States Attorney. Id. at 285. Plaintiffs requests were denied, in part, because the Department was unable to compel these witnesses to appear. Id.
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 discretion for agency to refuse to call a witness, on which it relied, who had a possible motive to harm participant and whose statements contradicted those of other witnesses).
It may be that at the time of the hearing the agency thought it could not produce the witnesses sought by plaintiffs. But there is no showing that anyone in authority made any effort, for example, to arrange to have them interviewed by another investigator or otherwise sought to reassure them, by pledges of protection against reprisal by either side, or any other measure, in an effort to get them to come forward. Of course, it also may be that there is no basis for the allegations of intimidation.
But subpoenas and cross-examination in an open hearing are time-tested devices for overcoming this kind of barrier to a hearing most likely to obtain the facts. They are now available to the Department and should be employed on remand.
In this connection, there is an issue as to whether the subpoena power created in the Department by the Food, Agriculture, Conservation, and Trade Act of 1990 applies to determinations made before the effective date of that statute.
It is noteworthy that this is a procedural, not a substantive, innovation. There is ample authority for the proposition that, for example, revisions of the Federal Rules of Civil Procedure apply to pending civil cases, even though the revision are Acts of Congress in the sense that congress must approve them, at least by silence after a waiting period. Moreover, the accompanying Order will vacate the February 14, 1989 determination by the Deputy Administrator for State and County Operations. So, on remand, as a practical matter, the determination, if adverse, will be one that will have been made after November 28, 1990, but which had not become final by November 25, 1991. See note 3, supra. So here, after vacation and remand, in any new proceedings before the National Appeals Division the agency should use its subpoena power to produce those witnesses whom, plaintiffs claim, would, subject to examination under oath, recant statements made to the government investigator as well as those witnesses who fear reprisal by the plaintiffs. Accordingly, an accompanying Order will vacate the decision of the Deputy Administrator for State and County Operation of the Agricultural Stabilization and Conservation Service and remand this matter to his office for further consideration consistent with this Memorandum. The Deputy Administrator's new determination shall then be appealable to the National Appeals Division.
Date: April 15, 1992
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
ORDER - April 15, 1992, Filed
For reasons stated in the accompanying Memorandum, it is this 15th day of April, 1992, hereby
ORDERED: that plaintiffs' motion for summary judgment should be, and is hereby, GRANTED; and it is further
ORDERED: that defendant's motion for summary judgment should be, and is hereby, DENIED; and it is further
ORDERED: that the determination of the Deputy Administrator for State and County Operation of the Agricultural Stabilization and Conservation Service should be, and is hereby, VACATED; and it is further
ORDERED: that this case should be, and is hereby, REMANDED to the Deputy Administrator for State and County Operation of the Agricultural Stabilization and Conservation Service for a further hearing and other proceedings consistent with the Memorandum; and it is further
DECLARED: that plaintiff shall have the right to appeal determination on remand of the Deputy Administrator for State and County Operation of the Agricultural Stabilization and Conservation Service to the National Appeals Division.
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE