Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 1 of 20
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF FLORIDA
`GAINESVILLE DIVISION
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`CV-2021-_______________
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`*
`CLAMTASTIC SEAFOOD, INC.,
`*
`and DIANA TOPPING.
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`*
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`*
`PETITIONERS,
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`*
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`*
`v.
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`*
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`FARM SERVICE AGENCY,
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`*
`and UNITED STATES
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`DEPARTMENT OF AGRICULTURE, *
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`*
`RESPONDENTS
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`*
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`PETITION FOR JUDICIAL REVIEW OF ADMINISTRATIVE ACTION,
`AND HEARING DE NOVO
`
`Clamtastic Seafood, Inc. and Diana Topping suffered losses in their clam
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`
`
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`farming operation as a result of severe weather resulting from Hurricane Irma in
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`2017. They applied for reimbursement of their losses through the WHIP program.
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`Although the county and state committees denied their claims, the administrative
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`judge, presented with formidable evidence on the issue of weather causation
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`regarding the losses, reversed the county and state committees, awarding the denied
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`reimbursement to the Petitioners. Unfortunately, the Director of the USDA National
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`Appeals Division, Secretary of Agriculture, reversed the administrative judge’s
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`ruling on May 28 of this year. Now Clamtastic Seafood, Inc. and Diana Topping,
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`
`
`1
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF FLORIDA
`GAINESVILLE DIVISION
`
`
`CV-2021-_______________
`
`*
`CLAMTASTIC SEAFOOD, INC.,
`*
`and DIANA TOPPING.
`
`
`*
`
`
`
`
`
`
`
`*
`PETITIONERS,
`
`
`
`*
`
`
`
`
`
`
`
`*
`v.
`
`
`
`
`
`
`*
`
`
`
`
`
`
`
`*
`FARM SERVICE AGENCY,
`
`*
`and UNITED STATES
`
`
`DEPARTMENT OF AGRICULTURE, *
`
`
`
`
`
`
`
`*
`RESPONDENTS
`
`
`
`*
`
`
`PETITION FOR JUDICIAL REVIEW OF ADMINISTRATIVE ACTION,
`AND HEARING DE NOVO
`
`Clamtastic Seafood, Inc. and Diana Topping suffered losses in their clam
`
`
`
`
`farming operation as a result of severe weather resulting from Hurricane Irma in
`
`2017. They applied for reimbursement of their losses through the WHIP program.
`
`Although the county and state committees denied their claims, the administrative
`
`judge, presented with formidable evidence on the issue of weather causation
`
`regarding the losses, reversed the county and state committees, awarding the denied
`
`reimbursement to the Petitioners. Unfortunately, the Director of the USDA National
`
`Appeals Division, Secretary of Agriculture, reversed the administrative judge’s
`
`ruling on May 28 of this year. Now Clamtastic Seafood, Inc. and Diana Topping,
`
`
`
`1
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`
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`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 2 of 20
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`the petitioners, ask this Honorable Court to overturn the Director’s rulings in Case
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`Nos. 2020S000187 and 2020S000188.
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`INTRODUCTION
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`1.
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`This Petition arises from the denial of claim benefits and the denial of
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`statutory allowable equitable relief under the Wildfires and Hurricane Indemnity
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`Program (WHIP) pursuant to provisions of the 2018 Bipartisan Budget Act, Pub. L.
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`115-123, 132 Stat. 65-66 (Feb. 9, 2018) and the provisions of the Federal
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`Agricultural Improvement and Reform Act of 1966. (7 USC § 7333; 7 USC §
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`1996(b) (1)(2); 7 C.F.R. Part 760 Subpart O §§ 1500-1517 (July 18, 2018); 7 CFR
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`§ 760.1500; and the WHIP Handbook (HB) 1-WHIP, Par. 6A and Par. 210.
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`2.
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`The Petitioners file this joint petition seeking relief from the denial of
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`benefits made on May 28, 2021 by the Director, USDA National Appeals Division,
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`Secretary of Agriculture in Case Nos. 2020S000187 and 2020S000188. Ex. 1,
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`Director Decision. The May 28 decision by the director reversed the decision of the
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`hearing officer rendered in favor of the Petitioners. Ex. 2, Adm Judge Op.
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`3.
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`Your Petitioners have exhausted all administrative remedies, including
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`available County Committee reviews, State Committee reviews, the USDA National
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`Appeals Division Review and the Director Review. This Petition appeals the final
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`Agency actions by the Director and asks this Court to reinstate the opinion of the
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`Hearing Judge and to obtain other equitable relief hereinafter requested.
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`2
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`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 3 of 20
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`PARTIES
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`4.
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`Petitioner Clamtastic Seafood, Inc. is a corporation owned by
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`Christopher Topping and his wife, Diana Topping, and is incorporated in the State
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`of Florida with its principal place of business located in Levy County in the
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`Gainesville Division of the Northern District of Florida. Petitioner Diana Topping is
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`over the age of 21 years and is a resident citizen of the Northern District of Florida,
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`Gainesville Division. Respondent Farm Service Agency (FSA) is an authority or
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`agency of the Respondent, United States Department of Agriculture (USDA). The
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`respondents FSA and USDA are jointly referred to as Agency, or Government.
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`5.
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`The records of the Agency Actions, as well as various statutes and
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`regulations, are attached and specifically incorporated herein by reference.
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`JURISDICTION AND VENUE
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`6.
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`This Court has jurisdiction pursuant to 5 USC § 706; 7 USC §
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`1508(b)(c)(h); 7 USC §§ 6998, 7333 & 7996, 7997; 7 C.F.R. § 1437; 7 C.F.R. § 11;
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`7 CFR §§ 760.1500-1700; 28 USC §§ 1331, 1391, 1346(a),1402(a); 28 USC § 2341
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`et. seq.
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`7.
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`Venue is proper in the United States District Court for the Northern
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`District of Florida, Gainesville Division, because your Petitioner, Diana Topping
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`(Topping) is over the age of 21 years, resides in Levy County, Florida, and Petitioner
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`Clamtastic Seafood, Inc.’s (Clamtastic) principal place of business lies in Levy
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`3
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`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 4 of 20
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`County, Florida. The actions complained of herein occurred in the Northern District
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`of Florida, Gainesville Division. 28 USC § 2343.
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`HISTORY AND BACKGROUND
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`8. Molluscan shellfish aquaculture is the largest food-use aquaculture
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`industry in Florida. Hard clams, such as those grown by Clamtastic and Diana
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`Topping, dominate the industry. Clams, like most molluscs, are filter feeders; that
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`is, they filter their food, phytoplankton, out of the seawater flowing around them.
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`9.
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`There are three stages, essentially, to the production of hard clams. In
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`the first stage, the hatchery stage, adult clams are induced to spawn in a controlled
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`facility. The fertilized eggs, and then the free-swimming larvae of the clams, are
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`reared until they reach about 1 mm in size. The second stage is the nursery stage.
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`Once the clams reach 1 mm in size, they are moved to a nursery, again a closed or
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`semi-closed system, where the clams are further nurtured until they reach a size
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`suitable for planting in open waters on land the clam farmers lease from the state of
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`Florida. The final stage is the planting stage. When the clams are big enough, clam
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`farmers place the nursery seed in sea-floor bags of small mesh size, which are staked
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`to the bottom of the ocean lease site using materials such as PVC pipe. After the
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`seed reaches a size of around ½ inch, the seed is transferred to sea-floor bags of
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`larger mesh-size, again staked to the bottom of the ocean lease site, and allowed to
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`grow to market size. The mesh bags are necessary to protect the cultured clams from
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`4
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`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 5 of 20
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`predators such as predatory fish including Black Drum and other inshore ocean fish
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`and marine invertebrates. At some point after being planted, when the bottom
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`substrate conditions are right, the clams attach themselves to the seabed floor,
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`digging into the substrate, but for a while after they are planted, only the stakes hold
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`the mesh bags to the ocean floor.
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`10. Clamtastic produces clam seed that it sells to clam farmers and
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`members of its corporation. The president of Clamtastic is Christopher Topping, and
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`his spouse is Diana Topping. Ex. 2, Adm. Judge Op. p. 1. The Petitioners’ clam
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`operations are in Cedar Key, Florida, a cluster of small islands in Levy County
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`Florida. Its landmass areas are boarded by the Gulf of Mexico. Clamtastic’s clam
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`lease site, Unit 1713, is on the east side of Cedar Key. Topping’s lease site, Unit
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`1718, is also on the east side of Cedar Key. Ex. 2, Adm. Judge Op. pp. 2, 3; page 1;
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`Ex. 5, Lease Sites at Cedar Key; Ex. 6, Wave Depths of Lease Sites at Cedar Key.
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`11. Throughout the months of July and August 2017, Petitioners planted
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`nursery size and grow-out size clams in clam bags on their lease sites in the claim
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`area. After Hurricane Irma struck the area, affecting the weather, the petitioners
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`discovered that many of their clam bags were missing.
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`12. Hurricane Irma, tracked by the National Hurricane Center and other
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`tracking sources as it traveled through the southern, central, and northern counties
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`made landfall in Florida on September 10, 2017. Tornado watches and warnings
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`5
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`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 6 of 20
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`blanketed Florida, and the hurricane’s wind bands spawned other storms in Florida
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`and Levy County. The hurricane was one of the most damaging events to strike
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`Florida in recent years. Ex. 2, Adm. Judge Op. pp. 3,4.
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`13. At 11:30 p.m. on September 10, 2017, 50 miles per hour wind gusts
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`were recorded at the weather buoy platform observation location at the pier in Cedar
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`Key. At that time, Hurricane Irma was still several miles southeast of Cedar Key.
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`Ibid; Ex. 7, Hurricane Irma Overview from 11:30 p.m.
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`14. Beginning at 1:08 a.m. on September 11, 2017, Cedar Key started
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`receiving strong rainbands. At 1:30 a.m. on September 11, 2017, the weather buoy
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`at Cedar Key recorded the strongest winds over Cedar Key. At 1:35 a.m. on
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`September 11, 2017, Cedar Key experienced an isolated severe storm that traveled
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`ahead of the hurricane’s main inner rainbands. The storm lasted 11.5 minutes as it
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`traveled for 14 miles from east to west with lateral ground velocity of 73 miles per
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`hour. The strongest winds would have impacted the east side of Cedar Key where
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`Petitioners’ clam sites lay. Ibid; Ex. 8, Tornado Watch 483 Map; Ex. 9, Isolated
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`Severe Storm over Time Track.
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`15. The strong hurricane winds and storms caused the tides at Cedar Key
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`to experience a record low tide of negative 6.28 feet, and produced the lowest tides
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`for Florida that have been recorded over the past 100 years. Ibid; Ex. 10, Chart for
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`6
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`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 7 of 20
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`Cedar Key Peak Winds and MLW, Ex. 11, NOAA Water Level Observations for
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`Cedar Key, Ex. 12, Extreme Water Levels Chart for Cedar Key.
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`16. The National Hurricane Center reported that at 2:00 a.m. on September
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`11, 2017, the eye of Irma was southeast of the clam site, and it registered as a
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`Category 1 hurricane with sustained winds at 75 miles per hour. Tropical force winds
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`registering around 65 miles per hour were south of Cedar Key. Ibid; Ex. 7, Hurricane
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`Irma Overview from 11:30 p.m.
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`17. At 5:00 a.m. on September 11, 2017, a weather advisory issued by the
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`National Weather Service Center showed that the hurricane’s damaging winds were
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`approximately 20 miles southeast of Cedar Key, and it was experiencing 75 miles
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`per hour hurricane force winds.
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`18. By 8:00 a.m. on September 11, 2017, the eye of the hurricane was
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`approximately 29 miles from Florida, and it had reduced its sustained winds to 58
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`miles per hour. Ex. 2, Adm. Judge Op., pp. 3,4; Ex. 7, Hurricane Irma Overview
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`from 11:30 p.m.
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`19. On September 11, 2017, law enforcement observed downed trees,
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`twisted trees, and scatted debris. Based on his years of experience in working at
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`weather disaster locations, Cedar Key’s Chief of Police believed that tornadoes or
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`twisters touched down in Cedar Key during the early morning hours of September
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`11, 2017. Ibid.
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`7
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`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 8 of 20
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`20. The Doppler Radar data from weather stations in four cities in Florida
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`showed that from 11:30 p.m. on September 10, 2017, through 5:30 a.m. on
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`September 11, 2017, 50 miles per hour wind gusts were recorded at the pier at Cedar
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`Key and surrounding areas. Those areas were also under Tornado Watch No. 483 at
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`the same time. Ibid; Ex. 7, Hurricane Irma Overview from 11:30 p.m.
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`21. On or around September 12, 2017, Petitioners were able to inspect their
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`lease sites and noticed that they lost clam bags on the east and west side of the island,
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`but most clam crop losses occurred on the eastside of cedar Key.
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`a.
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`Petitioners attributed their loss of clams on the eastside to the
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`hurricane, the low tides, and the young age of Petitioners’ clams,
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`which were too young to have “buried up” over themselves in
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`the marine sediment.
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`b.
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`As an example, Petitioner Clamtastic was only able to locate 39
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`out of 600 bags of clams that it planted on Unit 1713, and
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`Topping was only able to locate 25 bags out of 2,748 bags
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`planted on her lease site Unit 1718.
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`MAJOR DISASTER DECLARED
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`22. A few days after hurricane Irma hit Florida, the President declared a
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`major disaster for numerous Florida Counties, including Levy County, which was
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`designated as one of the primary counties affected by the hurricane. Ibid.
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`8
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`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 9 of 20
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`a.
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`On September 19, 2017, Petitioners called the Agency’s local
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`office and reported that weather related to Hurricane Irma caused
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`the Petitioners to lose their nursery clam grow out clam bags The
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`Agency gave them an appointment to file a Notice of Loss.
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`b.
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`On September 22, 2017, they filed forms CCC-576, Notice of
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`Loss and Application for Payment Noninsured Crop Disaster
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`Assistance Program (NAP) because the Hurricane/Tropical
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`Depression/Other condition caused Clamtastic to lose its nursery
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`clams on Unit 1713.
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`c.
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`Topping reported that the same weather disaster event caused her
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`to lose her grow out clams on Unit 1718.
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`CLAMS AND NAP CLAIMS
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`23. Clams are a value loss crop, meaning NAP payment is based on crop
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`loss value at the time of the disaster, rather than on loss of production or yield. See
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`7 C.F.R. §§ 1437.301 and 1437.303(a). A value loss crop is one where the plant or
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`commodity is sold, rather than the production of the plant. See 7 C.F.R. § 760.1502,
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`7 C.F.R. § 1437.301(a), and HB 1-WHIP Par. 161A.
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`a.
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`Aquaculture is a value loss crop for NAP purposes. See 7 C.F.R.
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`§ 1437.303(a).
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`9
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`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 10 of 20
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`b.
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`Clams are aquacultural species that qualify as NAP eligible crops
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`because they qualify as “any species of aquatic organisms grown
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`as food for human consumption.” See 7 C.F.R. § 1437.303(a)(2).
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`c.
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`A producer will be eligible for WHIP payments for a NAP
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`eligible crop, tree, bush, or vine loss if the producer suffered a
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`loss due to a qualifying disaster event. See 7 C.F.R. §
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`760.1508(a).
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`d.
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`For a loss due to a hurricane and conditions related to hurricanes,
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`the loss must have occurred in a county that received either a
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`Presidential Emergency Disaster Declaration or a USDA
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`Secretarial Disaster Designation.
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` Ibid, p 8; 7 CFR §
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`760.1508(b)(1)-(2).
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`LOSS CLAIMS ADJUSTMENT
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`24. On October 9, 2017, the Agency’s Loss Adjuster (LA) inspected
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`Petitioners’ lease sites. The LA, the only FSA employee or contractor to have visited
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`the site and to have personally reviewed the circumstances of the weather related
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`loss, calculated that Clamtastic lost 95 percent of its nursery clams, and Topping lost
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`99 percent of her grow-out clams. On October 27, 2017, the COC met and denied
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`the claims.
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`10
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`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 11 of 20
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`25. On October 27, 2017 the Agency denied Petitioners’ claims on the basis
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`that they had not proved that the hurricane caused their losses.
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`26. On November 26, 2019, the Agency’s State Executive Director (SED)
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`upheld the denial of WHIP benefit, and both Petitioners appealed that termination.
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`POST CLAIM EVIDENCE SUPPORTS PETITIONERS
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`27. The Petitioners appealed. At the appellate hearing, they proved by
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`competent and convincing evidence that the damages to their clam crops were
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`caused by the hurricane and accompanying winds. They presented testimony from
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`an expert witness in weather and climate, hurricanes, severe weather, and tornadoes
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`in Florida. The expert witness is a meteorologist who has published and/co-authored
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`approximately ten articles on severe weather and tornados and has received at least
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`eighteen (18) major honors and awards for his expertise beginning in 1978. Ex. 2,
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`Adm. Judge Op., pp. 8,9; Ex. 13, Weather Expert CV, pp. 3-9.
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`28. The expert witness testified that when Irma was several miles south of
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`Florida, Doppler Radar data from four major weather stations in Florida showed that
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`from 11:30 p.m. on September 10, 2017, through 5:30 a.m. on September 11, 2017,
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`50 mile per hour wind gusts were recorded at the pier in Cedar Key and surrounding
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`areas were under a tornado watch during those same hours. Ex. 2, Adm. Judge Op.,
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`p. 4, ¶ 12.
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`11
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`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 12 of 20
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`a.
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`The expert testified that for 11.5 minutes beginning at 1:35 a.m.
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`on September 11, 2017, an isolated severe storm with lateral
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`ground velocity of 73 miles per hour passed through Cedar Key
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`with the strongest winds likely on the eastside. Id., p. 3, ¶ 6.
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`b.
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`Although he could not confirm that this severe storm was a
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`tornado because the radar station that recorded the event was
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`south of Cedar Key, the expert also pointed out that the strongest
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`winds would have been close to the ground and on the eastside
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`of Cedar Key. Id., p. 3, ¶ 6.
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`29. Petitioners’ expert further opined that although Irma did not pass
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`directly through, the strongest wind gusts from a hurricane often travel ahead of the
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`hurricane.
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`a.
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`Petitioners provided several charts and graphs that also showed
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`how Irma affected the tides near Cedar Key. (Ex. 7 – 11 attached
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`hereto).
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`b.
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`The expert explained that Irma was the most extreme event that
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`caused the lowest tides for Cedar Key over the past 100 years.
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`Ex. 2, Adm Judge Op., p. 3, ¶ 6.
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`12
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`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 13 of 20
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`c.
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`And the expert testified that the strongest winds and rainbands
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`occurred at low tide around the same time in Cedar Key, which
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`pushed the tide out to a record low. Id., p. 3, ¶ 7.
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`d.
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`The evidence proved damages to the Petitioners’ clam sites were
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`caused by a combination of low tides and high winds related to
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`Irma.
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`30. The Chief of Police reported that based on his many years of experience
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`working through major weather disasters, and based on what he saw and reports that
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`he received, he believed that tornados or twisters hit parts of Cedar Key during the
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`early morning hours of September 11, 2017. Ex. 2, Adm. Judge Op., pp. 3-4, ¶ 11.
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`31. Even though the Police Chief believes a tornado hit parts of Cedar Key,
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`there is no WHIP requirement that a hurricane must past directly over a crop for the
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`Agency to accept it as a cause of loss.
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`a.
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`Agency’s rules specifically state that a hurricane and a condition
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`relating to hurricane are eligible causes of loss. See 7 C.F.R. §
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`760.1508(b)(1)-(2).
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`b.
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`Related conditions include excessive wind, excessive rain,
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`flooding, storm surges, and tornados. See HB 1-WHP Par. 30B.
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`c. More notably, the evidence shows that Levy County received a
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`declaration that a hurricane had occurred on acreage that was
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`13
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`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 14 of 20
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`physically located in a county that received a (1) Presidential
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`Emergency Disaster Declaration authorizing public or individual
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`assistance due to a hurricane occurring in the 2017 calendar year;
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`or (2) USDA Secretarial Disaster Designation for a hurricane
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`occurring
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`in
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`the 2017 calendar year. See 7 C.F.R. §
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`760.1508(b)(1)-(2).
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`d.
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`A producer with a crop with a loss on acreage not located in a
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`county with a Presidential Emergency Disaster Declaration will
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`be eligible for 2017 WHIP for losses due to a hurricane and
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`related conditions where, as in this case, the producer provides
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`supporting documentation that the loss of the crop was
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`reasonably related to a qualifying disaster event. See 7 C.F.R. §
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`760.1508(c).
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`e.
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`Supporting
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`documentation may
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`include
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`furnishing
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`climatological data from a reputable source or other information
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`substantiating the claim of loss due to a qualifying disaster event.
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`Ibid.
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`32. Levy County received a Presidential Major Disaster Declaration on
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`September 14, 2017, because it qualified as a primary county adversely affected by
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`Irma. Ex. 2, Adm. Judge Op., p. 4, ¶ 15.
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`14
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`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 15 of 20
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`33. The Petitioners proved they suffered losses deriving from an eligible
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`cause of loss as a result of the reported disaster event. Ibid.
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`34.
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`In this case, the disaster event that caused Petitioners’ loss occurred at
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`night, and the hearing judge pointed out that it was unrealistic for the Agency to
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`expect that Petitioners could prove definitively what caused their loss since the
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`adverse weather occurred under cover of darkness. Ex. 2, Adm. Judge Op., p. 8. It
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`is worth noting that under the weather conditions present the night of the loss, it
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`would have been certain death for Topping and his crew to be “on-site” while the
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`storm passed in order to verify that the clam loss was caused by the hurricane-caused
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`conditions. Clam farming takes place using open boats, not more than 25 feet long,
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`that could not have withstood the bands of tornado activity and heavy rain moving
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`laterally at over 70 miles per hour lateral ground velocity. As the Administrative
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`Judge found, however, even absence direct observation, the greater weight of
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`competent and reliable evidence indicates that Petitioners’ losses were due to Irma
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`or a condition related to Irma, such as strong winds, low tides, excessive rain, and
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`tornados. Ex. 2, Adm. Judge Op., p. 3, ¶¶ 5-9, p. 10.
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`35. Even the Agency, although denying relief, recognized that tornadoes
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`can impact a single area and have no impact on neighboring areas. The Agency
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`arbitrarily and capriciously held that the information it reviewed and received from
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`Petitioners did not prove what caused their clam bag losses.
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`15
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`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 16 of 20
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`36. The hearing judge correctly considered the additional evidence that the
`
`Petitioners presented during the hearing and concluded that reliable and competent
`
`evidence shows that a hurricane and/or a condition related to a hurricane caused their
`
`losses. Ex. 2, Adm. Judge Op., pp. 2-3, ¶¶ 3-9.
`
`37. The Agency appealed and the National Director, without hearing any
`
`additional evidence, arbitrarily reversed the Hearing Officer’s conclusion that
`
`Petitioners had proved their losses were caused by the hurricane or related weather
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`conditions, an arbitrary and capricious decision in disregard of the law and
`
`regulations. Ex. 1, Director’s Review; Ex. 3, 7CFR 760.1508; Ex. 4, 7 CFR 11.8.
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`JUDICIAL REVIEW
`
`38. The Petitioners seeks judicial review of the decisions of the Director
`
`and Agency and request reinstatement of the determination by the Administrative
`
`Judge, and to overrule the determination by the Director.
`
`39. The Petitioners seek judicial review of the Director’s conclusions in his
`
`decisions that the Petitioners failed to meet their burden of proof that their losses
`
`were caused by a hurricane or related weather conditions.
`
`40. The Petitioners also seek equitable relief pursuant to Congressional
`
`intent, appropriate CFR’s and the FSA handbook. 7 USC § 7996 (a)(1)(2)(3)(b); 7
`
`USC § 6998(d); FSA Handbook, 1-APP (Rev.2) Par. 117 A, B); 7 CFR 1437.16(c).
`
`
`
`16
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`
`
`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 17 of 20
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`41. This Joint Petition for Judicial Review is based upon the unreasonable,
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`arbitrary and capricious actions by the Director, who arbitrarily ignored the findings
`
`by the Administrative Judge, and reached arbitrary, capricious and unsupported
`
`conclusions, including, but not limited to the following:
`
`a.
`
`That the Petitioners did not prove that the losses suffered by the
`
`Petitioners to their clam seed crops were caused by a hurricane
`
`or related weather conditions declared by the United States
`
`President to be a compensable disaster benefit for farmers of
`
`Levy County, Florida.
`
`b.
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`And denied the Petitioner equitable relief based upon their good
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`faith efforts to comply with the NAP program.
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`42. The Agency acted arbitrarily and capriciously in ignoring the
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`overwhelming evidence of losses by a hurricane or related weather conditions by the
`
`Petitioner.
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`43. The Director acted arbitrarily and capriciously in mischaracterizing and
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`substituting a different standard of review by ignoring post-committee evidence
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`submitted by the Petitioners of reasonably available weather and radar data, personal
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`observations by law enforcement and unchallenged meteorological expert opinions
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`that Hurricane Irma or related weather conditions caused the clam seed losses of the
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`Petitioners.
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`
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`17
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`
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`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 18 of 20
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`EQUITABLE RELIEF
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`44. The Administrative Law Judge found that the Petitioners at all times
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`acted in good faith, and the Petitioners are entitled to equitable relief from the
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`Agency’s decision to deny WHIP benefits for crop year 2017.
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`45. The Director’s arbitrary and capricious denial of equitable relief was
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`made without a reasonable analysis or discussion of why the Petitioners were not
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`entitled to receive equitable relief based upon the evidence that the hurricane and
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`related weather damage occurred at night. In addition, a reasonable application of
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`the standard of review of the evidence to the Petitioners’ burden of proof would have
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`revealed that the Petitioners proved by substantial, reliable evidence that they were
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`entitled to Congressionally mandated reasonable consideration for equitable relief
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`that Petitioners were denied. Ex. 1, Director Review; Ex. 2, Adm. Judge Op.; 7 USC
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`§ 7996(a)(b).
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`46. The Agency violated federal statutes and CFR’s in denying equitable
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`relief by summary denial of equitable relief without reviewing the evidence of good
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`faith compliance by the Petitioners. (7 CFR 11.9 (e); FSA Handbook, par. 118, p. 6-
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`131).
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`47. Such arbitrary and capricious actions violated the Congressional
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`purpose and Presidential Declaration for WHIP assistance through the NAP program
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`and arbitrarily denied the Petitioners equitable relief
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`
`
`18
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`
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`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 19 of 20
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`48. The Agency’s position that participants are not entitled to either
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`equitable relief or even the consideration of equitable relief directly contradicts and
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`thwarts Congress’ express intent to allow equitable relief when a participant acts in
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`good faith, and provides a quieting effect and unlawful restriction on the power of
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`the Director, and results in an arbitrary, inadequate review and consideration of the
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`Petitioners’ right to due process, right to equitable review under federal law and
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`denial of relief intended by Congress.
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`49. At all times the Petitioner acted in good faith, relied on the action or
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`advice of the Agency, and even if not fully compliant, made a good faith effort to
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`comply with the NAP requirements, are entitled to equitable relief, and to be
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`reinstated in the NAP/WHIP benefit program for crop year 2017. 7 USC § 7996;
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`FSA Handbook, 7-CP (Rev. 2) pp. 3-1, et seq.
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`PRAYER FOR RELIEF
`Based on the foregoing, your Petitioner respectfully requests that this Court
`
`
`
`take jurisdiction of this matter, and award the following relief;
`
`a.
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`To declare that the Agency decision was arbitrary and capricious
`
`and is unsupported by substantial evidence, and to
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`b.
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`Declare unlawful and set aside the Agency action, findings, and
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`conclusions that denied benefits for crop year 2017, and to
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`
`
`19
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`
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`Case 1:21-cv-00121-RH-GRJ Document 1 Filed 07/15/21 Page 20 of 20
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`c.
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`Declare the ruling by the Administrative Law Judge to be correct
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`as regards to the clear and convincing proof by substantial
`
`evidence of the cause of the losses by the Petitioners, and to
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`d.
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`Award the Petitioner equitable relief for the crop year 2017, and
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`to
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`e.
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`Award such other, further and different relief to which your
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`Petitioners are entitled.
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`Respectfully submitted, this the day of July, 2021.
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`
`
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`Attorney for Petitioner
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`Charles F. Woodhouse, Esq.
`Woodhouse Shanahan PA
`910 17th St. N.W. Suite 800
`Washington D.C. 20006
`Tel: (202) 293-0033 FAX: (202) 478-0851
`
`P. O. Box 779
`Cedar Key, FL 32635
`Tel: (352) 278-1110 FAX: (202) 478-0851
`E-mail: cfw@regulatory-food-science.com
`Florida Bar # 0498157
`
`
`
`
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`
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`
`
`
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`/s/ CHARLES F. WOODHOUSE
`
`Charles F. Woodhouse
`
`
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`20
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`
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