Glenn Broderick - Page 7




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          solely for purposes of deciding the motion and are not findings             
          of fact for this case.  See Sundstrand Corp. v. Commissioner,               
          supra at 520.                                                               
               Petitioner makes a novel but flawed contention in his effort           
          to withstand summary disposition.  He argues that, because this             
          case involves only a record review, the use of summary                      
          disposition is inappropriate and improper.  He cites Olenhouse v.           
          CCC, 42 F.3d 1560, 1579-1580 (10th Cir. 1994), as support for his           
          argument.                                                                   
               In Olenhouse, various wheat producers had sued the                     
          Agricultural Stabilization and Conservation Service (ASCS)                  
          challenging ASCS’s decision to award reduced deficiency payments            
          for the producers’ wheat under a Federal price support program.             
          The producers claimed, among other things, that the ASCS’s action           
          was arbitrary and capricious in that it was the product of an               
          inadequate administrative appeals process and not supported by              
          substantial evidence in the administrative record.  Id. at 1564.            
          The producers had filed an administrative appeal and received an            
          adverse determination, which they appealed to the State ASCS                
          committee and then to the Deputy Administrator, State and County            
          Operations (DASCO).  Throughout the appeal process, the producers           
          unsuccessfully attempted to obtain information regarding the                
          basis for the reductions imposed on them and the way the                    
          reductions were calculated.  Without making any findings of fact            







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