VOGEL, Circuit Judge.
This is an appeal from the granting of summary judgment1 against the United States, appellant, in its action to recover payments made by the Department of Agriculture for benefits received by appellee in the way of livestock feed under the 1954 Emergency Feed Program.
Pursuant to statutory authority, 12 U.S.C.A. § 1148a-2(d), the Secretary of Agriculture, by regulation, delegated the program’s administration to the Farmers’ Home Administration, including the power to establish rules and regulations for determining an applicant’s eligibility to receive aid under the program. Such regulations as are pertinent to this case will be hereinafter set forth.
Appellee is a partnership engaged in farming and ranching in Arkansas. It applied for federal assistance under the provisions of the 1954 Emergency Feed Program. As a result of two applications, dated September 9 and December 13, 1954, it received, through purchase orders, 341,000 pounds of surplus grains at an alleged cost to the government of $3,410, the amount here sought to be recovered. These applications were passed upon, approved and, upon request, reexamined and again approved by a “County Committee” composed of three local persons appointed pursuant to the FHA regulations. On March 13, 1955, after the appellee had already received the benefits under the program, the FHA’s State Director by letter informed the appellee that its application had been “rejected” by the “National Office” due to appellee’s alleged ability to maintain its foundation herd without aid and, accordingly, demand for reimbursement was made. Appellee refused to refund the value of the benefits received. On June [438]*4385, 1959, over four years later, this suit to enforce repayment was commenced.
No fraud or claim of fraud is involved. The government concedes that its case is grounded solely on the alleged claim that:
“The financial condition and net worth of the partnership was not such that it required assistance under this program to maintain its foundation herd of livestock and to continue its livestock operations.”
The appellee’s applications for assistance under the program recited the number of livestock in its “basic herd”, the amount of feed it had on hand and the acreage and expected yield of feed crops growing. They also contained the following certificate by appellee:
“I certify that the above information is correct, that my principal occupation is farming or ranching, and that I do not have a 60-day supply of feed on hand to maintain my basic herd of livestock listed in item 1.
“In order to provide a 60-day supply of feed for this livestock, I will need 0 tons of hay and 144,0002 pounds of SURPLUS GRAINS DESIGNATED BY THE COMMODITY CREDIT CORPORATION in addition to the feed I have on hand and that to be harvested during that period, and hereby make application for the purchase of that amount of feed under the Emergency Feed Program. Without the assistance applied for under the Emergency Feed Program I will be unable to maintain my basic foundation herd and to continue the livestock operation which I have been conducting for 17 years. I WILL NOT SELL OR OTHERWISE DISPOSE OF ANY OF THE FEED HEREIN APPLIED FOR EXCEPT BY FEEDING IT TO MY BASIC HERD, IN Searcy COUNTY.”
Concerning appellee’s eligibility, two members of the County Committee3 stated, inter alia, in an affidavit accompanying appellee’s motion to dismiss:
“That during the year of 1954 the said William J. Seeger was manager of the said Wiley’s Cove Ranch and authorized to act for and in behalf of the Mays family in the operation of the said Wiley’s Cove Ranch; that the said William J. Seeger is now deceased. Affiants further state that the said William J. Seeger made proper application for feed under said Emergency Feed Program and that said County Committee made proper and due investigation of said application and determined that the said Wiley’s Cove Ranch was fully eligible to receive feed under said program.
“Affiants personally knew that the said Wiley’s Cove Ranch, like all other farmers in Searcy County during the year aforesaid was unable to raise any feed by reason of the extreme drouth; that said Ranch was devoted exclusively to raising purebred Hereford cattle for breeding purposes and had, at that time, several hundred head of said cattle which constituted a foundation herd for the purposes aforesaid; that it is and was the honest opinion of said Committee that the said Wiley’s Cove Ranch received more than one-half of their net income for said year from raising and selling breeding stock from their herd of purebred cattle.
“That following the original certification of eligibility of said Wiley’s Cove Ranch said County Committee was requested to re-examine the question of the eligibility of said Wiley’s Cove Ranch to receive said emergency relief, and this re-examination was requested and done by reason of the fact that some question had arisen as to the eligibility of the Ranch to receive the aid aforesaid.
[439]*439"That said Committee accordingly made a thorough investigation of the condition existing at the Wiley’s Cove Ranch in reference to the eligibility aforesaid, and said Committee again found and determined that the said Wiley’s Cove Ranch was fully and completely eligible to receive said help, and said County Committee again re-certified said fact to be true, and that the records of the Farmer’s Home Administration will reflect the above facts to be true; that affiants are not related by blood or marriage to any member of the Mays family and that they have no personal interest, one way or another in the matter under discussion herein, and that they and each of them feel that they performed their duties as prescribed by law, * * 181 F.Supp. at pages 372-373.
The trial court, in granting summary judgment for appellee, held that the ■County Committee’s action in determining appellee’s eligibility constituted unreviewable agency action under § 10 ■of the Administrative Procedure Act, 5 U.S.C.A. § 1009, which provides for judicial review of agency action except so far as (1) the statutes preclude judicial review, or (2) agency action is by law ■committed to agency discretion. In so holding the court stated:
“Therefore, considering the fact that no fraud has been alleged; that the subject matter of the administrative hearing was a gratuity; that the County Committee was given wide discretionary authority in certifying applicants, and finally that the Committee was required to base its decision in part on strictly local conditions, including its personal knowledge of the applicant’s qualifications and predicted future economic conditions in the county, the court is compelled to hold that the decision of the County Committee in this instance constitutes a nonreviewable administrative determination.” 181 F.Supp. at page 380.
The government’s primary contention on appeal is that independently of statute, the United States can sue to recover payments erroneously and illegally made by its agents and it terms the trial court’s discussion of § 1009(2), supra, as “inapposite” in that here the action is not one for judicial review but “to recover public moneys erroneously and illegally paid”. The distinction attempted is without substance. It can make little difference what the claim for relief is called. The prohibition of the statute may not be evaded by the simple expedient of denominating the action one for moneys erroneously and illegally paid. Nevertheless, the government here contends that its
“ * * * right to sue to recover payments erroneously made is conclusively established. United States v. Wurts, 303 U.S. 414, 415, [58 S.Ct. 637, 82 L.Ed. 932]; Wisconsin Central Railroad Co. v. United States, 164 U.S. 190, 212, [17 S.Ct. 45, 41 L.Ed. 399]; United States v. Burchard, 125 U.S. 176, 180, [8 S.Ct. 832, 31 L.Ed. 662], Cf. Land O’Lakes Creameries v. Commodity Credit Corporation, [8 Cir.] 265 F.2d 163. See also Kraft Foods Co. of Wisconsin v. Commodity Credit Corporation, [7 Cir.] 266 F.2d 254; Swift & Co. v. United States, [4 Cir.] 257 F.2d 787; Kingman Water Co. v. United States, [9 Cir.] 253 F.2d 588; United States v. Bentley, [2 Cir.] 107 F.2d 382”,
and that no statute is necessary to maintain such suit.
In none of the cases relied on was it held that the payment made by the government' was done pursuant to a vested discretionary power. The issue in the cited cases was whether payments made by the government by legal mistake were recoverable by the government. Such illegal payments are recoverable. Of the cited cases, Kraft Foods Co. of Wisconsin v. Commodity Credit Corporation, 7 Cir., 1959, 266 F.2d 254, certiorari denied 361 U.S. 832, 80 S.Ct. 83, 4 L.Ed. [440]*4402d 74, Land O’Lakes Creameries v. Commodity Credit Corporation, 8 Cir., 1959, 265 F.2d 163, and Swift & Co. v. United States, 4 Cir., 1958, 257 F.2d 787, certiorari denied 358 U.S. 837, 79 S.Ct. 60, 3 L.Ed.2d 73, rehearing denied 358 U.S. 901, 79 S.Ct. 220, 3 L.Ed.2d 152, involved actions by or against Commodity Credit Corporation for the recovery or retention of paid dairy support prices. Congress had authorized the Secretary of Agriculture to support the market on dairy products either by loans or by purchases of the products. The controlling issue in each case was whether the Commodity Credit Corporation “purchased” the dairy products described. It was held that the “paper transactions” engaged in did not constitute a sale by Land O’Lakes, Kraft Foods and Swift nor a purchase by Commodity Credit Corporation and that as the Agriculture Act of 1949, 7 U.S.C.A. § 1421 et seq. did not confer upon the Secretary discretion to support prices of dairy products in any manner excepting through “loans on or purchases of” dairy products, the amounts paid, which did not represent either loans or purchases, could not be retained. Significant to the question of the Secretary of Agriculture’s authority or discretion, the court in Swift & Co., supra, cited as controlling by both Land O’Lakes and Kraft, noted:
“ * * * Congress, after giving careful consideration to the matter, denied the Secretary broad discretion as to the methods of price support, and confined him to those specifically enumerated in the Act.” At pages 795-796 of 257 F.2d.
That is not at all the situation here and such cases lend no support to appellant’s contentions. On a parity of reasoning the additional cases cited are also not persuasive.
In urging the applicability of United States v. Wurts, 1938, 303 U.S. 414, 415, 58 S.Ct. 637, 82 L.Ed. 932, the appellant quotes therefrom as follows:
“The Government by appropriate action can recover funds which its agents have wrongfully, erroneously, or illegally paid. ‘No statute is necessary to authorize the United States to sue in such a ease. The right to sue is independent of statute, * * * 9 ff
Appellant overlooks the observation of the Supreme Court at page 416 of the opinion in 303 U.S., at page 638 of 58 S.Ct.:
“ * * * The Government’s right to recover funds, from a person who. received them by mistake and without right, is not barred unless Congress has ‘clearly manifested its intention’ to raise a statutory barrier.” (Quoting from United States v. Nashville, C. & St. L. Ry. Co., 1886, 118 U.S. 120, 125, 6 S.Ct. 1006, 30 L.Ed. 81, wherein the issue was whether a state statute of limitations would run against the United States.) (Emphasis supplied.)
The teaching of Wurts is of no help to the government if § 1009 provides the requisite “statutory barrier”. If we are here concerned with agency action by law committed to agency discretion, and if no fraud is alleged, then § 1009(2) is a bar to judicial review and this attempt at recovery must fail. A contrary conclusion would require us to completely ignore the clear language of the statute and allow the expedient denomination of an action to rule over the subsequent 'results sought to be accomplished.
We think, then, a preliminary-question is addressed to the court; namely, does the record clearly establish that, this is agency action by law committed to agency discretion? If the answer is. in the affirmative, then, absent fraud,. there can be no judicial review or inquiry.
In Luckenbach Steamship Co. v. United States, D.C.Del.1959, 179 F.Supp. 605, at pages 608, 609, modified on other-grounds, 364 U.S. 280, 80 S.Ct. 1611, 4. L.Ed.2d 1719, the court stated:
“Whatever the scope of review of subsection (e) is when read alone, the scope of review is certainly narrowed by that portion of the intro- • [441]*441'ductory clause, ‘Except so far as * * * (2) agency action is by law committed to agency discretion.’ Thus, although subsection (e) provides that the reviewing court shall set aside agency action found to be ‘arbitrary [or] capricious’, it may not set aside arbitrary or capricious action so far as agency action is by law committed to agency discretion. So far as the action is by law committed to agency discretion it is not reviewable—even for arbitrariness or abuse of discretion. Whether or not agency action is reviewable, for a limited purpose or otherwise, depends upon what is committed by the statutes and common law to agency discretion.”
In the recent case of Schilling v. Rogers, 1960, 363 U.S. 666, 80 S.Ct. 1288, 4 L.Ed.2d 1478, the Supreme Court was dealing with § 32(a) of the Trading with the Enemy Act, 50 U.S.C.A.Appendix, § 32(a), which authorizes the return, in certain circumstances, of property vested by the United States during World War II. Petitioner had filed a claim for the return of the proceeds of certain property. The Director, Office of Alien Property, rejected the claim “on the ground that petitioner was ineligible for relief under the § 32(a) (2) (D) proviso.” The essence of the Director’s decision was that:
“ * * * his claim must be disallowed for the reason that he was not a member of a political, racial or religious group that was discriminated against. Anti-Nazis and non-Nazis do not constitute a political group.” 363 U.S. at page 669, note 8, 80 S.Ct. at page 1292.
In holding that the District Court had no jurisdiction to review the determination of ineligibility for relief by the Director, the Supreme Court used language at pages 670 and 676 of 363 U.S., at pages 1292 of 80 S.Ct. which we find applicable here:
“Petitioner’s principal reliance is upon § 10 of the Administrative Procedure Act which provides for judicial review of agency action ‘[e]xcept so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion.’ 60 Stat. 243, 5 U.S.C. § 1009, 5 U.S.C.A. § 1009. We find that both such limitations are applicable here.
*«•#***
“We conclude that the Trading with the Enemy Act excludes a judicial remedy in this instance, and that because of this, as well as because of the discretionary character of the administrative action involved, the Administrative Procedure Act, by its own terms is unavailing to the petitioner.” (Emphasis supplied.)
The instant case, too, deals with “the discretionary character of [agency] action” in determining “eligibility for relief”.
For additional cases standing for the proposition that where agency action is by law committed to agency discretion there may be no judicial review, see Panama Canal Co. v. Grace Line, Inc., 1958, 356 U.S. 309, 78 S.Ct. 752, 2 L.Ed.2d 788; Z. & F. Assets Realization Corp. v. Hull, 1941, 311 U.S. 470, 61 S.Ct. 351, 85 L.Ed. 288; Heiner v. Diamond Alkali Co., 1933, 288 U.S. 502, 53 S.Ct. 413, 77 L.Ed. 921; Sellas v. Kirk, 9 Cir., 1952, 200 F.2d 217, certiorari denied 345 U.S. 940, 73 S.Ct. 831, 97 L.Ed. 1366; Lehr v. United States, 5 Cir., 1943, 139 F.2d 919, rehearing denied January 14, 1944. The Administrative Procedure Act did not change the common law on this question, but rather codified it. See 4 Davis, Administrative Law Treatise, § 28.08 (1958) at page 33, where the author states:
“ * * * Agency action is left unreviewable to the extent that statutes preclude review or to the extent that agency action is by law committed to agency discretion. Since these two reasons are the only reasons why agency action could be unreviewable before the APA was enacted, the law of reviewability remains unchanged.”
[442]*442In determining whether the action of the County Committee in certifying the appellee as eligible for relief was a discretionary act, an examination of the enabling regulations is essential. The regulations pertinent to that inquiry are as follows: 6 C.F.R.
“§ 388.3. Responsibility of FHA personnel — (a) County Committees. County Committees of the Farmers Home Administration appointed pursuant to the Bankhead-Jones Farm Tenant Act, as amended, are responsible for passing upon applications for assistance under the Emergency Feed Program and are authorized to execute the certification required with respect to an applicant’s eligibility for such assistance.
“(b) Responsibility of other FHA personnel. State Directors of the Farmers Home Administration are responsible for notifying County Supervisors of the designation of counties and for the general supervision of this Agency’s functions in receiving and handling applications for assistance under the Emergency Feed Program in their respective states. County Supervisors are responsible for calling meetings of County Committees to pass upon applications and will act in an advisory capacity to such Committees. They are responsible also for the maintenance of such records and for the submission of such reports as may be required.
Ҥ 388.4 Eligibility. Subject to the following conditions, any established farmer or stockman (partnership or corporation) whose principal occupation is farming or ranching and whose financial condition is such that he requires assistance under this program in order to maintain his foundation herd of livestock and continue his livestock operations, is eligible for assistance under the Emergency Feed Program. The fact that the purchase of hay or other feed at regular prices may not be profitable to the applicant is not sufficient to qualify him for assistance.. The principal occupation of an applicant may be considered to be either the occupation from which he received at least one half of his net income for the calendar year next preceding the date of his application, or the occupation to which he devoted at least one half of his time during such year: Provided, That partnerships or corporations will be eligible only if at least one half of their net income for such year was derived from farming or ranching.
******
Ҥ 388.6 Committee action, (a) The County Supervisor will arrange for meetings of County Committees at regular intervals to pass upon applications for assistance if the volume received will justify meetings on that basis. Otherwise the County Supervisor will call meetings of County Committees at such times as may be necessary to process pending applications expeditiously.
“(b) The County Committee will review each application and determine whether the applicant is eligible for assistance and, if so, the extent of the assistance which may be provided. In making this determination, the Committee will base its decision primarily upon the information supplied by the applicant, but will take into consideration other information, including knowledge of the Committeemen concerning the applicant’s operations and finances, local conditions, and probable duration of the emergency feeding period, the general effect of the emergency conditions on the applicant’s ability to meet his future operating expenses, and the probable effect of the emergency on the applicant’s income. Each Committee will be expected to apply the foregoing policies in a manner which will result in the impartial certification of applications, and will be expected to take reasonable precautions to see that hay or other feed is not furnished under [443]*443this program to farmers and stock-men who are otherwise able to maintain their foundation herds without such assistance. Whenever there is doubt as to an applicant’s eligibility, the Committee should request additional information from the applicant as may be necessary to the proper discharge of its duties.
“(c) Each application must be acted upon by at least two members of the Committee. The action taken with respect to an application will be indicated on Form FHA-937. If the application is approved, the amount of hay or other specific types of feed for which the applicant is certified will be indicated. If the application is rejected, a brief statement of the reasons for the action will be indicated. The original and both copies of Form FHA-937 will be signed by at least two members of the Committee.” (Emphasis supplied.)
We believe these regulations lend ample support for the trial court’s finding that the “County Committee was given wide discretionary authority in certifying applicants”. The language employed in § 388.3(a), supra, is indicative not of a lack of discretion in the County Committee but of broad authority granted to it as well as reliance to be placed upon the Committeemen’s peculiar knowledge of local conditions and local applicants. Note the language of and the provisions of the regulations: The County Committee “are responsible” for passing upon applications for assistance; “are authorized” to make the certification of eligibility; the County Committee “will review each application and determine” eligibility for assistance. The County Committee is directed to make its determination of eligibility on, first, the information supplied by the applicant and, second, other information, including the Committeemen’s own knowledge of _the applicant’s operations and finances, the existing local conditions, the probable duration of the emergency feeding period, the general effect of the emergency conditions on the applicant’s ability to meet his future operating expenses, and the probable effect of the emergency on the applicant’s income. From this it should be noted that the County Committee here was functioning in an area indisputably within its special competence. It was observed in National Labor Relations Board v. Guy F. Atkinson Co., 9 Cir., 1952, 195 F.2d 141, 150, rehearing denied March 21, 1952, that:
“When an agency’s determination, whether of fact, or of law, relates to physical or economic facts, with respect to which the agency’s experience is calculated to give it special competence, there is reason for assuming that the determination should, so far as possible, be regarded as within the discretion of the agency.”
We construe the language of the regulations as giving to the Committee unqualified discretion and authority for the determination of eligibility to receive assistance under the Emergency Feed Program.
In view of such authority, and considering the Committee’s special competence, we hold with the District Court that the certification of appellee’s eligibility to receive benefits under the Emergency Feed Program constituted “agency action by law committed to agency discretion”.
The situation confronting the court here is analogous to that which existed in Butte, A. & P. Ry. Co. v. United States, 1933, 290 U.S. 127, 54 S.Ct. 108, 78 L.Ed. 222. In that case, Congress had provided compensation to railroads for deficits attributable to federal operation during the first World War. The Interstate Commerce Commission was directed to ascertain the amount of deficits or losses and to certify such amounts to the Secretary of the Treasury. Pursuant to a certificate of the Interstate Commerce Commission granted after hearing, the railroad received payment. Two years later the Commission issued an order pur[444]*444porting to reopen the matter and set a hearing “for the purpose of affording the Railway opportunity to show cause why their certificate * * * should not be revoked and its claim dismissed.” The Commission then reversed its original order and directed the railroad to repay the money. Upon refusal, an action was brought in the District Court for recovery. Judgment for the government there was affirmed by the Circuit Court of Appeals. Mr. Justice Brandéis, speaking for a unanimous court, reversed, stating that the payment hinged upon the Commission’s original interpretation of the word “deficit” and
“ * * * That is a charge, not of mistake but of error of judgment —a judgment necessarily exercised in the performance of the duties of office. Neither the Commission in issuing the certificate, nor the Secretary of the Treasury, the Comptroller-General or the Treasurer, when co-operating to make the payment, labored under any mistake of fact; or overlooked any applicable rule of law; or was guilty of any irregularity in proceeding. Moreover, if the word ‘deficit’ was misconstrued, the error was not due to inadvertence.” 290 U.S. at page 134, 54 S.Ct. at page 109. (Emphasis supplied.)
******
“Under § 204, the Commission exercises functions broader than those customarily conferred upon auditing or disbursing officers. It sits as a special tribunal to hear and determine the claims presented. * * * || renders a judgment upon a full hearing. In deciding any one of the enumerated questions of construction, as in other rulings of law or findings of fact, the Commission may err. The victim of the error may be either the carrier or the government. * * * Since authority to- pass upon the meaning of the word ‘deficit’, and upon each of the other questions of construction, is essential to the performance of the duty imposed upon the Commission, and Congress dñd not provide a method of review, we hold that it intended to leave the government, as well as the carrier, remediless whether the error be one of fact or of law.” 290 U.S. at pages 142-3, 54 S.Ct. at page 112. (Emphasis supplied.)
In applying the teaching of that case to the situation with which we are here-concerned, we find that the Committee-here also “exercises functions broader than those customarily conferred upon auditing or disbursing officers.” It, too,, “sits as a special tribunal to hear and determine the claims presented.” It, too, “renders a judgment upon a full hearing.” It, too, may err and the victim may be either the petitioner for relief or the government. It, too, possesses the authority to pass upon those entitled to relief and in the performance of its duty it is essential that it exercise judgment and discretion. Here, too, there was failure to provide a method of review and we believe that as in Butte it was intended here that the government as well as-the petitioner for relief be left remediless where the error be one of judgment.
The government also contends that the certification of appellee by the County Committee was subject to administrative review and correction. In support of its contention that the State Director had the power to review, reliance is placed, first, upon § 388.3(b) of the regulations. The point is made that the phrase “general supervision” encompasses the power to review and correct. Conceding no federal cases on the point, and only “a paucity of state cases”, the government cites as authority for its proposition Great Northern Ry. Co. v. Snohomish County, 1908, 48 Wash. 478, 93 P. 924, and Vantongeren v. Heffernan, 1888, 5 Dak. 180, 38 N.W. 52. However, examination of those cases reveals that the enabling statutes there in question are significantly distinguishable from the regulations here under consideration. In Snohomish, the statute, as set forth by the court in its opinion at 93 P. at page 926, reads in part as follows:
[445]*445“ * * * ‘the commissioners shall have power, and it shall be their duty: * * * Second. To exercise general supervision over assessors and county boards of equalization, and the determination and assessment of the taxable property in the several counties, cities and towns of the state, to the end that all taxable property in this state shall be placed upon the assessment rolls and equalized between persons, corporations and companies * * *.’ ” ■ (Emphasis supplied.)
It is apparent that the words “and the determination and assessment of the taxable property” signifies the legislative intent to grant to the commissioners in that case the final determination of the assessments.
Further in that case, the commissioners had fixed the value of inter-county railroads for the purpose of taxation, had given instructions to the assessors to so evaluate, and the acts of the Snohomish County officials in evaluating were in total disregard of such instructions.
In Heffernan, the apposite statutory authority as set forth by the court at 38 N.W. 52, 55, reads in part:
“ * * * ‘The commissioner of the general land-office shall perform, under the direction of the secretary of the interior, all executive duties appertaining to the surveying and sale of the public lands of the United States, or in anywise respecting such public lands, and also such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the government.’ ” (Emphasis supplied.)
And, further on the same page, the court quotes:
“ * * * ‘all questions as to the right of pre-emption arising between different settlers shall be determined by the register and receiver of the district within which the land is situated ; and appeals from the decision of the district officers, in case of com test for the right of pre-emptñon, shall be made to the commissioner of the general land-office, whose decision shall be final, unless appeal be taken to the secretary of the interior.’ ” (Emphasis supplied.)
The court stated that the foregoing statute has been construed to mean that “in case of contest as to the rights of preemption, the decision of the local officers, as to matters of fact, is final, unless an appeal be taken; and has generally been so respected by the department and the courts.” 38 N.W. at page 55.
Thus, although in the above cases the-courts did discuss the term “general supervision” as meaning the power to review and correct, such interpretation-would be reasonable there, in that the intent of the legislature in those cases-indicated that the power to review and correct was to be reserved for higher authorities.
Such is not the situation in the case-before us. When § 388.3 is read in its-entirety and also in conjunction with § 388.6, the conclusion is tenable, if not forced, that the phrase “general supervision” refers only to non-discretionary or ministerial functions. There is no-indication in the instant regulations that the action of the County Committee was-not to be a final determination, as opposed to the statutes quoted from in theSnohomish and Heffernan cases.
Additionally, and we feel this is significant, the regulations make no express-provision to the effect that the State Director shall have the power to review the applications for relief passed on by the County Committee. Had it been so intended, a clause of such import could have been put into the regulations, as-was subsequently done in dealing with the granting of farm loans by the Farmers’ Home Administration. See 6 C.F.R. § 332.2:
“Loan approval authority. The-State Director is authorized to approve or disapprove farm ownership-loans in accordance with Farmers Home Administration procedures.”' (See 6 C.F.R. §§ 331.13, 331.14; [446]*446341.7; 354.4, 354.5 for further examples.)
Under § 332.3(a) of the regulations a County Committee there, as in the instant case, was responsible for certifying as to eligibility for loans. Nevertheless, the regulations there specifically delegate the responsibility for approval of the loans to an approval official.
Be that as it may, the short answer to the government’s contention here is that there was no administrative review. None was attempted. The record merely discloses that after the relief had been granted by the County Committee and the payment made, the State Director of FHA by letter dated March 13, 1955, informed appellee that the “National Office” had rejected its application and determined that the ranch was ineligible for the benefits received because of its net worth and financial ability. By no stretch of the imagination could that letter be construed as an administrative review of the County Committee’s judgment. See, Londoner v. City & County of Denver, 1908, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103; 1 Davis, Administrative Law Treatise, § 7.04 (1958).
Lastly, we are unable to agree with the government’s contention that
“ * * * the present case is well within the Merrill [Federal Crop Ins. Corp. v. Merrill, 1947, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10] decision and here as there the government is not bound by the action of its agents which was in excess of their authority.”
That case was not concerned with the right of judicial review of agency action. The limited teaching therein is (1) that he who deals with the government is bound by duly promulgated regulations published in the Federal Register whether he has actual knowledge of them or not; and (2) the fact that he may have been misled by government agents’ statements to the contrary is no excuse. That is not the situation here. The appellee was not misled by an agent of the government and, additionally, the appellee possessed full knowledge of the requirements and the conditions preliminarily necessary to receiving aid under the Emergency Feed Program.
The record here indicates, and it is conceded, that the sole and only dispute is over the financial condition of the partnership. Did that condition justify the granting of emergency relief or did it not? After two investigations and relying upon the appellee’s statements and upon their own knowledge, as they were required to do, the members of the County Committee unanimously determined that the requested assistance was justified within the meaning of the law and the regulations. The government merely claims that it was not, in other words that there was an error of judgment; and more than four years after the assistance was given it brought suit for repayment. The essence of the government’s position is that while the County Committee made its determination as to eligibility in complete good faith on its part as well as on the part of the appellee, yet such determination was a mistaken one. The County Committee must have been functioning in a discretionary field. In view of the broad authority given the County Committee in certifying applicants, the Committee’s special competence in so certifying, and the fact that no fraud has been alleged, we hold with the District Court that the certificate of appellee’s eligibility to receive benefits under the Emergency Feed Program constituted “agency action by law committed to agency discretion”, hence was not judicially reviewable, and that the appellee’s motion for summary judgment was properly granted.
Affirmed.