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GREGORY v. FREEMAN

October 3, 1966

John GREGORY, Appellant,
v.
Orville FREEMAN, Secretary of the United States Department of Agriculture, Respondent



The opinion of the court was delivered by: PORT

Memorandum-Decision and Order

 EDMUND PORT, Judge.

 THE MOTION

 The respondent has moved to dismiss this action because: (1) the petitioner has failed to allege the grounds on which the court's jurisdiction depends; (2) it appears upon the face of the complaint that the court lacks jurisdiction of the subject matter; and (3) the complaint fails to join the United States of America and members of the New York State Agricultural Stabilization and Conservation Committee as indispensable parties.

 THE COMPLAINT

 The complaint herein seeks an order annulling a determination of the Cayuga County Committee under the 1963 Feed Grain Program. See 16 U.S.C.A. § 590p(g). The subject determination withheld payment of the final installment alleged to be due under the program and directed that a payment already made to the petitioner be returned with interest. Petitioner also seeks an order that the respondent be directed to make the final payment and that respondent be enjoined from enforcing that part of the committee's order directing the return of the initial payment.

 Attached to the petition and made a part of it are copies of affidavits executed by the petitioner in connection with his appeal to the New York State Committee from the order of the Cayuga County Committee.

 The following can be gleaned from the petition and supporting documents. Petitioner at a hearing before the Cayuga County Committee, while acknowledging that he was not in compliance with the provisions of the program, contended that the committee, pursuant to the discretion afforded by 7 U.S.C. § 1339a (as in effect in 1963), should treat him as being in compliance because in signing up for the program he was misled by an employee in the Cayuga County office and also by the brochure distributed in connection with the 1963 program. The county committee denied the relief sought, refused to make any further payment under the program to petitioner, and demanded that the advance payment received by him be returned with interest.

 Pursuant to the review provisions of the applicable regulations the decision was appealed to the state committee; the committee affirmed the decision and subsequently adhered to its affirmance upon a rehearing.

 There is no allegation in petitioner's complaint that he is entitled to benefits because he complied with the conditions of the 1963 Feed Grain Program; he seeks to recover benefits on equitable grounds.

 He alleges that there was not substantial evidence before the county and state committees to support this denial of his claim since he introduced evidence that he was misled by the Department in signing up for the program, and no contraverting evidence was offered by the Department of Agriculture. The complaint clearly supports a factual finding of petitioner's non-compliance; it is directed, in essence, to a failure by the committee to take discretionary action in petitioner's behalf, and is an appeal for the court to take such action.

 THE PROGRAM

 The Food and Agriculture Act of 1962 § 302, 76 Stat. 613, 16 U.S.C. § 590p(g), provided that the Secretary of Agriculture "shall formulate and carry out a special agricultural conservation program for 1963 * * * under which, subject to such terms and conditions as the Secretary determines, conservation payments * * * shall be made to producers who divert acreage from the production of corn, grain sorghums, and barley to an approved conservation use . . . ." The diversion was to be from a base acreage allotment, determined under the Act and regulations, for each participant's farm. A producer or farmer participated in the program by executing a form known as "ASCS-477, Intention to Participate and Application for Payment," (hereinafter Form 477), in which he specified the number of acres of his base acreage allotment which he intended to divert to conservation purposes. In order to be eligible for payments under the 1963 Feed Grain Program, the farmer was obliged to actually divert the number of acres specified in Form 477. 7 C.F.R. § 775.201(b). This provision was a change from previous years when the farmer was paid pro rata in the event he chose to divert less land than he stated he intended to divert in his enrollment form.

 The petitioner herein, pursuant to the regulations, executed and filed Form 477 with the County Committee of Cayuga County. This could be filed between February 1, 1963, and March 22, 1963. During that period only, the petitioner had the right, under the regulations, to decrease the number of acres to be taken out of production, and file a new Form 477. 7 C.F.R. § 775.206. The regulations provided for payments in two installments: an advance payment upon the execution of Part IV, Form 477 (7 C.F.R. § 775.218), and a final payment upon the certification by the farmer that the farm was in compliance ...


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