Van Curen v. Federal Crop Insurance Corporation et al

Filing 79

ORDER by Judge Charles R. Breyer denying 62 Motion for Summary Judgment; denying 66 Motion for Partial Summary Judgment; denying 75 Motion for Partial Summary Judgment; denying as moot 77 Motion for Extension of Time to File Response/Reply, Motion to Continue. (crblc1, COURT STAFF) (Filed on 10/5/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 13-04601 CRB

VAN CUREN,

ORDER DENYING MOTIONS
WITHOUT PREJUDICE AND
REMANDING CASE TO AGENCY

Plaintiff,
v.
FEDERAL CROP INSURANCE
CORPORATION ET AL.,
Defendants.

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Following remand from the Ninth Circuit, the parties each filed Motions for Partial
Summary Judgment on Plaintiff’s second claim for relief, which pertains to quality
adjustments. See P MSJ 2C (dkt. 62); D MSJ 2C (dkt. 66). Both motions ask the Court to
decide whether the National Appeals Division’s (NAD’s) decision, affirming Defendants’
denial of certain quality adjustment claims, was “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” Id.; 5 U.S.C. § 706. NAD’s decision was based
on “the 75% Test,” something that had not been the explicit basis for Defendants’ denial.
See Burnett Decl. (dkt. 68) Ex. 20 at 65; P MSJ 2C at 17–21. Plaintiff asserts: “[A]fter the
entire record had been closed, long after Plaintiff’s opportunity to address any would-be
challenge under the 75% Test had passed, NAD itself raised the issue for the first time and

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then denied Plaintiff’s claims for lack of evidence of compliance with the test.” P Reply

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(dkt. 71) at 7.1

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The Court understands that the parties make alternative arguments not related to

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Plaintiff’s claimed lack of notice that NAD would be employing the 75% Test. However, the

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Court concludes that the proper course of action is for NAD to (1) reopen the record to allow

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both parties to submit evidence relating to the 75% Test before (2) re-examining the quality

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adjustment claims at issue in the second claim for relief. See Loma Linda Univ. v.

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Schweiker, 705 F.2d 1123, 1127 (9th Cir. 1983) (reviewing court has inherent power to

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remand a matter to agency; where agency failed to consider important evidence, proper to

United States District Court
For the Northern District of California

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remand).2
Plaintiff also recently filed a motion for partial summary judgment as to the third

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claim for relief, which pertains to the Madera 0100 claim. See P MSJ 3C (dkt. 75). That

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motion argues, among other things, that NAD affirmed Defendants’ denial of the Madera

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0100 claim “on a completely new basis” and that “Plaintiff had no opportunity to refute that

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basis, because it had never been presented by Defendants.” Id. at 16.3 In light of the Court’s

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conclusion as to the second claim for relief, the Court takes the same approach here. NAD is

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to (1) re-open the record to allow both parties to submit evidence relating to the allegedly late

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harvest of the Madera 0100 grapes before (2) re-examining the Madera 0100 claim at issue in

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the third claim for relief.

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Defendants contend, among other things, that “the absence of a specific reference to the 75%
test as the specific basis for a denial of the quality adjustment claims in the 2010 or 2011 [insurer]
decisions” is not dispositive, and that Plaintiff was on notice that the 75% test was “Part and Parcel of
the Parties’ Dispute.” See D MSJ 2C at 15–16, 18–22. Defendants also claim that “Witnesses testified
at the [agency’s] hearing about the 75% test, although Plaintiff objected and blocked or simply declined
to develop the testimony at times.” Id. at 19.
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See also Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) (“If the record before the
agency does not support the agency action, if the agency has not considered all relevant factors, or if
the reviewing court simply cannot evaluate the challenged agency action on the basis of the record
before it, the proper course, except in rare circumstances, is to remand to the agency for additional
investigation or explanation.”).
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Defendant has not substantively responded to this or any argument in Plaintiff’s motion, but
has sought additional time in which to respond. See D Mot. to Enlarge Time (dkt. 77). That motion is
hereby DENIED as moot.
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Accordingly, the Court DENIES the parties’ motions without prejudice and

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REMANDS the case to the agency for these limited purposes. The Court further DIRECTS

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the parties to file a status report in this case within 30 days of the final agency decision.

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IT IS SO ORDERED.

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CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

Dated: October 5, 2016
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United States District Court
For the Northern District of California

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G:\CRBALL\2013\4601\Van Curen - remand claim 2.wpd

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