Davidson v. Glickman

                  UNITED STATES COURT OF APPEALS

                       For the Fifth Circuit




                           No.    98-60030




       CHARLES DAVIDSON, doing business as Davidson Farms,

                                               Plaintiff - Appellant,

                                 VERSUS

                           DAN GLICKMAN,

                                               Defendant - Appellee.



           Appeal from the United States District Court
             for the Southern District of Mississippi

                          March 31, 1999

Before JOLLY, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

DUHÉ, Circuit Judge:

     Charles Davidson appeals the grant of summary judgment in

favor of the Farm Services Agency (“FSA”) prohibiting revision of

his farm acreage report for 1994.     We vacate and remand, because

the FSA based its denial on a legislative rule not subjected to the

notice and comment requirements in the Administrative Procedure Act

(“APA”).   Davidson also appeals the grant of summary judgment to

the FSA denying his 1995 crop insurance claim.     We affirm, because

Davidson had no insurable interest in the crop at the time of loss.
Standard of Review

     We review a grant of summary judgment de novo, viewing the

facts and inferences in the light most favorable to the nonmovant.

See Hall v. Gillman, Inc., 81 F.3d 35, 36-37 (5th Cir. 1996).

Summary judgment is appropriate if the record discloses “that there

is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.”    Fed. R. Civ.

P. 56(c); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).



1994 Crop

     Davidson leased from the U.S. Fish and Wildlife Service

approximately 4065 acres identified as Agricultural Stabilization

and Conservation Service (“ASCS”)    Farm Serial Number (“FSN”) 131.

The lease permitted planting soybeans on all but certain designated

acreage within that tract.   Davidson also leased an additional 336

acres identified as FSN 68 for planting soybeans.          He began

planting on or near June 1, and finished planting on June 29.   High

water prevented planting on over one-half of FSN 131 and one-third

of FSN 68.

     Davidson timely signed and filed ASCS-578, Report of Acreage

(“acreage report”), for FSN 68 showing 306 acres of soybeans and 30

acres of “conserving use,” and for FSN 131, showing 1717 acres of



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soybeans and 3388 acres of “conserving use.”1   The acreage reports

did not indicate that flooding prevented Davidson from planting the

acres classified as “conserving use.”    On December 27, Davidson

filed ASCS-574, Request for Acreages/Disaster Credit (“disaster

assistance”) on FSN 131 and FSN 38 for low-yield and inability to

plant (“prevented planting”).   The Adams County FSA (“County FSA”)

disapproved the disaster assistance request, because the acreage

reports on file reflected “conserving use” for the relevant acres,

not “prevented planting.” The County FSA would not permit Davidson

to revise the acreage reports, because Handbook 2-CP § 83 prohibits

revision when the producer would benefit from the revision.2   After

fully utilizing the agency review and appeal process, Davidson

sought judicial review of the agency’s final ruling prohibiting

revision.3 Both Davidson and the FSA agreed no facts are disputed

     1
     Handbook 2-CP § 79(A) and (B) require producers to file ASCS-
578 for each crop or land use by the final reporting dates listed
in attached exhibits, with extended reporting time when the
producer makes a timely request for a measurement service. See
Handbook 2-CP (Rev. 14) Amend. 41 § 79(A), (B). Davidson filed
the acreage report on FSN 68 on July 11; he filed the acreage
report on FSN 131 on August 31, within five days of receiving the
measurement report.
     2
     See infra n.4 (citing the specific language of the Handbook
provision).
     3
      Davidson requested reconsideration, and the Adams County FSA
granted reconsideration and reversed, permitting Davidson to revise
the acreage report and to receive disaster assistance. On appeal,
the State FSA reversed the County FSA, finding for the FSA based on
the Handbook provision.     A hearing officer with the National
Appeals Division (NAD) reversed the State FSA, finding for Davidson
on equitable grounds. The FSA requested a final review before the
NAD director, who reversed the hearing officer, finding for the FSA

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and moved for summary judgment.        The district court granted the

FSA’s motion and denied Davidson’s motion.         Davidson appeals.

     The government contends that the Handbook provision does not

permit Davidson to revise his acreage report, because he will

benefit from the revision through eligibility for the disaster

assistance    program.4   Davidson      contends    that   the   agency’s

regulation permitting revision “at any time for all crops and land

uses,” 7 C.F.R. § 718.24 (1994), governs rather than the Handbook

provision.5



based on the Handbook provision.
     4
     Under the Handbook, “[the acreage report] may be revised after
the final reporting date to . . . [c]hange the intended use of a
crop for land use if the change does not provide additional
benefits from payments, P &CP and eligibility for other programs.”
Handbook 2-CP (Rev. 14) Amend. 41 § 83.
     5
      The regulation states:
     [t]he farm operator may revise a report of acreage to
     change the acreage reported. Revised reports shall be
     filed in accordance with instructions issued by the
     Deputy Administrator and shall be accepted:
     (a) At any time for all crops and land uses if evidence
     exists for inspection and determination of
           (1) The existence of the crop.
           (2) The use made of the crop
           (3) The lack of crop, or
           (4) A disaster condition affecting the crop . . . .
7 C.F.R. § 718.24. The regulation has since been revised.
See 7 C.F.R. § 718.24 (1995) (stating that “[t]he farm
operator may revise a report of acreage to change the acreage
reported if the country committee determines that the revision
does not have an adverse impact on the program.”);7 C.F.R. §
718.104 (1996) (stating that “the farm operator may revise a
report of acreage with respect to 1996 and subsequent years to
change the acreage reported if the county committee determines
that the revision does not have an adverse impact on the
program and acreage has not already been determined by FSA.”).

                                   4
     A rule is “an agency statement of general or particular

applicability . . . designed to . . . implement, interpret, or

prescribe law or policy . . . .”              APA, 5 U.S.C.A. § 551(4) (West

1996).     Rule      making   is   the   “agency     process     for   formulating,

amending, or repealing a rule.”               Id.    § 551(5).     An agency must

provide notice of rule making in the Federal Register, and must

allow comment by interested parties.                See id. § 553(b)-(c).        “[A]

person may not in any manner be . . . adversely affected by[] a

matter required to be published in the Federal Register and not so

published.”     Id. § 552(a)(1).         Interpretive rules are exempt from

the notice and comment requirements.                Id. § 553 (b) (A).

     Davidson contends that the Handbook provision is a legislative

rule subject to the notice and comment requirements of the APA.

The FSA does not challenge that the Handbook provision is a rule to

which    the   APA    applies.      Rather,     the    FSA   contends     that   the

“[r]evised [acreage] reports shall be filed in accordance with

instructions issued by the Deputy Administrator” language in 7

C.F.R. § 718.24 satisfies the notice and comment requirements.

Notice must be published in the Federal Register not less than

thirty days before the effective date of the proposed rule.                       See

id. § 553(d).          After publishing notice, the agency must give

interested parties the opportunity to participate in the rule

making by submitting data, views, or arguments.                See id. § 553(c).

The “[r]evised [acreage] reports shall be filed in accordance with



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instructions issued by the Deputy Administrator” language satisfies

neither the notice nor comment requirement.

       The FSA also contends that the Handbook provision is an

interpretive rule, exempt from APA notice and comment requirements.

Interpretive rules state what the administrative officer thinks the

statute or regulation means, see Brown Express, Inc. v. United

States, 607 F.2d 695, 700 (5th Cir. 1979) (internal quotation and

citation omitted),   while legislative rules “affect[] individual

rights and obligations,” see Chrysler Corp. v. Brown, 441 U.S. 281,

301-02 (1979) (internal quotation and citation omitted), and create

law, see Brown Express, Inc., 607 F.2d at 700.        The Handbook

provision   imposes conditions on the revision of acreage reports

beyond those required by the regulation, thereby qualifying as a

legislative rule by “affecting individual rights” and creating new

law.    The FSA cannot use § 83, which does not satisfy the APA

notice and comment requirements, to adversely affect Davidson. We

therefore vacate the district court’s grant of summary judgment,

and remand for further proceedings.



1995 Crop

       Davidson leased acreage from the U.S. Fish and Wildlife

Service for planting soybeans, and insured the soybean crop through

the County FSA. Prior to planting, Davidson performed services and

purchased and applied chemicals worth about $6,511.50.   Backwater



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flooding of the Mississippi River until after the recommended final

planting date for soybeans prevented planting.        Davidson filed a

claim for insurance benefits with the County FSA.         The County FSA

denied coverage because Davidson did not have a share in the crop

at the time of the loss.     After fully utilizing the agency review

and appeal process, Davidson sought judicial review of the agency’s

final ruling denying coverage.6        Both Davidson and the FSA moved

for summary judgment.    The district court granted the FSA’s motion

and denied Davidson’s motion.     Davidson appeals.

     A   producer’s   crop   insurance   policy   consists   of   several

documents, including the Crop Insurance Provisions, the Common Crop

Insurance Policy, and any special provisions.7       Milo and soybeans

are insured under the Coarse Grains Crop Insurance Provisions. See

7 C.F.R. § 457.113 (1)(a) (1995).        Under the Coarse Grains Crop

Insurance Provisions, an insurable crop is a coarse grain crop in

which the producer has a share.     See id.   § 457.113(6)(a)(1).     The

Common Crop Insurance Policy defines “share” as a “percentage of

interest in the insured crop as . . . [producer] at the time the

coverage begins.”     Id. § 457.8(1)(nn).      However,    for indemnity

purposes, the producer’s      share is limited to his share at the


     6
     On appeal, a NAD hearing officer upheld the County FSA’s
denial of the claim.    The NAD director upheld the NAD hearing
officer’s denial of the claim.
     7
     See, e.g., 7 C.F.R. § 457.1 et seq. (Crop Insurance
Provisions); § 457.8 (Common Crop Insurance Policy); § 457.113
(Coarse Grains Crop Insurance Provisions).

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earlier of the time of the loss or the beginning of the harvest.

See id.

     Davidson contends that, under applicable Mississippi law, he

had a share in the soybean crop at the time of loss.8             The agency

counters that, under the lease, Davidson had no share in the crop

at the time of loss.        The agency reasons as follows.        The lease

lists the number of acres potentially available to plant, but

specifically adjusts that number based on the actual acres planted

after accounting for prevented planting from backwater flooding.

In other words, the number of acres actually planted or prevented

from being planted for reasons other than backwater flooding will

determine the actual number of acres in which Davidson has a

share.9     The   parties   agree   that   backwater   flooding    prevented

     8
      See Southeastern Fidelity Ins. Co. v. Gann, 340 So.2d 429,
433-34 (Miss. 1976) (“anyone has an insurable interest in property
who derives a benefit from its existence or would suffer loss from
its destruction.”); Fry v. Jordan Auto Co., 80 So.2d 53, 57 (Miss.
1955) (noting that both a lessor and lessee have an insurable
interest in the leased premises). Davidson also relies on Parks v.
Federal Crop Ins. Corp., 416 F.2d 833, 839 (7th Cir. 1969) (noting
in a case defining “producer” for crop insurance purposes that
“one has an insurable interest in property by the existence of
which he receives a benefit, or by the destruction of which he
suffers a loss, regardless of whether he has title to the
property.”).
     9
          The relevant lease provision reads as follows:

    [Davidson’s] rent for soybean ground will be based on a
    75%-25% share basis. The government’s share of 25% of the
    total acreage planted will be compensated by planting
    designated crops for the refuge or providing services for
    the refuge or both. . . . The total farmable acreage under
    this agreement will be approximately 3,000 acres.      The
    maximum government share on the 3,000 acres would be 750

                                      8
planting.   Davidson planted zero acres, leaving Davidson with   a

share in zero acres.   Since he had no share, he had no insurable

interest.

     Under the APA, we review questions of law de novo, without

deference to the agency’s conclusions.   See APA, 5 U.S.C.A. § 706

(1996);   Institute for Tech. Dev. v. Brown, 63 F.3d 445, 450 (5th

Cir. 1995) (noting that courts review agencies’ legal conclusions

de novo).   The agency’s interpretation of Davidson’s lease is a

matter of law which we review de novo.   See Exxon Corp. v. Crosby-

Mississippi Resources, Ltd., 154 F.3d 202, 205 (5th Cir. 1998)

(noting that contract interpretation is a matter of law reviewed de

novo).    Our de novo review establishes that the FSA correctly

interpreted Davidson’s lease provision; Davidson had no insurable

interest at the time of loss.   The lease terms limited the number

of acres in which Davidson had an interest to those acres actually

planted or prevented from being planted for reasons other than

backwater flooding.    Since zero acres were planted or prevented

from being planted for reasons other than backwater flooding,

Davidson had a share in zero acres.       We therefore affirm the

district court’s grant of summary judgment to the FSA.


    acres (25%). [Davidson] will provide the refuge with 150
    acres of milo to be planted at specific locations around
    the refuge. The remaining share of 600 acres . . . will
    be taken in specified services amounting to 15,000 dollars
    (600 acres X 25 dollars per acre). . . . NOTE: Adjustments
    in acreage will need to be made according to the amount of
    acreage actually planted due to the backwater flooding.

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VACATED and REMANDED in part; AFFIRMED in part.




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