Brent Harrod, Hollis Clanton, Dale McGinnis Bryan Ferrell, Allen Ferrell, Charles Ferrell, Billy Joe Ferrell, John H. Harrod, Brad Harrod, Charles Roy Harrod, Randy Hardin, B.O. Temple, Steve Temple, Mark Temple Estate v. Dan Glickman, Secretary of Agriculture, on Behalf of the U. S. Department of Agriculture, Farm Services Agency

206 F.3d 783, 2000 U.S. App. LEXIS 4099
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 17, 2000
Docket98-3757
StatusPublished

This text of 206 F.3d 783 (Brent Harrod, Hollis Clanton, Dale McGinnis Bryan Ferrell, Allen Ferrell, Charles Ferrell, Billy Joe Ferrell, John H. Harrod, Brad Harrod, Charles Roy Harrod, Randy Hardin, B.O. Temple, Steve Temple, Mark Temple Estate v. Dan Glickman, Secretary of Agriculture, on Behalf of the U. S. Department of Agriculture, Farm Services Agency) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brent Harrod, Hollis Clanton, Dale McGinnis Bryan Ferrell, Allen Ferrell, Charles Ferrell, Billy Joe Ferrell, John H. Harrod, Brad Harrod, Charles Roy Harrod, Randy Hardin, B.O. Temple, Steve Temple, Mark Temple Estate v. Dan Glickman, Secretary of Agriculture, on Behalf of the U. S. Department of Agriculture, Farm Services Agency, 206 F.3d 783, 2000 U.S. App. LEXIS 4099 (8th Cir. 2000).

Opinion

206 F.3d 783 (8th Cir. 2000)

BRENT HARROD, HOLLIS CLANTON, DALE MCGINNIS, BRYAN FERRELL, ALLEN FERRELL, CHARLES FERRELL, BILLY JOE FERRELL, JOHN H. HARROD, BRAD HARROD, CHARLES ROY HARROD, RANDY HARDIN, B.O. TEMPLE, STEVE TEMPLE, MARK TEMPLE ESTATE, APPELLANTS,
V.
DAN GLICKMAN, SECRETARY OF AGRICULTURE, ON BEHALF OF THE U. S. DEPARTMENT OF AGRICULTURE, FARM SERVICES AGENCY, APPELLEE.

No. 98-3757

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: May 12, 1999
Filed: March 17, 2000

Appeal from the United States District Court for the Western District of Arkansas.[Copyrighted Material Omitted]

Before Beam, Loken, and Hansen, Circuit Judges.

Hansen, Circuit Judge.

The appellants are vegetable farmers in Arkansas who received disaster relief payments from the United States Department of Agriculture (the agency) for crop damage in 1989 due to weather-related conditions. The agency demanded a refund of these payments after learning that the appellants' crop damage was also due in part to the farmers' application of a chemical which they later learned had been defective. The farmers unsuccessfully appealed the administrative decision requiring them to reimburse the government, and they ultimately sought judicial review in federal district court. The farmers now appeal the district court's grant of summary judgment in favor of Dan Glickman, Secretary of the United States Department of Agriculture. We affirm in part and reverse in part.

I.

In 1989, the appellants' crops suffered weather damage from a late frost early in the growing season and excessive rain during the harvest season. These natural problems became exacerbated because the appellants had applied a chemical fungicide called Benlate to some of the crops, not knowing that the fungicide was contaminated with a defoliating herbicide. Not yet knowing or realizing that the chemical was contaminated, the appellants applied for and received weather-related disaster relief benefits from their county Agriculture Stabilization and Conservation Service (ASCS) office, pursuant to the Disaster Assistance Act of 1989, Pub. L. No. 101-82, 103 Stat. 564. This emergency disaster assistance was only available to farmers who suffered a crop loss of 50% or more that was due to weather-related conditions in 1989. See id. § 104(a)(1)(A), 103 Stat. at 570.

The appellants did not learn of the chemical contamination until after receiving their disaster relief benefits. They then sued the chemical's manufacturer, E.I. DuPont de Nemours and Company (DuPont) for the 1989 crop damage caused by the defective chemical and informed the agency that the defective chemical had also played a role in their crop losses. Appellants sought guidance from the agency concerning any possible double recovery that might result from their civil suit against DuPont, but the agency offered no firm guidance. The appellants represent that four days before the DuPont trial, an attorney in the agency's regional counsel's office told them that the government would not be seeking reimbursement of the 1989 disaster relief benefits. The trial court then permitted DuPont to inform the jury of the amount of government benefits the farmers had received due to weather-related damage.

During the trial against DuPont, the appellants explained to the jury that the combination of poor weather and the defective chemical caused their crop damage. The farmers further represented to the jury that while only 30% of their crop damage was due to weather conditions alone, the "synergism" caused by the combination of the defective chemical and the poor weather conditions accelerated their crop damage. The jury, having been informed of the benefits the plaintiffs had received from the government, rendered a verdict in favor of the appellants in their civil suit against DuPont, awarding the farmers over $7 million in damages, without specifying whether this award was discounted due to the disaster relief benefits the farmers had received from the government. The damage award against DuPont was for crop losses sustained in both the 1989 and 1990 growing seasons.

In 1994, based upon the appellants' assertion at the DuPont trial that only 30% of their crop damage was caused by weather (as opposed to the 50% requirement of the statute), the deputy administrator reviewed the case and determined that the appellants' crop losses were not sufficiently caused by eligible weather conditions to qualify for disaster relief. The deputy administrator then demanded a refund of all disaster relief benefits previously paid to the appellants for the 1989 crop losses, and the appellants filed administrative appeals.

On March 29, 1995, the National Appeals Division partially granted the appeals in an opinion issued by Hearing Officer John Welch. Mr. Welch concluded that the deputy administrator erred by requiring the appellants to refund all of the disaster relief payments. He concluded that to obtain relief payments, the crop loss must be solely due to eligible conditions, and a contaminated chemical is neither an eligible condition nor a natural related condition. (Appellant's App. at 97.) Mr. Welch said there was "no evidence to support Appellants' position that use of the contaminated Benlate and disastrous weather conditions acted in combination to cause the crop loss." (Id.) He also said that the farmers had not attempted to specifically quantify the extent of the crop losses that were caused by the contaminated Benlate. Mr. Welch noted that the farmers speculated during the hearing that the losses may have been 30% absent the chemical contamination, but noted that a 30% loss would not qualify for disaster payments. Establishing the percentage of crop loss attributable to eligible disaster conditions is the appellants' burden, and Mr. Welch concluded that "[a]ppellants have not established any of the crop losses where they used the contaminated Benlate were attributable to eligible disaster conditions." (Id. at 98.)

The hearing officer, Mr. Welch, ultimately allowed the appellants to retain payments for any crops not listed on the Benlate manufacturer's label, assuming that farmers would not have sprayed crops with Benlate absent a manufacturer's recommendation. Conversely, the hearing officer required the appellants to return all payments for any crops listed on the manufacturer's label, again assuming the farmers would have sprayed all crops as recommended by the manufacturer. The hearing officer also concluded that a recently enacted 90-day limit on the government's ability to recover payments made in error did not apply retroactively to preclude recovery by the government of the benefits paid in this case.

On July 21, 1995, the Acting Director for the National Appeals Division upheld most of Mr. Welch's decision but remanded for a specific determination of which plants were actually sprayed with the Benlate, as opposed to relying on assumptions made from the manufacturer's label. On remand, another hearing officer, Mr. Lane Newman, made very detailed fact-findings determining which crops had been sprayed, but did not independently determine what percentage of the damage was caused by the weather. Instead, in accordance with Mr. Welch's opinion, the new hearing officer concluded that benefits for any 1989 crop that was actually sprayed with Benlate must be refunded.

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206 F.3d 783, 2000 U.S. App. LEXIS 4099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brent-harrod-hollis-clanton-dale-mcginnis-bryan-ferrell-allen-ferrell-ca8-2000.