RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0095p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GREGORY ACKERMAN,

Plaintiff,

ACKERMAN & SON, LLC, et al.,

Plaintiffs-Appellants,

v.

UNITED STATES DEPARTMENT OF AGRICULTURE, et al.,

Defendants-Appellees.

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No. 19-2056

Appeal from the United States District Court

for the Eastern District of Michigan at Bay City.

No. 1:17-cv-11779—Thomas L. Ludington, District Judge.

Argued: October 21, 2020

Decided and Filed: April 28, 2021

Before: GUY, CLAY, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL

ARGUED: Mark Granzotto, MARK GRANZOTTO, PC, Berkley, Michigan, for Appellants. 

Leif Overvold, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for 

Federal Appellees. ON BRIEF: Mark Granzotto, MARK GRANZOTTO, PC, Berkley, 

Michigan, John D. Tallman, JOHN D. TALLMAN, PLC, Grand Rapids, Michigan, for 

Appellants. Sarah E. Weiner, UNITED STATES DEPARTMENT OF JUSTICE, Washington, 

D.C., for Federal Appellees. Robert G. Kamenec, Elaine M. Pohl, PLUNKETT COONEY, 

Bloomfield Hills, Michigan, for Insurance Appellees.

KETHLEDGE, J., delivered the opinion of the court in which GUY, J., joined. CLAY, J. 

(pp. 10–19), delivered a separate dissenting opinion.

>
No. 19-2056 Ackerman, et al. v. United States Dep’t of Agric., et al. Page 2

_________________

OPINION

_________________

KETHLEDGE, Circuit Judge. To recite the facts in this case is essentially to decide it. 

The short version is that an agency within the Department of Agriculture summarily approved a 

proposed plan for dry-bean crop insurance in Michigan based upon the mistaken belief that the 

terms of the proposed endorsement for the Michigan policy were identical to the terms of the 

endorsement for a Minnesota policy that the agency had approved the year before. But the terms 

of the two endorsements were quite different, because the Michigan endorsement contained a 

different pricing mechanism—for determining the beans’ “harvest price”—than the mechanism 

the agency had approved as part of the Minnesota endorsement. That difference later caused 

significant harm to Michigan farmers who had purchased the coverage, some of whom then 

brought this suit. In the district court, the government compounded the agency’s mistake when it 

mistakenly told the district court that the pricing mechanisms in the Michigan and Minnesota 

endorsements were the same. Based in part upon that representation, the district court granted 

summary judgment to the government. On appeal, the government’s brief unhelpfully elides 

both mistakes rather than acknowledge them; but Plaintiffs’ counsel on appeal has made the 

existence of those mistakes clear enough. We therefore reverse in part the district court’s grant 

of summary judgment.

I.

A.

1.

For decades, beginning in the 1930s, the Federal Crop Insurance Corporation (FCIC) 

provided various forms of crop insurance directly to farmers. Congress expanded the 

crop-insurance program when it enacted the Federal Crop Insurance Act of 1980 (the Act), 

which for the first time allowed private actors to offer crop-insurance policies approved by the 

FCIC. Those policies include the Common Crop Insurance Policy (Common Policy), whose 

provisions are codified at 7 C.F.R. § 457.8. But the Act also allows private actors to propose 
No. 19-2056 Ackerman, et al. v. United States Dep’t of Agric., et al. Page 3

new types of crop insurance, which in some instances might “provide a new kind of coverage for 

a commodity that previously had no available crop insurance.” 7 U.S.C. § 1508(h)(3)(A)(ii)(III). 

These policies typically include an endorsement that modifies various terms of the Common 

Policy.

To obtain approval for a new kind of crop insurance, a private actor must submit an 

application to the FCIC. The application—called a 508(h) submission—must include, among 

other things, a detailed analysis of the new coverage’s utility and the text of the proposed 

policy’s terms. See 7 C.F.R. § 400.705. The FCIC then forwards the 508(h) submission “to at 

least five expert reviewers.” Id. § 400.706(b)(2). Thereafter the submission “shall be approved 

by the [FCIC]” if, among other things, the proposed policy “adequately protect[s]” farmers’ 

interests. 7 U.S.C. § 1508(h)(3)(A). 

Upon approval of a 508(h) submission, the applicant may offer the new coverage or 

license to other entities the right to offer it. See 7 C.F.R. § 400.712(l). When the coverage 

is offered to farmers, the FCIC publishes a “Handbook” for the policy, which “provides the 

FCIC-approved procedures for administering” the policy. The original applicant may thereafter 

propose changes to the policy, but the FCIC must review any “significant changes” as a new 

508(h) submission. See id. § 400.709(a)(2)(ii).

2.

As relevant here, federal crop insurance typically takes one of two forms: yield 

protection or revenue protection. The narrower form is yield protection, which “only provides 

protection against a production loss[,]” i.e., a smaller-than-expected harvest. 7 C.F.R. § 457.8. 

The broader—and more expensive—form is revenue protection, which “provides protection 

against loss of revenue due to a production loss, price decline or increase, or a combination of 

both.” Id. Revenue protection thus protects against losses from production or price. 

Typically, a farmer is entitled to payment under the price-protection component of a 

revenue-protection policy when the “harvest price” for the farmer’s crop falls short of the 

“projected price.” The harvest price is a measure of the actual market price for a crop during a 

particular crop year. The FCIC (or the Risk Management Agency (RMA), which oversees the 
No. 19-2056 Ackerman, et al. v. United States Dep’t of Agric., et al. Page 4

FCIC within the Department of Agriculture) determines a crop’s projected and market price each 

year, typically by utilizing data from commodities exchanges. Section 3(c)(5)(ii) of the 

Common Policy provides that, if data from the exchanges is insufficient for the agency to 

employ its usual methodology for a particular crop during a particular year, “[r]evenue protection 

will continue to be available[,]” and “[t]he harvest price will be determined and announced by 

FCIC”—presumably by making its best estimate based upon its expertise and the available 

information. 

B.

1.

In November 2011, an economic consulting firm, Watts and Associates, filed a lengthy 

508(h) submission for a pilot program of revenue insurance for dry beans in Minnesota and 

North Dakota (the “Minnesota 508(h) submission”). At that time, revenue insurance was 

unavailable for dry beans because they lacked a commodities exchange that could provide the 

data necessary to calculate projected and harvest prices. To remedy that deficiency, Watts 

suggested using data from sales by farmers directly to bean processors. Specifically, Watts 

proposed, the RMA would determine a particular type of bean’s projected price for a crop year 

based upon an average of prices offered by processors for that bean before the planting season; 

and the RMA would determine the harvest price for that bean based upon market prices reported 

weekly (September through November) in the Bean Market News, a Department publication. 

Yet Watts acknowledged that, in the past, even the Bean Market News had occasionally reported 

little or no data as to those market prices. In that event, the proposed endorsement would do 

exactly what the Common Policy did: provide that the “harvest price will be determined and 

announced by FCIC[.]” Watts’s proposed Handbook for the policy likewise provided that, in the 

event of insufficient data from the Bean Market News, the RMA would set the harvest price.

The Board referred Watts’s proposal for expert review, which for the most part was 

positive. In March 2012, the Board approved the proposal—including provisions in both the 

endorsement and the Handbook stating that, if data from the Bean Market News proved 

insufficient to support a determination of a bean’s harvest price, the FCIC (or the RMA) would 

determine that price.
No. 19-2056 Ackerman, et al. v. United States Dep’t of Agric., et al. Page 5

Yet for reasons that are obscure on this record, the policies actually sold to Minnesota 

and North Dakota bean farmers did not include those same provisions from the approved 

endorsement and Handbook. Quite the contrary: the endorsement for the policies sold in those 

states provided that, in the event of insufficient data from the Bean Market News, “the harvest 

price will be equal to the projected price.” (Emphasis added.) As a result, the pricing 

mechanism in these policies would simply default to the projected price—which would make the 

revenue protection virtually worthless, since for the most part that coverage requires payment to 

the farmer only when the harvest price falls below the projected price. 

Meanwhile, in July 2013, Watts applied to have its Minnesota and North Dakota pilot 

program expanded to Michigan (the “Michigan 508(h) submission”). The Michigan 508(h) 

submission included a proposed endorsement with the same pricing mechanism (default to the 

projected price) that had inexplicably made its way into the Minnesota and North Dakota 

policies. The pricing mechanism was therefore different than the pricing mechanism (the agency 

determines the harvest price) that the FCIC had actually approved as part of the Minnesota 

508(h) submission. Under the agency’s own regulations, that difference between approved and 

proposed pricing mechanisms constituted a “significant change” requiring plenary review by the 

agency and its experts. See 7 C.F.R. § 400.701. Moreover, the proposed Handbook for the 

Michigan expansion did include the pricing mechanism that the FCIC approved as part of the 

Minnesota 508(h) submission—thereby creating an intra-submission discrepancy in addition to 

the inter-submission one. Yet the FCIC missed these discrepancies and waved through the 

proposed expansion on the ground that it amounted to a “non-significant” change.

2.

During the 2015 crop year, Michigan bean farmers bought 1,286 revenue-protection 

policies pursuant to the expansion of the Watts pilot program. That year brought a bountiful 

bean harvest, which apparently caused harvest prices to fall well below projected prices—

precisely the contingency for which the farmers had bought revenue protection. But that year the 

Bean Market News published too little data to support a determination of harvest prices. Under 

those circumstances, the Handbook for the Michigan policies (like the Common Policy) provided 

that the agency itself would determine the harvest price. But the endorsement for the Michigan 
No. 19-2056 Ackerman, et al. v. United States Dep’t of Agric., et al. Page 6

policies provided that, under these circumstances, the harvest price “will be equal to the 

projected price”; and in the event of a conflict between these documents, the FCIC concluded, 

the endorsement controlled. The farmers who bought these policies were thus left 

empty-handed.

3.

Plaintiffs (the “farmers”)—all of whom are dry bean farmers in Michigan—thereafter 

brought this suit against the Department of Agriculture, the FCIC, certain third-party insurers, 

and Watts itself. The district court dismissed without prejudice the claims against Watts and the 

insurers, on grounds not relevant here. (The farmers do not challenge either dismissal.) The 

government then moved for summary judgment on the farmers’ claims against the Department of 

Agriculture and the FCIC. In support of that motion, as mentioned above, the government told 

the district court that the default pricing mechanisms in the Michigan 508(h) submission and in 

the “approved” Minnesota 508(h) submission were the same.

That representation was false. The government’s brief in support of its 

summary-judgment motion asserted that the proposed endorsement approved as part of the 

Minnesota 508(h) submission provided as follows:

(2) If the harvest price cannot be calculated for the crop year for a type for which 

a projected price was determined in accordance with section 7 of this 

endorsement, the harvest price will be equal to the projected price.

(Emphasis added by the government.)

But that language—especially the bolded part—was not part of the Minnesota 508(h) 

submission. Instead, the quoted language came from the endorsement for policies actually sold

in Minnesota—which, as noted above, inexplicably departed from the endorsement language 

approved as part of the Minnesota 508(h) submission. The relevant endorsement language 

actually approved as part of the Minnesota 508(h) submission was as follows:
No. 19-2056 Ackerman, et al. v. United States Dep’t of Agric., et al. Page 7

(2) If the harvest price as defined cannot be calculated for the crop year for a type 

for which a projected price was determined in accordance with the definition:

(i) A harvest price will be determined and announced by FCIC in lieu of 

the terms contained in the definition of harvest price[.]

(Emphasis added.)

The default pricing mechanisms in the Michigan and Minnesota 508(h) submissions were 

therefore different—indeed different in a way that proved critical when dry-bean prices fell 

sharply two years later. Based on the government’s mistake, however, the district court assumed 

that the two pricing mechanisms were the same; and in part for that reason, the district court 

granted summary judgment in favor of the government. This appeal followed.

II.

We review de novo the district court’s grant of summary judgment to the government. 

See Ky. Waterways All. v. Johnson, 540 F.3d 466, 473 (6th Cir. 2008). The farmers’ primary 

argument on appeal is that the FCIC’s approval of the Michigan 508(h) submission was 

“arbitrary, capricious,” and done “without observance of procedure required by law[.]” 5 U.S.C. 

§ 706(2)(A), (D). 

The premise of that argument is that the Michigan 508(h) submission included a 

“significant change” from the Minnesota 508(h) submission that the FCIC had approved the year 

before. The farmers are indisputably correct about that: the agency’s own regulation expressly 

defines “significant change” to include “[a]ny change” in “pricing methodologies[.]” 7 C.F.R. 

§ 400.701. And the Michigan 508(h) submission included a different pricing methodology than 

the Minnesota one: as recited above, the endorsement included as part of the Michigan 508(h) 

submission provided that, in the event of inadequate data from the Bean Market News, the 

“harvest price will be equal to the projected price;” whereas the endorsement in the Minnesota 

508(h) submission provided that, in that same event, the “harvest price will be determined and 

announced by FCIC[.]” (Emphasis added.) The Michigan provision thus required the agency to 

declare the harvest price to be the projected price—thereby rendering the revenue protection in 

that event essentially worthless, as the FCIC itself acknowledged in a 2016 letter to the Michigan 

farmers; whereas the Minnesota submission afforded the FCIC discretion to determine a harvest 
No. 19-2056 Ackerman, et al. v. United States Dep’t of Agric., et al. Page 8

price of its own. Yet the FCIC found that the Michigan 508(h) proposal presented only 

“non-significant changes” to the Minnesota one. 

The government responds that the farmers have waived (by which the government means 

forfeited) any argument that the Michigan 508(h) submission proposed significant changes to the 

Minnesota one. That assertion amounts to a claim that the farmers took too long to catch the 

government’s mistake in the district court. That mistake, by all appearances, was inadvertent; 

and one might have hoped that the Department of Justice would have confessed error on this 

point in its brief on appeal. But instead the government has studiously elided the point, never 

quoting the relevant text from the Minnesota 508(h) submission or otherwise recognizing any 

difference between the pricing mechanisms in the Minnesota and Michigan submissions. See

Gov’t Br. at 10-11, 36-37. This court has therefore been left to “conduct the equivalent of an 

archaeological dig” through the record to demonstrate the government’s mistake. John B. v. 

Emkes, 710 F.3d 394, 406 (6th Cir. 2013). Under these circumstances, suffice it to say, we will 

exercise our discretion to consider the farmers’ argument on the merits. See generally Golden v. 

Kelsey-Hayes Co., 73 F.3d 648, 658 (6th Cir. 1996). 

The merits themselves are straightforward. As shown above, the agency 

violated 7 C.F.R. § 400.701 when it found that the Michigan 508(h) proposal presented only 

“non-significant changes” to the Minnesota one. (A September 2016 revision to § 400.701 is 

inapposite here.) Again the mistake was by all appearances inadvertent: the FCIC appears 

simply not to have realized that the endorsements in the Michigan and Minnesota 508(h) 

proposals included different default pricing mechanisms. That change was plainly “significant,” 

so the agency was required to treat the Michigan submission as “a new 508(h) submission” and 

to “forward the complete 508(h) submission to at least five expert reviewers[.]” 7 C.F.R. 

§§ 400.709, 400.706. The FCIC did neither of those things, so its approval of the Michigan 

submission was done “without observance of procedure required by law[.]” 5 U.S.C. 

§ 706(2)(D).

The record likewise makes clear that, because of the same mistake, the agency did not 

adequately consider the impact of the default pricing mechanism in the Michigan 508(h) 

submission. Nor did the agency adequately consider whether “the interests of producers [were] 
No. 19-2056 Ackerman, et al. v. United States Dep’t of Agric., et al. Page 9

adequately protected” by that submission. 7 U.S.C. § 1508(h)(3)(A)(i). The agency’s approval 

of the submission was therefore arbitrary and capricious. See Encino Motorcars, LLC v. 

Navarro, 136 S. Ct. 2117, 2125 (2016).

The government responds that the FCIC did consider the risk that the Bean Market News 

would report insufficient data to support a determination of harvest price in a particular crop 

year. But the FCIC was obligated to analyze not only the magnitude of that risk, but also what to 

do if that risk materialized. The FCIC was therefore required to analyze the Michigan default 

pricing mechanism directly, in light of the interests spelled out in § 1508(h)(3)(A). The agency 

did not do that here. 

We therefore reverse the district court’s grant of summary judgment in favor of the 

government on Count II of the farmers’ Amended Complaint. We affirm the court’s grant of 

summary judgment on Count I because the farmers’ argument as to that count—that the agency 

should have interpreted the text of the Michigan default pricing provision to afford the agency 

discretion to make its own determination of harvest prices—is plainly without merit.

* * *

The district court’s July 12, 2019 Order is affirmed in part and reversed in part, and the 

case is remanded for further proceedings consistent with this opinion.
No. 19-2056 Ackerman, et al. v. United States Dep’t of Agric., et al. Page 10

_________________

DISSENT

_________________

CLAY, Circuit Judge, dissenting. The majority opinion begins with the broad 

pronouncement that “[t]o recite the facts in this case is essentially to decide it.” Majority Op. at 

1. This introduction foreshadows the majority’s focus on the “facts” as it sees them at the 

expense of any significant legal analysis. Two related errors are critical to the majority’s 

decision to reverse the district court’s grant of summary judgment to the government defendants. 

First is the failure to accord proper deference to the Federal Crop Insurance Corporation’s 

(“FCIC”) determination that the expansion of the dry bean crop insurance pilot to Michigan was 

a non-significant change. Second, the reversal is not based on a review of the whole record, but 

rather is limited to the evidence that supports the majority’s conclusion. I respectfully dissent 

and would affirm the district court’s judgment dismissing Plaintiffs’ suit in its entirety. 

I. Background

The facts in this case are not as straightforward as the majority asserts. The federal crop 

insurance program is complex, and Plaintiffs’ claims require review of multiple agency decisions 

under that regime. See, e.g., Helena Agri-Enters., LLC v. Great Lakes Grain, LLC, 988 F.3d 

260, 269-70 (6th Cir. 2021) (describing “complex regulations [that] govern the use of crop 

production histories” by the FCIC). Moreover, as the majority rightfully emphasizes, the 

government’s filings before the district court were inaccurate on a critical point, which, despite 

Plaintiffs’ raising of the issue, the government did not attempt to address or clarify on appeal, 

complicating this Court’s task.1

This case arises out of an effort to make revenue protection insurance available to farmers 

of dry beans (black, dark red kidney, navy, pinto, and small red beans). Revenue protection 

insures farmers against price fluctuations, in addition to providing coverage against production 

1The majority also correctly points out that the September 2016 version of the crop insurance regulations 

that the government cites on appeal and appended to its brief does not apply in this case challenging agency 

decisions from 2015 and earlier. See Moses v. Providence Hosp. & Med. Ctrs., Inc., 561 F.3d 573, 583–84 (6th Cir. 

2009) (describing presumption against applying a regulation “to events arising prior to the regulation’s enactment”). 
No. 19-2056 Ackerman, et al. v. United States Dep’t of Agric., et al. Page 11

loss. There are two types of revenue protection: one simply called “revenue protection” and 

“revenue protection with harvest price exclusion.” 7 C.F.R. § 457.8. Plaintiffs here purchased 

the latter type to protect themselves against the risk that the market price for their crops would 

fall. Revenue protection of either kind was not previously available for producers of dry beans 

because there is no futures market for these commodities, which is the traditional source of 

determining projected and harvest prices, which, in turn, are critical components of calculating 

the indemnity under a revenue protection policy. 

On July 8, 2010, a consulting firm, Watts and Associates, Inc. (“Watts”) filed a concept 

proposal under 7 U.S.C. § 1508(h) with the FCIC to provide revenue protection for dry beans. 

Watts proposed a pilot program in certain counties in Minnesota and North Dakota that would 

use data collected by an industry group to determine the projected price. As for the harvest 

price, Watts sought to use weekly price data based on actual cash sales of the crops, as reported 

in the Agricultural Marketing Service’s (“AMS”) Bean Market News, a government publication.

On August 12, 2010, the FCIC referred Watts’ proposal to two experts for review, both of 

whom agreed the proposal should be submitted to the board of the FCIC (“the Board”) for 

further development. Both experts recognized the innovation of Watts’ submission was its effort 

to calculate projected and harvest prices in the absence of a futures market for the crops. One of 

the expert reviewers, however, specifically asked, “[W]hat would happen to the proposed 

methodology and insurance program if the AMS stopped providing weekly prices?” (Admin. R., 

R. 83-3, Page ID #2624.) Watts answered the expert’s question in its dry bean “Crop Revenue 

Pilot Program” submission to the FCIC in October 2011, which was revised in November 2011.

That submission, in a section entitled “Rating Methods,” described using certain data 

from the AMS Bean Market News to determine “the harvest price estimate.” (Id. at Page ID 

#2830.) After concluding that “[t]he timely publishing of prices makes AMS prices useful as a 

harvest price option,” Watts recognized there could be issues with relying on AMS data because

“there have been occasions in recent years where AMS has failed to report prices for some types 

[of dry beans] during the September through November marketing period.” (Id.) Watts further 

noted that “[i]f AMS prices are to be used as part of the insurance policy, contingency 

procedures will need to be developed to handle situations where AMS prices are not available.” 
No. 19-2056 Ackerman, et al. v. United States Dep’t of Agric., et al. Page 12

(Id.) It went on to state that the contingency “[t]he developer recommends [is] that the projected 

price be substituted for any missing AMS monthly harvest price observations.” (Id.) 

The November 2011 submission also included a policy document entitled “Dry Bean 

Crop Provisions,” which endorsed a different contingency plan in the event that insufficient 

AMS Bean Market News data was produced. That document stated that “[i]f the harvest price as 

defined cannot be calculated for the crop year . . . [, a] harvest price will be determined and 

announced by FCIC in lieu of the terms contained in the definition of harvest price . . . .” (Id. at 

Page ID #2924.) That same submission also contained a document titled “Dry Bean Revenue 

Program Insurance Standards Handbook,” which endorsed yet another contingency in the event 

that the AMS Bean Market News failed to publish the data necessary for determining the harvest 

price. The handbook stated that “[i]f a harvest price cannot be determined as described by its 

definition but a projected price was established according to its definition, RMA will establish 

the harvest price.” (Id. at Page ID #2953.) “RMA” refers to the Risk Management Agency, the 

agency within the U.S. Department of Agriculture which manages the FCIC. The FCIC 

approved Watts’ submission for additional expert review on November 17, 2011. 

One of the expert reports considered what would happen under Watts’ submission if 

AMS failed to report a harvest price for dry beans. On this expert’s view, the policy of Watts’ 

submission was that “[i]f AMS fails to report a price for September, October, or November, the 

submitter proposes to substitute the projected price for the missing month when calculating 

harvest price,” that is, the contingency plan described in the “Ratings Method” section of the 

submission, not in the crop provisions document or handbook. (Id. at Page ID #3176.) The 

expert further explained that “[i]n the extreme case where AMS fails to report a price for 

September, October, and November[,] the harvest price would be equal to the projected price and 

the revenue insurance product (with or without the harvest price exclusion) would revert to a 

yield insurance product.” (Id.) The report then described exactly what happened in 2015 in 

Michigan: “In this extreme case, insured growers would pay for revenue insurance coverage but 

would only receive yield insurance coverage.” (Id.) The expert recognized “the need to have a 

contingency plan for situations when AMS fails to report a price. However, it seems unfair to 
No. 19-2056 Ackerman, et al. v. United States Dep’t of Agric., et al. Page 13

growers who pay for revenue insurance for that contingency plan to effectively shift the policy 

away from revenue coverage and toward yield coverage.” (Id.)

Watts presented its submission to the Board on March 1, 2012. In a PowerPoint 

presentation, Watts included a slide that recognized “AMS has not reported some types in the 

past” and explained that, in such cases, the harvest price would be determined by 

“[s]ubstitut[ing] projected price – convert[ing] to yield policy.” (Id. at Page ID #2670.) In an 

executive summary also submitted for the Board’s consideration on March 1, 2012, Watts 

addressed a number of issues raised by external reviewers (i.e., experts) and the RMA. (Admin. 

R., 83-4, Page ID #3376.) Under the heading of “General Concerns,” Watts noted, again, 

“[t]here have been occasions in the past when AMS prices have not been available.” (Id. at Page 

ID #3378.) It then, consistent with other materials submitted to the Board, stated: “The 

submission indicates that if this situation arises in the future, the projected price will be 

substituted for the harvest price which essentially converts the revenue offer to yield protection 

with the insured paying the premium for revenue coverage but only getting yield coverage.” 

(Id.) On March 1, 2012, the Board, “pursuant to the information” contained in the executive 

summary and “other material[s] that were submitted to the Board on this matter,” approved 

Watts’ dry bean revenue proposal for Minnesota and North Dakota, granting RMA “the authority 

to make such technical policy changes as are necessary to make the policy legally sufficient.” 

(Id. at Page ID #3435.) 

The dry bean revenue endorsement that was sold to Minnesota and North Dakota farmers 

for the 2013 crop year explained that “[i]f the harvest price cannot be calculated for the crop year 

. . . , the harvest price will be equal to the projected price.” (See id. at Page ID #3437.) 

However, the insurance standards handbook for that policy year still stated that “[i]f a harvest 

price cannot be determined for black beans, dark red kidney beans, navy beans, and pinto beans 

. . . , RMA will establish the harvest price.” (Admin. R., R. 83-3, Page ID #2370.)

In July 2013, Watts submitted a maintenance package to the Board, which sought to 

expand the dry bean revenue endorsement into Michigan. Watts explained that it was providing 

“a scaled-back completed 508(h) submission” because “the Dry Bean Revenue Endorsement is 

currently in service and this package serves to expand the product into Michigan . . . .” (Admin. 
No. 19-2056 Ackerman, et al. v. United States Dep’t of Agric., et al. Page 14

R., R. 83-4, Page ID #4110.) Watts specifically noted that “[m]any of the program materials 

required are the same as for the existing, approved Dry Bean Revenue Endorsement program. 

Accordingly, many of the issues related to this expansion package were addressed in the original 

Pulse Crop Submission to the FCIC Board in 2012.” (Id.)

Like the previous submission, the 2013 maintenance package stated that “[i]f there is not 

an adequate amount of data” from the AMS Bean Market News, “then the harvest price will 

equal the projected price for that type” of dry bean. (Id. at Page ID #4216.) Watts explained that 

while it “does not anticipate this problem occurring often because we have been assured by AMS 

that more constant and reliable data will be presented in future years,” it was “important to 

provide a mechanism for determining harvest prices in data-sparse events.” (Id.) Watts 

summarized its proposal as simply an expansion to Michigan using an identical method for 

calculating projected price and harvest price “to the one in existence . . . .” (Id.)

Included in the maintenance package was a copy of the “Dry Bean Revenue 

Endorsement,” which, as relevant here, was identical to what had been sold in Minnesota and 

North Dakota and provided that “[i]f the harvest price cannot be calculated . . . , the harvest price 

will be equal to the projected price.” (Id. at Page ID #4173.) The insurance standards handbook 

submitted with the maintenance package still stated that if a harvest price could not be 

calculated, “RMA will establish the harvest price.” (Id. at Page ID #4195.)

On August 8, 2013, the Board “determined the requested expansion is non-significant and 

the submission does not require expert review,” approving the revenue protection program in 

Michigan beginning with the 2014 crop year. (Id. at Page ID #4258.) 

In 2015, there was a bumper, or unusually productive, bean crop both in the United States 

and in bean importing countries. Since there was very little product moving, many entities 

stopped reporting prices to AMS. As a consequence, there was no harvest price established for 

dark red kidney beans, navy beans, small red beans, or pinto beans in Michigan in 2015.2

According to the terms of the Dry Bean Revenue Endorsement that the Michigan farmers had 

2Only navy and small red beans are at issue in this suit. 
No. 19-2056 Ackerman, et al. v. United States Dep’t of Agric., et al. Page 15

purchased, the harvest price was set equal to the projected price, effectively meaning that those 

who had paid additional premiums for revenue protection were left only with yield protection. 

II. Standard of Review

“When a district court upholds on summary judgment an administrative agency’s final 

decision under the Administrative Procedure Act, this court ‘review[s] the district court’s 

summary judgment decision de novo, while reviewing the agency’s decision under the arbitrary 

and capricious standard.’” City of Cleveland v. Ohio, 508 F.3d 827, 838 (6th Cir. 2007) 

(alteration in original) (Coal. for Gov’t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 

457 (6th Cir. 2004)). We may affirm the grant of summary judgment on any ground supported 

by the record, even if that differs from the reasoning of the district court. Thomas v. City of 

Columbus, 854 F.3d 361, 364 (6th Cir. 2017). 

The FCIC’s decision is reviewed under the arbitrary and capricious standard despite the 

fact that claims, like Plaintiffs’, brought under 5 U.S.C. § 706(2)(A), (D) for agency action not 

taken “in accordance with law” or “without observance of procedure required by law” are 

generally reviewed de novo. Coal. for Gov’t Procurement, 365 F.3d at 457. Abuse of discretion 

review is appropriate here because “even in cases arising under § 706(2)(D), our review as a 

practical matter is often more deferential than that [i.e., de novo]. The reason is that the question 

whether a certain procedure is required in a particular circumstance, or whether a certain 

methodology satisfies the procedure is often left to the agency’s discretion.” Meister v. U.S. 

Dep’t of Agric., 623 F.3d 363, 370 (6th Cir. 2010). This is one of those cases. In Marsh v. 

Oregon Natural Resources Council, 490 U.S. 360, 375 (1989), the Supreme Court held in 

administrative review actions under the “in accordance with law” clause of § 706(2)(A) and 

§ 706(2)(D), the question of “significan[ce]” “is a classic example of a factual dispute the 

resolution of which implicates substantial agency expertise.” Accordingly, the Board’s 

determination that the Michigan expansion was a non-significant change from the Minnesota and 

North Dakota pilot “should not be set aside” unless it was “arbitrary and capricious . . . .” Id. at 

377. 
No. 19-2056 Ackerman, et al. v. United States Dep’t of Agric., et al. Page 16

Under arbitrary and capricious review, “a court is not to substitute its judgment for that of 

the agency and should uphold a decision of less than ideal clarity if the agency’s path may 

reasonably be discerned.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 514 (2009) 

(cleaned up); see also Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (same). 

A decision is arbitrary and capricious if the agency has “entirely failed to consider an important 

aspect of the problem . . . .” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658 

(2007) (citation omitted). 

We have also held that “an agency’s violation of its procedural rules will not result in 

reversible error absent a showing that the claimant has been prejudiced on the merits or deprived 

of substantial rights because of the agency’s procedural lapses.” Wilson v. Comm’r of Soc. Sec., 

378 F.3d 541, 547 (6th Cir. 2004) (quoting Connor v. U.S. Civ. Serv. Comm’n, 721 F.2d 1054, 

1056 (6th Cir. 1983)); see also Wollschlager v. Fed. Deposit Ins. Corp., --- F.3d ---, 2021 WL 

1204969, at *5 (6th Cir. Mar. 31, 2021) (recognizing that § 706 requires a reviewing court to 

take “due account . . . of the rule of prejudicial error”). 

III. Discussion

The FCIC’s determination that Watts’ proposal to expand the revenue insurance pilot to 

Michigan was a non-significant change was not an abuse of discretion. Accordingly, the 

determination that additional expert review was not required was “in accordance with law” and 

in “observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D). Similarly, the Board 

did not fail to consider whether Watts’ submission “adequately protected” the interests of 

farmers. 7 U.S.C. § 1508(h)(3)(A)(i). 

The majority errs because of its narrow focus on one part of Watts’ 2011 and 2013 

submissions, the so-called “endorsement.”3 The majority is correct that the version of the dry 

bean revenue crop provisions originally proposed for Minnesota and North Dakota stated that 

“[i]f the harvest price as defined cannot be calculated for the crop year for a type for which a 

projected price was determined in accordance with the definition . . . [, a] harvest price will be 

3Technically, Watts’ original submission included a full policy, which was later condensed to an 

endorsement to RMA’s basic crop insurance provisions. 
No. 19-2056 Ackerman, et al. v. United States Dep’t of Agric., et al. Page 17

determined and announced by FCIC in lieu of the terms contained in the definition of harvest 

price . . . .” (Admin R., R. 83-3, Page ID #2924.) In contrast, the copy of the dry bean revenue 

endorsement submitted with the maintenance package in support of Watts’ request to expand the 

program to Michigan stated that, under the same circumstances (i.e., when a harvest price could 

not be calculated under the normal methods), “the harvest price will be equal to the projected 

price.” (Admin. R., R. 83-4, Page ID #4173.)

As the majority also recognizes, Watts’ 2011 submission was “lengthy”—nearly 350 

pages. Majority Op. at 4. But its analysis focuses only on the proposed “endorsement,” which 

would have had the FCIC set the harvest price in the event that insufficient AMS Bean Market 

News data was published, and the insurance standards handbook, which provided yet another 

different contingency method—that the RMA would set the harvest price under the same 

scenario. This was incorrect. Watts’ 2011 submission proposed that if the harvest price could 

not be determined, the harvest price would be set equal to the projected price, providing neither 

the FCIC or the RMA any discretion. Under the Administrative Procedure Act (“APA”), “the 

court shall review the whole record” in determining whether an agency action was “not in 

accordance with law” or “without observance of procedure required by law . . . .” 5 U.S.C. 

§ 706(2)(A), (D). We have interpreted this provision of the APA as a requirement that “courts 

‘review the whole record’ compiled by the agency when evaluating the lawfulness of an agency 

decision . . . .” Klein v. U.S. Dep’t of Energy, 753 F.3d 576, 580 (6th Cir. 2014) (quoting 

§ 706(2)).

The majority’s analysis ignores multiple pieces of evidence indicating that when the 

Board approved the revenue insurance pilot in 2012, the Board was approving a policy under 

which, if the harvest price could not be calculated, the harvest price would be set equal to the 

projected price. Watts’ 2011 submission declared that “[i]f AMS prices are to be used as part of 

the insurance policy, contingency procedures will need to be developed to handle situations 

where AMS prices are not available. The developer recommends that the projected price be 

substituted for any missing AMS monthly harvest observations.” (Admin. R., R. 83-3, Page ID 

#2830.) While the majority recognizes that Watts’ proposal was referred for expert review, it 

does not discuss how one group of those experts explicitly critiqued what it understood as Watts’ 
No. 19-2056 Ackerman, et al. v. United States Dep’t of Agric., et al. Page 18

proposal “to substitute the projected price for the missing month when calculating harvest price” 

in the event of insufficient AMS data. (Id. at Page ID #3176.)

Not only did the Board know that substituting the projected price for the harvest price 

was Watts’ contingency plan, but the Board also knew the potential consequences of that 

proposal—that farmers’ revenue protection could be converted to yield protection. The same 

expert report stated that “it seems unfair to growers who pay for revenue insurance for that 

contingency plan to effectively shift the policy away from revenue coverage and toward yield 

coverage.” (Id.) There is also no mention in the majority opinion of Watts’ submission of 

materials to the Board recognizing concerns about AMS price data availability and responding 

that “if this situation arises in the future, the projected price will be substituted for the harvest 

price which essentially converts the revenue offer to yield protection with the insured paying the 

premium for revenue coverage but only getting yield coverage.” (Admin. R., R. 83-4, Page ID 

#3378.) The majority also ignores the PowerPoint presentation that Watts prepared for the 

Board in February 2012, which explained that, if AMS failed to report sufficient data, Watts’ 

revenue protection would essentially be converted into a yield policy. 

Given these multiple submissions by Watts and the understanding of experts, particularly 

in light of the deference owed an agency determination in this context, I would defer to the 

Board’s determination that the 2013 expansion of the revenue protection program for dry beans 

was a non-significant change. The policy considered and approved by the Board in March 2012 

for the Minnesota and North Dakota pilot sought to substitute the projected price for the harvest 

price in the event that AMS did not publish sufficient data. Accordingly, the Board was not 

required to treat the Michigan expansion as a new submission, with all that entails, including 

referral to five independent experts. See 7 C.F.R. § 400.709(a)(2)(ii) (2012) (“Significant 

changes must be submitted to the Board for review in accordance with this subpart and will be 

considered as a new submission[.]”). 

IV. Conclusion

Under arbitrary and capricious review, “our role is limited to reviewing the 

administrative record ‘to determine whether there exists a rational connection between the facts 
No. 19-2056 Ackerman, et al. v. United States Dep’t of Agric., et al. Page 19

found and the choice made.’” Nat’l Truck Equip. v. Nat’l Highway Traffic Safety Admin., 

711 F.3d 662, 667 (6th Cir. 2013) (quoting Alliance for Cmty. Media v. F.C.C., 529 F.3d 763, 

786 (6th Cir. 2008)). “The facts found, of course, must be supported by substantial evidence in 

the record as a whole.” Id. Deference when reviewing agency action means the question 

presented here is whether there was sufficient evidence in the record to support the agency’s 

determination that the Michigan expansion was a non-significant change that did not require 

reconsideration as a new submission, not whether there is evidence in the record to the contrary.

See id. at 669. The majority mistakenly asks and answers the second question. I dissent.