RICHARD E. LYNG, SECRETARY OF AGRICULTURE, AND THE DEPARTMENT OF
AGRICULTURE, PETITIONERS, V. STATE OF IOWA, ETC., ET AL.

   No. 85-1818

   In the Supreme Court of the United States

   October Term, 1985

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Eighth Circuit

   The Solicitor General, on behalf of Richard E. Lyng, Secretary of
Agriculture, and the Department of Agriculture, petitions for a writ
of certiorari to review the judgment of the United States Court of
Appeals for the Eighth Circuit in this case.

                       PARTIES TO THE PROCEEDING

   The appellees in the court of appeals were John R. Block, Secretary
of Agriculture, and the Department of Agriculture.  Effective March 7,
1986, Richard E. Lyng succeeded Mr. Block as Secretary of Agriculture,
and accordingly Mr. Lyng has been substituted as a petitioner in this
case.

   Appellants in the court of appeals were the State of Iowa and
several individual farmers who intervened in the district court:
Danny and Carene Gettler, H.S. and Maxine Lovett, Robert and Hope
Mendenhall, and Tom and Linda Watkins.

            TABLE OF CONTENTS
   Parties to the Proceeding
   Opinions below
   Jurisdiction
   Statutory provisions involved
   Questions Presented
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D
   Appendix E

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 1a-23a) is
reported at 771 F.2d 347.  The opinion of the district court (App.,
infra, 24a-33a) is reported at 626 F.Supp. 15.

                             JURISDICTION

   The judgment of the court of appeals (App., infra, 34a) was entered
on August 15, 1985, and a petition for rehearing was denied on
December 5, 1985 (App., infra, 35a).  On February 25, 1986, Justice
Blackmum extended the time within which to file a petition for a writ
of certiorari to and including May 4, 1986.  The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   The relevant provisions of the Agriculture and Food Act of 1981, 7
U.S.C. 1444d(b)(2), the Commodity Credit Corporation Charter Act, 15
U.S.C. 714b(c), and the Administrative Procedure Act, 5 U.S.C. 701(a),
are set forth at App., infra, 36a-38a.

                          QUESTION PRESENTED

   1. Whether a provision of the Agriculture and Food Act of 1981, 7
U.S.C. 1444d(b)(2)(D), which provides that the Secretary of
Agriculture "may" make direct cash payments to farmers affected by
natural disasters "whenever the Secretary determines that" such losses
have created an economic emergency and that federal crop insurance and
other forms of federal assistance are "insufficient" to alleviate the
emergency, commits implemention decisions to agency discretion as a
matter of law.

   2. Whether 15 U.S.C. 714b(c), which provides that "no * * *
injunction * * * be issued against" the Commodity Credit Corporation,
which administers such disaster payments, precludes the entry of an
injunction requiring the Secretary to utilize his discretionary
authority to make cash disaster payments.

                               STATEMENT

   1. Among the many measures Congress has empowered the Secretary of
Agriculture to employ to alleviate economic hardship is the authority
to make cash disaster payments under the so-called Special Disaster
Payment Program (SDPP).  /1/ The SDPP has two components authorizing
the Secretary to make cash payments to feed grain producers whose
crops have been affected by a natural disaster.  The "mandatory"
portion of the program requires the Secretary to make payments to
producers not eligible for federal crop insurance if he determines
that natural conditions prevented them from planting or harvesting.  7
U.S.C. 1444d(b)(2)(A) and (B).  The "discretionary" portion of SDPP (7
U.S.C. 1444d(b)(2)(D)) provides that when federal crop insurance is
available, the Secretary "may make disaster payments" if he makes
certain threshold determinations (i.e., that an economic emergency
exists, that crop insurance and other forms of federal assistance are
insufficient, and that additional assistance must be made available to
alleviate the emergency).

   2. When a severe drought affected grain and livestock producers in
1983, the Department of Agriculture monitored its impact through
various federal, state and local agencies.  The Department also
reviewed requests for assistance from officials of several states,
including Iowa (C.R. 19).  /2/ In response, the Secretary implemented
an array of measures to lessen the economic impact:  he provided
federal disaster loans and economic emergency loans, waived the
prohibition on grazing and haying on land required to be devoted to
conservation use under production adjustment programs, and implemented
a feed assistance program.  Iowa farmers benefited substantially from
these and other federal programs, including federally-subsidized crop
insurance.  /3/ The Secretary did not, however, implement certain
other programs and respondents brought this lawsuit to compel the
Secretary to do so.  The programs involved (all of them administered
by the Commodity Credit Corporation (CCC), an arm of the Department of
Agriculture) were:  (1) the discretionary portion of the SDPP, 7
U.S.C. 1444d(b)(2)(D), /4/ (2) the Emergency Feed Program, 7 U.S.C.
2267, (3) the Livestock Feed program, 7 U.S.C. 1427, (4) the Disaster
Reserve Program, 7 U.S.C. 1427a, and (5) 7 U.S.C. 1851, a statute
providing for the orderly disposal of stockpiled grain.  In responding
to Iowa's request for implementation of these programs, the Secretary
pointed out that significant other federal assistance was already
being provided to Iowa producers (see Complaint Exh. C, Letter from
Acting Secretary Richard E. Lyng to Rep. Tom Harkin (Mar. 16, 1984)).
With specific reference to the request for discretionary SDPP
payments, the Secretary stated (ibid.):

      Since it is our policy to support the principle and the mandate
      from Congress that the extended crop insurance program replace
      disaster payments, we do not plan to exercise our discretionary
      authority to implement the Special Disaster Payment Program at
      this time.  To do otherwise would only undermine and defeat the
      Congressionally dictated crop insurance program.

   3. The district court held (App., infra, 24a-33a) that the broad
statutory language authorizing the programs committed implementation
decisions to the Secretary's unreviewable discretion.  See 5 U.S.C.
701(a)(2).  The court pointed out (App., infra, 31a-32a (footnote
omitted) that in each five programs:

      Congress used permissive language, allowing the Secretary to set
      the terms of implementation he determined to be in the national
      interest.  This broad delegation of authority by Congress leaves
      the Court with little, if any, standard for reviewing the
      Secretary's failure to implement the programs.

In addition, the court noted (App., infra, 32a) that several
"(p)ragmatic considerations" compelled the conclusion that the
Secretary's decision is not reviewable:

      Throughout the years Congress has authorized a broad range of
      discretionary assistance programs to deal with agricultural
      disasters.  Recognizing that the Secretary possesses expertise
      in agricultural affairs and the means of evaluating the
      everchanging national agricultural conditions, Congress often
      vested discretion in the Secretary to determine whether to
      implement such programs.  In deciding which programs to
      implement and the areas or individuals that are entitle(d) to
      assistance, the Secretary must consider the level of relief
      required, the national and international ramifications of
      implementation, the level of relief afforded by programs already
      implemented, and various other economic and managerial issues.
      For the Court to fairly and fully review the discretionary
      decision of the Secretary, all of the factors that entered into
      the decision would have to be brought before the Court, if that
      would be possible.

The court stated that it could not "properly review the Secretary's
determinations -- which were certainly based on data gathered from
national and international sources -- and then limit() its decision
whether the Secretary acted arbitrarily to the situation presented in
several southeast Iowa counties" (ibid.);  "the Secretary must look
far beyond the particular local situation in exercising his
discretion," weighing the ramifications of his decision on national
and international concerns, the budgetary impact, and other factors
not susceptible to judicial review (id. at 33a).  Accordingly, the
district court dismissed the complaint.

   4. The court of appeals unanimously affirmed with regard to the
Livestock Feed Program (LFP), 7 U.S.C. 1427, and the Emergency Feed
Program (EFP), 7 U.S.C. 2267.  /5/ The court concluded (App., infra,
2a-3a n.1) that it was "unable to consider (respondents') request for
an injunction under (the LFP and the EFP)" "(b)ecause issuance of
benefits under" those programs is administered through the Commodity
Credit Corporation (CCC).  Since injunctions against the CCC are
prohibited by statute, /6/ the court would be "unable to authorize the
relief requested by (respondents), even if it were warranted" (ibid.).

   The panel was divided, however, on the discretionary SDPP claims.
The majority concluded first that even though the discretionary SDPP
is administered through the CCC, the anti-injunction statute did not
bar relief because the court deemed itself to have jurisdiction to
require the Secretary to "fram(e) * * * regulations" implementing the
discretionary SDPP "without necessarily requiring the Secretary to
make payments or 'carry out the program'" (App., infra, 3a n.1, citing
Mitchell v. Block, 551 F. Supp. 1011, 1015 (W.D. Va. 1982)).

   Invoking a presumption in favor of judicial review (Citizens to
Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971)), the
majority then concluded that there was enough "'law to apply'" to
enable a court to review the Secretary's decision not to make
discretionary SDPP payments to Iowa farmers.  The court noted (App.,
infra, 4a) that the statute provides that where crop insurance is
available and mandatory cash disaster payments are therefore not
available (see 7 U.S.C. 1444d(b)(2)(A)-(C)), the Secretary
nevertheless "may make disaster payments * * * whenever (he)
determines" that "(i) as the result of * * * natural disaster, * * *
farm(ers) have suffered substantial losses of production * * * (;)
(ii) * * * other (federal assistance programs) * * * are insufficient
to alleviate such economic emergency (;  and) * * * (iii) additional
assistance must be made available * * * to alleviate the economic
emergency." See 7 U.S.C. 1444d(b)(2)(D)(i)-(iii).

   Applying its earlier decision in Allison v. Block, 723 F.2d 631
(8th Cir. 1983), /7/ to this case, the majority concluded (App.,
infra, 9a (footnote omitted)) that "the (SDPP) presents a
straightforward case which compels judicial review of agency
inaction":

      Despite the fact that the statute specifies three criteria for
      determining the inadequacy of federal crop insurance, the
      Secretary has deliberately taken no steps to implement proper
      procedures to protect applicants from potential abuses of
      discretion under the statute.  Moreover, the criteria presuppose
      findings about the inadequacy of crop insurance;  as in Allison,
      the criteria suggest a "prima facie standard of eligibility for
      relief," (723 F.2d) at 637, yet without substantive elaboration
      by the Secretary, the criteria and the relief program become no
      more than "an empty procedural shell," and the clear intent of
      Congress to establish a program is thwarted.  We also observed
      that, as was the case in Allison, the legislative history of
      this measure relies on the word "program," which becomes
      nonsensical unless the Secretary promulgates procedural and
      substantive standards under which disaster assistance can be
      disbursed.  S. Rep. No. 126, 97th Cong., 1st Sess., 111,
      reprinted in 1981 U.S. Code Cong. & Ad. News 2076.  Given the
      clear guidance of the statute, its supporting materials and case
      law, then, we find ample law to apply and we reject the district
      court's suggestion that judicial review was foreclosed by an
      absence of law.

Stating that (App., infra, 10a) (emphasis added)) "when Congress has
created a program which contemplates that such payments will be made
in appropriate circumstances, it is the clear duty of the Secretary to
promulgate regulations which carry out the intent of Congress," the
majority remanded the case to the district court to "promptly * * *
consider (respondents') requests for preliminary and permanent
injunctive relief compelling the Secretary to implement the SDPP" (id.
at 16a-17a (emphasis added)).  /8/

   Judge Fagg dissented from the SDPP holding because the majority
opinion "impermissibly diminishes the discretion granted the Secretary
by law" (App., infra, 18a).  Congress's primary goal in establishing
the entire SDPP was "to 'provide for a limited continuation of
disaster payments to cover those parts of the country into which
Federal crop insurance has yet to expand'" (id. at 19a, quoting S.
Rep. 97-126, 97th Cong., 1st Sess. 76 (1981) (emphasis added)).
Congress therefore provided that the Secretary "shall" make cash
disaster payments where federal crop insurance is not available, under
the "reasonably well-defined (mandatory SDPP) relief program" which
leaves "little * * * to the Secretary's discretion" (App., infra,
19a).  "(I)n sharp contrast," Judge Fagg noted, Section 1444d(b)(2)(D)
provides that the Secretary "may" make payments where crop insurance
is available, but presents no meaningful, judicially-manageable
standards against which to evaluate the agency's action for abuse of
discretion (App., infra, at 19a-21a, citing Heckler v. Chaney, No.
83-1878 (Mar. 20, 1985)).  The effect of the majority opinion was to:
"view() the presence of the criteria under which the Secretary may
take some action as also establishing that the Secretary must take
some action.  Such a conclusion ignores the plain language of the
SDPP" (App., infra, 21a (emphasis in original)).

   Finally, Judge Fagg disagreed with the ruling that the
anti-injunction statute, 15 U.S.C. 714b(c), posed no bar to the relief
respondents sought under the SDPP (App., infra, 22a-23a).  He observed
that "although implying that its decision is not injunctive in nature,
the court effectively enjoins the Secretary (and thus the CCC) and
compels him to make available a program the implementation of which
has been left entirely within his discretion" (ibid.).

   The Secretary's petition for rehearing en banc was denied by vote
of 4-4 (with one judge abstaining) (App., infra, 35a).  /9/

                   REASONS FOR GRANTING THE PETITION

   The court of appeals has misread 7 U.S.C. 1444d(b)(2)(D).  If the
Secretary makes certain predicate determinations, the statute permits
him to make disaster payments to producers who are eligible for
federal insurance;  it does not compel him either to make the
threshold findings or to provide assistance in any particular
situation.  The court of appeals, however, incorrectly equated a
statute that authorizes the agency to provide a certain form of
assistance with one that requires such action.  See Batterton v.
Francis, 432 U.S. 416, 431 (1977).  This Court has expressly
disapproved the sort of judicial legislating indulged in here:
imputing standards and reviewing agency action where Congress provided
for neither.  See Block v. Community Nutrition Institute, 467 U.S. 340
(1984);  Heckler v. Chaney, slip op. 8-9;  see also Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843
& n.11 (1984).

   If allowed to stand, the decision below would have serious adverse
effects.  It would displace Congress's preference for a system of crop
insurance with an expanded system of cash payments that the Department
of Agriculture estimates would run into tens of millions of dollars
annually, and potentially into the billions.  By compelling the
Secretary to create a regulatory scheme Congress never intended, it
would hinder his ability to act with the swiftness and flexibility
that emergencies demand.  And, by compelling potentially huge federal
outlays to the nation's largest industry for unpredictable natural
disasters, the decision subverts Congress's longstanding efforts to
craft a fiscally responsible and economically sound farm policy that
meets the needs of both the agricultural industry and the nation as a
whole.  Accordingly, certiorari is clearly warranted.

   1. The statutory language demonstrates Congress's intent that crop
insurance be the principal means of disaster relief.  Thus, 7 U.S.C.
1444d(b)(2)(C) establishes the general rule that where crop insurance
is available, SDPP payments are prohibited.  /10/ In areas of the
country where such insurance is not yet available, the mandatory
portion of SDPP requires that the Secretary "shall" make payments to
producers if he determines that natural conditions prevent them from
planting or harvesting.  7 U.S.C. 1444d(b)(2)(A) and (B).  The statute
specifically recites when it is to be applied, issues a plain
directive to the Secretary, and itemizes how payments are to be
calculated.  /11/ It also expressly contemplates that regulations will
be issued and the Secretary has done so.  See 7 C.F.R. 713.105.  Since
the mandatory portion does not apply where federal crop insurance is
available, and such insurance was available in all countries in Iowa
in 1983, that portion of SDPP is not involved here.

   The discretionary portion of SDPP is clearly distinct.  It is a
limited exception to the statutory rule that cash payments are barred
to producers eligible for crop insurance.  Thus, 7 U.S.C.
1444d(b)(2)(D) permits the Secretary ("may make disaster payments") to
provide such assistance whenever he determines that:

         (i) as the result of drought, flood, or other natural
      disaster, or other condition beyond the control of the
      producers, producers on a farm have suffered substantial losses
      of production either from being prevented from planting feed
      grains or other non-conserving crop or from reduced yields, and
      that such losses have created an economic emergency for the
      producers;

         (ii) Federal crop insurance indemnity payments and other
      forms of assistance made available by the Federal Government to
      such producers for such losses are insufficient to alleviate
      such economic emergency, or no crop insurance covered the loss
      because of transitional problems attendant to the Federal crop
      insurance program;  and

         (iii) additional assistance must be made available to such
      producers to alleviate the economic emergency.

   The discretionary program thus creates a three-step procedure
before assistance may be provided:  first the Secretary makes the
determinations specified in Subsections (i), (ii) and (iii), then he
decides whether to implement the program for a given emergency, and
finally he decides whether or not to make payments to particular
farmers.  Unless the predicate determinations are made, the next steps
are not reached.

   In contrast to the mandatory provisions in Subsections (A) and (B),
the discretionary portion of the statute is not written in the
imperative, does not direct the Secretary to make payments according
to a set formula, and does not expressly refer to standards to be
established by the Secretary.  Rather, Congress enacted the
discretionary SDPP in terms similar to those used in describing the
President's authority to declare emergencies and major disasters that
warrant federal assistance (see 42 U.S.C. 5122, 5141).  In so doing,
Congress created a power and authorized the exercise of that power in
the discretion of the Secretary;  it has not required any action.  As
the differences between the two portions of SDPP demonstrate, Congress
well knows how to make action compulsory.  It has not done so here.

   In brushing aside these clear distinctions, the court of appeals
apparently confused the mandatory and discretionary portions of SDPP.
This confusion is manifest in the court's instruction that on remand
the district court "should note especially the imperative language in
the statute ('shall' make disaster payments)" (App., infra, 17a);  see
also id. at 10a ("when Congress has created a program which
contemplates that such payments will be made in appropriate
circumstances, it is the clear duty of the Secretary to promulgate
regulations which carry out the intent of Congress").

   2. The legislative history and structure of the SDPP also show an
intent to confide to the Secretary the sole discretion to determine
when his statutory authority will be exercised.  The SDPP for feed
grains was enacted as part of the Agriculture and Food Act of 1981,
Pub. L. No. 97-98, 95 Stat. 1213 et seq.  /12/ In passing
comprehensive legislation Congress sought to promote market solutions
to farm problems and to reduce the expense of federal farm programs.
See S. Rep. 97-126, 97th Cong., 1st Sess. 2, 3, 10, 24-28 (1981).
/13/ Central to this effort was the nationwide all-crop, all-risk,
federally-subsidized crop insurance program (7 U.S.C. 1501 et seq.),
that was established in 1980.  To encourage participation in the crop
insurance program and for budgetary reasons, Congress limited other
forms of federal relief with the aim of eliminating some of them
altogether.  Thus, certain formerly mandatory commodity assistance
programs (i.e., the Livestock Feed Program, 7 U.S.C. 1427, and the
Disaster Reserve Program, 7 U.S.C. 1427a, under which federal grain
could be purchased by distressed farmers at reduced prices) became
"discretionary with the Secretary" /14/ and would only be "continu(ed)
* * * at the option of the Secretary." /15/

   Congress was especially alert to the budgetary implications of
continued cash disaster assistance payments.  The Senate report
observed (S. Rep. 97-126, supra, at 75) that "(t)he Federal
Government's current disaster payments program amounts to free crop
insurance." Moreover, the pre-existing program had "the most glaring
fault" of encouraging production on marginal lands with reduced yield
capacities, resulting in "undesirable conservation practices" and
increased agricultural surpluses (thus adding to the costs of federal
conservation and price support programs).  Id. at 76.  Congress
therefore sought to replace that regime with a nationwide federal crop
insurance program.  Ibid.  In designing the new program, Congress
recognized that the continued availability of cash assistance "would
detract from the number of farmers who otherwise would purchase"
federal crop insurance, and premiums would climb for those who did buy
it.  Ibid.  Only because of "the unpredictability inherent in
weather," and in the availability of appropriations for the crop
insurance program, did Congress deem it "prudent to provide for a
limited continuation of disaster payments to cover those parts of the
country into which Federal crop insurance has yet to expand." Ibid.
(emphasis added).

   As this history shows, Congress's clear intent was to reduce, and
eventually to end, direct cash disaster assistance;  the limited
provision of mandatory payments under Sections 1444d(b)(2)(A) and (B)
was plainly transitional only.  In Subsection (D), which originated in
the version of the bill proposed by Senator Huddleston, Congress
granted the Secretary the additional option to provide cash payments
notwithstanding the availability of crop insurance and other federal
assistance, "if it is determined that (1) the losses incurred have
created an economic emergency;  (2) Federal crop insurance indemnities
are insufficient to alleviate the economic emergency;  and (3)
additional assistance must be available in order to alleviate the
economic emergency" (S. Rep. 97-126, supra, at 27, 77-78).  /16/ Thus,
these three findings are not automatic triggers for a mandatory duty,
as the court of appeals held, but rather conditions which must be met
before the Secretary may even consider using his discretion under the
Act.  These factors are not further defined, and the Senate report
specifically pointed out (ibid.) that "the bill * * * does not specify
the emergency situations or transitionary (sic) authority." /17/

   At no time did Congress, or even any member, suggest that the
Secretary was required to use his authority in any given set of
circumstances.  It therefore would be a gross distortion of the
language, legislative history and statutory scheme to construe
Subsections (C) and (D) as expressing congressional expectation that
the Secretary would be required to implement the program in a
particular situation.  To the contrary, Subsections (C) and (D) signal
Congress's expectation that cash payments ordinarily will not be made
where crop insurance is available.

   3. This Court has held that in the absence of judicially-manageable
legislative standards -- i.e., objective criteria against which a
court can determine if the agency has carried out the legislative
intent -- the matter is "a decision 'committed to agency discretion by
law'" (Heckler v. Chaney, slip op. 13, quoting 5 U.S.C. 701(a)(2)).
/18/ Where Congress has not given precise guidance for agency action,
it has implicitly delegated the responsibility of filing the gaps to
the agency;  "(i)n sych a case, a court may not substitute its own
construction of a statutory provision for a reasonable interpretation
made by the administrator of an agency" (Chevron, 467 U.S. at 844
(footnote omitted)).  In this case, the Secretary has determined that
the statute does not require him to implement the discretionary SDPP
program in a given agricultural emergency and -- in light of the other
forms of assistance and insurance made available -- he has decided not
to use his discretionary SDPP authority for the 1983 drought in Iowa.
That interpretation of his statutory powers is not unreasonable or
impermissible based on the language or legislative history of the SDPP
and therefore must be upheld.  See, e.g., United States v. Riverside
Bayview Homes, Inc., No. 84-701 (Dec. 4, 985), slip op. 9-10, 17;
Chevron, 467 U.S. at 842-845 & nn, 11-14;  Aluminum Co. of America v.
Central Lincoln Peoples' Utility District, 467 U.S. 380, 389-390
(1984).

   The Secretary's interpretation is particularly compelling here
because, as the district court found, pragmatic considerations
inherent in the decisionmaking process also preclude meaningful
judicial review.  It is the nature of emergencies to be unpredictable
-- in number, frequency, cause, severity, scope and duration -- so it
is impractical to prescribe the option or combination of options the
Secretary must implement in a given situation.  For the Secretary to
bind himself in advance to a specific response would run counter to
Congress's intent that the government have flexibility to deploy
assistance most effectively in emergency conditions, while retaining
the resiliency and resources needed to respond to future emergencies.

   4. By effectively transforming an optional assistance program into
a mandatory program, the decision below may have an enormous fiscal
impact.  Once the Secretary is compelled to issue regulations for
determining eligibility for SDPP benefits, it is hard to see how he
could ever deny benefits to someone who appeared to "quality" -- at
least without substantial litigation.  That is a mandatory program;
it is not what Congress intended.  Given the frequency of natural
disasters causing delayed planting or reduced harvests in at least
some part of the nation every year, the Department of Agriculture
estimates that any principled attempt to comply with the court of
appeals' ruling will result in disaster payments of tens of millions
of dollars annually and, in particularly bad years, could reach into
the billions of dollars.

   It is plain that Congress, which sought to diminish the cash
disaster assistance program, did not intend to authorize such enormous
cash outlays of unpredictable size.

   5. Finally, Congress has specifically prohibited the relief sought
by respondents.  15 U.S.C. 714b(c) precludes the issuance of any
"attachment, injunction, garnishment, or other similar process"
against the Commodity Credit Corporation (CCC).  Section 714b(c) was
enacted to guard against "the possible detriment to the Government
through hindrance or obstruction of the Corporation's operations, if
it were made amenable to such processes" (S. Rep. 1022, 80th Cong., 2d
Sess. 10 (1948)).  Respondents have demanded an injunction compelling
the Secretary to implement a program for benefits under the
discretionary SDPP, which is administered by the CCC (7 U.S.C.
1444d(h)).  The court of appeals agreed that this provision prevented
it from awarding the relief respondents requested under two other
relief programs administered by the CCC.  The court distinguished
SDPP, however, concluding that it had "jurisdiction to require the
Secretary to promulgate and implement regulations * * * without
necessarily requiring the Secretary to make payments or 'carry out the
program'" (App., infra, 2a-3a n.1, quoting Mitchell v. Block, 551
F.Supp. 1011, 1015 (W.D.Va. 1982)).

   The court's distinction is elusive, as Judge Fagg's dissent points
out.  /19/ Moreover, respondents requested precisely the same relief
under all three programs, so the jurisdictional issue must also be the
same as to each program.  Nonetheless, the court appears to have
created a distinction based on the relief it ultimately decided to
award under SDPP.  It should have looked instead only at the relief
sought in the complaint (para. VII(2)), i.e. "(t)hat the Court issue
both a preliminary and permanent injunction compelling the defendants
to exercise their discretion and implement the disaster relief
programs described in this Complaint." The obvious thrust of the
complaint is that disaster benefits are sought;  those benefits are
administered by the CCC and although the CCC is not a named party in
the case, an injunction providing the relief requested would violate
Section 714b(c) by compelling the CCC to take action.

   The point is underscored by the court of appeals' description of
the proceeding to take place on remand (App., infra, 16a-17a (emphasis
added)):  "the district court should promptly hold a hearing to
consider (respondents') requests for preliminary and permanent
injunctive relief compelling the Secretary to implement the SDPP."
Because such an injunction would necessarily cause the CCC to act, it
is barred by Section 714b(c).

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   LAWRENCE G. WALLACE

      Deputy Solicitor General

   JERROLD J. GANZFRIED

      Assistant to the Solicitor General

   ROBERT S. GREENSPAN

   WENDY M. KEATS

      Attorneys

   MAY 1986

   /1/ "SDPP" is an abbreviated way of referring to provisions of the
Agriculture and Food Act of 1981 that authorize the Secretary to make
cash disaster payments to producers of varios crops:  feed grain (7
U.S.C. 1444d(b)(2));  upland cotton (7 U.S.C. 1444(g)(4));  rice (7
U.S.C. 1441(i)(3));  and wheat (7 U.S.C. 1445b-1(b)(2)).  This case
involves the provision for feed grain producers.  For purposes of
simplicity we will refer to that provision as the SDPP.

   /2/ "C.R." refers to the clerk's record in the district court,
filed in lieu of an appendix in the court of appeals.

   /3/ Assistance was provided to Iowa farmers under the following
federal programs:

   Farmers Home Administration (FmHA) "disaster emergency loans" were
available under the Consolidated Farm and Rural Development Act, 7
U.S.C. 1961.  In fiscal year 1983 (beginning October 1, 1982), FmHA
made 8,771 such loans nationwide, totaling $565.9 million.  Ninety of
those loans, totaling $2.9 million, were made in Iowa.  As of May
1984, when this suit was brought, 26,266 disaster emergency loans
totaling more than $806 million had already been made nationwide for
FY 1984 (beginning October 1, 1983), with 3,425 loans (totaling $79.6
million) going to Iowa (C.R. 23).  Producers in all Iowa counties were
eligible to apply for these loans.

   "Economic emergency loans" were also available under 7 U.S.C. 1961.
 In FY 1983, FmHA provided no economic emergency loans.  As of May
1984, in response to the drought, 2,247 such loans ($281.7 million)
had been made nationwide, with 157 loans (totaling almost $18 million)
in Iowa (C.R. 23).  All Iowa producers were also eligible to apply for
these loans.

   The Department of Agriculture provided additional relief to Iowa
farmers participating in federal commodity production adjustment and
price stabilization programs.  In exchange for various benefits under
these programs (in the form of cash payments, loans, or commodity
payments-in-kind), participating producers are normally required to
divert to conservation use a specified percentage of the farm's
historical acreage base, and the land devoted to conservation use
cannot normally be used for grazing or the production of other crops
(7 U.S.C. 1444(e)(4)).  Due to the 1983 drought, however, this
requirement was relaxed so that producers in certain areas (including
85 counties in Iowa) were permitted to graze and forage their own
conservation-use acreage.  In addition, they continued to receive
federal payments or other benefits for not planting crops on the land,
and not incurring production costs (C.R. 23-25).

   Iowa farmers were also permitted to purchase federal corn supplies
at substantially below price support or market rates under the
Emergency Feed Assistance Program, 7 U.S.C. 1427, a program which is
normally available only to farmers who qualify for FmHA loan
assistance.  However, in order to avoid delay in providing aid to the
farmers most in need, the Secretary waived the loan-eligibility
requirement and provided reduced-price feed grain to all otherwise
eligible farmers in designated disaster areas.  All farmers and
ranchers in Iowa were eligible to purchase feed corn through this
program.  By May 1984 they had purchased 2.6 million of some 19
million bushels sold nationwide (C.R. 20-22).

   Finally, federal crop insurance was available to Iowa feed grain
producers through the Federal Crop Insurance Corporation (FCIC) (C.R.
22-23).  See 7 U.S.C. 1501 et seq.  The FCIC may pay up to 30% of the
producer's premium.  For the 1983 crop year, Iowa producers purchased
insurance for many crops, including corn, wheat, oats and soybeans
(C.R. 22-23).  Crop insurance indemnities for these commodities in
Iowa in 1983 totaled almost $40 million, including $32.05 million for
corn.  Those crop insurance payments were more than four times greater
than similar payments for the 1982 crop year (ibid.).

   /4/ Since federal crop insurance was available in all Iowa counties
in 1983, the mandatory portion of SDPP is not involved in this case.

   /5/ The court also affirmed the district court's holding that the
State of Iowa lacked standing.  Since there was no question as to the
standing of the intervenors (eight individual farmers), the court
considered the LFP, EFP and SDPP claims.  On appeal, respondents had
abandoned their claims concerning the Disaster Reserve Program, 7
U.S.C. 1427a, and the disposal of stockpiled grain under 7 U.S.C.
1851.

   /6/ 15 U.S.C. 714b(c) provides that the CCC "(m)ay sue and be sued,
but no attachment, injunction, garnishment, or other similar process,
mesne or final, shall be issued against the Corporation or its
property."

   /7/ In Allison, the court held that the Secretary must implement
the loan deferral provision of the Consolidated Farm and Rural
Development Act, 7 U.S.C. 1981a.  The court concluded that the
legislative history of Section 1981a showed that Congress expected the
Secretary to promulgate rules similar to those he had previously
issued under an analogous provision of the National Housing Act.
Accordingly, the Allison court required the Secretary to establish
uniform procedural and substantive standards for Section 1981a.
Allison was decided prior to this Court's decision in Heckler v.
Chaney, No. 83-1878 (Mar. 20, 1985).

   /8/ On remand, the district court directed the Secretary to
promulgate final regulations implementing the discretionary SDPP by
June 1, 1986.

   /9/ Respondents have filed a separate petition for a writ of
certiorari (No. 85-1481) challenging the court of appeals' rulings
that the state lacked standing and that all claims under the LFP and
EFP programs are barred by the anti-injunction statute.  We will
respond to the petition in No. 85-1481 in a separate submission.

   /10/ 7 U.S.C. 1444d(b)(2)(C) provides that:

      Producers on a farm shall not be eligible for disaster payments
      under this paragraph if crop insurance is available to them
      under the Federal Crop Insurance Act (7 U.S.C. 1501 et seq.)
      with respect to their feed grain acreage.

   /11/ "(T)he Secretary shall make a prevented planting disaster
payment to the producers on the number of acres so affected but not to
exceed the acreage planted to feed grains for harvest * * * in the
immediately preceding year, multiplied by 75 per centum of the farm
program payment yield established by the Secretary times a payment
rate equal to 33 1/3 per centum of the established price for the crop"
(7 U.S.C. 1444d(b)(2)(A)).  "(T)he Secretary shall make a reduced
yield disaster payment to the producers at a rate equal to 50 per
centum of the established price for the crop for the deficiency in
production below 60 per centum for the crop" (7 U.S.C.
1444d(b)(2)(B)).

   /12/ Prior to 1981, mandatory cash disaster assistance payments
were available in certain circumstances for producers of wheat, feed
grains, upland cotton and rice.  See S. Rep. 97-126, 97th Cong., 1st
Sess. 27-29 (1981).  In 1981, Congress restricted the mandatory
authority to areas where crop insurance was not available and created
discretionary authority for cash disaster payments to producers of
feed grains (7 U.S.C. 1444d(b)(2)), upland cotton (7 U.S.C.
1444(g)(4)), rice (7 U.S.C. 1444(i)(3)) and wheat (7 U.S.C.
1445b-1(b)(2)).  S. Rep. 97-126, supra, at 30-31.  For all these
crops, as for the feed grain SDPP at issue here, the 1981 Act
authorized cash payments only where crop insurance was not available,
or where the Secretary determined that cash payments were necessary
because crop insurance and other federal assistance proved inadequate.
 Ibid.  In addition, for the 1983 crop of feed grain at issue here,
the statute provided the further limitation that producers would not
be eligible for payments unless they complied with acreage limitations
and set aside and diversion programs (7 U.S.C. 1444d(e)(1)(B)).

   /13/ The Senate Report (at 3) states that:

         The legislation adopted by the Committee reflects the fact
      that 1981 was the first year in memory in which severe budgetary
      constraints were such a prominent factor in the consideration of
      farm policy.  The Committee went to great lengths to fashion a
      farm bill that would not result in unacceptably large Federal
      outlays.  For the most part, the Committee was successful in
      maintaining a reasonable farm program without burdening the
      American taxpayer unnecessarily.

   /14/ See H.R. Conf. Rep. 97-377, 97th Cong., 1st Sess. 188, 194
(1981).

   /15/ 127 Cong. Rec. 23489 (1981) (Rep. Bedell).

   /16/ Senator Heflin offered an amendment, which was accepted,
allowing the Secretary to provide discretionary payments under
Subsection (D) where crop insurance was insufficient due to
"transitional problems attendant to the Federal crop insurance
program" (S. Rep. 97-126, supra, at 78).

   /17/ The report noted the following examples provided by Senator
Heflin of "situations in which the Secretary could reasonably be
expected to implement" the discretionary SDPP (S. Rep. 97-126, supra,
at 78):

      (1) the Federal crop insurance policy excludes coverage for the
      disaster risk that caused the loss;  (2) there was a lack of
      understanding of the crop insurance program among producers
      affected by the disaster;  (3) the crop insurance program was
      not adequately sold in the area affected by the disaster, or the
      Federal Crop Insurance Corporation's educational efforts were
      inadequate;  or (4) the Federal Crop Insurance Corporation used
      an inaccurate actuarial basis so that a producer affected by the
      disaster was unable to obtain coverage adequate to protect his
      crop sufficiently.  There could be other, similar situations
      that may arise, and the examples given are not meant to be
      inclusive.

The majority of the court of appeals cited this passage as the
"legislative materials" that guided its review of the Secretary's
decision.  Senator Heflin's suggestions, which address only a narrow
aspect of the Secretary's broad authority to act, were never codified
and thus represent the views of only one member of Congress.  This is
the sort of "legislative intention" which, "without more, is not
legislation" and is therefore not binding on agency action.  Train v.
City of New York, 420 U.S. 35, 45 (1975);  Weinberger v. Rossi, 456
U.S. 25, 35 n.15 (1982) ("(t)he contemporaneous remarks of a sponsor
of legislation are certainly not controlling in analyzing legislative
history").  In any event, Senator Heflin's examples do not describe
the situation in this case.

   /18/ While there is a strong presumption in favor of judicial
review of administrative action under the Administrative Procedure
Act, 5 U.S.C. (& Supp. II) 701 et seq. (Citizens to Preserve Overton
Park v. Volpe, 401 U.S. at 410), judicial review is not available
where it is prohibited by statute (5 U.S.C. 701(a)(1)), or where
"agency action is committed to agency discretion by law" (5 U.S.C.
701(a)(2)).  In addition to the arguments made above, 7 U.S.C. 1429
provides that "(d)eterminations made by the Secretary under (the
Agriculture Act of 1949, as amended, which contains the SDPP) shall be
final and conclusive," and the legislative history evidences an intent
to preclude judicial review.  E.g., 95 Cong. Rec. 13779 (1949)
(remarks of Senator Williams);  S. Rep. 1130, 81st Cong., 1st Sess.
(1949).

   Under Section 701(a)(2), action is committed to agency discretion,
and not reviewable, for example, "where 'statutes are drawn in such
broad terms that in a given case there is no law to apply'" (Overton
Park, 401 U.S. at 410 (citation omitted)).  This Court has also ruled
that action is committed to agency discretion if that appears to be
the intent of Congress under the particular legislative scheme (Block
v. Community Nutrition Institute, 467 U.S. at 349, 351 (quoting Data
Processing Service v. Camp, 397 U.S. 150, 157 (1970)):

      The presumption favoring judicial review of administrative
      action is just that -- a presumption.  This presumption, like
      all presumptions used in interpreting statutes, may be overcome
      by specific language or specific legislative history that is a
      reliable indicator of congressional intent * * * (or) by
      inferences of intent drawn from the statutory scheme as a whole.
       * * * * * (T)he presumption favoring judicial review (is)
      overcome () whenever the congressional intent to preclude
      judicial review is "fairly discernible in the statutory scheme."

   /19/ In fact, the distinction is nonexistent.  Compare, App.,
infra, 2a-3a n.1 (anti-injunction statute does not apply because the
Secretary will not necessarily be required to "'carry out the
program'") with id. at 16a-17a (remand for district court to consider
injunction "compelling the Secretary to implement the SDPP").

   APPENDIX