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WISE v. GLICKMAN

March 31, 2003

EDDIE WISE AND DOROTHY MONROE-WISE, ET AL., PLAINTIFFS,
v.
DAN GLICKMAN, SECRETARY, U.S. DEPARTMENT OF AGRICULTURE, DEFENDANT.



The opinion of the court was delivered by: James Robertson, United States District Judge

Memorandum And Order

Plaintiffs are African-American and female farmers who claim that the United States Department of Agriculture (USDA) discriminated against them on the basis of race and sex by denying them credit and other benefits under farm programs.

Plaintiffs bring their claims under the Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq., the Administrative Procedure Act, 5 U.S.C. § 701 et seq., the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, the Fifth and Thirteenth Amendments to the Constitution of the United States, and several regulations of the United States Department of Agriculture. The government moves to dismiss certain of these claims under Fed.R.Civ.P. 12(b)(6), to strike plaintiffs' demand for a jury trial, and for a stay of proceedings in this case.

Background

This case is another in a series of suits filed after Congress, responding to reports that USDA dismantled its civil rights enforcement program in the early 1980's, extended the statute of limitations to October 21, 2000 for "eligible complaints" of discrimination alleged to have taken place at USDA between 1981 and 1996. See Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub.L. No. 105-277, Div. A § 101(a), § 741 112 Stat. 2681 (Oct. 21, 1998) (codified at 7 U.S.C. § 2279 Notes). One of those suits was a class action, filed on behalf of African-American farmers, that was settled by consent decree allowing individual plaintiffs to present their claims for compensation. Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999), aff'd, 206 F.3d 1212 (D.C. Cir. 2000). Three other suits, Keepseagle v. Veneman, No. 99-3119 (suit by Native American farmers), Love v. Veneman, No. 00-2502 (suit by female farmers), and Garcia v. Veneman, No. 00-2445 (suit by Hispanic farmers), continue in litigation.

Here, plaintiffs filed their complaint on October 19, 2000, alleging that defendant's credit agencies, which are authorized to make loans to farmers who are unable to secure credit from commercial lenders, administered and maintained USDA's farm credit program in a discriminatory fashion. They specifically allege that USDA discriminated against African-American and female farmers (1) in the processing of applications for farm credit, loan servicing, and non-credit benefits; (2) by placing a disproportionate number of loan funds of African-American and female farmers in supervised bank accounts; (3) by maintaining a local county administration program under which local administrators are not held accountable for discriminatory conduct; and (4) by failing to maintain a competent Office of Civil Rights to process and investigate discrimination complaints in a timely fashion.

Defendant now seeks to dismiss all claims made under the APA and Title VI, as well as all claims of failure to investigate discrimination complaints. Defendant also moves to dismiss all claims by certain of the named plaintiffs. Finally, defendant moves to strike plaintiffs' demand for a jury trial, and seeks a stay pending the class certification decision in Love.

Analysis

Standards on a Motion to Dismiss

A complaint may not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). On a Rule 12(b)(6) motion to dismiss, the complaint must be construed in the light most favorable to plaintiff, and plaintiff will have "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (internal citations omitted).

Claims Made Under the APA

The government first moves to dismiss all claims under the APA. No other judge is bound by my decision in Love, No. 00-2502, mem. op. of Dec. 13, 2001, at 12-14, but I believe that I am. In that case, I followed the rule that APA review is not available for agency action for which there is an adequate alternative remedy in court, Love, mem. op. at 13-14; see Women's Equity Action League v. Cavazos, 906 F.2d 742, 750-51 (D.C. Cir. 1990); Council of & for the Blind of Del. County Valley, Inc. v. Regan, 709 F.2d 1521, 1531-33 (D.C. Cir. 1983) (en banc). ECOA provides an adequate remedy for credit discrimination claims and claims related to credit discrimination, such as failure to investigate complaints of discrimination in the credit transaction process. I concluded, accordingly, that no such claims may be pursued under the APA,*fn1 and ruled that failures to investigate complaints are not "credit transactions" under the meaning of ECOA. Love, mem. op. at 13. Plaintiffs' allegations of failure to investigate civil rights complaints do not state claims under either ECOA or the APA, and must be dismissed in this case as well.*fn2

One claim in the complaint may be actionable under the APA. Leonard Cooper alleges that the USDA discriminated against him by "erect[ing] obstacle after obstacle," Complaint at ¶ 31, to his attempts to market his organic peanut crop in 1991. A final agency action that impeded Cooper's ability to market his crop, if not a credit transaction under ECOA, would be actionable under the APA. 5 U.S.C. § 702, 704. The government argues, however — and not unreasonably — that the delphic description of this claim in the complaint does not provide adequate notice of the nature of the claim, so that Cooper should not be allowed to pursue it. See Sinclair v. Kleindienst, 711 F.2d 291, 293 (D.C. Cir. 1983) (allegation in complaint must give "the defendant[] fair notice of the plaintiff's claim and the grounds upon which it rests"). The complaint does not identify a final agency action that created an obstacle to his marketing of his peanut crop. Cooper may have twenty (20) days from the filing of this memorandum to amend or supplement the complaint by providing detailed factual allegations more clearly stating his APA claim. See Empagran S.A. v. F. Hoffman-La Roche, Ltd., No. 00-1686, 2001 WL 761360 at *4 (D.D.C. June 7, 2001) (requiring plaintiffs to supplement amended complaint with more detailed factual allegations), rev'd on other grounds, 315 F.3d 338 (D.C. Cir. 2003). If he fails to do so, this claim will be dismissed.*fn3

Res Judicata (Claim Preclusion) effect of the Pigford litigation
The government also moves to dismiss certain claims under the doctrine of res ...

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