Summary of a Recent
Judicial
Development in
Administrative Law
Tardy Farmers Not Entitled to Attorney's Fees
for Appealing NRCS Order
Craig RaysorNational AgLaw Center Research Associate
In Star Growers v. United States Dep't of Agric., No. 04-CV-0742E, 2006 WL 2134640, at *1 (W.D.N.Y. July 28, 2006), the United States District Court dismissed the farmers' Equal Access to Justice Act (EAJA) claim because of their untimely petition for attorney's fees and other expenses, and dismissed the farmers' Federal Tort Claims Act (FTCA) claim because conduct on behalf of the agency either fell within the intentional tort exception or the discretionary function exception.
Plaintiffs appealed a determination by the Natural Resources Conservation Service (NRCS) that they had farmed on manipulated wetlands and violated the Food Security Act of 1985. See id. The National Appeals Division (NAD) Deputy Director determined on June 16, 2003 that the initial finding by NRCS was erroneous, and allowed Star Growers to farm their land and restored their subsidies and USDA benefits. Id. Star Growers sent a letter on October 3, 2003 requesting attorney's fees and other expenses under the EAJA, 5 U.S.C. § 504. Id. The NAD responded in the negative, stating that Star Growers did not comply with requirements under 7 C.F.R. § 1.190 regarding such applications, and that the EAJA does not apply to the NAD unless required by court decision. See id. at *2. Star Growers subsequently filed suit in district court seeking attorney's fees and other expenses and damages related to the pursuit of their claims under the EAJA and the FTCA, 28 U.S.C. §§ 1346(b) & 2671. Id. at *1.
The district court held that the director's review determination on June 16, 2003, was the unappealable "final disposition" for purposes of the thirty day time limit regarding application for fees. See id. at *4. Therefore, the court dismissed the EAJA claim for lack of jurisdiction because a letter from Star Growers dated October 3, 2003, regarding fees was untimely. See id. The court also held that the conduct complained of regarding the wetlands determination by the NRCS fell within either the FTCA intentional tort exception or the FTCA discretionary function since the determination was made within the scope of their employment in the agency. See id. at * 5.
The case was decided on July 18, 2006.