The Secretary's actions in this case were fully consistent with the goals of this statutory scheme. The underlying statutory purpose clearly required the Secretary to ensure that eligible farmers received disaster compensation, but did not collect windfalls or double payments. Therefore, when the initial calculations indicated that Guy might receive excessive disaster assistance payments -- in fact the 1993 basil payment itself, as initially calculated, exceeded the $ 100,000 statutory limit on disaster payments to any one person for a given crop year -- the Secretary acted reasonably in reviewing and revising the applicable yields and payment rates. To have done otherwise, and consequently to have awarded Guy a windfall, would have violated the purpose of the statutory scheme.
Plaintiff argues that defendant's own regulations prohibit modification of established rates and yields. Specifically, plaintiff cites 7 C.F.R. 1477.2(b)(1996):
"State and county FSA committees and representatives and employees thereof do not have the authority to modify or waive any of the provisions of this part as amended or supplemented." However, plaintiff's argument is unpersuasive because crop-specific rates and yields are not "provisions of this part," but are figures determined by State and/or local committees according to guidelines set forth in "this part." Section 1477.2(b) only prohibits State and county committees from altering the nationally applicable regulations, it does not address modification of rates and yields.
Accordingly, because the Secretary's modification of crop rate and yield figures in order to prevent a windfall payment was consistent with the statutory purpose and not contrary to any statutory or regulatory provision, plaintiff's motion for summary judgment on the claim that the Secretary exceeded his statutory authority or failed to act in accordance with law will be denied.
D. Was the Secretary's Action Arbitrary and Capricious?
The ultimate dispute in this case is whether the agency acted arbitrarily and capriciously when it revised the basil yield and payment rate downward in 1993 and when it similarly decreased the arugula yield and payment rate in 1994. Unfortunately, the administrative record on both these points is so sparse as to frustrate effective judicial review.
With regard to the basil figures, the record shows that the 1993 basil yield was originally established at 16,573 bunches per acre with a payment rate of $ 9.00 per bunch. R. at 154. There is no information in the record to explain which factors the agency considered in establishing these figures. Next, while the record reveals that, "based on data from nine other states," the basil yield was revised to 5,000 bunches per acre with a payment rate of $ 0.66 per bunch, see R. at 164, there is no discussion in the record as to why the agency believed its original basil figures required revision. The data from each of the nine states are reproduced in the record, along with an average yield and payment rate calculated across all nine states. R. at 165. But, there is no explanation for why the agency apparently selected the nine-state average payment rate, but did not select the nine-state average yield. In fact, the agency selected a yield figure less than half that of the nine-state average.
Without any explanation in the record as to what factors the Secretary considered in determining revised figures, this court cannot effectively review the agency's actions.
The record regarding revisions to the arugula figures is similarly sparse. The record shows that the 1994 arugula yield was originally established at 96,000 bunches per acre with a payment rate of $ 0.54 per bunch. R. at 173. Yet, there is no explanation in the record of the factors considered in selecting these figures. The record does reveal that the figures were compared to data from three other states and revised downward to 15,672 bunches per acre and $ 0.31 per bunch.
However, again there is no discussion in the record of the factors which lead the agency to select the particular revised figures it did. Without such explanation in the record, this court is unable to effectively review the agency's actions.
In some cases, when faced with an inadequate record, a court may "obtain from the agency, either through affidavits or testimony, such additional explanations of the reasons for the agency decision as may prove necessary." Camp v. Pitts, 411 U.S. 138, 143, 36 L. Ed. 2d 106, 93 S. Ct. 1241 (1973). However, these new materials should be merely explanatory of the original record and should contain no new rationalizations. Bunker Hill Co. v. EPA, 572 F.2d 1286, 1292 (9th Cir. 1977). In this case, the record contains no explanation of the agency's decision to revise the basil and arugula numbers or the rationale by which it selected the revised figures. Therefore, there are no existing rationalizations in the record which the agency could explain by supplementing the record before this court. That being the case, this Court will not request affidavits or testimony from the agency, but must remand the case. Consequently, both plaintiff's and defendant's motions for summary judgment on this point will be denied. In addition, for the same reasons, Plaintiff's Motion for Leave to File Supplemental Memorandum, Defendant's Motion for Leave to File a Response to Plaintiff's Supplemental Memorandum, and Plaintiff's Motion for Leave to File a Reply to Response will be denied.
E. Was Plaintiff Denied Due Process?
In Count IV, plaintiff claims that he was denied due process because he was not provided with "a review hearing before a reviewing body above the county committee." Compl. at P 22. However, defendant asserts, and plaintiff concedes, that according to Department of Agriculture appeal regulations, plaintiff had no right to reconsideration or review of general program requirements such as the rates and yields for determining disaster payments. See 7 C.F.R. § 780.2(b)(1996); Plaintiff.'s Opposition to Defendant's Motion for Summary Judgment, at note 6. Therefore, plaintiff's motion for summary judgment as to Count IV will be denied.
For the reasons set forth above, plaintiff's motion for summary judgment will be denied; defendant's motion for summary judgment will also be denied. Because the record fails to explain the agency action adequately, the case is remanded to the Secretary to reconsider both the 1993 and 1994 decisions and to explain adequately why the original basil and arugula figures required revision and how the revised figures were selected.
Accordingly, it is hereby
ORDERED that Plaintiff's Motion for Summary Judgment is denied; it is
FURTHER ORDERED that Defendant's Motion for Summary Judgment is denied; it is
FURTHER ORDERED that Plaintiff's Motion for Leave to File Supplemental Memorandum, Defendant's Motion for Leave to File a Response to Plaintiff's Supplemental Memorandum, and Plaintiff's Motion for Leave to File a Reply to Response are denied; and it is
FURTHER ORDERED that this case be remanded for prompt further proceedings consistent with this Opinion; that Defendant file a status report on or before January 15, 1997, advising this Court of the progress of those administrative proceedings; and that Defendant file subsequent status reports each 45 days thereafter.
IT IS SO ORDERED.
November 15, 1996
JOYCE HENS GREEN
United States District Court