion is excused under a limited
number of exceptions. The Producers advance three alternative arguments as to why
they were not required to exhaust their administrative remedies: further appeal within
the USDA would have been futile, their claim raised a purely legal question, and the
Iowa FSA’s misconduct equitably estops the Government from asserting the failure
to exhaust defense.

A. Futility

The Producers contend that their failure to exhaust should be excused as futile
because the NAD lacked authority to hear their appealability claim, and even if it
possessed such authority, the USDA did not have authority to grant effective relief
on the underlying price election issue. “An administrative remedy will be deemed
futile if there is doubt about whether the agency could grant effective relief.” Ace
Prop., 440 F.3d at 1000. The Supreme Court has identified specific circumstances
that render an administrative remedy futile. For example, “an agency, as a
preliminary matter, may be unable to consider whether to grant relief because it lacks
institutional competence to resolve the particular type of issue presented” or “an
agency may be competent to adjudicate the issue presented, but still lack authority to
grant the type of relief requested.” McCarthy v. Madigan, 503 U.S. 140, 147-48
(1992).

As to the USDA’s ability to adjudicate the appealability issue, the Producers
contend that the court should excuse their failure to exhaust as futile because the price

(holding the exhaustion requirement in § 6912(e) to be non-jurisdictional) with
Bastek v. Fed. Crop Ins. Corp., 145 F.3d 90 (2d Cir. 1998) (concluding that the
exhaustion requirement in § 6912(e) is a jurisdictional bar to review). However, “[i]t
is a cardinal rule in our circuit that one panel is bound by the decision of a prior
panel.” Sisney v. Reisch, 674 F.3d 839, 843 (8th Cir. 2012) (quoting Owsley v.
Luebbers, 281 F.3d 687, 690 (8th Cir. 2002)).

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election issue is an unappealable issue of general applicability. As the district court
correctly noted, however, the Producers’ argument is circular. By assuming that the
price election issue is one of general applicability, Producers’ argument necessarily
makes its conclusion that the question is unappealable. However, the question of
general applicability is what would be at issue had the Producers appealed the
question of appealability to the NAD.

The Producers’ argument also runs counter to federal statutes and USDA
regulations, which vest the final authority to determine administrative appealability
with the NAD Director. 7 U.S.C. § 6992(d) (“[T]he [NAD] Director shall determine
whether the decision is adverse to the individual participant and thus appealable or
is a matter of general applicability and thus not subject to appeal. The determination
of the Director as to whether a decision is appealable shall be administratively
final.”); 7 C.F.R. § 11.6(a)(2) (“The [NAD] Director shall determine[] whether the
decision is adverse to the individual participant and thus appealable or is a matter of
general applicability and thus not subject to appeal, and will issue a final
determination notice that upholds or reverses the determination of the agency.”).
Thus, the ultimate authority to interpret 7 C.F.R. § 780.5 and determine whether a
decision is appealable lies not with the FSA county committees but with the NAD.
Indeed, the FSA county committee decision letters sent to the Producers acknowledge
that their appealability determination is neither final nor dispositive by outlining the
available appeal procedures. Further, as one recent NAD decision illustrates, an
appeal to the NAD Director can lead to reversal of an initial FSA determination of
unappealability. See USDA National Appeals Division, NAD Determinations, Case
No. 2011E000297, Appealability Decision (Feb. 28, 2011) available at
http://www.nad.usda.gov/public_search.html (reversing the FSA’s determination and
concluding that a farmer’s appeal asserting error in a SURE Program payment
calculation was specific to the farmer’s individual circumstances and, therefore,
appealable). Because the NAD is vested with final authority to determine whether
an issue is appealable, an FSA decision that an issue is not appealable does not make
an appeal to the NAD futile, and the Producers’ attempt to treat the FSA’s

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appealability determination as final amounts to an end run around the administrative
appeal process.

The Producers also argue that any appeal to the NAD would have been futile
because the USDA still would not have been able to grant relief on the merits of the
underlying price election issue. The Producers contend that regulations preclude the
USDA from providing relief because the Producers’ claims rest on a challenge to the
FSA’s general interpretation and application of the term “price election,” which they
assert to be a matter of general applicability that is not appealable through the NAD
or FSA appeals process. However, the Producers’ contention misconceives the
USDA procedures. From the agency’s perspective, the threshold question is whether
the county committees’ decision to use the RMA price election figures is subject to
any further administrative review. If the NAD Director (or his designee) disagrees
with the county committees and decides that the price election issue is appealable,
then the Producers’ appeal would be referred to an NAD hearing officer for an
administrative hearing and review of the merits of the FSA’s decision. See 7 U.S.C.
§ 6996; 7 C.F.R. §§ 11.1; 11.6; 11.8. The hearing officer’s decision on the merits
could then be appealed to the NAD Director, and the Director’s decision on the merits
then would become a final agency action subject to judicial review in accordance with
the Administrative Procedure Act. See 7 U.S.C. §§ 6998-6999; 7 C.F.R. §§ 11.9;
11.13; Deaf Smith Cnty. Grain Processors, Inc. v. Glickman, 162 F.3d 1206, 1213
(D.C. Cir. 1998). If, however, the NAD Director decides that the price election issue
is a matter of general applicability and therefore not subject to further administrative
review, that decision is a final agency action satisfying the Producers’ obligation to
“exhaust all administrative appeal procedures.” 7 U.S.C. § 6912(e). The merits of the
county committees’ decisions are then reviewable under 7 U.S.C. § 6999 and 7 C.F.R.

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§11.13.4 Therefore, the district court did not err in concluding that futility did not
excuse the Producers’ failure to exhaust.

B. Legal Question

The Producers argue that the legal question exception excuses their failure to
exhaust. Under the legal question exception, also called the legal issues exception,
a party’s failure to exhaust should be excused if the issues “are legal questions which
are not suitable for administrative resolution and are more properly resolved by the
courts.” Ace Prop., 440 F.3d at 1001. “The legal issues exception is extremely
narrow and should only be invoked if the issues involved are ones in which the
agency has no expertise . . . .” Id. Requiring exhaustion in cases that call for agency
expertise prevents “premature interference with agency processes, so that the agency
may function efficiently and so that it may have an opportunity to correct its own
errors.” Id. (quoting Salfi, 422 U.S. at 765). It also “afford[s] the parties and the
court the benefit of [the agency’s] experience” and “complete[s] a record which is
adequate for judicial review.” Id. (quoting Salfi, 422 U.S. at 765). We note that the
parties dispute which issue the court should consider as the basis for the legal
question exception. The Producers argue that we should consider the underlying
price election issue, while the Government contends that the proper basis for the
inquiry is the appealability determination.

Congress specifically vested the NAD with the authority to determine
appealability. See 7 U.S.C. § 6992(d) (“[T]he [NAD] Director shall determine
whether the decision is adverse to the individual participant and thus appealable or

4
The NAD Director’s determination that an administrative appeal raises an
issue of general applicability that is not subject to further USDA review may well be
a matter “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), an issue we
need not address. But the county committees’ decisions on the merits made final by
this NAD determination would clearly be “[a]gency action made reviewable by
statute” within the meaning of 5 U.S.C. § 704.

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is a matter of general applicability and thus not subject to appeal.”). Through this
appealability review, participants call upon the NAD to draw on its expertise in
interpreting 7 C.F.R. § 780.5 to determine whether a matter is subject to further
USDA review. The Producers, however, did not avail themselves of that expertise,
and by intentionally bypassing the administrative appeal process and proceeding
directly to federal district court, they undermined the purposes of exhaustion and
“premature[ly] interfer[ed] with agency processes.” Ace Prop., 440 F.3d at 1001
(quoting Salfi, 422 U.S. at 765). With respect to the price election issue,
interpretation of the SURE Program statute and regulations is, of course, a question
within the expertise of the FSA, and of the NAD if it concludes that the issue is
administratively appealable and reviews the merits of the FSA’s decision.
Accordingly, the district court did not err in concluding that the legal question excuse
did not excuse the Producers from exhaustion.

C. Equitable Estoppel

Finally, the Producers argue that the Government should be equitably estopped
from asserting the defense of failure to exhaust administrative remedies based on
McClure’s allegedly misleading statements regarding exhaustion, a contention
squarely rejected by the D.C. Circuit in Deaf Smith, 162 F.3d at 1214.

As a preliminary matter, we must address the Government’s contention that
equitable estoppel may not be applied against the government. To be sure, the
Supreme Court and this circuit have warned that courts should be cautious when
evaluating estoppel claims against the government. See Office of Pers. Mgmt. v.
Richmond, 496 U.S. 414, 422 (1990) (“Courts of Appeals have taken our statements
as an invitation to search for an appropriate case in which to apply estoppel against
the Government, yet we have reversed every finding of estoppel that we have
reviewed.”); see also Harding Cnty., S.D. v. Frithiof, 575 F.3d 767, 777 (8th Cir.
2009) (“[E]stoppel should be used sparingly against the public entities.”). Further,
“equitable estoppel will not lie against the Government as it lies against private

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litigants.” Richmond, 496 U.S. at 419. At the same time, however, neither “the
Supreme Court [n]or this court [has] accepted the position . . . that the government
may not be estopped as a matter of law.” Wang v. Att’y Gen., 823 F.2d 1273, 1276
(8th Cir. 1987).

However, while a party’s status as a government litigant does not preclude the
application of equitable estoppel, it does increase the burden an opposing party must
carry in order to prevail on its estoppel claim. “To succeed on a claim of equitable
estoppel against the government, a plaintiff must not only prove all the elements of
equitable estoppel, but also that the government committed affirmative misconduct.”
Charleston Hous. Auth. v. U.S. Dep’t of Agric., 419 F.3d 729, 739 (8th Cir. 2005).
Through this affirmative misconduct requirement, “[t]he Supreme Court has imposed
a more stringent standard for estopping the government because there is a strong
public interest in upholding the rule of law, even where hardship may result to
individuals in particular cases.” Wang, 823 F.2d at 1276. The claimant bears the
“heavy burden” of establishing that the government engaged in affirmative
misconduct. Morgan v. Comm’r, 345 F.3d 563, 566 (8th Cir. 2003). If a claimant
satisfies the affirmative misconduct requirement, he then must prove the four
traditional elements of estoppel: (1) a “false representation by the government;” (2)
government intent to induce the claimant to act on the misrepresentation; (3) a lack
of knowledge or inability to obtain true facts on the part of the claimant; and (4) the
claimant’s “reliance on the misrepresentation to his detriment.” Rutten v. United
States, 299 F.3d 993, 995 (8th Cir. 2002).

The Producers’ estoppel claim fails because they cannot establish that the
Government committed affirmative misconduct. “We must determine what
constitutes ‘affirmative misconduct’ by negative implication.” Wang, 832 F.2d at
1276. Although no precise definition of affirmative misconduct exists outside the

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immigration context,5 our cases make clear that affirmative misconduct is something
more than mere negligence. See, e.g., Ctr. for Special Needs Trust Admin. Inc. v.
Olson, 676 F.3d 688, 698 (8th Cir. 2012) (holding that a mistake in recording a
Medicaid applicant’s age was not affirmative misconduct); Morgan, 345 F.3d at 566-
67 (holding that “negligence and possible bad faith” in an IRS officer’s
representations about tax liability were “insufficient grounds for estoppel”).

In an analogous case, we held that an FSA officer’s incorrect advice did not
constitute affirmative misconduct. Clason v. Johanns, 438 F.3d 868 (8th Cir. 2006).
In Clason, a farmer contended that the government was estopped from requiring him
to make physical delivery of grain in order to receive a more favorable repayment rate
on a marketing assistance loan after an FSA officer allegedly told him that
constructive delivery was acceptable. Id. at 872. The court concluded that “[a]t most
the FSA officer’s comments were the product of negligence,” which was insufficient
to establish affirmative misconduct. Id. Here, the Producers contend that McClure’s
statements at the Vierkandt Farms hearing and in telephone conversations with Gross,
as well as the inclusion of the concluding sentence regarding exhaustion in the FSA
county committee letters, amounted to affirmative misconduct. However, as in
Clason, these allegedly misleading actions were at most the product of negligence,
which is insufficient to establish affirmative misconduct.

Even if we were to conclude that the Government potentially committed
affirmative misconduct, the Producers’ estoppel claim nonetheless would fail because

5
In the immigration context, we have defined affirmative misconduct “as a
‘deliberate lie’ or ‘a pattern of false promises.’” Mejia-Perez v. Gonzales, 490 F.3d
1011, 1012 (8th Cir. 2007) (quoting Varela v. Ashcroft, 368 F.3d 864, 866 (8th Cir.
2004)). However, we have never adopted this definition outside the immigration
context and decline to do so here.

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they cannot establish three of the four elements of traditional estoppel.6 The
Producers cannot establish the second element of estoppel because they did not allege
any facts suggesting that McClure intended to induce the Producers to rely on the
false statement. The Producers also cannot show that they lacked knowledge or were
unable to obtain true facts as to whether the concluding sentence in the FSA county
committee letters regarding administrative exhaustion was true, as required by the
third traditional element of estoppel. Although admittedly inconsistent with the
concluding sentence, the body of the county committee letters stated that “[i]f you
believe this issue is appealable, you must write to either the FSA State Executive
Director or the NAD Director . . . and explain why you believe this determination is
appealable.” (emphasis added). In addition, information about when an adverse
decision is appealable and how to appeal an agency’s appealability determination to
the NAD is readily available online. See USDA NAD, “File An Appeal,” available
at http://www.nad.usda.gov/app_appeal.html (providing appeal request forms,
instructions on deadlines, and information on what to do if an agency states that an
adverse decision is not appealable). Moreover, as the district court found, the
Producers “admit[ted] that they knew they were required to exhaust their
administrative remedies and . . . they were looking for a way to avoid the
requirement.” Thus, they had knowledge of the true facts pertaining to administrative
exhaustion as well as the ability to research whether McClure had the authority to
exempt the Producers from federal statutes and regulations related to exhaustion.
Finally, the Producers cannot meet the detrimental reliance element. Although they
argue that they relied on the alleged agreement with McClure to their detriment, the
district court found that “counsel’s reliance on a purported agreement with a
government employee to avoid the law is unreasonable.” See Heckler v. Cmty. Health
Servs. of Crawford Cnty., Inc., 467 U.S. 51, 63 (1984) (explaining that as a general
rule, “those who deal with the Government are expected to know the law and may not

6
The Government concedes that, assuming McClure made the statements that
the Producers attribute to him, these statements were false and satisfy the first
traditional element of estoppel.

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rely on the conduct of Government agents contrary to law”). Therefore, the district
court did not err in concluding that equitable estoppel did not bar the Government
from asserting the defense of failure to exhaust administrative remedies.

III. CONCLUSION

Because the Producers are unable to demonstrate that any of the limited
exceptions to the administrative exhaustion requirement apply, the district court did
not err in dismissing their suit for failure to exhaust. Accordingly, we affirm the
district court’s grant of the Government’s motion to dismiss.
______________________________

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