Ausmus v. Perdue, 908 F.3d 1248

Background

Plaintiffs are Colorado winter-wheat farmers who purchased FCIC yield-protection policies for the 2015 crop year and elected the APH (Actual Production History) yield exclusion.
The 2014 Farm Bill amended 7 U.S.C. § 1508(g)(4) to permit producers to exclude certain county yields (the APH yield exclusion) when county yields were >=50% below the 10-year county average.
FCIC issued an interim rule permitting the APH exclusion "if provided in the actuarial documents," and later notified insurers (Oct. 31, 2014) that the exclusion would not be available for winter wheat for the 2015 crop year because actuarial data/analysis were not yet ready.
Plaintiffs administratively appealed; the USDA Director upheld FCIC’s phased implementation as reasonable and applied Chevron deference. The district court reversed, holding the statute unambiguously required availability for the 2015 crop year and ordered retroactive application.
On appeal, the Tenth Circuit affirmed: § 1508(g)(4)(A)’s “shall apply whenever” language unambiguously required the FCIC to make the APH exclusion available when APH was used for 2001 and subsequent crop years, including 2015; practical/data burdens did not alter the statutory command.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 1508(g)(4) required FCIC to make the APH exclusion available for the 2015 crop year	Statute’s mandatory “shall apply whenever” unambiguously requires availability for any crop year using APH, including 2015	"Apply" is ambiguous; Congress set effective date but implementation could be phased given data constraints and actuarial-soundness duties	Held for Plaintiffs: statute unambiguous — FCIC must make APH exclusion available for 2015
Whether Chevron deference governs and saves FCIC’s interpretation	Statute speaks directly, so Chevron step one resolves in plaintiffs’ favor	Agency urged deference and argued its phased implementation was reasonable under Chevron step two	Chevron step one applied: court found the statute unambiguous and did not defer to FCIC
Whether FCIC’s other statutory obligations (actuarial soundness, data requirements) allow postponement	Plaintiffs: those obligations don’t permit ignoring a clear statutory mandate; FCIC could have delayed offering APH-based coverage or retroactively adjusted premiums	FCIC: practical impossibility and actuarial-soundness duties justify phased rollout and nonavailability for 2015 winter wheat	Held for Plaintiffs: practical difficulties do not override unambiguous statutory duty; FCIC could have declined APH-based coverage or made retroactive adjustments
Whether legislative history supports FCIC’s implementation delay	Plaintiffs: conference report indicates intent to implement in time for 2015 and text controls	FCIC: conference report and other history show Congress expected phased implementation; effective date differs from implementation	Held for Plaintiffs: legislative history does not overcome clear statutory text and in fact supports implementation for 2015

Key Cases Cited

Kansas ex rel. Todd v. United States, 995 F.2d 1505 (10th Cir. 1993) (background on the Federal Crop Insurance Act)
Sinclair Wyo. Ref. Co. v. U.S. Envtl. Prot. Agency, 887 F.3d 986 (10th Cir. 2017) (describing APA review and Chevron framework)
Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (U.S. 1984) (agency deference framework)
Jewell v. United States, 749 F.3d 1295 (10th Cir. 2014) (interpretive note on mandatory "shall")
Keller Tank Servs. II, Inc. v. Comm’r, 854 F.3d 1178 (10th Cir. 2017) (text-and-structure approach to statutory ambiguity)
Forest Guardians v. Babbitt, 174 F.3d 1178 (10th Cir. 1999) (practical impossibility does not excuse noncompliance with non-discretionary statutory duties)
Adkins v. Silverman, 899 F.3d 395 (5th Cir. 2018) (reached same conclusion regarding § 1508(g)(4))