The opinion of the court was delivered by: LOUIS F. OBERDORFER
This matter is before the Court on the parties' cross-motions for summary judgment. The procedural history of the dispute is related in a Memorandum and Order filed May 2, 1991, denying defendant's motion to dismiss and need not be reconstructed here. An accompanying Order will grant plaintiffs' motion, deny defendant's motion, vacate the determination of the Deputy Administrator for State and County Operation of the Agricultural Stabilization and Conservation Service, and remand the matter to the Deputy Administrator for further consideration consistent with this Memorandum. Plaintiffs shall then have the right to appeal the Deputy Administrator's decision on remand to the National Appeals Division, authorized by the Food, Agriculture, Conservation, and Trade Act of 1990, 7 U.S.C. 1433e.
On November 28, 1990, Congress enacted the Food, Agriculture, Conservation and Trade Act of 1990, which, among other things, created an independent appeals division within the Department of Agriculture (Department), the National Appeals Division, and gave the Director of that division the authority to subpoena witnesses and documents necessary to the proper resolution of an appeal.
Almost a year after Congress passed the enabling statute, the Department promulgated regulations creating the National Appeals Division.
The procedure prescribed at the time of the hearings at issue here, however, contemplated that:
(b) The hearing shall be conducted . . . in the manner deemed most likely to obtain the facts relevant to the matter in issue . . .
(c) The participant, or an authorized representative of the participant, shall be given a full opportunity to present facts and information relevant to the matter in issue and may present oral or documentary evidence.
7 C.F.R § 780.8 (emphasis added). Under these regulations, the reviewing authority was authorized to "request or permit", at its discretion, persons other than those appearing on behalf of the program participant to present evidence or information and, in such event, permit the participant to examine such persons, but the reviewing authority did not have the power to subpoena such individuals. Id.
Review of the record in this case and the parties' proposed findings and conclusions of law confirm that the administrative hearings were not conducted in the manner deemed most likely to obtain the facts. The record is replete with hearsay. The Department's decision was based entirely on a report prepared by a single investigator, Agent Schattauer. Administrative Record 271-74. Schattauer drafted the written statements of the various witnesses he interviewed for their signature. Id. at 282. When asked to explain the allegations against plaintiffs, he responded:
My instructions from my office and from the United States Attorney's Office is I stand mute. I have my report, you have a copy of that report, and you can answer to those [sic].
Moreover, although the regulations contemplate that the decisionmaker may rely on "information" as distinguished from "evidence," the probative value of the hearsay and the other information is seriously clouded. There is other information and also plausible allegations of intimidation of the sources of that information. Defendant alleges that witnesses who would have testified against the Vanderveldes were intimidated by their reputation for violence. Plaintiffs counter that witnesses who would have testified on their behalf were likewise intimidated by the government investigator who so frightened them with a gun, badge and a threat of prosecution and loss of program benefits that they signed statements which he drafted for them, and which they are prepared to repudiate. See Affidavit of Steven K. Russell, Esq., Plaintiffs' Motion for Summary Judgment, Exhibit 7.
In addition, an aura of community vendetta emanates from this record and from the possible disproportionality between the plaintiffs' alleged offense and the $ 1,700,000 sanction visited upon them. Although the Department is not required to conduct a trial-type hearing, the procedures employed here do not suffice where threats of violence and vendetta lurk in the controversy, particularly where the triers of fact are a lay committee acting without the supervision or instruction of an independent judicial officer. Esch v. Yeutter, 278 App. D.C. 98, 876 F.2d 976, 992-93 (D.C. Cir. 1989); Doty v. United States, Civil No. 91-0491, slip op. at 28 (Ct. Cl. Dec. 4, 1991) (abuse of ...