Elbert et al v. United States Department of Agriculture et al
Filing
194
MEMORANDUM OPINION AND ORDER granting 180 Motion to Reconsider. (Written Opinion) Signed by Chief Judge John R. Tunheim on 6/29/2021. (HMA)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
RICH ELBERT, JEFF A. KOSEK, REICHMANN
LAND & CATTLE LLP, LUDOWESE A.E. INC.,
and MICHAEL STAMER, individually and
on behalf of a class of similarly situated
persons,
Civil No. 18-1574 (JRT/TNL)
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF
AGRICULTURE, RISK MANAGEMENT
AGENCY, and FEDERAL CROP INSURANCE
CORPORATION,
MEMORANDUM OPINION AND ORDER
Defendants.
John D. Tallman, JOHN D. TALLMAN PLLC, 4020 East Beltline Avenue
Northeast, Suite 101, Grand Rapids, MI 49525, for plaintiffs.
David W. Fuller, UNITED STATES ATTORNEY’S OFFICE, 300 South Fourth
Street, Suite 600, Minneapolis, MN 55415, for defendants.
Plaintiffs, dark red kidney bean farmers from Minnesota, purchased revenue
coverage, the Dry Bean Revenue Endorsement (“Endorsement”), to protect against a
decline in bean prices as measured by the difference between the spring projected price
and the fall harvest price. In 2015, such a decline occurred. However, Plaintiffs were told
that, because there was not enough published pricing data to establish a harvest price, it
would be set equal to the projected price per the terms of the Endorsement, which
converted their revenue coverage into mere yield protection. As a result, they received
no recompense.
Plaintiffs brought claims under the Administrative Procedure Act (“APA”) against
Defendants—the United States Department of Agriculture (“USDA”), the Risk
Management Agency (“RMA”), and the Federal Crop Insurance Corporation (“FCIC”)—
arguing that it was arbitrary and capricious for Defendants to allow the Endorsement to
convert their revenue coverage into yield protection. Both parties then moved for
summary judgment.
On August 21, 2020, the Court granted summary judgment to Defendants.
However, when doing so, the Court relied on regulatory language not yet in effect at the
time of the Endorsement’s creation. Additionally, key facts—namely, that substantial
changes were made to the relevant policy provision of the Endorsement after the FCIC
Board (“Board”) had approved a markedly different one—were only introduced at the last
minute, months after oral argument. Given these compelling circumstances, ones
potentially implicating errors of law or fact, the Court granted Plaintiffs permission to file
a motion to reconsider.
Upon reconsideration, the Court finds that (1) the policy language approved by the
Board was not the same as that finalized in the Endorsement offered for sale; (2) postapproval changes made to the language were “significant” under the regulations then in
effect and therefore required resubmission to the Board, which did not occur; and (3) the
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RMA did not have the authority to independently approve and help finalize these changes
in the Endorsement. As such, Defendants violated the APA. Thus, the Court will reverse
its earlier decision, and will deny summary judgment to Defendants and grant summary
judgment to Plaintiffs.
BACKGROUND
I.
FACTUAL BACKGROUND
In an earlier decision, Elbert v. U.S. Dep’t of Agric., No. 18-1574, 2020 WL 4926635,
at *2 (D. Minn. Aug. 21, 2020), the Court laid out the relevant facts in detail, which the
Court will summarize here. Additionally, the Court will supplement the background as
needed. 1
A.
Federal Crop Insurance
The FCIC provides reinsurance for crop insurance policies approved pursuant to
the Federal Crop Insurance Act (“FCIA”). 7 U.S.C. § 1508. Private-party applicants design
such policies and policy provisions, and then make what is termed a 508(h) submission to
the Board. Id. § 1508(h)(1)(A). The Board must approve a 508(h) submission if it
determines, among other things, that the crop insurance policy will adequately protect
the interests of producers. Id. § 1508(h)(3)(A)(i).
1
Additional citations to the administrative record will be paginated with the
original FCIC numbering for ease of review and will include a reference to the
corresponding docket number. The administrative record was certified as containing
“those documents considered by the decision-maker.” (Decl. Zachary White ¶ 4, Aug. 14,
2019, Docket No. 115.)
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B.
The Pulse-Crop Policy
1.
The 508(h) Submission
In the fall of 2011, Watts and Associates, Inc., the Northarvest Bean Growers
Association, and the USA Dry Pea and Lentil Council (collectively, “Watts”) made a 508(h)
submission to the Board. 2 (FCIC827, Docket No. 116-34.) For an additional premium,
Watts proposed to offer pulse-crop farmers revenue coverage to insure against crop-price
declines, as measured by the difference between the spring projected price and the fall
harvest price. 3 (See id. at FCIC830.)
The Watts submission set out that, because there is no futures market for pulse
crops, the projected price would be set by obtaining the contract prices from processors
in January and February. (Id. at FCIC875.) The harvest price would be set based upon
weekly sales-price data published by the AMS Bean Market News during the fall months.
(Id. at FCIC875–876.)
If AMS data was insufficient to set the harvest price for a crop year, the proposed
policy provisions, specifically section 3(c)(2), set out that “[a] harvest price will be
determined and announced by FCIC in lieu of the terms contained in the definition of
harvest price[.]” (Id. at FCIC988.) Similarly, the Handbook proposed to accompany the
policy stated that “[i]f a harvest price cannot be determined . . . [the] RMA will establish
2
The concept behind the proposed policy was first approved for further
development by the Board in November 2010. (FCIC764, Docket No. 116-27.)
3
Pulse crops are legumes harvested for their dry seed.
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the harvest price.” (Id. at FCIC1017.) In the rating methods section of the submission,
Watts also noted that it “recommend[ed] that the projected price be substituted for any
missing AMS monthly harvest price observations” when the harvest price cannot be
determined. (Id. at FCIC894.)
2.
Expert Review of the Submission
On November 17, 2011, the Board approved expert review of the submission.
(FCIC1174, Docket No. 116-35). One expert cautioned that “[h]istorically, there have
been occasions when AMS failed to report harvest price data during these months for
some types of dry beans.” (FCIC1239, Docket No. 116-38.) The expert also warned
against Watts’s recommendation:
In the extreme case where AMS fails to report a price for
September, October, and November the harvest price would
be equal to the projected price and the revenue insurance
product . . . would revert to a yield insurance product . . . We
understand the need to have a contingency plan for situations
when AMS fails to report a price. However, it seems unfair to
growers who pay for revenue insurance for that contingency
plan to effectively shift the policy away from revenue
coverage and toward yield coverage. 4
(Id. at FCIC1240.)
4
As the name implies, yield protection only covers the value of expected crop
yields as projected in the spring, not the loss of revenue due to a price decline in the fall.
See 7 C.F.R. § 457.8 (defining “revenue protection” and “yield protection”).
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3.
Docketing of the Submission
After expert review of the submission, the RMA presented an executive summary
and docket report for the Board’s review. (FCIC1437, Docket No. 116-45.) The RMA
commented upon a general concern involving the recommendation to substitute the
projected price for the harvest price when AMS prices were not available, as this would
“essentially convert[] the revenue offer to yield protection with the insured paying the
premium for revenue coverage but only getting yield coverage.” (Id. at FCIC1442.)
The RMA also shared this concern with Watts. (FCIC1175–76, Docket No. 116-36.)
Watts replied that the “language in the submission regarding inability to determine the
harvest price when the projected price has been determined is substantially the same as
that of section 3(c)(5) of [the Basic Provisions of the Common Crop Insurance Policy].”
(Id. at FCIC1182.) Much like the policy provision proposed by Watts, section 3(c)(5) of the
Basic Provisions states that “[i]f the projected price or harvest price cannot be calculated
for the current crop year . . . [r]evenue protection will continue to be available; and [t]he
harvest price will be determined and announced by FCIC.” 7 C.F.R. § 457.8.
4.
Approval of the Submission
The Board took up final consideration of Watts’s proposal on March 1, 2012.
(FCIC820, Docket No. 116-32.)
A PowerPoint was presented, which stated that
substituting the projected price for the harvest price would covert the proposed revenuecoverage policy to yield protection. (FCIC1462, Docket No. 116-46.)
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Afterward, the Board, “pursuant to the information contained in [the Watts
submission], as well as other material that were submitted to the Board on this matter,”
approved the pulse-crop policy “with reinsurance and administrative and operating
subsidy in amounts and under such terms and conditions as determined appropriate by
the Manager as authorized under section 508(h) of the Federal Crop Insurance Act.” 5
(FCIC1499, Docket No. 116-49.) The Board also delegated to the Manager “the authority
to make such technical policy changes as are necessary to make the policy legally
sufficient.” (Id.)
5.
Post-Approval Changes
Shortly after the Board meeting in March 2012, the RMA sent a highlighted copy
of the approved policy provisions to Watts along with comments, one of which involved
section 3(c)(2)’s language establishing that the FCIC will determine and announce a
harvest price when there is insufficient price data. 6 (FCIC1559, Docket No. 116-52.) Watts
responded, “[w]ith regard to the question about how RMA is to determine a harvest price,
the language contained in these crop provisions is identical to the language contained in
the Basic Provisions,” again referencing section 3(c)(5) of the Basic Provisions whereby
the FCIC will determine and announce the harvest price when it cannot be calculated for
a crop year. (FCIC1572–73, Docket No. 116-53.)
5
6
The Administrator of the RMA is the Manager of the FCIC. 7 U.S.C. § 6933(c)(2).
The document does not preserve what the RMA’s comments were.
-7-
For reasons unclear from the administrative record, by November 1, 2012, section
3(c)(2) had been completely rewritten. 7 It now read: “If the harvest price cannot be
calculated . . . the harvest price will be equal to the projected price.” (FCIC1501, Docket
No. 116-50.)
C.
2015 Crop Year
The Endorsement purchased by Plaintiffs in 2015 contains the rewritten section
3(c)(2), not the one contained in Watts’s 508(h) submission. (See 3rd Am. Compl., Ex. A at
2, Feb. 26, 2019, Docket No. 89-2.) By December 2015, it became clear that there would
not be sufficient data by which to establish a harvest price for dark red kidney beans in
Minnesota. (FCIC2350, Docket No. 117–27.) As a result, on December 15, the RMA
announced that, per section 3(c)(2) in Plaintiffs’ Endorsement, “the harvest price will be
equal to the projected price when a harvest price cannot be determined.” (FCIC2326,
Docket No. 117-25.)
Because the harvest price had been set equal to the projected price, Plaintiffs’
revenue coverage was “essentially [made into] an expensive yield policy,” which meant
that they could not recoup their losses. 8
(See FCIC10797, Docket No. 120-20.)
7
The post-approval period was also when it was decided to structure the policy as
an endorsement instead. (FCIC1586, Docket No. 116-54.)
8
Following this outcome, on December 31, 2015, Watts proposed pricing changes
to resolve AMS data deficiency issues. (FCIC14381, Docket No. 121-6.) The RMA
determined that the changes required resubmission to the Board. (FCIC13915, Docket
No. 121-3.) The Board approved the submission for expert review on February 10, 2016,
(footnote continued on next page)
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Additionally, Plaintiffs were not allowed a refund of the additional premium that they had
paid for revenue coverage. (See id. at FCIC10795.)
II.
PROCEDURAL BACKGROUND
This case was brought initially as a putative class action in the Eastern District of
Michigan. (Compl., June 5, 2017, Docket No. 1.) The Michigan court dismissed the
Minnesota Plaintiffs for improper venue and transferred them here. (Order Granting
Mot. Dismiss at 28, April 18, 2018, Docket No. 70; Transfer, June 8, 2018, Docket No. 81.)
Plaintiffs then filed a Third Amended Complaint. (3rd Am. Compl., Feb. 26, 2019, Docket
No. 89.)
On September 6, 2019, Plaintiffs moved for summary judgment, arguing that
Defendants acted arbitrarily and capriciously in setting the harvest price equal to the
projected price in 2015. (Mot. Summ. J., Sept. 6, 2019, Docket No. 131.) Defendants
moved for dismissal or, in the alternative, summary judgment. (Mot. Dismiss & Mot.
Summ. J., Oct. 25, 2019, Docket No. 141.) Several months after oral argument, the parties
submitted supplemental briefing to address whether the post-approval rewriting of
section 3(c)(2) violated the APA. Elbert, 2020 WL 4926635, at *16 n.7.
On August 21, 2020, the Court granted summary judgment to Defendants,
concluding that Plaintiffs failed to demonstrate that Defendants’ actions were arbitrary
(FCIC14381, Docket No. 121-6), and approved the submission on June 3, 2016,
(FCIC14491, 14494, Docket No. 121-14.)
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and capricious. Id. at *1, 17. Additionally, the Court rejected Plaintiffs’ assertions that
changes made to section 3(c)(2) after Board approval mandated a new submission and
that the RMA had acted outside the scope of its delegated authority. Id. at *16 n.7.
On September 3, 2020, Plaintiffs requested permission to file a motion to
reconsider. (Request, Sept. 3, 2020, Docket No. 172.) The Court granted Plaintiffs
permission to address whether changes made to section 3(c)(2) were “significant” as
defined by regulations in effect in 2012; and, if significant, whether the Board’s delegation
of authority to the RMA obviated any need to resubmit them to the Board. (Order at 6–
7, Oct. 1, 2020, Docket No. 173.) Plaintiffs have therefore filed a Motion to Reconsider.
(Mot. Reconsider, Oct. 23, 2020, Docket No. 180.)
III.
MICHIGAN LITIGATION
The claims of the Minnesota and Michigan parties are closely related—the core of
both complaints is that Defendants acted arbitrarily and capriciously regarding the
Endorsement’s pricing mechanism for the harvest price when it cannot be calculated for
a crop year. (Compare 3rd Am. Compl., with 2nd Am. Compl., April 30, 2018, Docket No.
72.) The Michigan court also granted summary judgment in favor of Defendants.
Ackerman Bros. Farms, LLC v. U.S. Dep’t of Agric., No. 17-11779, 2019 WL 3067927, at *13
(E.D. Mich. July 12, 2019), reconsideration denied sub nom. Ackerman v. U.S. Dep’t of
Agric., No. 17-11779, 2019 WL 6837785 (E.D. Mich. Dec. 16, 2019).
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However, on April 28, 2021, the Sixth Circuit reversed, in part, the Michigan
decision. Ackerman v. U.S. Dep’t of Agric., 995 F.3d 528, 529 (6th Cir. 2021). The Sixth
Circuit noted that the 508(h) submission approved by the Board in 2012 proposed that
section 3(c)(2) would do exactly what the Basic Provisions do: “provide that the ‘harvest
price will be determined and announced by FCIC[.]’” Id. at 530–31. Additionally, the
proposed and approved Handbook “likewise provided that, in the event of insufficient
data from the Bean Market News, the RMA would set the harvest price.” Id. at 531. The
court then stated that:
for reasons that are obscure on this record, the policies
actually sold to Minnesota and North Dakota bean farmers did
not include those same provisions from the approved
endorsement and Handbook. Quite the contrary: the
endorsement for the policies sold in those states provided
that, in the event of insufficient data from the Bean Market
News, “the harvest price will be equal to the projected price.
As a result, the pricing mechanism in these policies would
simply default to the projected price—which would make the
revenue protection virtually worthless, since for the most part
that coverage requires payment to the farmer only when the
harvest price falls below the projected price.
Id.
The Sixth Circuit determined that the language of section 3(c)(2) in the
Endorsement sold in Minnesota, language which then made its way into the Endorsement
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sold in Michigan, 9 was not the language actually approved by the Board. Id. at 532.
Additionally, because the post-approval changes involved changes to pricing
methodologies, they were “significant” and thus required resubmission to the Board and
another round of expert review, per agency regulations. Id. 532–33 (citing 7 C.F.R. §§
400.701, 400.706, 400.709)). Furthermore, the agency was required to adequately
consider whether the change to the default pricing mechanism—now setting the harvest
price equal to the projected price instead of having the agency determine and announce
it—adequately protected the interest of farmers. Id. at 533.
The Sixth Circuit concluded that the agency failed on all accounts and therefore
violated the APA. Id.
DISCUSSION
I.
STANDARD OF REVIEW
Under the Local Rules, after demonstrating compelling circumstances, a party may
file a motion to reconsider with express permission of the Court. D. Minn. L.R. 7.1(j).
Motions to reconsider “serve a limited function: to correct manifest errors of law or fact
or to present newly discovered evidence.” Hagerman v. Yukon Energy Corp., 839 F.2d
407, 414 (8th Cir. 1988) (citation omitted).
9
On July 8, 2013, when submitting a maintenance package for the Minnesota and
North Dakota program, Watts suggested offering the policy to Michigan farmers.
(FCIC2171, 2173, Docket No. 117-18.) On August 8, 2013, the Board approved Watts’s
submission to expand revenue coverage into Michigan, after first noting that the
requested expansion was “non-significant.” (FCIC2317, Docket No. 117-22.)
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The decision under reconsideration is the Court’s August 21, 2020 Memorandum
Opinion and Order granting summary judgment to Defendants. 10 When reviewing agency
action under the APA, the Court “shall review the whole record” and, as relevant here,
“hold unlawful and set aside agency action, findings, and conclusions found to be
arbitrary, capricious,” or “without observance of procedure required by law[.]” 5 U.S.C.
§ 706.
II.
ANALYSIS
Previously, the Court concluded that changes made to section 3(c)(2) after the
Board approved Watts’s 508(h) submission in March 2012 were non-significant because
they “involve[d] concepts that [had] been previously sent for expert review,” and thus did
not require resubmission. Elbert, 2020 WL 4926635, at *16 n.7 (quoting 7 C.F.R. § 400.701
(2016)). 11 Additionally, the Court noted that the Board had delegated authority to the
RMA to make changes to the policy, and that Plaintiffs had not demonstrated that this
delegation was improper. Id. Working with a rushed set of facts and the wrong regulatory
language, the Court erred in both respects.
10
Summary judgment is appropriate where there are no genuine issues of material
fact and the moving party can demonstrate that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the suit, and
a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a
verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
11
Some of the regulations that the Court will interpret were modified since 201112, when Watts made its submission and post-approval changes were made. When
relevant, the Court will note the version of the regulation being interpreted.
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A.
Significance of the Post-Approval Changes
The Court agrees with the Sixth Circuit: the pricing mechanism in the 508(h)
submission approved by the Board established that, when AMS price data was lacking,
the harvest price would be determined and announced by the agency. Not only did
Watts’s proposed section 3(c)(2) contain identical language, but so did the Handbook
proposed to accompany the policy. Moreover, during the entire process up to and even
after Board approval, Watts maintained that having the agency determine and announce
the harvest price was the policy’s intended default pricing mechanism. The sum of these
facts far outweighs Defendants’ claim that one sentence within the voluminous
submission—one merely recommending that the projected price be substituted for
missing monthly data—clearly demonstrates that the Board approved a completely
different pricing mechanism, especially as agency regulations require that all applicable
provisions be included in the 508(h) submission to the Board, not crafted roughly nine
months after approval. 12 See 7 C.F.R. § 400.705(d)(1)(i).
Furthermore, the Board was unmistakably told three times that setting the harvest
price equal to the projected price would make the policy worthless, as it would convert
12
Defendants also argue that because the Board was aware of an ownership issue
related to having the agency approve of certain prices, the Board must have considered
and approved, in advance, subsequent changes to section 3(c)(2). However, the RMA’s
concern related to the proposed definitions for projected price and harvest price found
in a separate provision of the policy, not section 3(c)(2). (See FCIC825–826, Docket No.
116-33; FCIC987, Docket No. 116-34.) As such, this argument is unavailing.
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the policy’s intended revenue protection into mere yield protection: an expert reviewer
stated that it would be unfair to have farmers pay additional premiums and only receive
yield coverage; the RMA stated the same concern to the Board before its March 2012
meeting; and, at the meeting, the Board was again instructed that substituting the
projected price for the harvest price would strip away the policy’s revenue coverage.
Given that the proposed policy was specifically designed to offer revenue coverage to
pulse-crop producers for the first time, and the Board’s clear mandate to ensure that a
proposed policy adequately protects the interests of the insured, 7 U.S.C.
§ 1598(h)(3)(A)(i), it is simply untenable, as Defendants assert, that the Board approved
a pricing mechanism to have the policy default into yield protection and be rendered
completely worthless as a result. 13
Thus, with the Board having only approved a pricing mechanism whereby the
harvest price would be determined and announced by the agency, not one setting the
harvest price equal to the projected price, the post-approval changes to section 3(c)(2)
were significant: they undoubtedly affected a pricing methodology, the amount of
coverage that would be afforded to farmers (defaulting from revenue to yield protection),
the farmers’ interests (paying additional premiums for no additional coverage), and the
amount of loss to be paid (dropping from the difference between the projected price and
13
The Court notes that, had the Board approved such a pricing mechanism like
Defendants claim, then it would have acted arbitrarily and capriciously by failing to
adequately consider the interests of Plaintiffs. Accord Ackerman, 995 F.3d at 533.
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the harvest price to zero). 7 C.F.R. § 400.701 (2009) (defining “significant change”). As
such, the post-approval changes needed to be resubmitted to the Board and considered
as a new submission, see 7 C.F.R. § 400.709(a)(2) (2005), but they were not. 14 Thus, the
agency acted without observance of procedure required by law and therefore violated
the APA. 15 5 U.S.C. § 706(2)(D); accord Ackerman, 995 F.3d at 533.
B.
Authority of the RMA
Defendants argue that, even if the post-approval changes were significant, the
RMA was authorized to implement these changes independently, as the Board stated that
the RMA was to determine “[appropriate] terms and conditions. . . as authorized under
section 508(h) of the Federal Crop Insurance Act” and delegated authority to the RMA “to
make such technical policy changes . . . necessary to make the policy legally sufficient”
when approving Watts’s submission. (FCIC1499, Docket No. 116-49.)
However, the post-approval changes made to section 3(c)(2) cannot be considered
appropriate terms or conditions authorized under the FCIA. As already mentioned, the
FCIA mandates that 508(h) submissions adequately protect the interests of the insured.
14
Additionally, as a new submission, certain procedures would be triggered, see 7
C.F.R. § 400.706(b) (2005), none of which occurred here.
15
The Court notes that, even if the changes to section 3(c)(2) were considered nonsignificant, nothing additional was submitted to the FCIC until Watts proposed expanding
the program into Michigan in 2013, which would have violated the APA as well. See 7
C.F.R. § 400.709(a)(2) (2009) (requiring non-significant changes to be submitted to the
FCIC no later than 180 days prior to the earliest contract change, which fell on June 3,
2012 here).
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A pricing mechanism that functions to convert revenue protection into yield protection
does not afford adequate protection to an insured who paid an additional premium for
the sole reason of securing revenue coverage in lieu of mere yield protection. Thus, if
considered as changes made pursuant to the FCIA, the RMA failed to adequately consider
the impact of the default pricing mechanism on producers’ interests, and its actions were
therefore arbitrary and capricious in violation of the APA. 5 U.S.C. § 706(2)(A); accord
Ackerman, 995 F.3d at 533.
With respect to the language delegating authority, Defendants argue that section
3(c)(2) was not yet legally sufficient when approved, as there was a purported ownership
issue that the RMA had flagged pre-approval. However, as noted above, the RMA’s
concern centered on an entirely separate provision of the proposed policy, not section
3(c)(2). 16 Defendants also suggest that having the agency determine and announce the
harvest price was not a legally sufficient pricing mechanism. Given that the pricing
mechanism approved by the Board mirrors that of the Basic Provisions of the Common
Crop Insurance Policy, this suggestion falls flat. As such, there is no indication in the
record that section 3(c)(2), as approved, was not already legally sufficient.
Additionally, the post-approval changes were not merely technical, as they
significantly affected section 3(c)(2)’s pricing methodology, as well as the amount of
coverage and the amount of loss to be paid offered under the Endorsement and its
16
See supra note 12.
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protection of farmers’ interests. 17 Thus, as discussed above, these changes needed to be
resubmitted to the Board, not considered solely by the RMA. 7 C.F.R. § 400.709(a)(2)
(2005). Moreover, only Watts could have made such changes, not the RMA. Id. As such,
if considered as technical policy changes, the RMA acted without observance of
procedure required by law and therefore violated the APA. 5 U.S.C. § 706(2)(D).
CONCLUSION
Having concluded that the Board did not approve the language of section 3(c)(2)
as finalized in the Endorsement sold to Plaintiffs, and that post-approval changes made
to the section’s language violated the APA, the Court will grant Plaintiffs’ Motion to
Reconsider. Accordingly, the Court will reverse its earlier decision, and will grant
Plaintiffs’ Motion for Summary Judgment and deny Defendants’ Motion for Summary
Judgment.
However, given the circuitous path traveled in reaching this point, one involving
newly discovered facts presented months after oral argument and a reconsideration of
these facts, the parties’ earlier arguments regarding an appropriate remedy may no
longer be entirely on point. Additionally, the Endorsement purchased by Plaintiffs clearly
stated that the harvest price will equal the projected price when the former could not be
17
The Court notes that, while “technical policy changes” are not explicitly defined
by statute or regulation, the phrase tracks the definition for “non-significant changes.”
See 7 C.F.R. § 400.701 (2009) (“Minor changes to the policy or plan of insurance, such as
technical corrections[.]”).
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calculated, which further complicates determining an appropriate remedy. Thus, the
Court will order additional briefing to address what remedy the Court should now extend.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiffs’ Motion to Reconsider [Docket No. 180] is GRANTED and therefore:
a. Plaintiffs’ Motion for Summary Judgment [Docket No. 131] is GRANTED; and
b. Defendants’ Motion to Dismiss and Motion for Summary Judgment [Docket
No. 141] is DENIED.
2. The parties are directed to file briefs addressing what remedy is appropriate.
Simultaneous briefs are to be filed 45 days after entry of this Order.
DATED: June 29, 2021
at Minneapolis, Minnesota.
___
___
JOHN R. TUNHEIM
Chief Judge
United States District Court
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