556 F.2d 1096 | Ct. Cl. | 1977
delivered the opinion of the court:
A push for summary judgment is often pressed by one party or the other as a short-cut to by-pass what looms as a long or tedious trial on the facts. But we know that such a
The case concerns a lesser-known but far-reaching federal authority. Congress has given the Secretary of Agriculture power "to control and eradicate any communicable diseases of livestock or poultry * * * which in the opinion of the Secretary constitute an emergency and threaten the livestock industry of the country,” and has also authorized "the payment [by the Secretary] of claims growing out of the destruction of animals (including poultry), and of materials, affected by or exposed to any such diseases, in accordance with such regulations as the Secretary may prescribe.” 21 U.S.C. § 114a. This power is spelled out in more detail in 21 U.S.C. § 134a(a) and (b), including the right to seize, quarantine, and dispose of animals which are found to have been affected with or exposed to any such dangerous or communicable disease. Section 134a(d) of Title 21 provides that (with an exception not now pertinent) "the Secretary shall compensate the owner of any animal, carcass, product, or article destroyed pursuant to the provisions of this section. Such compensation shall be based upon the fair market value as determined by the Secretary, of any such animal, carcass, product, or article at the time of the destruction thereof.”
This statutory scheme was invoked in 1971-1973 to eradicate exotic Newcastle disease, a contagious sickness of poultry and other birds, which only very recently came to our shores and first appeared in southern California in 1971. Both the Federal Government and the State of California cooperated to impose quarantines and stamp out the disease, efforts which eventually necessitated the destruction of infected and exposed poultry. On March 14,
Plaintiff Julius Goldman’s Egg City, a California concern, is the country’s largest commercial egg producer with a poultry flock in 1972 of approximately 3,000,000 birds. Between August and September 1972, the Government placed sentinel birds (whose purpose was to detect the presence of Newcastle disease on the ranch) at Egg City. After a number of these birds died, laboratory tests yielded a diagnosis of Newcastle disease. The Government notified Mr. Goldman that his flock was infected and demanded depopulation and disinfection of all buildings and equipment. This was done and plaintiff became entitled to the indemnity contemplated by the statute and the regulations. The regulations (9 C.F.R. § 53.3(a)) established an appraisal system whereby federal and state appraisers evaluated the poultry before depopulation. Under these regulations, one representative from the Department of Agriculture and one from the State of California appraised the flocks on all commercial egg producing ranches. In September 1972 they valued the Egg City chickens. The usual procedure involved counting the number of chickens on a ranch but, with a facility Egg City’s size, counting served as a spot check on the numbers carried on the ranch’s own books. The Government considered Egg City’s records accurate and used them to determine the number and ages of the birds. The number of chickens was multiplied by monetary indemnities based on the Govern-
It is at this juncture that the present dispute between the parties began. Simply put, the Government claims that Mr. Goldman signed-off on the appraisal forms (after asking for and receiving certain increases in appraised value) and that his signature was a binding acceptance of the indemnity amount he was to receive. Plaintiff, however, claims that he clearly expressed disagreement with the completed appraisal (and particularly with the base used to make the evaluation). He says that he signed the forms only because the Government told him that his signature was necessary for commencement of depopulation and, most important, because he was assured by the appraisers that the appraisals were not final and increased indemnification could be sought. Despite Mr. Goldman’s repeated requests, the Government has refused to increase plaintiffs indemnification under this phase of the program.
During the summer of 1972 the Government decided that the replacement-cost indemnity (the program’s initial phase, just described) did not adequately compensate poultrymen for the egg production value of their flocks. As a result, there was instituted a supplemental indemnity program to reimburse ranchers for egg income lost during repopulation. This supplemental indemnity was designed to cover a 26-week repopulation period — an amount of time plaintiff claims was clearly inadequate if applied to its huge facility. Mr. Goldman also asserts that he consistently protested the application of the 26-week formula to his farm and that he was just as consistently given to understand that his protests would be considered by the Agriculture Department — and that they were, although always turned down. The defendant, on the contrary, insists that Mr. Goldman accepted this supplemental indemnity as final, without cavil at the time.
After failing to obtain redress from the Department on both the initial and the supplemental indemnity, plaintiff filed this suit. Defendant seeks to guillotine the case before
A.
1. The Government’s motion does present one true legal issue not calling for fact-finding — is the plaintiffs monetary claim amenable at all to judicial scrutiny? We are concerned only with the legislative provisions relating to the payment of the indemnity after poultry has been destroyed, not with an effort to prevent, by injunction or suit for declaratory relief, the carrying out of an order of eradication. On the monetary facet we hold that judicial review is available but that plaintiff cannot prevail unless it proves that the administrative computation, as applied to it, was arbitrary, capricious, an abuse of discretion, or contrary to law.
Take first the language of the statute relating to the indemnity. 21 U.S.C. § 114a, supra, authorizes "the payment of claims growing out of destruction of animals (including poultry) * * * affected by or exposed to any such disease * * *,” and 21 U.S.C. § 134a(d) directs, first, that "the Secretary shall compensate the owner of any animal * * * destroyed pursuant to the provisions of this section,” and, second, that "[s]uch compensation shall be based upon the fair market value as determined by the Secretary, of any such animal * * * at the time of the destruction thereof’ (emphasis added). Thus, the Secretary must pay an indemnity if compensable animals are destroyed (Cumberland v. Dept. of Agriculture, 537 F.2d 959 (7th Cir. 1976)) and the general standard of payment is expressly prescribed; in a case like this, the Department does not have discretion whether or not to pay nor can it decide for itself that something other than "fair market value” shall be awarded. Also, it is important that there is no explicit provision in the statute (or the regulations) precluding
Nor are we persuaded by any extra-textual indication that it was Congress’s purpose to cut off judicial review. See, e.g., Dunlop v. Bachowski, 421 U.S. 560, 567 (1975);
The defendant points out that the statute’s purpose is to give the Secretary continuing authority for disease control and eradication (an authority previously derived only from annual appropriation bills), allowing him to take swift action to eliminate the inherent dangers of contagious livestock diseases. The argument is that the purpose of the indemnity is not only to compensate the owner but to engender owner cooperation with the Secretary’s efforts. Defendant would have us conclude that judicial intervention would improperly replace Secretarial discretion with the court’s, and thereby reduce severely the Secretary’s ability to deal decisively and swiftly (as Congress obviously contemplated) with the disease problem. We can accept the Government’s delineation of the legislative aim without drawing the Government’s conclusion. To allow judicial oversight of the fixing of the indemnity need not interfere at all with the prompt elimination of diseased animals. Nothing requires or suggests that the final determination of the indemnity should or must precede eradication; indeed, the owners’ cooperation may well be enhanced by the knowledge that, if dissatisfied with the award, they will be free to seek court review after destruction of the animals. As we have already pointed out, we have here solely a post-destruction claim for monetary relief, not an application to restrain the contemplated elimination of diseased livestock or poultry.
3. The other remaining question is the disposition of the case if it is ultimately decided by the court that the Secretary’s determination was improper. The same statutory words and the same principles which preclude the court’s determining "fair market value” for itself require that, if the administrative award is overturned, the matter be remanded to the Secretary for a proper award — unless the record made here mandates only one acceptable determination. That is comparable to the practice under the Wunderlich Act, 41 U.S.C. §§ 321-22, and it is
B.
Defendant’s secondary contention is that, if there can be judicial review, the Government has conclusively shown by its presentation on summary judgment that no substantial violation occurred. We cannot accept this argument. Defendant has given us affidavits by government officials and other materials tending to support its position but plaintiff has countered with affidavits by plaintiffs personnel and by a non-government expert (who participated in a large portion of the eradication program)
c.
The last defense proffered in the Government’s motion is that plaintiff entered into an accord and satisfaction (with the Department of Agriculture) accepting the awarded indemnity in full satisfaction of its claims. This is premised, with respect to the initial indemnity, on the fact that in September 1972 Julius Goldman signed the Government’s appraisal forms without reservation or written protest.
As for the supplemental indemnity, Goldman signed the same type of statement. His affidavit sets forth this version of the sequence of events: In February 1973, after repopulation had begun at Egg City, he visited Dr. Sharman, the official then in charge of Newcastle eradication. When Goldman informed Sharman that more than 26 weeks (the Government’s base for calculating the supplemental indemnity) would be needed for Egg City’s repopu-lation, the latter told him to make a written request for an extension. Plaintiff thereupon wrote to Dr. Sharman requesting both an extension of the supplemental indemnity period and an increase in initial indemnity payments. A month later plaintiff received a reply (from another Government official) denying its requests and stating that the indemnification procedures had to be applied uniformly to all ranchers. Mr. Goldman again contacted Dr. Sharman and asserts that he was reassured that plaintiffs requests
On the basis of these averments in Mr. Goldman’s affidavit, plaintiff urges that, for neither the initial nor the supplemental indemnity, was there an accord and satisfaction because the Government (a) assured Egg City that signing the forms would not bar it from pursuing its claims, (b) actually considered plaintiffs claims on their merits well after the forms were signed, and (c) was aware that plaintiff did not intend to relinquish its claims by signing the appraisal forms.
We think that, here too, triable issues of fact — relevant issues of fact — have definitely been raised by Goldman’s affidavit. If plaintiff is proven correct in its factual predicates, there will have been no accord and satisfaction. This court has said that even a general release will not
We add one caveat. To be taken into account the oral assurances by federal personnel on which plaintiff relies must not have been beyond the authority of those who spoke them. See Richards & Associates v. United States, 177 Ct. Cl. 1037, 1051 (1966). But this authority need not be express; it may be implied from the scope of the work delegated to the official or employee, as well as the level and nature of his activities. See, e.g., Centre Mfg. Co. v. United States, 183 Ct. Cl. 115, 127-28, 392 F.2d 229, 236 (1968) (plurality opinion).
For these reasons, we deny the defendant’s motion for summary judgment and remand the case to the Trial Division for further proceedings consistent with this opinion.
9 C.F.R. § 53.3(b) provides:
The appraisal of animals shall be based on the fair market value and shall be determined by the meat, egg production, dairy or breeding value of such animals. Animals may be appraised in groups providing they are the same species and type and providing that where appraisal is by the head each animal in the group is the same value per head or where appraisal is by the pound each animal in the group is the same value per pound.
In some instances of indemnity paid for destroyed crops or animals, Congress has expressly declared that the Agriculture Department’s award shall be final. 21 U.S.C. § 103 (indemnity for diseased animals imported into the country); 7 U.S.C. § 150e (compensation for certain crops destroyed because of infestation). See also 7 U.S.C. §§ 217a, 610e, 1385, 1785; 16 U.S.C. §§ 577g, 677g-1.
In general, explicit statutory provisions seeming to preclude judicial review are not common and even when they are used the courts have in many instances found some sort of review appropriate. See W. Gellhorn & C. Byse, Administrative Law 217-229 (6th ed. 1974), for a discussion of the cases in this area.
Questions of fair market value are of course commonplace to the courts and especially to this court under our jurisdiction to hear taking cases, tax claims, Indian claims and patent compensation suits. We are not presented with a case in which there is no law at all to apply (see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), nor are we involved with special problems such as those presented in cases like Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103 (1948), Panama Canal Co. v. Grace Line, Inc., supra, and Curran v. Laird, 420 F.2d 122, 129 (D.C. Cir. 1969), where the national defense, foreign affairs, and concomitant presidential powers were at issue. Instead we are concerned with fair market value, a question traditionally considered and reviewed by the courts.
To conduct disease eradication programs, the Secretary, pursuant to 21 U.S.C. § 134a(c), has the authority to declare the existence of an extraordinary emergency, dispose of affected poultry, and recover from owners the costs of any care, handling or disposal incurred. This provision, under the appropriate conditions, gives the Secretary formidable authority to act swiftly and prevent further danger to public health and property even in the face of owner resistance.
Though plaintiff challenges the amount of the departmental award, it does not urge that it was entitled to any procedures other than those followed by Agriculture. Nor does the claimant contend that it is entitled to just compensation in the constitutional sense. It is certainly doubtful that such a claim could stand. See Miller v. Schoene, 276 U.S. 272 (1928) (upholding the destruction, without just compensation, of cedar trees passing on a communicable plant disease).
We hold in Part B, infra, that defendant has not shown conclusively, on this summary judgment motion, that the indemnities were proper.
Plaintiff has also supplied some documentary materials in support of its position.
The statement signed by Mr. Goldman said: "I certify that I own or am authorized to represent the owner of the animals or materials identified in this claim. I make claim for all amounts due me in accordance with all applicable laws and regulations governing the payment of indemnities for the animals or materials
Mr. Goldman also said in his affidavit that "I made clear to them [the appraisers] that I did not agree to the values assigned to the birds in those forms, and that I would continue after signing those forms to claim increased indemnification to reflect the true value of the birds. They [the appraisers] understood that.”
Plaintiff cites: American Export Isbrandtsen Lines, Inc. v. United States, 204 Ct. Cl. 424, 468, 499 F.2d 552, 578 (1974); South Puerto Rico Sugar Co. Trading Corp. v. United States, 167 Ct. Cl. 236, 334 F.2d 622 (1964), cert. denied, 379 U.S. 964 (1965); American President Lines, Ltd. v. United States, 154 Ct. Cl. 695, 705, 291 F.2d 931, 936 (1961); Suwannee S.S. Co. v. United States, 150 Ct. Cl. 331, 279 F.2d 874 (1960); Southeastern Oil Florida, Inc. v. United States, 127 Ct. Cl. 409, 119 F. Supp. 731 (1953), cert. denied, 348 U.S. 834 (1954); A.H. Bull S.S. Co. v. United States, 123 Ct. Cl. 520, 108 F. Supp. 95 (1952).
Nor will the issue be important if the defendant prevails on the merits of the claim.