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July 18, 1960


The opinion of the court was delivered by: Mercer, Chief Judge.

Plaintiff filed this action under the provisions of the Agricultural Adjustment Act of 1938, as amended, 7 U.S.C.A. §§ 1365-1367, to review a decision by defendant, Review Committee of Mercer County, Illinois, fixing plaintiff's wheat acreage allotments for 1959. The cause was filed in the Circuit Court of Mercer County, Illinois, and transferred to this court by order entered April 15, 1959. It comes before the court now upon defendant's motion for summary judgment.

Plaintiff is the owner of four farms in Mercer County, Illinois, upon each of which he raised wheat as one of his staple crops. Pertinent to this cause, he raised wheat upon each farm in each of the years 1954 and 1957. None was raised in 1955 and 1956. The ASC Committee*fn1 established wheat acreage allotments for each of plaintiff's farms for 1959 upon the basis of the 1954-1957 four year average acreage history pursuant to the applicable Agricultural Department Regulations. 23 F.R. 1672.

Plaintiff applied for a review of each allotment determination before the defendant Committee. After a hearing upon plaintiff's applications, defendant determined that the zero acreage figures for 1955 and 1956 should not have been considered by ASC, and fixed a new and greater acreage allotment for each of plaintiff's farms. Defendant's written determination as to each farm to that effect was mailed to plaintiff on September 2, 1958. On September 5, 1958, defendant caused a revised order as to each of the four farms to be mailed to plaintiff, in which errors included in the September 2 orders were corrected.

The Deputy Administrator for Production Adjustment of the Commodity Stabilization Service, United States Department of Agriculture, acting through the Illinois State ASC Office at Springfield, filed a written application with defendant's clerk to reopen the hearing. There was some doubt in the evidence as to when that application was received by defendant's clerk, but the evidence supports defendant's finding that October 20, 1958, was the filing date.

Thereafter, a rehearing was held in a consolidated proceeding, and, on March 2, 1959, defendant issued its supplemental determination revoking the September 5, 1958, orders, and affirming and reinstating the lesser wheat acreage allotment for each farm as determined by ASC. Plaintiff filed this action to review the March 2, 1959, decision.

At the outset, plaintiff contends that defendant had no jurisdiction to enter the order under review because the Deputy Administrator's application to reopen the hearing was not timely filed. Section 711.25 of the Marketing Quota Review Regulations, 21 F.R. 9365, provides that a review committee, upon application made by the Deputy Administrator within 45 days from the date of mailing to the applicant a copy of any determination by such review committee, shall reopen the hearing with respect to such determination. Plaintiff argues that the 45 day period fixed by Section 711.25 for filing the application to reopen must be measured from September 2, 1958, the date of the original determination by defendant with respect to each of plaintiff's farms.

Defendant concluded that the 45 day period should be measured from the date of its revised orders, i.e., September 5, 1958, and that the application to reopen filed October 20, 1958, was timely filed. The conclusion is correct. Between September 2, 1958, and September 5, 1958, defendant determined that the acreage allotment stated in two of the four orders was erroneous. On the latter date, amended orders with respect to each of the four farms were mailed to plaintiff, together with a letter of notification that the amended orders superseded those of September 2nd. Then, and only then, was the original administration hearing concluded, subject to being reopened upon a proper application. Since no judicial decision is found which construes Section 711.25 with respect to the time factor, the court holds that time must be measured from the date of the final administrative order. Cf., Zimmern v. United States, 298 U.S. 167, 56 S.Ct. 706, 80 L.Ed. 1118. The application to reopen was filed within 45 days after the mailing of defendant's final orders and was, therefore, timely.

Review of the merits of the cause in this court is limited to questions of law if the findings of fact of the defendant committee are supported by substantial evidence. 7 U.S.C.A. § 1366; Crolley v. Tatton, 5 Cir., 249 F.2d 908, certiorari denied 356 U.S. 966, 78 S.Ct. 1005, 2 L.Ed.2d 1073; Review Committee, etc. v. Willey, 8 Cir., 275 F.2d 264; Smith Land Co. v. Christensen, 10 Cir., 148 F.2d 184.

The committee found that plaintiff did not plant wheat on any of his farms for harvest in 1955 and 1956; that, at all times pertinent to the hearing, plaintiff operated his farms as grain farms and that no change in that operation was proved; and that plaintiff had not voluntarily released to ASC any part of the 1955 wheat allotment for any of his farms as he claims to have done. Each of those findings is supported by substantial evidence upon the record as a whole and each is, therefore, binding upon this court.

The remaining question before the court is the question whether defendant's decision, based upon those findings, is in accordance with law.

Regulations issued by the Secretary of Agriculture governing 1959 wheat allotments required ASC to fix the base acreage for each farm by establishing a wheat acreage history for the farm, based upon the average acreage of wheat harvested thereon in the base years of 1954 to 1957, inclusive. 7 C.F.R. (1959 Supp.) 728.912(m), 728.917(b). The acreage allotment for each farm was to be computed by applying a fractional multiplier established by the local ASC Committee to the base acreage so fixed unless the local committee should determine that one of the five exceptions specified in the regulation should require that one or more of the years in the 1954-1957 base period should be excluded from the computation, 7 C.F.R. (1959 Supp.) 728-917(c)(1).

The fourth exception to that regulation is the only one pertinent here. That exception provides that the historic average acreage may be revised where base period wheat acreage of a farm is "no longer representative because of a change in operation which results in a substantial change in the established crop-rotation system for the farm." Plaintiff testified that he did not plant wheat for harvest in 1955 and 1956 because he chose to plant oats in an effort to obtain a good legume seeding. He contends that that choice, then made, renders each of the years in question atypical of his farms' wheat acreage history, and brings those years within the quoted exception.*fn2

The committee concluded and here contends that exception iv does not apply to plaintiff's situation. In so concluding the committee adopted the Secretary of Agriculture's interpretation of the exception as being applicable only to a situation involving a change in farm operation of such substantial nature that it would render the crop-rotation system to be followed in 1959 substantially different from that followed in the base period years.

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