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March 31, 1988

Women Involved In Farm Economics, Plaintiff,
United States Department Of Agriculture, et al., Defendants

Joyce Hens Green, District Judge.

The opinion of the court was delivered by: GREEN

JOYCE HENS GREEN, District Judge

 Plaintiff, a national non-profit women's agricultural trade association, brings this action against defendants under the fifth amendment and the Administrative Procedure Act ("APA"), challenging a regulation promulgated by the Secretary of the Department of Agriculture that treats a husband and wife as one "person" for purposes of a $ 50,000 limitation on agricultural crop subsidy payments. The matter now comes before the Court on the parties' cross-motions for summary judgment and on defendants' motion to dismiss for mootness. For the reasons set forth below, defendants' motion to dismiss and motion for summary judgment are denied, and plaintiff's motion for summary judgment is granted.


 Under 7 U.S.C. § 1308, annual payments for the years 1986 through 1990 that "a person shall be entitled to recover" under certain agricultural crop subsidy programs administered by the Agricultural Stabilization and Conservation Service are limited to $ 50,000. In 1970, acting in his discretion to define the term "person" and to prescribe "such rules as the Secretary determines necessary to assure a fair and reasonable application of the limitation established under the section," 7 U.S.C. § 1308(5)(A), the Secretary of Agriculture promulgated federal regulations implementing Section 1308. 35 Fed. Reg. 19339 (Dec. 20, 1970). The Secretary set out three primary substantive criteria for an "individual, joint stock company, corporation, association, trust, estate, or other legal entity" to be considered a "person." Specifically, the individual or other legal entity must:

(a) Have a separate and distinct interest in the land or the crop involved,
(b) Exercise separate responsibility for such interest, and
(c) Be responsible for the cost of farming related to such interest from a fund or account separate from that of any other individual or entity.

 7 C.F.R. § 795.3. Partnerships and joint operations may also be considered separate persons if

the individual or other legal entity is actively engaged in the farming operations of the partnership or other joint operation. An individual or other legal entity shall be considered as actively engaged in the farming operation only if its contribution to the joint operation is commensurate with its share in the proceeds derived from farming by such joint operation. Members of the partnership or joint venture must furnish satisfactory evidence that their contributions of land, labor, management, equipment, or capital to the joint operation are commensurate with their claimed shares of the proceeds.

 7 C.F.R. § 795.7.

 One category of individuals, however, was automatically barred from qualifying for separate payments regardless of whether they satisfied these interest, contribution, responsibility, and active engagement criteria: married couples. 7 C.F.R. Section 795.11 provides: "A husband and wife shall be considered as one person." It is this regulation that plaintiff challenges here.


 Plaintiff challenges Section 795.11 under the fifth amendment both as an infringement on the fundamental right to marry and as impermissible discrimination on the basis of gender. *fn1"

  The appropriate level of scrutiny to be applied to a challenged regulation is determined by the nature of the right or classification involved. Memorial Hospital v. Maricopa County, 415 U.S. 250, 253, 39 L. Ed. 2d 306, 94 S. Ct. 1076 (1974). When the regulation "impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class," then strict scrutiny is to be applied. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976); San Antonio School District v. Rodriguez, 411 U.S. 1, 17, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973). Under the strict scrutiny standard, a statutory classification cannot be upheld "unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests." Zablocki v. Redhail, 434 U.S. 374, 388, 54 L. Ed. 2d 618, 98 S. Ct. 673 (1978).

 The right to marry is fundamental. Zablocki, 434 U.S. at 383; Loving v. Virginia, 388 U.S. 1, 12, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967). The threshold issue here is whether Section 795.11 "directly and substantially interferes" with the right. ...

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