Davidson v. Veneman

This is the second appeal to this court by the plaintiff Charles Davidson, doing business as
Davidson Farms (Davidson). Davidson previously appealed a grant of summary judgment in favor
of the Farm Services Agency (FSA) that prohibited revision of his farm acreage report for 1994, thus
preventing him from receiving disaster assistance from the FSA. Davidson v. Glickman, 169 F.3d
996 (5th Cir. 1999). We vacated and remanded because the FSA based its position on a legislative
rule that did not meet the notice and comment requirements of the Administrative Procedure Act(APA). Id. at 999. Davidson then filed a "motion for fees and other expenses and costs" in the
district court. In addition, both parties moved to have the case remanded to the FSA for a revised
administrative determination in light of our holding. The district court granted that motion and
stayed Davidson's motion for fees and expenses pending the completion of the administrative
proceedings.

On remand to the FSA, the agency paid Davidson's claims for 1994 Disaster Assistance
Program (DAP) payments based on the revised acreage report, but denied his request for attorney's
fees and interest. Davidson next filed a "motion for summary judgment awarding interest" in the
district court, as well as a supplemental motion for attorney's fees under the Equal Access to Justice
Act (EAJA). The district court denied Davidson's motion for fees, holding that the Government's
position was substantially justified, and Davidson appealed. While that appeal was pending, the
district court denied Davidson's motion for summary judgment on the interest issue. The FSA did
not file a cross-motion for summary judgment on the interest issue and the district court did not enter
judgment for either party. In addition, Davidson did not file a second notice of appeal (NOA), but,
within thirty days, the parties filed a joint motion to stay the first appeal, supplement the record on
appeal, and revise the briefing schedule. The parties also sought approval to waive "any further
notice of appeal." The clerk of this court granted the joint motion. The parties did not seek, nor did
the district court enter, a separate, final judgment on the interest issue.

After hearing oral argument, we held that we did not have jurisdiction over the interest issue
because the district court's denial of Davidson's "motion for summary judgment awarding interest,"
was not a final judgment under 28 U.S.C. § 1291. We then made a limited remand to the district
court, directing it to decide the interest issue and enter a final judgment. On remand, the districtcourt denied Davidson interest and rendered judgment for the Government on this issue. Now that
the district court has disposed of all issues, and a final judgment has been entered, we have
jurisdiction under § 1291.

Davidson first appeals the district court's denial of attorney's fees. We employ an abuse of
discretion standard to review a district court's decision under the EAJA that the Government's
position was substantially justified, although underlying conclusions of law are subject to de novo
review and factual conclusions are reviewed for clear error. Aguilar-Ayala v. Ruiz, 973 F.2d 411,
416 (5th Cir. 1992) (citations omitted). After reviewing the circumstances of this case, we hold that
the district court did not abuse its discretion in finding the Government was substantially justified
in its position and we thus affirm the denial of attorney's fees.

Davidson also challenges the district court's denial of his motion for summary judgment
seeking an award of interest.

Interest is not recoverable in suits against the United States unless there is an express waiver
of sovereign immunity with regard to an award of interest. Gore, Inc. v. Glickman, 137 F.3d 863,
870 (5th Cir. 1998). The Prompt Payment Act, 31 U.S.C. § 3902, operates as such a waiver in
specific, enumerated circumstances. Under § 3902(h)(2)(A), a farmer is entitled to interest for any
delay of "a payment to which producers . . . are entitled under the terms of an agreement entered into
under the Agricultural Act of 1949 (7 U.S.C. § 1421 et seq.)." Davidson contends the 1994 DAP
payments he sought fall within this provision because the payments were authorized by the
Agricultural Act of 1949 ("the ‘49 Act"). It is undisputed that the source legislation for the
payments was the Agricultural Rural Development and Related Agencies Appropriations Act of
1995, Pub. L. No. 103-330, 108 Stat. 2448 (1994) ("the ‘94 Act"). The ‘94 Act provides, in
pertinent part:

[s]uch sums as may be necessary from the Commodity Credit Corporation shall be
available, through July 15, 1995, to producers under the same terms and conditions
authorized in chapter 3, subtitle B, title XXII of Public Law 101-624 for 1994
crops . . . affected by natural disasters . . . .

108 Stat. at 2448-49. The key inquiry is whether the ‘94 Act, through this language, creates apayment to which Davidson is entitled "under the terms of an agreement entered into" under the ‘49
Act.3

The district court found that Davidson was not entitled to summary judgment on this issue
because he failed to establish that the DAP payments fell within the ‘49 Act, as required by the
Prompt Payment Act, and thus he was not entitled to interest as a matter of law. At this stage of the
proceedings, Davidson makes a variety of arguments, some new and some recycled, to support his
assertion that the ‘94 Act falls within the ‘49 Act, but we find none of them persuasive.

In the absence of a clearer connection between the ‘49 Act and the DAP payments at issue
here, we hold that the payments fall outside the limited terms of the Prompt Payment Act, asembodied in 31 U.S.C. § 3902(h). We cannot award interest unless there is an express waiver of
sovereign immunity, and we find no such waiver for this type of payment. To conclude otherwise
would be beyond our judicial authority.

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Affirmed

Unavailable

Unavailable

Reported by Kathryn Burgy