Full opinion text
GARWOOD, Circuit Judge: In this appeal we consider issues arising out of payments made to the defendants-appellees by the Department of Agriculture under the Upland Cotton Price Support Program, 7 U.S.C. § 1444(e), in Gaines County, Texas. In the seven separate suits under consideration in this opinion, the United States sought to recover alleged overpayments made to the forty-six appel-lees, mostly individuals, under this program. The district court held that the government’s suits were barred by the statute of limitations, and, alternatively, that the regulation under which the government sought recovery of several of the payments was unconstitutionally vague and, therefore, invalid. It granted summary judgment on April 3,1981 in favor of each defendant-ap-pellee. On appeal, the United States seeks reversal and remand of the summary judgments granted. For the reasons below we reverse the seven judgments rendered in appellees’ favor, and remand. I. THE FACTS A. OVERVIEW OF REGULATORY FRAMEWORK. The Upland Cotton Price Support Program in effect in 1972 and 1973 was authorized by 7 U.S.C. § 1444(e). It was one of several price support programs administered by the United States Department of Agriculture (“USDA”). Section 1444(e) authorized the Secretary of the USDA to make loans and subsidy payments, and to require producers to “set aside” cropland, if necessary, to avoid excessive supplies of upland cotton. Section 1444(e) also authorized the Secretary to promulgate regulations to carry out the statutory provisions. Upland cotton loans and subsidy payments were made through the Commodity Credit Corporation (“CCC”), but the program itself was administered in the field by the County and State Committees of the Agricultural Stabilization and Conservation Service (“ASCS”). The ASCS County Committees consisted of three locally elected members. These Committees kept records of crop allotments, yields, and their transfers between farms; approved transfers and payments; and provided the first level of enforcement in the program. The ASCS State Committees’ function was to ensure that County Committees administered the program in accordance with the regulations. 7 C.F.R. § 718.4 (1974). In the event that a farmer received an adverse determination from a County Committee with respect,to-the program, USD A regulations provided for a county level redetermination to be made after an informal hearing, and for the right of appeal, first to the State Committee and then to the Deputy Administrator of the ASCS in Washington, D.C. 7 C.F.R. §§ 780.3-.5. A producer was also entitled, to an informal hearing at these two levels of appeal. In these hearings he was entitled to “a full opportunity to present facts and information relevant to the matter in issue and [to] present oral or documentary evidence.” 7 C.F.R. § 780.8. The Agricultural Adjustment Act provided that: “The facts constituting the basis for any ... payments under the cotton set-aside program ... when officially determined in conformity with the applicable regulations prescribed by the Secretary ... shall be final and conclusive and shall not be reviewable by any other officer or agency of the Government.” 7 U.S.C. § 1385. The payment or subsidy element of the upland cotton program is at issue in this appeal. Sections 1444(e)(2) and (3) of the statute prescribe a formula for determining a sum per pound of upland cotton to be paid to farmers for each crop. The payment is not based on the amount of cotton actually grown in the current year, but on the average of the per acre yield harvested on the farm over the preceding three years. 7 U.S.C. § 1444(e)(3). To be eligible for payments, a producer must first file a “Form 516” with the County Committee which indicates his intention to participate in the upland cotton program. 7 C.F.R. § 722.804(b)(1). A “producer” is defined in the regulations as a “[pjerson who as owner, landlord, tenant or sharecropper, is entitled to share in the crops available for marketing from the farm or in the proceeds thereof .... ” 7 C.F.R. § 719.2(s). Before payments are made a producer is also required to file with the County Committee ASCS Form 580 (entitled “Report of Acreage and Certification of Compliance”) certifying that he has complied with all of the terms and conditions of the program and requesting payment. Completion of these forms and compliance with all of the program regulations made a producer eligible for a “preliminary payment.” This payment provided farmers a calculated estimate of their subsidy, which was paid them “as soon as practicable after July 1 of the year in which the crop [was] harvested,” 7 C.F.R. § 722.812(d), presumably to ease their cash flow problems before the regular payment was determined. The initial payments were based on the product of (1) the preliminary payment rate, which in 1973 (the principal year involved here) was fifteen cents per pound; (2) the payment yield (the average production of the past three years in pounds per acre); and (3) the number of acres of cotton allotment actually planted. A “regular payment” rate was calculated following the harvest, but it could not be less than the preliminary rate. The producer was entitled to the excess, if any, of the regular over the preliminary rate. 7 C.F.R. §§' 722.812(a) and (d). The preliminary payment rate was set forth in the regulations, but the payment yield and the number of allotments were factors to some degree within the control of individual producers. The regulations allowed farmers to sell and lease their cotton allotments which could in turn be combined with the existing allotments of the lessee or buyer, thus affecting payments,, yields and allotment totals. Such transactions were referred to in the regulations as “reconstitutions.” When allotments from different farms, having different yields, were combined in a so-called “reconstitution,” the yield of the “receiving” farm, as designated by the producer, governed the combined allotments. Therefore, to keep the total number of pounds of cotton represented by an allotment the same before and after a reconstitution, the regulations prescribed a “productivity adjustment.” C.F.R. 722.-420. For example, assume Farm A has ten acres of cotton allotment with a yield of 400 pounds per acre, which represents 4,000 pounds of cotton, and Farm B has ten acres, of cotton allotment with a yield of only 200 pounds per acre, which represents 2,000 pounds of cotton. The two farms thus have between them a total of twenty allotment acres representing 6,000 pounds. In a combination of all these allotments, if Farm B were the receiving farm and if no adjustment were made, the result would be a Farm B having all twenty allotment acres, each with a yield of 200 pounds per acre (the B yield). New Farm B would only represent 4,000 pounds of cotton, and 2,000 pounds would be “lost” in the combination. Similarly, 2,000 pounds would be “gained” if Farm A were designated the receiving farm and no adjustment were made (A would have 8,000 pounds, being twenty allotment acres times A’s yield of 400 pounds per acre). Section 722.420(b), however, provides a formula for making the necessary adjustment, which says to “[djivide the pounds transferred by the payment yield for the receiving farm. The result is the number of acres by which the allotment on the receiving farm is to be increased.” 7 C.F.R. § 722.420(b). Thus, in Our example, if Farm B were the receiving farm, 4,000 (the number of pounds transferred from A) is divided by 200 (the pounds per acre yield of B) yielding a quotient of twenty. Accordingly, Farm B’s allotment acres are increased by twenty in the combination, giving it a total of thirty acres of allotment with a yield of 200 pounds per acre, a total of 6,000 pounds. If Farm A were the receiving farm, its allotments would increase only by five, giving it a total of fifteen allotment acres having a yield of 400 pounds per acre, again a total of 6,000 pounds. The effect of the adjustment, where high yield acres are transferred to a farm having low yield acres, is to increase the number of the transferred allotments by the proportion by which the productivity of the transferred high yield acres exceeds that of the receiving, farm. To provide one more example, if a farmer bought ten allotments with a yield of 400 pounds per acre and combined them with his existing allotments, designated as the receiving farm, which had a yield of 200 pounds per acre, he would be credited with a total of twenty additional allotments, not just the ten he purchased. The lower yield of the receiving farm would control for payment purposes, but the producer would not receive less in subsidy payments than the total both parcels would be eligible for individually, because of the additional allotments resulting from the “productivity adjustment” under section 722.-420(b). The reconstitution regulations, however, had an additional and complicating aspect which created the present controversy. It involved the difference between the way in which yields were calculated for transfer purposes — i.e., for adjusting the number of allotments when allotments were transferred — and the way in which yields were calculated for payment purposes — i.e., the yield on which the payment at the rate of fifteen cents per pound was based. “Payment” yields were an average of the three growing seasons immediately past. 7 C.F.R. § 722.808(a). Thus, for the 1973 Upland Cotton Price Support Program payment yields were the average of the yields in 1970, 1971, and 1972. Reconstitutions effective for a program year, however, began to occur immediately following the previous growing season, in some cases before yields for that year were calculated. Thus, to enable farmers to proceed with reconstitutions immediately, yields for transfer purposes were based on a three-year average beginning one year earlier — for the 1973 program the relevant years were 1969,1970, and 1971. 7 C.F.R. § 722.420(b). The USD A expected the transfer and payment yield averages to be substantially similar notwithstanding the differences in the years used for calculating the averages. This seemingly innocent aspect of the regulations, created for the convenience of the farmers and administrators of the cotton program, however, was subject to abuse. By combining allotments through careful reconstitutions which exploited the differences between “transfer” and “payment” yields, program payments could be vastly increased. For example, assume that Farm A’s cotton allotment consists of one acre with a transfer yield of 140 pounds per acre and a payment yield of 685 pounds per acre. A would be eligible for a “preliminary” (effectively a minimum) payment of $102.75 ($.15 X 685). Farm B’s allotment consists of 100 allotment acres having transfer and payment yields which are each 280 pounds per acre. B would be eligible for payments of $4,200 (100 X 280 X $.15). Assume now that Farm B’s 100 allotment acres are all transferred to Farm A. Since ■Farm B’s transfer yield (280 pounds per acre) is twice that of receiving Farm A (140 pounds), the number of allotments transferred would be doubled to 200, due to- the productivity adjustment of section 722.-420(b), and the new acres from B would also adopt the payment yield (685 pounds per acre) of the receiving farm, A. Payments following the reconstitution would thus be calculated as follows: $.15 X 201 X 685 = $20,652.75. In this example, the receiving farm’s low transfer yield allowed the number of allotments to be dramatically increased in the reconstitution, while the receiving farm’s high payment yield now applied to each of these allotments. The result is a fivefold increase in total program payments, not because any additional cotton would be planted or grown, but simply because of the way in which allotments and yields were adjusted in the reconstitution. The adjustment formula itself is generally sound. The inflation of the payments, however, resulted from the unrealistic yields which were plugged into the formula and the contrast between the receiving farm’s relatively low transfer yield and high payment yield. The situation anticipated-by the USDA was one in which transfer and payment yields would be roughly the same, and thus total program payments would be roughly the same before and after the reconstitution. In the just preceding example, if the transfer and payment yields of Farm A, as the receiving farm, had both been 140, the number of allotments would still be doubled in the transfer, but the payment equation would have been: $.15 X 201 X 140 = $4,221.00. If the transfer and payment yields on' receiving Farm A had each been 685, the number of transferred allotments would have been adjusted downward from 100 to 40.9 to account.for the higher -yield of the receiving farm, and the payment equation would have been: $.15 X 40.9 X 685 = $4,202.48. These totals approximate the sum of the payments on the two farms had they been computed individually: $102.75 (A) + $4,200.00 (B) = $4,302.75. This rough equivalence was expected by the USDA in spite of- any reconstitutions. Such was not the ease in our example, however, because the payments for the combined allotments could be based on the receiving farm’s high “payment”, yield of 685 pounds per acre, while the transferred allotments themselves could be doubled because of the receiving farm’s low “transfer” yield. By transferring allotments in, this way, program payments could, be vastly increased. Although not specifically addressing the foregoing form of manipulation, the regulations imposed certain restrictions on the right to transfer allotments and to receive payments, several of which are pertinent to this appeal. Allotments could not be transferred to a farm which had none, and re-constitutions of farms with allotments were not allowed if the County Committee determined that “the primary purpose of the change in operation [was] to establish eligibility to transfer allotments subject to sale or lease.” 7 C.F.R. § 719.3(d)(1). In addition, allotments could .only be transferred to farms with nonallotted cropland acreage sufficient to carry the new allotments. 7 C.F.R. § 722.420(b)(2). See notes 7 and 8, supra. The “productivity adjustment” used when allotments were combined has been discussed above; additionally, there were also specific regulations with respect to the allocation of the allotments when farms were divided. 7 C.F.R. § 719.8. With respect to payments, a limitation of $55,000 per person was prescribed in section 722.801(c). For purposes of enforcing the payment limitation, the regulations defined “person” as an individual or legal entity which had, and exercised, responsibility for a separate and distinct interest in the land or crop involved, and which was responsible for the costs of farming from a fund or account distinct from that of any other individual or entity. 7 C.F.R. § 795.3. Partnerships, joint ventures, tenancies in common, and'joint tenancies were not considered as a person. However, each individual who shared in the proceeds derived from such a joint farming operation could be considered a separate person and be listed on program documents as a producer for payment purposes. 7 C.F.R. § 795.6. The payment limitation provisions also included a catchall clause which stated: “All or any part of the payments otherwise due a person under the upland cotton, wheat, and feed grain programs on all farms in which he has an interest may be withheld or required to be refunded if he adopts or participates in adopting any scheme or device designed to evade or which has the effect of evading the rules of this part. Such acts shall include but are not limited to concealing from the county committee any information having a bearing on the application of the rules in this part or submitting false information to the county committee (for example, if side agreements are entered into which differ from information furnished to the county committee concerning the manner in which program payments are actually shared or the actual facts of a sale or other transfer of property) or creating fictitious- entities for the purpose of concealing the interest of a person in a farming operation.” 7 C.F.R. ■§ 795.16. Section 795.19 provides that if two or more persons or entities, which are entitled under the regulations to be 'treated as only one person, receive payments under the program exceeding the one person limitation, all are jointly and severally liable “for any liability arising therefrom.” A catchall clause similar to section 795.16, which pertained to payment limitations, existed to govern the regulations as a whole. This was' section 722.817, which stated: “(a) A producer who is determined by the county committee or the State committee to have erroneously represented any fact affecting a program determination shall not be entitled to payments under the program for the farm with respect to which the representation was made and shall refund to the Commodity •Credit Corporation the payments received by him with respect to such farm. “(b) A producer who is determined by the State committee, or the -county, committee with the approval of the State committee, to have knowingly (1) adopted any scheme or device which tends to defeat the purpose of the program, (2) made any fraudulent representation, or (3) misrepresented any fact affecting a program determination shall not be entitled to payments for any farm under the program and shall refund to the Commodity Credit Corporation all payments received by him with respect to the program.” 7 C.F.R. § 722.817. B. THE ASCS PROCEEDINGS AND DETERMINATIONS. In the early spring of 1973 the USDA began- to investigate the operation of the Upland Cotton Price Support Program in Gaines County, Texas. Allotment transfers and 1972 payments in that county had been extremely high, about five times higher than in other counties, and the USDA suspected that allotments were being manipulated in the manner described above to increase payments in violation of program regulations. The Executive Director of the Texas ASCS Committee requested that the Office of the Inspector General within the USDA inspect the situation in Gaines County. The Inspector General issued a formal report on August 1,1973, and a supplemental report some time later. Based on these reports, E.J. Person, Deputy Administrator of the ASCS, suspended the Gaines County ASCS Committee and sent Clifton Adams, then Acting Assistant to the ASCS Deputy Administrator, from Washington to assume the County Committee’s functions, to make a further investigation, and to take any necessary corrective action. On November 27 and 28, 1973, while en route to Gaines County, Adams met with the ASCS State Executive Committee to discuss the situation there and to inform them of the role he was to play. Adams assumed the functions of the suspended Gaines County Committee and on December 6, 1973 made determinations that the appellees had violated, among other regulations, the section 722.817(b) “scheme or device” proscription and were thus liable for a refund of their 1973, and in some cases 1972, payments. With variations, the alleged schemes found by Adams were ones in which producers or operators had created and then exploited the difference between the low transfer and the high payment yield of a small cotton allotment. Not all of the individuals found liable for 1972 or 1973 payments, however, were actually involved in the selection of the proper parcels and their reconstitution. In several cases, they (1) leased parts of such farms because of the high program payments these tracts would command; (2) were only “straw” tenants, not actually farming the land but enabling the farm operator to evade the $55,000 program limitation; or (3) were not actually separate “persons” entitled to payments within the regulations. They were found liable under either or both of the two “scheme or device” regulations, section 722.-817 and section 795.16. In accordance with the governing appeal regulations, Adams, still acting in lieu of the County Committee, held informal hearings to reconsider his determinations, as required by these provisions. He affirmed his initial decisions with respect to each of the appellees, who then took appeals to the State Committee and to the ASCS Deputy Administrator in Washington, at each of which levels the appeals were also affirmed. C. THE GOVERNMENT’S ENFORCEMENT ACTION. In June and July 1979 the United States filed seven separate suits against the appel-lees to enforce these administrative determinations requiring the refund of payments made in 1973 and, in some cases, also 1972. Although recitation of the government allegations in each is lengthy and tedious, the variation in each of these suits requires that we set out the various claims made by the government in its complaints. 1. Facts of the Individual Cases. a. Batson, et a1. The first of the government’s suits consolidated in this appeal is against Glynn Batson, South Plains Land Corporation (“SPLC”), and Johnny Lemmons (Appeal No. 81-1242). In count one it seeks to hold these appellees jointly and severally liable for $532,992.11 paid to the producers of six farms (Farms F-110, F-480, C-263, A-263, A-285, and A-286) in 1972 and 1973. Its claim is based on the determination made by Clifton Adams, and affirmed by the ASCS at the state and national levels, that the appellees knowingly adopted a scheme or device to defeat the purpose of the 1972 and 1973 upland cotton programs in violation of section 722.817. Because of this scheme the government asserted that the appellees are liable to refund all program payments on these farms. The scheme, as found in the final ASCS determination, was essentially as described above. Farm C-9003, owned by appellee Batson, provides an example of its operation in 1972. This farm consisted of 160 acres of cropland and 59.2 acres of upland cotton allotment. In 1971 Batson sold 55.2 acres of the cotton allotment and leased the remaining four acres to John H. Jones, who planted them in cotton. In the fall of 1971 Batson certified that this farm had produced 1,352 pounds of cotton per acre. The ASCS determination states that “[t]he certification was supported by gin tickets issued by Farmers Gin Company, which was also managed by Glynn Batson.” The four acres of cotton allotment on Farm C-9003 had a 1972 “transfer” yield of 150 pounds per acre (i.e., the average yield for the years 1968, 1969, and 1970), but with the purported production of 1,352 pounds per acre in 1971, its payment yield for 1972 became 540 pounds per acre (i.e., the average yield for the years 1969, 1970, and 1971). Thus, Farm C-9003 now had four acres of cotton allotment with low transfer and high payment yields enabling a producer, through careful reconstitutions, to inflate 1972 subsidy payments. The first step was to add nonallotted cropland to the farm, which Batson did with 800 acres purchased or leased from appellee Johnny Lemmons. The additions came in the form of 320 acres from Farm C-239 and 480 acres from Farm F-110. The resulting combination of the three farms, now listed as Farm F-110, had 960 acres of cropland and four acres of cotton allotment. Batson and Lemmons then transferred 837.2 acres of upland cotton allotment to the new Farm F-110. The yields of these allotments are not stated in the ASCS determination so it is unclear to what degree the number of allotments was inflated in that transfer. In any event, however, the 837.2 acres transferred acquired the (presumably) higher payment yield of 540 pounds per acre of the receiving farm. Finally, Batson and Lemmons leased the 320 acres of the original Farm C-239 to J.R. Walker, and the 480-aere tract, which was formerly farmed as Farm F-110, to Dan Sanders. The ASCS determination states that J.R. Walker, who was not a party to any of these suits, received $22,-962.24 in upland cotton payments and that SPLC, owned by Batson, received $45,-179.96. Batson and SPLC . were determined to have put together another such scheme in 1972 involving Farms C-9004, A-286, and A-285, and in 1973 involving Farms D-2003 and D-342. The government also has other claims for payments made to Batson, SPLC, and Lemmons in 1973, based on similar devices, as well as on claimed false reporting of farm production to increase the 1973 payment rate per acre and violation or evasion of the payment limitation regulations (part 795) and other specific regulatory prohibitions, including those denouncing re-constitutions to establish eligibility to transfer allotments subject to sale or lease (seetion 719.3) and those concerning proportionate allocation of allotments and related matters on farm division (section 719.8). b. Leverett, et a1. The second government suit is against Dale, Cletus, and Wayne Leverett (Appeal No. 81-1243). It is grounded on violation of the $55,000 per person payment limitation and the provisions of section 795.3. Based on ASCS determinations affirmed on administrative appeal, it claims that in 1972 Dale and Cletus Leverett did not qualify as separate persons under section 795.3 (and section 795.15, relating to custom farming) and were thus jointly and severally liable for the refund of $47,222.88 in payments made to them in 1972 in excess of the $55,000 payment limitation; and that in 1973 Dale and Wayne Leverett were not separate persons under section 795.3 and were thus jointly and severally liable for refund of $47,916.39, the amount of the payment to them in 1973 in excess of $55,-000. The ASCS letter of determination in their case concluded with respect to the 1972 payments that: “The records indicate that Dale Leverett, the son of Cletus Leverett, actually negotiated the lease and farmed the land [937.5 acres from Farm A-286 as Farm A-285] using Cletus Léverett’s name in order to circumvent the $55,000 payment limitation since Dale Leverett was farming other tracts of land.” With respect to the 1973 payments, the ASCS letter made a similar determination: “Dale Leverett and Glynn Batson negotiated a similar arrangement in 1973 for the 937.5 acres of land indicating that Dale Leverett’s brother, Wayne Leverett, was the producer on this tract. The records further indicate that Wayne Lever-ett merely signed his name to the farm records but that Dale Leverett actually operated the farm.” The ASCS determination concluded “that Dale Leverett and Cletus Leverett are one person for 1972 payment limitation purposes and that Dale Leverett and Wayne Leverett are one person for 1973 payment limitation purposes.” c. Prather. The government’s third suit is against Lois Prather (Appeal No. 81-1244). Its complaint is grounded on section 795.3 (and section 795.15) and seeks $32,907.66 paid to her in 1973. From the final administrative determination on her case, however, it appears that she was actually determined to be jointly and severally liable along with SPLC for this amount which was paid to her respecting Farm A-263. The government’s claim is based on the determination that Prather was not a “bona fide producer,” apparently because the requirements of section 795.3, regarding separate persons, were not met. Farm A-263, created after various combinations, had a cotton allotment of 1,116 acres and commanded $115,-000 in 1973 program payments for all of its producers. With respect to this farm, Prather’s final ASCS determination stated that: “Batson purported to lease 640 acres of farm A-263 to Lois Prather, his mother-in-law, who had no equipment to farm the land, paid no monies for the lease, and contributed no capital to the farming operation. The lease was a scheme by Glynn Batson to evade the payment limitation.” And that: “We find that Glynn Batson was the sole contributor to the capital assets of South Plains Land Corporation which was established as 50 percent owned by Lois Prather, his mother-in-law, 46% percent owned by himself and 3% percent owned by his wife. Therefore, Glynn Batson, South Plains Land Corporation, and Lois Prather are considered one person for payment limitation purposes.” d. T.A. Wartes, et a 1. The government’s fourth suit is against T.A. Wartes, Wayne Hicks, Bill Wartes, and Gene Irwin (Appeal No. 81-1245). Based on a final ASCS determination, it seeks a refund of 1973 payments of $72,797.40 from these appellees, jointly and severally, for a violation of section 722.817. The “scheme” found was similar to the one alleged in the Batson case. The ASCS determination found that: “[I]n March of 1973, Mr. T.A. Wartes purchased from John Thomas, doing business as Jon T. Farms, farm F-470, consisting of 80 acres of cropland and 77 acres of cotton allotment[.] [T]he farm had a favorable yield of 140 pounds for intertransfer and 680-pound payment yield per acre for 1973.” This favorable combination of yields was generated out of a .8-acre allotment planted by Charles Medlin in 1972 which had a transfer yield of 140 pounds per acre and, based on the purported 1972 yield of 1,780 pounds per acre, a payment yield of 680 pounds per acre. Medlin purchased nonal-lotted cropland and allotments to create a new farm with 1,500 acres of cropland and 1,447.3 acres of cotton allotment all bestowed with transfer and payment yields of 140 and 680 pounds per acre, respectively. Parcels from this farm were then transferred to others and, as stated, T.A. Wartes bought 77 acres of its cotton allotment. T.A. Wartes then himself utilized the favorable yields of this tract by adding 960 acres of his cropland and 636.7 acres of leased cotton allotment, giving his farm, F-470, a total of 1,040 acres of cropland and 713.7 acres of allotment. The ASCS determination explains T.A. Wartes’ motive for combining his 960 acres of cropland and leased allotments with Farm F-470, as opposed to combining it with another tract he had which was also eligible to receive allotments: “According to the records, Mr. Wartes had other land in Andrews County which could have been combined with this 960 acres of land and which would have qualified the acreage for cotton allotment. The payments would have been less favorable were the reasons [sic] for the transfer of the land to Gaines County to be combined with farm F-470. The 1973 payments on the 89,140 pounds of cotton transferred at $0.15 per pound would have been $13,371; however, the payments after the combination of F-470 (636.7 X 680 X $0.15) amounted to $64,-943.40 for a farm payment of $72,797.40.” It was also determined that this reconstitution was improper because the farms were not operated as a unit, as required by the regulations. The other appellees, Bill Wartes and Gene Irwin, were apparently held liable as owners of Farm F-470 with T.A. Wartes. Wayne Hicks was liable because his 33.75 percent share of program payments from Farm F-470 was not proportional to his 25 percent interest in the crop based on his contribution of the labor for the operation. 7 C.F.R. § 795.6. e. A. Earl Jones, et a1. The government’s fifth suit is against eighteen individuals comprising two joint ventures (Appeal No. 81-1246). In 1973 six of these appellees were members of the Gaines County Farms Joint Venture, which leased part of Farm D-362. It was purportedly custom farmed by C.R. Bruce for the joint venture. Each member gave A. Earl Jones power of attorney to act on his behalf with respect to filing for program payments. The government seeks to hold the members of the Gaines County Farms Joint Venture jointly and severally liable for $321,821, which is the sum of the individual payments of $53,653.50 made to each of .its members. Its claim is based on the final ASCS determination that they had violated section 722.817 and the similar section 795.16, which prohibited any scheme or device to evade the payment limitation regulations of part 795, including sections 795.3 and 795.6. In 1973 the remaining appellees (in Appeal No. 81-1246) were members of a second group called the GACO Joint Venture. It also leased part of Farm D-362, which was purportedly custom farmed by C.R; Bruce. As above, A. Earl Jones had power of attorney to act on behalf of each of the members. The government seeks to hold the members of the GACO Joint Venture jointly and severally liable for $697,-495.50, which is the sum of the individual payments of $53,653.50 made to each of its members. This claim is also based on the final ASCS determination that members of this joint venture had violated section 722.-817 and section 795.16. The appellees in both of these groups were found to have violated section 795.16 because they were “not actively engaged in farming operations on the joint ventures’ leased acreages.” 7 C.F.R. § 795.6. As a result, they “did not qualify as a separate person for limitation purposes (i.e., were not eligible for any program payments).” The members of these joint ventures had not themselves participated in the reconstitu-tions which gave Farm D-362 the inflated program payments; however, they were also determined to have been aware of them and to have entered into the joint ventures as an investment by which to reap the benefits of the artificially inflated payments. f. Don H. Wilson, et a 1. The government’s sixth suit, grounded on violation of the payment limitations, is against fourteen individuals which it alleges purportedly leased a tract of farmland from Lonnie D. Clark and had custom farmed by C.R. Bruce (Appeal No. 81-1247). Each appointed Clark to act as his attorney for the purpose of filing for payments and each received 1973 payments in the amounts listed in the margin. The government claims refund of these amounts based on the final ASCS determination that these appellees had violated section 795.16 and section 722.-817(a) (denouncing misrepresentations). The ASCS determination found that these leases were a scheme devised by Lonnie Clark and Clark Trusts to evade the payment limitation and to defeat the purpose of the program. The defendant-appel-lees were simply straw men who did not contribute any land, management, capital, or labor to the tracts on which they were purportedly producers, contrary to sections 795.3 and 795.16. Their purpose was simply to create eligibility for program payments while Lonnie Clark in fact handled the entire farming operation. g. Earl Bowman, et al. The government’s seventh suit — the final one considered in this opinion — is against Earl Bowman, Ernest L. Bowman, J.E. Al-dridge, Don Carmichael, and the estate of Everett M. Bowman (Appeal No. 81-1248). It claims refund of 1973 payments from Earl Bowman alone of $378,533.25 and from the remaining of these appellees jointly and severally of $209,631.71, based on a final ASCS determination that they had violated section 722.817 and section 795.16. Violation of section 719.3 is also charged. The scheme allegedly worked in a fashion similar to those described above. Bowman purchased 79 acres of Farm E-9010 with a cotton allotment of 37.7 acres, a transfer yield of 270 pounds per acre, and a payment yield of 695 pounds per acre. Subsequently, Earl Bowman with Johnny Lemmons purchased and leased 3,133.6 acres of cotton allotment which became 3,544.1 acres of allotment when transferred to the new Farm F-256 and which assumed the favorable yields of Farm E-9010. This allotment was placed on 4,414 acres of cropland that Earl Bowman allegedly purchased to be operated as á single unit as Farm F-256 for 1973. The government claims, however, that this farm in reality was leased out to various producers to avoid the payment limitation. The nonallotment land would not have been eligible for payment had it not been combined with Farm F-256, nor could it have received the $378,533.25 in 1973 payments. The determination states, “If Earl Bowman had operated this entire farm as a single unit as he so certified to the Gaines County ASC committee the total payments would have been limited to $55,-000 in 1973.” Among the producers to whom this land was leased was the Circle 7 Partnership, which included all of the appellees in this particular suit'. The ASCS determined that the partnership was formed to evade the $55,000 payment limitation. Each of the five partners received $41,903.63 in 1973 payments; however, Bowman and Aldridge were the only partners involved in actually farming the land. 2. Proceedings in the District Court. The appellees in these seven cases asserted several defenses to these government claims, including: the statute of limitations; the vagueness of section 722-817(b)(1); their reliance on government approval of their actions; and a host of grounds on which they claimed to have been denied due process in the administrative' proceedings. Among the due process claims were (1) bias and prejudgment of Clifton Adams and the hearing officers on appeal; (2) denial of due process because of the delay in the proceedings; and (3) lack of procedural due process because of the government’s failure to give notice of its initial determination, its denial of discovery, its refusal to compel the attendance of certain witnesses, and its refusal to allow ap-pellees to cross-examine the investigators responsible for certain reports relied upon by. the government in its administrative determinations. The government responded to appellees’ contention that they had been denied the right to cross-examination of certain witnesses by requesting that the cases be remanded to the ASCS in Washington for a determination of whether appellees had in fact “made specific requests for identified witnesses in order to qualify for a remand hearing.” If appellees had made such requests, a remand hearing would be held; if not, the cases would return to the district court. The government and the appellees also filed cross-motions for summary judgment, and on February 17, 1981, a hearing was held in the district court on both the summary judgment motions and the government’s motion for remand. ■ On April 3, 1981 the district court granted summary judgment to the appellees in each suit. It held that the government’s suits were barred by the applicable six year statute of limitations and, alternatively, that section 722.817(b)(1), one of the regulations under which the government sought recovery in several of the suits, was unconstitutionally vague and, therefore, invalid. The district-court did not reach any of the other issues in these cases. II. THE LAW A.' THE STATUTE OF LIMITATIONS. The first issue presented to us on appeal is whether the district court correctly held that the government’s claim was barred by the applicable statute of limitations, 15 U.S.C. § 714b(c), which was six years. Set out in the margin is a chart showing when payments were issued to the appellees and when the government’s suits were filed. The district court determined that the government’s cause of action for refund of 1,973 payments in these suits accrued when the “reconstitutions” involved in the alleged schemes were completed in May 1973, more than six years before the filing of the complaints, which occurred on June 4, and July 3 and 12, 1979. We disagree with the district court’s determination of when the government’s cause of action accrued, and reverse its holding. The Supreme Court stated in United States v. Lindsay, 346 U.S. 568, 569, 74 S.Ct. 287, 288, 98 L.Ed. 300, 304 (1954), that “[i]n common parlance a right accrues when it comes into existence .... ” To give specific meaning to this general proposition, we must determine what “right” is the basis of the government’s claim and then when it came into existence. The government’s “right” in this instance is essentially founded on the two “scheme or device” provisions in the ASCS regulations, section 795.16 and section 722.817(b). The former states that “[a]ll or any part of the payments otherwise due a person ... may be withheld or required to be refunded if he adopts or participates in adopting any scheme or device ...” to evade the payment limitation. 7 C.F.R. § 795.16. The latter states that “[a] producer who is determined ... to have knowingly (1) adopted any scheme or device which tends to defeat the purpose of the-program ... shall refund to the Commodity Credit Corporation all payments received by him with respect to the program.” 7 C.F.R. § 722.-817(b). The government’s right under these provisions, the right which it here seeks to enforce, is to a refund of payments made to the producer but to which the producer is not entitled. The provisions do not impose a criminal or civil penalty for actions of producers taken prior to the payment. The right to a refund cannot exist until a payment is made, and only at that time does it “come into existence.” The Supreme Court’s decision in United States v. Wurts, 303 U.S. 414, 58 S.Ct. 637, 82 L.Ed. 932 (1938), which involved a similar problem, supports this interpretation. The question there was whether the statute of limitations, requiring the United States to bring an action to recover erroneous tax refunds “within two years after the making of such refund,” began to run when the payment was allowed or when it was aetually made. The government had brought suit within two years of the payment of the refund but more than two years after the Commissioner of the IRS had “allowed” the refund by signing the schedule of overassessments. The Court stated that “[ojbviously, the Government had no right to sue this taxpayer to recover money before the money had been paid to him. The construction urged by respondent would allow the statute of limitations to begin to run against recovery on an erroneous payment before any such payment is made.” Id. at 418, 58 S.Ct. at 639, 82 L.Ed. at 935. The facts of the case before us are analogous. The government made payments which were allegedly erroneous because the appellees had not satisfied all of the requirements of the program, and it then became entitled to a refund under the terms of the program regulations. The. construction of 15 U.S.C. § 714b(c) adopted below by the district court, like the one rejected in Wurts, “would allow the statute of limitations to begin to run against recovery on an erroneous payment before any such payment is made.” The reasoning in the district court’s opinion and the additional arguments offered by appellees are not persuasive of a contrary result. In its opinion the district court relied upon two cases, United States v. Tem-pleton, 199 F.Supp. 179 (E.D.Tenn.1961), and United States v. Rolenc, 345 F.Supp. 1260 (D.Neb.1972). In Templeton, the defendant made false representations to the CCC in order to procure a loan secured by a pledge of his cotton. Although the loan was generally without personal liability, the promissory note signed by the defendant expressly provided that if there were fraud or false representations in the making of the note, then the maker would be and remain personally liable for payment of the loan. The applicable statute of limitations was the same as here, six years, as set forth in 15 U.S.C. § 714b(c). The government, however, brought suit on the note more than six years after it was signed and the loan proceeds disbursed, after the due date of the note, and after the government had knowledge of the fraud. The government argued that the six year statute should begin to run at the time the government realized its loss, which had occurred within six years of the filing of the suit when the government sold the cotton securing the loan and the sales proceeds proved insufficient to cover the debt. The Templeton court rejected the government’s theory, holding that the statute began to run at one of the three other possible times: when the note was made and the loan disbursed, the due date, or when the fraud was discovered. But the court refused to decide among these alternatives since all occurred more than six years before the suit was filed. The court noted the “fact that the Government may not have ascertained its loss at the time when its right of action accrued is a matter within its control and is a practical difficulty which cannot alter the fact that the right of action did accrue at that time.” Id. at 185. The circumstances which prompted the Templeton court to make this statement are not present here. This case is not one, as the court below asserts, in which the government failed to discover a loss within the six year limitations period. Here, no loss was present to be either discovered or recovered until the cotton subsidies were paid, and the government’s suit was brought within six years of that time. Nor does United States v. Rolenc support the district court on this issue. Like Tem-pleton, Rolenc involved a borrower from the CCC who made fraudulent representations in order to secure a crop loan. The six year, section 714b(c), statute of limitations was applicable. The court stated specifically that the government’s suit against the defendant Rolenc was “not a'n action on the loan. Rolenc’s default is not the basis of the action; the right to sue under [6 C.F.R. § 421.4016] would exist whether the loan was repaid or the pledged grain forfeited.” 345 F.Supp. at 1262. The Rolenc court characterized the suit before it as one based on fraud. The fraudulent representations were made and the loan was disbursed in 1960. At the loan’s extended maturity on July 31, 1964, the defendant tendered the pledged crop in satisfaction of the loan, as borrowers under the program were entitled to do, even though its market value was less than the loan balance. The fraud was actually discovered in 1966, though the government could reasonably have known of ,it in 1960. Suit, for an amount equal to the remaining loan balance, was filed July 15, 1970, which would have been within the six year limitations period if the cause of action accrued at or after the loan’s maturity. The court, however, held that the cause of action accrued in 1960, when the representations were made (and could reasonably have been discovered) and the loan disbursed, and that hence the suit was barred. In Rolenc, then, the defendant received in 1960 loan proceeds to which he was not entitled, and he could have been sued in 1960 for refund of the sums which had been erroneously so disbursed to him. Rolenc is not authority for the proposition that a cause of action for refund of sums wrongfully disbursed accrues prior to the disbursement. In both Templeton and Rolenc the disbursement was wrongful when made, as it was procured by fraud; and the defendant received it, and a cause of action in favor of the government arose for its recapture, without the period of limitations. Here, by contrast, the 1973 disbursements sought to be recaptured were made within the period of limitations. United States v. Withrow, 593 F.2d 802 (7th Cir.1979), cited by appellees in their briefs, likewise does not support the district court. In Withrow, a government intermediary made interim payments to providers of health care under the Medicare Program, based on their estimated cost of services provided. Any overpayments or underpayments were to be corrected following an audit in which the provider was required to prove its actual costs. In a government suit to recover an overpayment, the Court held that the limitations period on the action began to run-at the time of the audit. Only then did the government have any right to claim a refund. Likewise, in the present case there was no liability for refund on which a suit could be brought until the government had made program payments. Accordingly, we hold in each case that the government’s cause of action for refund of the 1973 payments is not barred by limitations and that the district court erred in holding to the contrary. However, the situation is obviously different with respect to the 1972 payments. As to each of these payments, suit was instituted more than six years after the payment was made. Clearly, the applicable statute of limitations is section 714b(c), as the district court found. See note 21, supra. The government’s complaint in each suit is expressly based on section 714b(c), and, though its position below vacillated somewhat, before this Court it has steadfastly maintained that the limitations period for these suits is governed by section 714b(c). The government argues, however, that it did not become aware of the relevant facts until August 1, 1973, and that limitations was hence tolled until then by the terms of 28 U.S.C. § 241fi, which provides: “For the purpose of computing the limitations periods established in section 2415, there shall be excluded all periods during which— “(c) facts material to the right of action are not known' and reasonably could not be known by an official of the United States charged with the responsibility to act in the circumstances; ...” We reject this contention for several reasons. To begin with, it was not urged by the government below. So far as we can determine, before the district court the only ground urged by the government to support its contention that the suits were not time barred as to the 1972 payments was that the final administrative determinations respecting those payments were made within one year of suit, and hence they were within the provision of 28 U.SU. § 2415(a) allowing suit “within six years after the right of action accrues or within one year after final decisions have been rendered in applicable administrative proceedings required by contract or by law, whichever is later.” However;, as the government now recognizes, section 2415(a) does not apply, as its terms except cases “otherwise provided by Congress,” which exclusion plainly embraces section 714b(e), the here applicable limitations statute. See note 26 and accompanying text, supra. See also note 29, infra, and accompanying text. In the second place, it is evident from the above-quoted text of section 2416 that its tolling provisions apply only to cases covered by section 2415, and, as noted, the cases before us are concededly governed by section 714b(c). The government argues, however, that we should apply section 2416 to section 714b(c) because the amendment to the latter section, increasing its limitations period from four to six years, was adopted with the purpose of bringing the section 714b(e) limitations period in line with that of other federal limitations statutes, directing our attention to the House Committee report on the amendatory act. However, this report, partially set out in the margin, says nothing about tolling (other than for counterclaims), and the desired uniformity which it references is that for the period of limitations in suits against the United States. Section 714b(c) has its own tolling provision respecting such suits (see note 21, supra), while section 2416 is concerned with tolling suits by the United States. Moreover, this amendment to section 714b(c) was passed in 1949, while section 2416 was not enacted until 1966. Not only does the text of section 2416 reflect that it applies only to suits governed by section 2415, but the legislative history of P.L. 89-505, which promulgated both sections 2415 and 2416, clearly shows that such enactment was not intended to apply to other limitations statutes. Accordingly, the government cannot avail itself of section 2416. It is, of course, the general rule, broadly stated, that in an action for fraud, or where there is fraudulent concealment, limitations does not begin to run, or is tolled, until the fraud is discovered or the plaintiff is put on inquiry that it has a potential claim. See United Klans of America v. McGovern, 621 F.2d 152 (5th Cir.1980). We assume, but do not decide, that this rule applies to section 714b(c). Compare United States v. Dawes, 151 F.2d 639, 643 (7th Cir.1945), cert. denied, 327 U.S. 788, 66 S.Ct. 808, 90 L.Ed. 1015 (1946) (fraud tolling does not apply to False Claims Act limitations, 31 U.S.C. § 235), and United States v. Borin, 209 F.2d 145, 147 — 48 (5th Cir.), cert. denied, 348 U.S. 821, 75 S.Ct. 33, 99 L.Ed. 647 (1954) (same), with General Electric Company v. City of San Antonio, 334 F.2d 480, 483-85 (5th Cir.1964) (fraud tolling does apply to Clayton Act limitations, 15 U.S.C. § 15b; Borin limited). However, as we have observed, this is not an action for fraud. See note 24, supra. This is not merely a matter of nomenclature. The government’s cause of action in each ease is expressly pleaded as one to enforce the administrative determination that the refunds are due. Copies of the administrative determinations are attached to the complaints, and it is alleged that “[ujnder 7 U.S.C. § 1385 and 7 C.F.R. § 780.9, the determination ... is final and conclusive.” As set out earlier in this opinion, section 1385 makes the administrative determinations of “facts constituting the basis for any ... payments under the cotton set-aside program ... final and conclusive .... ” And, in its memorandum in opposition to the appellees’ motions to dismiss and for summary judgment filed below, the government stated, “The claim for relief in these cases is enforcement of the administrative determinations which demand refund of program overpayments. The bases for those determinations are regulations which expressly provide for refund.” On appeal, the government has informed us in its reply brief that “[t]he basis for these actions is the administrative determination of liability in each case.” In the same brief it also states, “At no time has the United States alleged or attempted to prove fraud.” Further, as we have observed, in the district court the government at no time attempted to rely on fraud or fraudulent (or other) concealment to defeat the plea of limitations as to the 1972 payments. See note 27, supra, and accompanying text. Accordingly, we reject the government’s contention that the district court erred in holding that the actions to recover the 1972 payments were barred by limitations. B. VAGUENESS. The second issue presented is whether the district court correctly held that one of the regulations under which the government sought its refunds, 7 C.F.R. § 722.-817(b)(1), was unconstitutionally vague and, therefore, invalid. The court considered vague the phrase “scheme or device which tends to defeat the purpose of the program” because neither “scheme or device” nor “purpose of the program” were defined in the statute or other regulations. As the district court’s opinion stated: “The Defendants fully complied with every requirement listed in the regulations, their actions were approved by the county committee as required in the regulations, and yet Defendants were still found to have adopted a scheme or device to violate the purpose of the program. ... “Certainly a man of ordinary intelligence would not glean from the language of the regulation what acts would be considered wrongful or defeat the unknown purpose of the program.. .. [T]he government complains about the final effect of the reconstitutions and transfers, and not about the Defendants’ actions which were completely legitimate under the regulations. Thus, it is difficult to ascertain how a regulation which uses undefined terminology and which fails to apprise a defendant of how the regulation will be applied can pass constitutional muster. See discussion Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir.1974). The Court concludes that the regulation is unconstitutional due to vagueness. We cannot agree with the conclusion that section 722.817(b)(1) is so vague and over-broad as to be unconstitutional as a standard for determining that one was ineligible to receive and is hence required to refund price support payments obtained under this program, at least where, as here, there is no suggestion that it was applied on the basis of improper, ulterior or invidiously discriminatory considerations. We admit to some concern respecting the considerable generality and imprecision of the regulation’s language, “have knowingly ... adopted any scheme or device which tends to defeat the purpose of the program,” particularly in light of the absence of a comprehensive and relevantly detailed explicit definition of the program’s purpose. Yet, in determining whether such generality and imprecision is constitutionally offensive, we must consider the character of activity with which the regulation deals, and the consequences attached to “violations” of the -proscriptions. The character of conduct regulated is purely economic activity; activity which, moreover, attempts to avail itself of special governmental subsidies. First Amendment, privacy, and similar constitutional concerns are in no way implicated. The regulation is to be judged by its application to the character of conduct at hand, not to marginal cases where serious doubts might arise. Nor are penalties, penal or civil, imposed for “violations.” Section 722.817(b) does not subject its “violator” to damages. Such a “violator” is, rather, denied a special governmental economic subsidy because it is determined that the economic activity in which he engaged is outside the purpose of the particular subsidy program. No charge of discriminatory or arbitrary application, on the basis of political, social, personal, or other bias or ulterior consideration, is here involved. Finally, the vice inherent in the generality and imprecision of the proscription is mitigated by the fact that appellees were determined to have acted “knowingly.” Accordingly, our evaluation of the extent of the vagueness and breadth of this regulation, and our holding that it is not so vague or overbroad as to be constitutionally infirm, is informed by the foregoing considerations. That these considerations are properly taken into account in a case such as this clearly appears from Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), where the Court stated: “In a facial challenge to the overbreadth and vagueness of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. [Id. at 494-95, 102 S.Ct. at 1191; footnotes omitted.] “These standards [for evaluating vagueness] should not, of course, be mechanically applied. The degree of vagueness that the Constitution tolerates — as well as the relative importance of fair notice and fair enforcement — depend in part on the nature of the enactment. Thus, economic regulation is subject to a less strict vagueness test .... [Id. at 498, 102 S.Ct. at 1193.] “The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe. And the Court has recognized that a scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed. “Finally, perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply.” [Id. 455 U.S. at 498-99, 102 S.Ct. at 1193-1194; footnotes omitted.] Similarly in Brennan v. Occupational Safety & Health Review Commission, 505 F.2d 869 (10th Cir.1974), the Court stated: “A statute which is so vague that men of common intelligence must necessarily guess at its meaning and differ as to its ap