Summary of a Recent
Judicial Development in
Commodity Programs

NAD Director Eligibility Determination Not
Supported by Substantial Evidence

Amy Miller
National AgLaw Center Graduate Assistant

In Barger v. Johanns, 2006 U.S. Dist. LEXIS 14331 (D. Neb. 2006), the court remanded a National Appeals Division (NAD) decision because the NAD Director made fact findings not supported by substantial evidence. The NAD Director concluded that because Barger's equipment and labor contributions were not in proportion with his claimed share of the operation, he was not actively engaged in farming. Id. *11. Pursuant to the Director's decision, Barger was required to refund payments earned as a result of a previous "actively engaged in farming" determination. Id. *11-*12.

The court found that the NAD Director adopted several fact findings previously made by the County Committee that were not supported by substantial evidence. Id. at *26. For example, the County Committee based its required equipment contribution of $22,000 on the 2000 Nebraska Farm Custom Rates instead of the 1998 rates contained in the administrative record, a difference of $6,000. Id. Moreover, the court found no evidence in the administrative record to support the NAD Director's conclusion that 594 hours of labor were required instead of the Hearing Officer's determination that only 444 hours were needed. Id. The NAD Director failed to give Barger credit for over $4,800 of equipment contributions in the form of corn stalks for cattle grazing and wheat sale proceeds. Id. *27. Furthermore, there was no evidence in the administrative record to support the Director's determination that Barger only provided one-half of the required labor. Id. However, the court rejected Barger's claim that the NAD Director's conclusion that the claim for "in-kind" payment was not supported by substantial evidence because he only provided conclusory testimony concerning the value of his services. Id.

On remand, the court instructed the USDA to explain thoroughly proper commensurate share calculations for the crop year in dispute. Specifically the court directed the agency to calculate 1) Barger's required equipment and labor contributions with appropriate source references and 2) Barger's equipment and labor contributions. Id. *30.

The case was decided on March 13, 2006; this summary was posted Feb. 21, 2006.