United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-1655

No. 07-1749

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American Growers Insurance Company, *

*

Plaintiff - Appellee/ *

Cross-Appellant, *

* Appeals from the United States

v. * District Court for the 

* Southern District of Iowa.

Federal Crop Insurance Corporation, *

A corporation within the United States *

Department of Agriculture; Risk *

Management Agency, an agency of and *

within the United States Department of *

Agriculture, *

*

Defendants - Appellants/ *

Cross-Appellees. * 

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Submitted: March 12, 2008

Filed: July 15, 2008

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Before MURPHY, ARNOLD, and BENTON, Circuit Judges.

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MURPHY, Circuit Judge.

This action was brought by federal crop insurance provider American Growers

Insurance Company (Insurer), alleging that the Federal Crop Insurance Corporation

(FCIC) erred under 7 U.S.C. § 1508(j)(3) by adding prevented planting coverage to
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basic federal crop insurance policies without increasing the premium rate that the

insurance company could charge. Both sides filed motions for summary judgment.

The district court granted summary judgment in favor of the FCIC for crop year 1996

and in favor of Insurer for crop year 1997, awarding it $950,025 in damages. Both

sides appeal. We reverse.

I.

A.

In 1938 Congress passed The Federal Crop Insurance Act, 7 U.S.C. §§ 1501 et

seq. The Act created the federal crop insurance program, which is administered and

regulated by the FCIC. The United States Department of Agriculture's Risk

Management Agency was created by Congress in 1996 to operate and manage the

FCIC; the two entities are referred to here jointly as the FCIC. The multiple peril crop

insurance (MPCI) policies offered under the Act cover numerous risks to crops

including fire, flood, drought, and other natural disasters. The FCIC directly provided

crop insurance policies to producers until 1980 when the Act was amended. The

FCIC then began to contract with approved private insurance companies to offer the

policies to producers. 7 U.S.C. § 1507(c). Insurer is one of the approved insurance

companies. 

The Act, and related regulations issued by the Secretary of Agriculture in 7

C.F.R. Part IV, give the FCIC significant control over all aspects of the federal crop

insurance program. One way in which it exerts this control is by executing a

cooperative financial assistance agreement called a standard reinsurance agreement

(SRA) with each approved insurance company. The SRA authorizes the insurer to sell

and service federal crop insurance policies and obligates the FCIC to reinsure the

policies, but only if they are "written on terms, including premium rates, approved by

[the FCIC]." 7 C.F.R. § 400.166(a) (emphasis added). The FCIC and Insurer
1

A crop year begins on July 1 and ends on June 30; thus crop year 1996 began

on July 1, 1995 and ended on June 30, 1996.

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executed an SRA for the 1996 crop year1

 and renewed it for all crop years at issue in

these appeals. Pursuant to the terms in Section III of the SRA, the FCIC subsidizes

the premiums paid to Insurer by producers, and under Section IV it compensates

Insurer for administrative and operating expenses, calculated as a percentage of the

premiums charged to producers. Insurer profits mainly from these administrative and

operating expense reimbursements, as well as from underwriting gains when

premiums exceed claims paid. 

The FCIC develops the premium rates which insurers may charge on MPCI

policies. Rates are developed for each crop within a geographic area, usually a

county. The Act requires that the FCIC set premium rates at a level which it

determines to be "actuarially sufficient" to attain a given ratio of anticipated loss

claims to the premiums expected to be collected for the entire crop insurance program

each year. 7 U.S.C. § 1508(d)(1). The FCIC is also required to "take such actions as

are necessary to improve the actuarial soundness of federal multiple peril crop

insurance." § 1506(o). 

The ratemaking process is complex, but it starts with the calculation of the

expected crop loss ratio, by crop and by county. That ratio represents the amount of

loss claims the FCIC predicts insurers will have to pay relative to their total potential

liability. To calculate this ratio, FCIC actuaries look at historical annual crop loss data

from each county. For each year of available data, total claims paid are divided by the

total potential liability to determine the historical annual loss cost ratio for each crop

in a county. For any year in which a crop was severely affected and loss claims in the

county were unusually high, the ratio is capped so as to minimize the impact of

unusual events on the overall expected ratio for that county (the "state excess"

described below). The expected loss cost ratio for a county is determined by
2

Some of Insurer's original claims related to additional prevented planting

coverage. With such coverage a producer who is prevented from planting receives

from its insurer a lower rate of compensation than under basic prevented planting

coverage, but is allowed to plant a different crop in the same field for that same

growing season. Insurer appeals only issues related to basic prevented planting

coverage.

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averaging these adjusted annual loss cost ratios, and factoring in the average loss cost

ratios of the surrounding counties.

The expected loss cost ratio or loss cost rate is the major component of the

overall MPCI premium rate, but there are several others. Another component allows

for a reasonable reserve in the event of unusually high loss claims, calculated by

dividing the expected loss cost rate by a factor less than 1.0. Another is the state

excess premium rate, which represents the statewide aggregate of all historically

aberrant loss amounts distributed back to the counties to spread the impact of aberrant

losses. Yet another is the basic prevented planting premium rate at issue here. While

typical MPCI coverage applies to a crop which is planted but then destroyed by a

natural disaster, basic prevented planting coverage applies when a producer is

prevented from planting a crop by the end of the traditional planting period because

of a natural disaster such as flooding. The producer is reimbursed for a percentage of

the estimated crop yield value, but may not plant another crop in that field during the

same growing season.2

Prevented planting coverage was an optional coverage which producers could

purchase in addition to an MPCI policy until the 1994 crop year, when the FCIC

added it to every MPCI policy. Unlike expected loss cost ratios which are developed

at a county level, prevented planting rates are developed for two or three major

regions of the country, depending on the crop. Two memoranda authored by an FCIC

actuary show that in developing the prevented planting premium rates for the 1994

crop year, the FCIC considered data regarding prior prevented planting claims and
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expectations for rainfall and relative humidity. For regions of the country where the

likelihood of natural disasters was high, the prevented planting premium rate was set

at 0.2 or 0.4 percent. In the arid Western region covering most states west of the

Mississippi, however, the FCIC assigned a 0.0 percent prevented planting premium

rate for the 1994 crop year. As a result, insurers issuing MPCI policies in the Western

region for 1994 were providing prevented planting coverage, but the overall premium

rate charged to producers was the same as if prevented planting coverage were not

included. The FCIC kept the prevented planting premium rate for the Western region

at 0.0 percent for crop year 1995. 

During the spring of 1995 parts of several states in the Western region

experienced excessive rain and flooding which prevented producers from planting

insured crops by the final spring planting date. Data regarding claims for losses from

this flooding were not available to the FCIC at the time it set premium rates for crop

year 1996, and the FCIC kept the prevented planting premium rate at 0.0 percent. 

 The 1995 flood data was available before the 1997 premium rates were set, but

in April 1996 the FCIC decided to limit its 1997 premium rate reviews to the most

serious problem areas. It decided to direct most of its resources that year toward

reengineering its entire ratemaking process. That included improving the flow of

information between offices, increasing the accuracy of data utilized to make rates,

and reviewing certain of its ratemaking methodologies. 

The prevented planting premium rates were deemed not to be a problem area

and therefore remained at 0.0 percent for crop year 1997. In 1998 the FCIC increased

the prevented planting premium rate for the Western region to 0.2 percent. The FCIC

said that this increase was based in part on quantitative historical information and also

on some qualitative changes in the coverage.
3

In 2007 the USDA issued a final rule amending the regulations to reflect the

legal termination of the Agriculture Board of Contract Appeals and the creation of the

Civilian Board of Contract Appeals. Although the rule had no effect on this case, it

consolidated eight civilian boards of contract appeals into a single entity which now

has jurisdiction over administrative appeals arising under SRAs. See 72 Fed. Reg.

31437-01, 31437 (June 7, 2007).

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B.

Congress has waived sovereign immunity for suits against the FCIC under 7

U.S.C. § 1506(d), which gives district courts original jurisdiction over actions

"brought by or against [the FCIC]” subject to 7 U.S.C. § 6912(e), a mandatory but

nonjurisdictional exhaustion requirement under which an insurer must exhaust all

administrative appeal procedures required by law or regulation before bringing a

district court action against the FCIC. See Ace Prop. & Cas. Ins. Co. v. FCIC, 440

F.3d 992, 999-1000 (8th Cir. 2006); Munsell v. Dep't of Ag., 509 F.3d 572, 581 (D.C.

Cir. 2007); McBride Cotton & Cattle Corp. v. Veneman, 290 F.3d 973, 980 (9th Cir.

2002); but see Bastek v. FCIC, 145 F.3d 90, 94-95 (2d Cir. 1998) (§ 6912(e) is

mandatory jurisdictional exhaustion requirement).

One instance in which an insurer is required to exhaust administrative appeal

procedures is when it is claiming that the FCIC has not acted in accord with the

provisions of its SRA. In those circumstances the insurer must first seek an

administrative determination from the FCIC. 7 C.F.R. § 400.169(a). It may then

appeal an adverse ruling by the FCIC to the United States Department of Agriculture

(USDA) Board of Contract Appeals (Board), which has jurisdiction to review

determinations by the FCIC. 7 C.F.R. §§ 400.169(d), 24.4(b).3

 The Board's decision

is the final administrative action, 7 C.F.R. § 24.4.(b), which may be reviewed by the

district court if brought within six years of the final agency action, including any

decision on a motion for reconsideration, 5 U.S.C. § 704 (right to judicial review of

final agency action); 28 U.S.C. § 2401(a) (six year limitations period applies where

no other period enumerated in statute).
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II.

A.

On June 10, 1998, Insurer submitted a claim to the FCIC seeking "indemnity

payments for fiscal year 1996. . .incurred in connection with 1996 prevented planting

changes." It maintained that the FCIC erred when it set the 1996 prevented planting

premium rate at 0.0 percent for the Western region and that this amounted to a

material breach of the SRA. The FCIC denied the claim, and Insurer appealed to the

Board. Insurer argued to the Board that the FCIC had breached the 1996 SRA by

"failing to adjust premium rates to reflect" the 1996 prevented planting changes, by

"failing to set actuarially sound premium [prevented planting] rates," and by

instituting the prevented planting changes for 1996 without providing Insurer with

"adequate compensation for assuming the increased risks associated with said

changes." 

Following discovery, the Board panel on June 15, 2000 granted summary

judgment in favor of the FCIC in a divided decision. Although two administrative law

judges concurred in findings of fact and the judgment, they each wrote separately; the

third dissented. The majority agreed on two main points: 1) that Insurer had not

proven that Congress waived FCIC's sovereign immunity to permit a challenge to the

premium rates because 7 U.S.C. § 1508(d)(1) "vests [the FCIC] with the discretion to

set rates and allocate risks" at a level that it determines to be actuarially sufficient to

attain certain expected loss ratios, and 2) that even if the statute allowed Insurer to

challenge the FCIC's ratesetting decisions, it did not require the FCIC "to establish

actuarially sufficient premium rates for a particular crop, county, or incidence (such

as prevented planting)." The majority concluded further that the statute does require

the FCIC to determine that the rates are actuarially sufficient to address "all the plans

of insurance" when analyzed in the aggregate and that Insurer had not presented any

evidence that the FCIC did not meet that requirement. This was the final agency
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determination under 7 C.F.R. § 24.4(b) regarding the 1996 crop year. On September

7, 2000 the panel denied Insurer's motion for reconsideration of that decision.

B.

Insurer filed this action against the FCIC in federal district court on November

27, 2001, seeking damages for breach of contract and statutory violations. It amended

the complaint twice over the following 18 months until it included five counts. In

Count I, Insurer claimed that the FCIC's ratesetting for crop year 1996 breached the

SRA. The district court dismissed that count because it asserted breach of contract for

the 1996 crop year rather than seeking review of the decision already made on that

claim by the Board. The court also determined that Count III, a constitutional takings

claim, was premised on the same breach of contract claim pled in Count I and

dismissed it as well. Insurer has not appealed either dismissal.

In Counts II and V, Insurer sought indemnification from the FCIC under 7

U.S.C. § 1508(j)(3). That statute requires the FCIC to provide "approved insurance

providers with indemnification, including costs and reasonable attorney fees incurred.

. .due to errors or omissions on the part of [the FCIC]." Insurer alleged that certain

decisions of the FCIC amounted to a compensable error or omission under

§ 1508(j)(3) (assignment of a premium rate of 0.0 percent for 1996 and 1997, and 0.2

percent beginning in 1998 for the Western region prevented planting coverage). In

the event that original jurisdiction was found to be lacking over the § 1508(j)(3)

claims, Count IV requested review of the Board's decision regarding crop year 1996.

The parties filed cross motions for summary judgment on Counts II and V. The

FCIC argued that to the extent that these claims arose from the same nucleus of

operative facts as Insurer’s appeal to the Board about the 1996 crop year, they were

barred by res judicata. As to the 1997 – 2001 claims, the FCIC said Insurer had failed

to exhaust its administrative remedies. The FCIC argued in the alternative that the

district court should grant summary judgment in its favor because § 1508(j)(3) does
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not provide for direct claims against it by an insurer but rather permits insurer to seek

indemnification from the FCIC for a loss claim made against them by a producer. 

The district court acknowledged that for 1996 "the claims brought before the

[Board] and the present action both originate from defendants' conduct in revising its

prevented planting coverage policies." The court concluded, however, that neither res

judicata nor exhaustion requirements applied because the § 1508(j)(3) claims fell

outside of the Board's jurisdiction, which it found was limited to the Contract Disputes

Act, 41 U.S.C. §§ 601 et seq. Even if the Board had jurisdiction to hear the claims,

the court decided any resort to the Board would be futile because it had no authority

to award the money damages requested by Insurer. Finally, the district court pointed

out that § 1508(j)(3) "contains no language limiting its application only to

indemnification for claims brought by insureds" and concluded that it covered

Insurer's claims regarding the FCIC's ratesetting decisions. Am. Growers v. FCIC,

2003 WL 1233073 **2-3 (March 3, 2003). Because it found that it had original

jurisdiction to review Insurer's § 1508(j)(3) claims, the district court dismissed

Insurer's alternative request in Count IV for judicial review of the Board's decision

regarding the 1996 crop year. Insurer has not appealed that dismissal.

In addressing the merits of Insurer's claims under 7 U.S.C. § 1508(j)(3) in

Counts II and V, the district court limited its review to the administrative record

developed before the Board. Employing an arbitrary and capricious standard, it

granted summary judgment in favor of the FCIC for crop year 1996. Because data

regarding claims for losses from the 1995 flooding had not been available when the

FCIC set the 1996 rates, the court concluded that the agency's decision to keep the

prevented planting premium load at 0.0 percent for 1996 did not violate § 1508(j)(3).

The court also granted summary judgment in favor of the FCIC for crop years 1998

through 2001 because the FCIC had increased the prevented planting premium to 0.2

percent for those crop years and had not acted arbitrarily or capriciously.
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With regard to the 1997 crop year, the district court found that the FCIC knew

at the time it was setting premiums that Insurer had been paying prevented planting

claims during the 1995 and 1996 crop years. The court concluded that the FCIC's

decision "to maintain a zero premium for prevented planting coverage in the Western

region in 1997, in the face of known prevented planting losses, was arbitrary and

capricious, and therefore an 'error or omission' under 7 U.S.C. § 1508(j)(3)." It

granted summary judgment in favor of Insurer for the 1997 crop year and eventually

awarded it damages of $950,025. The damages were based on the amount of

premiums and administrative and operating expense reimbursements Insurer would

have been entitled to if the FCIC had set the 1997 prevented planting premium load

at 0.2 percent, as it did in 1998.

The FCIC argues that the district court erred by 1) concluding that Insurer's

claims in Counts II and V fell within the "indemnification" provision of § 1508(j)(3),

2) concluding that it had original jurisdiction over Insurer's § 1508(j)(3) claims, 3)

concluding if it had jurisdiction, that the FCIC was wrong to set the premium load for

prevented planting coverage in 1997 at 0.0 percent, and 4) awarding damages for the

1997 crop year based on the premium rates ultimately adopted for 1998.

Insurer cross appeals, claiming that the district court erred regarding Counts II

and V by 1) limiting its review to the administrative record and employing an arbitrary

and capricious standard of review, 2) failing to indemnify it for every dollar paid out

on prevented planting claims as well as administrative and operating expense

reimbursements which should have been received from the FCIC, and 3) concluding

that the FCIC had not violated § 1508(j)(3) in establishing prevented planting rates for

the 1996 crop year. 

III.

On its appeal the FCIC argues that the district court erred in concluding that the

"indemnification" provision in § 1508(j)(3) applies to the claims Insurer attempts to
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raise in Counts II and V. It contends that indemnification under this statute is limited

to situations in which the FCIC is required to indemnify insurers for successful claims

brought against them by producers. Insurer responds that the statutory language is

broad enough to permit direct claims by insurers for indemnification for any type of

errors by the FCIC. We review questions of statutory interpretation de novo. Wingert

& Assoc., Inc. v. Paramount Apparel Int'l, Inc., 458 F.3d 740, 743 (8th Cir. 2006).

The "long established plain language rule of statutory interpretation" requires

"examining the text of the statute as a whole by considering its context, object, and

policy." Harmon Indus., Inc. v. Browner, 191 F.3d 894, 899 (8th Cir. 1999) (internal

citations and quotations omitted). 

Section 1508(j) is titled "Claims for losses," and its provisions outline the

FCIC's role in adjusting and paying producers' claims for losses and their options

when a claim for loss is denied:

(1) In general—Under rules prescribed by the [FCIC], [FCIC] may

provide for adjustment and payment of claims for losses. The rules

prescribed by the [FCIC] shall establish standards to ensure that all

claims for losses are adjusted, to the extent practicable, in a uniform and

timely manner.

(2) Denial of claims

(A) In general—Subject to paragraph (B), if a claim for indemnity

is denied by the [FCIC] or an approved provider, an action on the

claim may be brought against the [FCIC]. . . .

(B) Statute of limitations—A suit on the claim may be brought not

later than 1 year after the date on which final notice of denial of

the claim is provided to the claimant.

(3) Indemnification—The [FCIC] shall provide approved insurance

providers with indemnification, including costs and reasonable

attorney fees incurred by the approved insurance provider, due to

errors or omissions on the part of the [FCIC]. 
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(Emphasis added.) According to the FCIC, a proper suit might be brought under this

section by an insurer seeking indemnity from the FCIC after being sued by a producer

for a mistaken statement in an agency bulletin about insurance coverage. 

The parties apparently agreed with this interpretation when they amended their

SRA in 1995 to include an agreement mirroring the language of § 1508(j)(3), stating

that "[the FCIC] will only provide indemnification, as authorized by the Act, including

costs and reasonable attorney fees incurred by [Insurer], that result solely from the

errors or omissions on the part of [the FCIC]," and only if Insurer has notified the

agency of the request and explained why indemnification would be in the best

interests of the agency, retained mutually acceptable legal counsel, presented legal

arguments on issues suggested by the agency, and the agency has agreed in writing

to be joined as a party. These provisions indicate that FCIC and Insurer understood

that indemnification under § 1508(j)(3) would only be available in situations in which

they would be on the same side of an action brought by a third party, presumably a

producer.

Other courts have concluded that when read within its context, subsection (j)(3)

is limited to situations in which an insurer is sued by a producer on a claim for loss.

See Williams Farms of Homestead, Inc. v. Rain & Hail Ins. Servs., Inc., 121 F.3d 630,

635 (11th Cir. 1997) (§ 1508(j)(3) "presume[s] an action against private insurance

companies"); Bullard v. Southwest Crop Ins. Agency, Inc., 984 F. Supp. 531, 536 n.3

(E.D. Tex. 1997) ("§ 1508(j)(3) presumes the existence of state law claims by

requiring the [FCIC] to provide indemnification to approved insurance providers").

An extensive search through the history of the Act has produced only one

instance in which language like that in § 1508(j)(3) was discussed during the

legislative process. Prior to enactment of the Federal Crop Insurance Reform Act of

1994 which included § 1508, the chairman of the American Association of Crop

Insurers testified to a House subcommittee that amendments were needed to improve

the FCIC's compliance program because its auditors at that time were pursuing loss
4

Even if § 1508(j)(3) were as broad as Insurer suggests, there would be an issue

whether FCIC's decision to assign a 0.0 percent premium rate for prevented planting

coverage for the Western region in the 1996 and 1997 crop years was an actionable

"error or omission." Other provisions give the FCIC wide discretion in its ratesetting

decisions. See 7 U.S.C. § 1508(k)(2) (FCIC determines whether rates are consistent

with sound reinsurance principles); § 1508(a) (FCIC determines whether it has

sufficient actuarial data to offer prevented planting coverage); § 1508(d)(1) (FCIC

determines whether overall MPCI premiums are actuarially sufficient to attain an

expected loss ratio of not greater than 1.10 across all plans of insurance). See Am.

Growers Ins. Co. v. FCIC, AGBCA No. 98-200-F at 11, 24-25 (June 15, 2000).

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claims which were five to ten years old, and private insurers were receiving "almost

no support from [the FCIC]" to defend against questionable or unfounded claims for

losses made by producers. To address these problems he proposed several

amendments, including a requirement that the FCIC provide "indemnification for

errors and omissions on the part of the government." Testimony of John H. Joyce,

Chairman on behalf of the American Association of Crop Insurers, Before the House

Agriculture Subcommittee on Environment, Credit and Rural Development and House

Agriculture Subcommittee on Specialty Crops and Natural Resources, 1994 WL

266205 (June 9, 1994). This testimony seeking changes in the statute supports the

FCIC's argument that the purpose for which Congress enacted § 1508(j)(3) was to

permit indemnification for insurers on claims made against them by producers arising

from errors or omissions of the FCIC.

We conclude that the statutory language and context of § 1508(j)(3), the

legislative history, and the parties' indemnification amendment to the 1995 SRA

provide persuasive evidence that the statute's indemnification requirement was

intended to apply only where an insurer has been sued by a producer to recover on a

claim for loss. We conclude therefore that § 1508(j)(3) does not provide a cause of

action for the claims Insurer attempted to bring in Counts II and V and that these

claims should have been dismissed by the district court.4

 Because of this decision we

need not reach other arguments raised by the parties.
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IV.

Accordingly, we reverse the judgment of the district court based on § 1508(j)(3)

(in favor of the FCIC for crop years 1996, 1998 – 2001 and in favor of Insurer for

crop year 1997) and remand Counts II and V for dismissal for failure to state a claim

upon which relief can be granted. 

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