The opinion of the court was delivered by: FLANNERY
Pending before the Court is the defendant's Motion for Judgment, in Part, on the Pleadings. Having considered the arguments and authorities presented in the briefs filed by the parties and the argument of counsel at the March 8, 1996 hearing, the Court grants the defendant's motion for the reasons that follow.
The plaintiffs, former applicants for federal farm loans or assistance with farm loans, brought this civil rights action against Daniel R. Glickman, the Secretary of the United States Department of Agriculture (the "Secretary"), in his official capacity. They claim that the former Farmers Home Administration ("FmHA") of the United States Department of Agriculture ("USDA") discriminated against them in connection with their loan applications because of their race or national origin.
was the credit agency for agriculture in the USDA, and was statutorily authorized to make loans to farmers who had trouble obtaining credit from commercial institutions. See Consolidated Farm and Rural Development Act, 7 U.S.C. § 1921 et seq. The FmHA made loans to farmers directly,
and guaranteed loans made by commercial institutions.
The plaintiffs seek damages and equitable relief resulting from the FmHA's alleged discrimination. They raise several constitutional claims (based on the Fifth, Thirteenth and Fourteenth Amendments); claims based on several federal civil rights statutes (42 U.S.C. §§ 1981, 1982 and 42 U.S.C. § 2000d et seq., Title VI of the Civil Rights Act of 1964 ("Title VI")); a claim under the Equal Credit Opportunity Act, 15 U.S.C. § 1691 ("ECOA"); and a claim for fraud and misrepresentation.
The Secretary's Motion for Judgment, in Part, on the Pleadings asserts that all of the plaintiffs' claims for damages (except those brought under ECOA) are barred by sovereign immunity and should be dismissed; and that plaintiffs' claims under the Thirteenth and Fourteenth Amendments, and under 42 U.S.C. §§ 1981 and 2000d, state no cause of action and should also be dismissed.
The plaintiffs have withdrawn their claims for damages (1) under the Fifth Amendment; (2) under §§ 1981 and 1982; and (3) for fraud and misrepresentation. They have also abandoned all of their claims under the Thirteenth and Fourteenth Amendments. The Court will grant the Secretary's motion with respect to these claims as unopposed.
Two contested claims remain: the plaintiffs' claim for equitable relief under 42 U.S.C. § 1981 ("§ 1981") and their claims under Title VI.
Section 1981 gives all citizens of the United States "the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . ." Section 1981(c), which was added to § 1981 by the Civil Rights Act of 1991, further provides that "the rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law." (emphasis added).
The Secretary points out that the discrimination alleged here took place under federal law: the FmHA is said to have discriminated in connection with the plaintiffs' federal farm loan applications. Thus, argues the Secretary, because the alleged discrimination here is neither "nongovernmental" nor "under color of State law," the plaintiffs' claim under § 1981 is precluded by the plain language of § 1981(c).
The Court agrees that the plain language of § 1981(c) bars the plaintiffs' claim of federal discrimination. While specifically providing that rights under the statute are protected against impairment by private entities and impairment "under color of State law," § 1981(c) does not address impairment by the federal government. There is no indication that the statute's designation of impairment by private entities and impairment "under color of State law" is meant to be merely suggestive or illustrative; § 1981(c) does not use language such as "including" or "for example" which would compel such an open-ended reading of the statute. See Puerto Rico Maritime Shipping Authority v. I.C.C., 207 U.S. App. D.C. 177, 645 F.2d 1102 (D.D.C. 1981) (use of the word "including" indicates that the list which follows is illustrative, not exclusive). Indeed, it is instructive to compare § 1981(c) with § 1981(b), which provides, illustratively, that "the term 'make and enforce contracts' includes the making, performance, modification, and termination of contracts . . . ." 42 U.S.C. § 1981(b) (emphasis added). Where Congress includes ...