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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEBRASKA
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`CIVIL ACTION NO.:
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`COMPLAINT
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`KEVIN GUBBELS
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`INSURE MY HONEY, INC.
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`Plaintiffs,
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`SONNY PERDUE,
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`IN HIS OFFICIAL CAPACITY AS
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`SECRETARY
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`UNITED STATES DEPARTMENT OF
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`AGRICULTURE,
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`UNITED STATES DEPARTMENT OF
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`AGRICULTURE,
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`MARTIN R. BARBRE,
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`IN HIS OFFICIAL CAPACITY AS
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`ADMINISTRATOR
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`UNITED STATES RISK MANAGEMENT :
`AGENCY,
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`UNITED STATES RISK MANAGEMENT :
`AGENCY,
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`Defendants.
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`COMPLAINT
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`Government contractors face profound consequences whenever a federal agency seeks to
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`prohibit them from participating in any federal transactions. Federal agencies must therefore
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`4:20-cv-03060-JMG-MDN Doc # 1 Filed: 06/01/20 Page 2 of 13 - Page ID # 2
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`strictly adhere to procedural rules that protect core due process rights. After all, “[g]overnment
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`contracting has become an economic mainstay for a number of commercial enterprises. It goes
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`without saying, therefore, that disqualification from government contracting is a very serious
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`matter for these businesses.” Sloan v. Dep’t of Hous. & Urban Dev., 231 F.3d 10, 17 (D.C. Cir.
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`2000). Indeed, “the very economic life of the contractor may be in jeopardy.” Old Dominion
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`Dairy Prod., Inc. v. Sec’y of Def., 631 F.2d 953, 968 (D.C. Cir. 1980). Suspension and
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`debarment expose a contractor to “economic losses, professional indignities, and injuries to their
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`reputations, and these sufferings no doubt will continue to linger so long as [the contractors] are
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`tarnished by an official record suggesting that they engaged in ‘serious irregularities’ in their
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`business dealings with the Government.” Sloan, 231 F.3d at 17.
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`The U.S. Department of Agriculture, acting through the U.S. Risk Management Agency
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`has ignored these truisms and wielded its awesome power of suspension without observing the
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`applicable regulatory requirements or following key constitutional protections. USDA has
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`indefinitely suspended Kevin Gubbels and his insurance agency, Insure My Honey, Inc., from
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`participating in the latter’s business of selling and servicing federal crop insurance policies.
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`USDA has imposed such suspension without clearly identifying a lawful basis for that decision,
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`without providing him with a hearing where he could contest disputed facts underlying the
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`suspension, and without issuing a final decision in a reasonable period of time. The agencies
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`have even forbidden Mr. Gubbels’s independent agents from issuing or renewing any crop
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`insurance policies even though they were never named in the suspension order and they are not
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`under Mr. Gubbels’s control. Moreover, Mr. Gubbels has no hope of having a hearing in front of
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`an impartial adjudicator, as the existing regulations consolidate the roles of both prosecutor and
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`judge in the same person—the agency head.
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`2
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`4:20-cv-03060-JMG-MDN Doc # 1 Filed: 06/01/20 Page 3 of 13 - Page ID # 3
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`Neither the applicable regulations nor the Fifth Amendment’s Due Process Clause
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`sanction the agencies’ conduct. The Defendants must be enjoined from continuing this unlawful
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`conduct.
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`PARTIES
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`1.
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`Plaintiff Kevin Gubbels is a natural person and a resident of the State of
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`Nebraska.
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`2.
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`Plaintiff Insure My Honey, Inc. is a Nebraska Corporation with its principal place
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`of business in Nebraska.
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`3.
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`Defendant Sonny Perdue is the agency head of the United States Department of
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`Agriculture and is sued in his official capacity as Secretary of the USDA.
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`4.
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`5.
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`Defendant USDA is an agency of the United States.
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`Defendant Administrator Martin R. Barbre is the agency head of the United States
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`Risk Management Agency and is sued in his official capacity as Administrator of the RMA.
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`6.
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`Defendant RMA is an agency of the United States.
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`JURISDICTION AND VENUE
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`7.
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`This Court has federal question jurisdiction pursuant to 5 U.S.C. § 702 and 28
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`U.S.C. § 1331.
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`8.
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`This Court has the authority to grant declaratory and injunctive relief in this
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`matter pursuant to 28 U.S.C. §§ 2201 and 2202.
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`9.
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`Venue for this action properly lies in this district pursuant to 28 U.S.C. §§
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`1391(b)(2), and (e)(1)(C) because Mr. Gubbels resides in this judicial district and because a
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`substantial part of the events or omissions giving rise to the claim occurred in this judicial
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`district.
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`3
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`4:20-cv-03060-JMG-MDN Doc # 1 Filed: 06/01/20 Page 4 of 13 - Page ID # 4
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`STATEMENT OF FACTS
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`10.
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`Plaintiff Kevin Gubbels is a native of Nebraska who has been involved with
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`agriculture his entire life. He began his own farming operation at the age of 12 and has worked
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`either as a farmer within the agriculture industry ever since.
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`11.
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`In 2009 he began selling crop insurance and slowly developed his own business.
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`In 2016 he began selling Apiculture Pilot Insurance and Pasture, Rangeland, Forage (PRF)
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`programs through the Federal Crop Insurance Program (FCIP), administered by the USDA
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`RMA. He sold these policies through his corporate entity, Insure My Honey, Inc.
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`12.
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`In 2019, Insure My Honey, Inc. had independent contractor relationships with 60
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`crop insurance agents operating in 25 different states. Mr. Gubbels never had direct management
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`or supervisory authority over the contracting agents. Together the agents sold more than $12
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`million in FCIP insurance premiums. Insure My Honey, Inc. had net revenues of approximately
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`$1.7 million in 2019.
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`13.
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`As an FCIP agent Mr. Gubbels agreed to be bound by the Standard Reinsurance
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`Agreement issued by the Federal Crop Insurance Corporation (FCIC). Section IV(h)(2) of the
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`applicable agreement provided a catchall saying, “[T]he Company and its affiliates shall comply
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`with FCIC procedures[.]”
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`14.
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`PRF policies help protect farmers against loss due to a lack of precipitation. For
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`2020 policies, the sales closing date to agents was November 15, 2019. However, agents were
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`then required to submit the policy applications to an approved insurance provider (AIP) by
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`December 9, 2019. RMA’s processing date from AIPs to RMA was December 15, 2019.
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`4
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`4:20-cv-03060-JMG-MDN Doc # 1 Filed: 06/01/20 Page 5 of 13 - Page ID # 5
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`15.
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`On December 3, 2019, Mr. Gubbels made a presentation at an Imperial County
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`Farm Bureau meeting in Imperial County, California. At the meeting, Mr. Gubbels represented
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`to farmers that they could still apply for 2020 PRF policies, but insisted that they apply no later
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`than December 5, 2019, so that he could submit and process the applications to RMA before the
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`December 9th deadline.
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`16.
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`At the meeting Mr. Gubbels noted that prior PRF policies had “paid out” in
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`California for 8 out of 10 years and that it resulted in a “profit over premium cost” of $3.60 per
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`acre over the last 20 years. Mr. Gubbels made sure to describe the program as a “safety net” and
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`a risk mitigation strategy. Mr. Gubbels also discussed multiple crop insurance programs but did
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`not assert that a producer could participate in both the PRF program and the Forage Production
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`program.
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`17.
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`On February 21, 2020, Martin R. Barbre, Administrator for the RMA, sent Mr.
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`Gubbels a Notice of Suspension and Proposed Debarment from Participation in United States
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`Government Programs. Pursuant to the notice Administrator Barbre “immediately excluded [Mr.
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`Gubbels] from participating as either a participant or a principal in covered transactions under
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`United States non-procurement and procurement programs through the executive branch of the
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`United States Government.” Administrator Barbre further “propose[d] to debar [Mr. Gubbels]
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`for three years from participating in programs of the United States Federal government, to
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`commence upon the issuance of a final notice of government-wide debarment.” The suspension
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`was ongoing “pending the completion of debarment proceedings.”
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`18.
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`Administrator Barbre alleged that Mr. Gubbels merited suspension pursuant to 2
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`C.F.R. § 180.800(b)(3) and 2 C.F.R. §§ 180.700(b),(c), which permitted suspension based on a
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`“[v]iolation of the terms of a public agreement or transaction so serious as to affect the integrity
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`5
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`4:20-cv-03060-JMG-MDN Doc # 1 Filed: 06/01/20 Page 6 of 13 - Page ID # 6
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`of an agency program, such as—(3) A willful violation of a statutory or regulatory provision or
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`requirement applicable to a public agreement or transaction[.]”
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`19.
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`Administrator Barbre made three allegations. First, he alleged that Mr. Gubbels
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`violated the catchall provision at Section IV(h)(2) of the Standard Reinsurance Agreement, when
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`he “misrepresented the PRF application deadline as December 6, 2019, which is three weeks
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`later than the actual deadline.” Second, he alleged that Mr. Gubbels “misrepresented FCIC policy
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`and procedure during your presentation by falsely claiming that producers may double-insure
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`their alfalfa crop through yield protection and rainfall index protection,” when “section 17 of the
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`Rainfall and Vegetation Index Plan Common Policy, producers must not double-insure their
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`alfalfa crop through yield protection and rainfall index protection.” Third, Administrator Barbre
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`alleged that Mr. Gubbels “publicly advocated that the FCIP is not a risk management tool, but
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`rather an investment tool.” The administrator did not assert that the advocacy allegations violated
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`any provision of the Standard Reinsurance Agreement or any other law or regulation.
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`20.
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`Administrator Barbre concluded “that adequate evidence exists to support cause
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`for debarment and that immediate action is necessary to protect the public interest[.]”
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`Specifically, Administrator Barbre said that he had reviewed an email sent by the Imperial
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`County Farm Bureau that had summarized what it expected Mr. Gubbels to present at the
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`December 3, 2019, meeting and “information from individuals who attended” the presentation,
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`which he considered to be “adequate evidence.” Administrator Barbre also concluded that these
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`were “past misrepresentations” and since Mr. Gubbels had “ongoing involvement” with FCIP,
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`“immediate action [wa]s necessary to protect the public interest.” Ultimately the administrator
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`determined that Mr. Gubbels’s actions “indicate[] a serious lack of business honesty and integrity
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`6
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`demonstrating that [Mr. Gubbels is] not presently responsible, which poses a significant risk to
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`the government.”
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`21.
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`On March 11, 2020, through counsel, Mr. Gubbels opposed the suspension and
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`proposed debarment in a letter and affidavit. Mr. Gubbels also requested a hearing to challenge
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`the suspension. Mr. Gubbels did not contest that he accepted applications after the November
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`15th deadline for PRF, although he argued that any misrepresentations were not materially
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`misleading because all applications were submitted to RMA by the December 9th deadline. Mr.
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`Gubbels challenged the evidence that he had informed producers that they could double-insure
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`their alfalfa crops, and included a sworn affidavit saying that he had not made that representation
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`or, if he had, he had misspoken while discussing multiple programs. Third, Mr. Gubbels noted
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`that the allegation regarding the use of terms “returns” and “profits” was both taken out of
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`context and not a violation of any agreement, regulation or statute. In his sworn affidavit, Mr.
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`Gubbels said that he had merely noted truthfully that PRF programs had “paid out” in 8 of 10
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`previous years, and yielded a “profit over premium cost” of $3.60 per acre over the last 20 years.
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`Mr. Gubbels attested, however, that he always represented the program as a “risk mitigation
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`strategy” not an income opportunity.
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`22.
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`On March 13, 2020, Administrator Barbre issued a letter entitled “Important
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`Clarification Regarding Your February 21, 2020 Notice of Suspension and Proposed Debarment
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`From Participation in United States Programs.” In the letter, Administrator Barbre purported to
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`clarify the scope of the suspension and proposed debarment because Mr. Gubbels was the
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`“principal” of Insure My Honey, Inc. Thus the administrator concluded that Mr. Gubbels’s
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`“ownership and control over Insure my Honey, Inc. [] qualifies [him] as a principal under the
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`suspension and debarment regulations.” Administrator Barbre asserted that neither entity could
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`7
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`4:20-cv-03060-JMG-MDN Doc # 1 Filed: 06/01/20 Page 8 of 13 - Page ID # 8
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`“issue or renew any crop insurance policies.” Administrator Barbre cited to 7 C.F.R. §§
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`180.205(c), and 180.995 as the basis for his conclusion.
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`23.
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`On March 25, 2020, Administrator Barbre conducted a telephone hearing with
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`Mr. Gubbels’s counsel concerning the suspension. No testimony was taken at the hearing and the
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`administrator did not engage in a factfinding proceeding.
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`24.
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`On March 31, 2020, Sandy Sanchez, Director of Western Regional Compliance
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`Office, RMA, sent a letter to all of Mr. Gubbels’s independent contractor insurance agents. The
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`letter asserted that “as an employee or affiliate of Kevin Gubbels, you may not issue or renew
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`any crop insurance policies on behalf of Mr. Gubbels” at his insurance agency.
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`25.
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`On April 2, 2020, Mr. Gubbels provided Administrator Barbre with a
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`supplemental letter and video expressing contrition for accepting PRF applications after the
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`deadline. Administrator Barbre responded by email saying, “My problem isn’t just the sales after
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`SCD but the way he has presented this program. Mr. Gubbels has made a grave error and I’ve
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`got to figure out how to deal with it. I really don’t want to make any more comments yay or nay
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`until the Compliance office has finished their investigation.”
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`26.
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`To date, Administrator Barbre has not issued either a notice of modification or
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`continuance of the suspension order, or any action on the proposed debarment order. He has also
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`not held an evidentiary hearing on any matter.
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`COUNT I: VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C.
`§ 706(2)(A)—AGENCY ACTION WAS ARBITRARY AND CAPRICIOUS BECAUSE
`IT FAILED TO ADHERE TO ITS OWN REGULATIONS
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`Plaintiff incorporates by reference all of the preceding material as though fully set
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`27.
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`forth herein.
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`8
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`4:20-cv-03060-JMG-MDN Doc # 1 Filed: 06/01/20 Page 9 of 13 - Page ID # 9
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`28.
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`“It is ‘axiomatic,’ … ‘that an agency is bound by its own regulations.’” Nat’l
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`Envtl. Dev. Assoc.’s Clean Air Project v. E.P.A., 752 F.3d 999, 1009 (D.C. Cir. 2014) (citation
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`omitted). “Although it is within the power of [an] agency to amend or repeal its own regulations,
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`[an] agency is not free to ignore or violate its regulations while they remain in effect.” Id.
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`(citation omitted). “Thus, an agency action may be set aside as arbitrary and capricious if the
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`agency fails to comply with its own regulations.” Id. (citation omitted).
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`29.
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`Defendants failed to adhere to binding regulations governing suspension and
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`debarment procedures, including by:
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`a. Failing to provide Mr. Gubbels, Insure My Honey, Inc., and independent
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`contractor insurance agents affiliated with Mr. Gubbels and Insure My
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`Honey, Inc. adequate notice of the basis for suspension and proposed
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`debarment as required by 2 C.F.R. §§ 180.700, 180.715, 180.800,
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`180.805, 417.800;
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`b. Failing to provide Mr. Gubbels, Insure My Honey, Inc., and independent
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`contractor insurance agents affiliated with Mr. Gubbels and Insure My
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`Honey, Inc. an evidentiary hearing as required by 2 C.F.R. §§ 180.735,
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`180.830;
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`c. Failing to provide Mr. Gubbels, Insure My Honey, Inc., and independent
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`contractor insurance agents affiliated with Mr. Gubbels and Insure My
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`Honey, Inc. a written decision concerning the temporary suspension and
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`proposed debarment within the time limits required by 2 C.F.R. §§
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`180.755, 417.755; and
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`9
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`4:20-cv-03060-JMG-MDN Doc # 1 Filed: 06/01/20 Page 10 of 13 - Page ID # 10
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`d. Failing to abide by the limits set out in 2 C.F.R. §§ 180.150, 180.205,
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`180.625, 180.900, 180.935, 180.995, 180.1000, by imposing a suspension
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`and proposed debarment order against Mr. Gubbels, Insure My Honey,
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`Inc., and independent contractor insurance agents affiliated with Mr.
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`Gubbels and Insure My Honey, Inc.
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`WHEREFORE, Plaintiffs, demand judgment against Defendants invalidating
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`Defendants’ suspension and proposed debarment order, directing Defendants to reinstate
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`Plaintiffs ability to conduct transactions with the federal government, directing Defendants to
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`adhere to all applicable regulations, and any other relief that may be appropriate.
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`COUNT II: VIOLATION OF THE FIFTH AMENDMENT OF THE U.S.
`CONSTITUTION AND THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. §
`706(2)(C)—AGENCY ACTION UNCONSTITUTIONALLY FAILED TO COMPLY
`WITH ITS OWN REGULATIONS
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`30.
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`Plaintiff incorporates by reference all of the preceding material as though fully set
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`forth herein.
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`31.
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`“A precept which lies at the foundation of the modern administrative state is that
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`agencies must abide by their rules and regulations.” Reuters Ltd. v. F.C.C., 781 F.2d 946, 947
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`(D.C. Cir. 1986); accord Columbia Broad. Sys. v. United States, 316 U.S. 407, 422 (1942);
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`American Hosp. Ass’n v. Burwell, 812 F.3d 183, 190 (D.C. Cir. 2016). Indeed, “courts have long
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`required agencies to abide by internal, procedural regulations even when those regulations
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`provide more protection than the Constitution or relevant civil service laws.” Lopez v. Fed.
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`Aviation Admin., 318 F.3d 242, 246 (D.C. Cir. 2003) (internal citation and quotation marks
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`omitted). If an agency disregards rules governing its behavior, this deprives an affected entity of
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`10
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`4:20-cv-03060-JMG-MDN Doc # 1 Filed: 06/01/20 Page 11 of 13 - Page ID # 11
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`the constitutionally guaranteed “due process.” United States ex rel. Accardi v. Shaughnessy, 347
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`U.S. 260, 268 (1954) (this familiar holding is better known as the Accardi doctrine).
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`32.
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`Defendants failed to adhere to binding regulations governing suspension and
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`debarment procedures, including by:
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`a. Failing to provide Mr. Gubbels, Insure My Honey, Inc., and independent
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`contractor insurance agents affiliated with Mr. Gubbels and Insure My
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`Honey, Inc. adequate notice of the basis for suspension and proposed
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`debarment as required by 2 C.F.R. §§ 180.700, 180.715, 180.800,
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`180.805, 417.800;
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`b. Failing to provide Mr. Gubbels, Insure My Honey, Inc., and independent
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`contractor insurance agents affiliated with Mr. Gubbels and Insure My
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`Honey, Inc. an evidentiary hearing as required by 2 C.F.R. §§ 180.735,
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`180.830;
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`c. Failing to provide Mr. Gubbels, Insure My Honey, Inc., and independent
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`contractor insurance agents affiliated with Mr. Gubbels and Insure My
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`Honey, Inc. a written decision concerning the temporary suspension and
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`proposed debarment within the time limits required by 2 C.F.R. §§
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`180.755, 417.755; and
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`d. Failing to abide by the limits set out in 2 C.F.R. §§ 180.150, 180.205,
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`180.625, 180.900, 180.935, 180.995, 180.1000, by imposing a suspension
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`and proposed debarment order against Mr. Gubbels, Insure My Honey,
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`Inc., and independent contractor insurance agents affiliated with Mr.
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`Gubbels and Insure My Honey, Inc.
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`11
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`4:20-cv-03060-JMG-MDN Doc # 1 Filed: 06/01/20 Page 12 of 13 - Page ID # 12
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`WHEREFORE, Plaintiffs, demand judgment against Defendants invalidating
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`Defendants’ suspension and proposed debarment order, directing Defendants to reinstate
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`Plaintiffs’ ability to conduct transactions with the federal government, directing Defendants to
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`adhere to all applicable regulations, and any other relief that may be appropriate.
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`COUNT III: VIOLATION OF THE FIFTH AMENDMENT OF THE U.S.
`CONSTITUTION AND THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. §
`706(2)(C)—AGENCY ACTION UNCONSTITUTIONALLY FAILED TO AFFORD
`PLAINTIFF PROCEDURAL DUE PROCESS
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`Plaintiff incorporates by reference all of the preceding material as though fully set
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`33.
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`forth herein.
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`34.
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`The Fifth Amendment to the United States Constitution provides that “[n]o person
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`shall” “be deprived of life, liberty, or property, without due process of law.”
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`35.
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`Plaintiffs have a protected liberty interest in not being suspended or debarred from
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`government contracting based on mere allegations of wrongdoing and dishonesty.
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`36.
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`Defendants failed to afford Plaintiffs with required due process including by:
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`e. Failing to provide Mr. Gubbels, Insure My Honey, Inc., and independent
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`contractor insurance agents affiliated with Mr. Gubbels and Insure My
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`Honey, Inc. adequate notice of the basis for suspension and proposed
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`debarment;
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`f. Failing to provide Mr. Gubbels, Insure My Honey, Inc., and independent
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`contractor insurance agents affiliated with Mr. Gubbels and Insure My
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`Honey, Inc. an evidentiary hearing;
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`g. Failing to provide Mr. Gubbels, Insure My Honey, Inc., and independent
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`contractor insurance agents affiliated with Mr. Gubbels and Insure My
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`12
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`4:20-cv-03060-JMG-MDN Doc # 1 Filed: 06/01/20 Page 13 of 13 - Page ID # 13
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`Honey, Inc. a final decision concerning the temporary suspension and
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`proposed debarment in a reasonable time; and
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`h. Failing to provide Mr. Gubbels, Insure My Honey, Inc., and independent
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`contractor insurance agents affiliated with Mr. Gubbels and Insure My
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`Honey, Inc. a hearing before an impartial decisionmaker.
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`WHEREFORE, Plaintiffs demand judgment against Defendants invalidating Defendants’
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`suspension and proposed debarment order, directing Defendants to reinstate Plaintiffs’ ability to
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`conduct transactions with the federal government, directing Defendants to adhere to all
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`applicable regulations, and any other relief that may be appropriate.
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`June 1, 2020
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`Respectfully,
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`/s/ Harriet M. Hageman
`Harriet M. Hageman
`(Neb. Bar No. 22846)
`Senior Litigation Counsel
`Caleb Kruckenberg
`Litigation Counsel
`New Civil Liberties Alliance
`1225 19th St. NW, Suite 450
`Washington, DC 20036
`harriet.hageman@ncla.legal
`caleb.kruckenberg@ncla.legal
`(202) 869-5210
`Counsel for Plaintiffs
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`13
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