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    Brice Brackin and Linda R. Brackin v. United States, 913 F.2d 858, 11th Cir. (1990)

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    The district court granted summary judgment in favor of the defendant United States in a lawsuit brought by plaintiffs Brice and Linda Brackin under the Federal Tort Claims Act. The plaintiffs sought damages arising from an allegedly improper reconstitution of their farmland acreage allotments for certain crops by the local Agriculture Stabilization and Conservation Service committee. The court found that the committee's decision on the reconstitution method involved sufficient policy judgment to fall under the discretionary function exception to the FTCA, and that Linda Brackin had failed to exhaust her administrative remedies.

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    Brice Brackin and Linda R. Brackin v. United States, 913 F.2d 858, 11th Cir. (1990)

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    The district court granted summary judgment in favor of the defendant United States in a lawsuit brought by plaintiffs Brice and Linda Brackin under the Federal Tort Claims Act. The plaintiffs sought damages arising from an allegedly improper reconstitution of their farmland acreage allotments for certain crops by the local Agriculture Stabilization and Conservation Service committee. The court found that the committee's decision on the reconstitution method involved sufficient policy judgment to fall under the discretionary function exception to the FTCA, and that Linda Brackin had failed to exhaust her administrative remedies.

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    Filed: 1990-06-14 Precedential Status: Precedential Citations: 913 F.2d 858 Docket: 89-7881

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    The district court granted summary judgment in favor of the defendant United States in a lawsuit brought by plaintiffs Brice and Linda Brackin under the Federal Tort Claims Act. The plaintiffs sought damages arising from an allegedly improper reconstitution of their farmland acreage allotments for certain crops by the local Agriculture Stabilization and Conservation Service committee. The court found that the committee's decision on the reconstitution method involved sufficient policy judgment to fall under the discretionary function exception to the FTCA, and that Linda Brackin had failed to exhaust her administrative remedies.

    Copyright:

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    Download as pdf
    50 views6 pages

    Brice Brackin and Linda R. Brackin v. United States, 913 F.2d 858, 11th Cir. (1990)

    Uploaded by

    Scribd Government Docs
    The district court granted summary judgment in favor of the defendant United States in a lawsuit brought by plaintiffs Brice and Linda Brackin under the Federal Tort Claims Act. The plaintiffs sought damages arising from an allegedly improper reconstitution of their farmland acreage allotments for certain crops by the local Agriculture Stabilization and Conservation Service committee. The court found that the committee's decision on the reconstitution method involved sufficient policy judgment to fall under the discretionary function exception to the FTCA, and that Linda Brackin had failed to exhaust her administrative remedies.

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    of 6

    913 F.

    2d 858

    Brice BRACKIN and Linda R. Brackin, Plaintiffs-Appellants,


    v.
    UNITED STATES of America, Defendant-Appellee.
    No. 89-7881
    Non-Argument Calendar.

    United States Court of Appeals,


    Eleventh Circuit.
    June 14, 1990.

    Lee R. Benton, Schoel, Ogle, Benton, Gentle & Centeno, Birmingham,


    Ala., for plaintiffs-appellants.
    Frank W. Donaldson, U.S. Atty., and James D. Ingram, Asst. U.S. Atty.,
    Birmingham, Ala., for defendant-appellee.
    Appeal from the United States District Court for the Northern District of
    Alabama.
    Before TJOFLAT, Chief Judge, and FAY and COX, Circuit Judges.
    PER CURIAM:

    We AFFIRM the judgment of the district court for the reasons stated in the
    court's memorandum of decision of November 2, 1989, which appears in the
    appendix.

    APPENDIX
    MEMORANDUM OF DECISION
    HANCOCK, District Judge:
    2

    Plaintiffs instituted this action on November 25, 1987 seeking damages under
    the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b) (FTCA) for damages
    resulting from the improper and negligent "reconstitution" (division or

    combination of acreage allotments of certain crops) of plaintiffs' farmland.


    3

    The government filed a motion for summary judgment on August 7, 1989


    which the court took under submission on September 1, 1989. Having
    considered the briefs of counsel for both sides and the verified material
    presented in support of and in opposition to the motion, the court is of the
    opinion that the defendant's motion is due to be granted.

    The lengthy and undisputed facts of this case are set forth in the Pretrial Order
    of this court and will not be repeated herein. A brief synopsis of the facts,
    however, is necessary to understand the plaintiffs' claims.

    Plaintiffs are joint owners of a 687 acre tract of land (Farm No. C-438) which is
    one of four tracts derived from a larger parent farm called the "Taylor Estate".
    Plaintiffs sought to reconstitute the distribution of acreage allotments for their
    farm for cotton, wheat and corn. The defendant Lawrence County Agricultural
    Stabilization and Conservation Service, (ASCS) was obligated to determine the
    appropriate method for reconstituting the four tracts. The ASCS has established
    guidelines for reconstituting the distribution of acreage allotments for certain
    crops which are contained in Handbook 2-CM.

    The ASCS committee used Handbook 2-CM, viewed presentations by the


    plaintiffs' representative, and reviewed the former operation of the tract. The
    various owners of the four tracts of land were unable to agree on an appropriate
    method to use. As a result of the failure of the parties to agree upon an
    appropriate method, the committee decided to use the historical method to
    calculate the appropriate allotment. Plaintiffs, dissatisfied with the committee's
    choice, sought a review of the decision. Ultimately the ASCS committee's
    decision was reversed1 and the committee was directed by the Deputy
    Administrator in Washington D.C. to calculate the allotments based upon the
    cropland method.2 This decision proved to be much more favorable to the
    plaintiffs in that they were granted considerably greater allotments of corn,
    wheat and cotton.

    Plaintiffs, however, had been unable to grow the cotton, wheat and corn in the
    greater allotments during the time of the appeal process and now seek damages
    for the amount of money that they could have made if they had been allowed to
    grow the greater allotments of corn, wheat and cotton in the 1985 growing
    season. Plaintiffs claim that the committee negligently and wrongfully
    misapplied its own regulations in determining that the historical method should
    be used to calculate the appropriate allotments. Plaintiff, Brice Brackin,

    initially sought administrative relief and was denied. Plaintiffs then brought
    suit under the FTCA.
    8

    The procedural requisite to suit against the United States is "that the claimant
    shall first present the claim to the appropriate Federal agency and his claim
    shall have been finally denied by the agency in writing and sent by certified or
    registered mail." 28 U.S.C. Sec. 2675(a). Linda Brackin, plaintiff and joint
    owner with Brice Brackin of the farm in question, has not filed a separate
    administrative tort claim in this matter and has never joined in the
    administrative tort claim filed by plaintiff Brice Brackin. (See affidavit of John
    M. Trotman, State Executive Director of Alabama ASCS office). Therefore,
    pursuant to 28 U.S.C. Sec. 2675(a), plaintiff, Linda Brackin, has failed to
    exhaust administrative remedies and is due to be dismissed. See Lykins v.
    Pointer Inc., 725 F.2d 645 (11th Cir.1984); Employees Welfare Committee v.
    Daws, 599 F.2d 1375, 1378 (5th Cir.1979).

    Under the FTCA, 28 U.S.C. Sec. 2680(a), an exception to suit against the
    United States government exists for acts that are considered discretionary.3 In
    Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), the
    Supreme Court outlined the scope of the discretionary function exception to the
    FTCA. The Court stated:

    10is unnecessary to define, apart from this case, precisely where discretion ends. It is
    It
    enough to hold, as we do, that the "discretionary function or duty" that cannot form a
    basis for suit under the Tort Claims Act includes more than the initiation of
    programs and activities. It also includes determinations made by executives or
    administrators in establishing plans, specifications or schedules of operations. Where
    there is room for policy judgment and decision there is discretion. It necessarily
    follows that acts of subordinates in carrying out the operations of government in
    accordance with official directions cannot be actionable. Id. at 968 (emphasis
    added).
    11

    In the process of making the determination of the proper reconstitution method,


    the ASCS used various guidelines including 7 C.F.R. part 719 (1987) which
    sets out various rules for determining which method of reconstitution is
    appropriate depending on the facts as determined by the county committee.
    While the language of these guidelines often includes the word shall, it is clear
    that the decision to use one method as opposed to another is based upon
    numerous factors including a consideration of a method that the parties can
    agree on. For example 7 C.F.R. Sec. 719.8(e) states:

    Notwithstanding any other provision of this paragraph, the allotments, normal crop
    12

    acreage and preceding year planted acreage shall be apportioned on the basis of the
    cropland available for and adapted to the production of the allotment crop, normal
    crop acreage and preceding year planted acreage on each tract when the owners file
    with the county office a written agreement as to the amount of available and adapted
    cropland and the county committee approves such agreement.
    13

    In the present case the committee first determined that the parties were unable
    to agree on any method to use. The committee then set about reviewing
    documentation regarding prior farming operations on the land and hearing
    presentations from both sides concerning their views on what was the
    appropriate method to use. The committee reached the decision that the
    historical method was the fairest and most equitable method.

    14

    The affidavits of the members of the county committee and employees of the
    county indicate that some time was spent determining which method was
    appropriate for reconstitution.4 While the county committee had guidelines to
    follow it cannot be said that the decision was based upon "a fixed or readily
    ascertainable standard." Alabama Elec. Co-op., Inc. v. United States, 769 F.2d
    1523 (11th Cir.1985). Clearly, the county committee was called upon to
    exercise some judgment in rendering their decision and it cannot be said that
    this was not a "permissible exercise of policy judgment." Berkovitz v. United
    States, 486 U.S. 531, 108 S.Ct. 1954, 1959, 100 L.Ed.2d 531 (1988). It is only
    when a "federal statute, regulation, or policy specifically prescribes a course of
    action for [a Government] employee to follow" that the exception does not
    apply. Id. at 536, 108 S.Ct. at 1958.

    15

    The court finds that the decision by the county committee involved sufficient
    policy judgment that such a decision falls within the statutory exception to the
    Federal Tort Claims Act, 28 U.S.C. Sec. 2680(a). The court further finds that
    summary judgment is appropriate because "the pleadings, depositions, answers
    to interrogatories and admissions on file, together with the affidavits ... show
    that there is no genuine issue as to any material fact and that the moving party
    is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S.
    317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "The plain language of Rule
    56(c) mandates the entry of summary judgment, after adequate time for
    discovery and upon motion, against a party who fails to make a showing
    sufficient to establish the existence of an element essential to that party's case,
    and on which that party will bear the burden of proof." Celotex, supra at 322,
    106 S.Ct. at 2552.

    16

    For the foregoing reasons, the court is of the opinion that the defendant's
    motion for summary judgment is due to be granted.

    The scope of review for appeal to the Deputy Administrator is set forth in;

    C.F.R. Sec. 780.9 Determination


    (a) The reviewing authority....... Upon reconsideration or review and within
    program authorities, the reviewing authority may affirm, modify, or reverse any
    determination made by it initially or made by a lower reviewing authority, or
    may remand the matter to a lower reviewing authority for such further
    consideration as is deemed appropriate.

    In a letter dated August 27, 1986, the Deputy Administrator stated;


    Our review of the entire matter, including the information you furnished during
    the telephone hearing and that provided by the Alabama State ASCS Office,
    indicates that the bases determined as a result of the history method were not
    representative of the operations normally carried out on each tract of land
    during the respective base period for the commodity. Accordingly, the
    Alabama State Committee is being instructed to determine the bases according
    to the cropland method.

    Specifically 28 U.S.C. Sec. 2680(a) excepts from FTCA liability;


    .. Any claim based upon an act or omission of an employee of the Government,
    exercising due care, in the execution of a statute or regulation, whether or not
    such statute or regulation be valid, or based upon the exercise or performance or
    the failure to exercise or perform a discretionary function or duty on the part of
    a federal agency or an employee of the Government, whether or not the
    discretion involved be abused.

    In an affidavit filed in opposition to defendant's motion for summary judgment,


    plaintiff Brice Brackin claims that he was never asked to participate in the
    decision as to what method of reconstitution to use. Brackin further states that
    even if the history method were the appropriate method to use, which he at all
    times contests, the determination of the proper reconstitution under this method
    was done improperly. Brackin vigorously contests the procedure and basis
    upon which the determination to use the history method was made. Brackin
    claims that the decision was arbitrary and capricious, but further states that if
    any discretion was involved it should be deemed an abuse of discretion. Clearly
    the statute itself states that an abuse of discretion does not make a discretionary
    function become a ministerial task. ".... This exception applies to policy
    judgments, even to those constituting abuse of discretion, but not to choices
    which are either outside the policy-making context or in an area in which

    federal law directs a particular course of action." Dickerson v. United States,


    875 F.2d 1577, 1581 (11th Cir.1989)

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