The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Plaintiff Darrell W. Williams brings suit under the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. §§ 1691 et seq., the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq., and the Due Process Clause of the Fifth Amendment. He alleges that the defendant, in his official capacity as the Secretary of the United States Department of Agriculture ("USDA"), has violated his due process rights under the Fifth Amendment, acted in an arbitrary and capricious manner in violation of the APA, and discriminated against him on the basis of his race in violation of the ECOA. Upon consideration of the motion, the opposition, the reply and the entire record in this case, the Court grants judgment for the defendant with respect to plaintiff's ECOA claim, denies without prejudice defendant's motion respecting plaintiff's Fifth Amendment claim, and dismisses plaintiff's APA claim for failure to state a claim.*fn2
Plaintiff Darrell Williams is an African-American farmer. See First Amended Complaint ("Am. Compl.") ¶ 8. In 1981, he obtained a loan from the USDA's Farmers Home Administration ("FmHA"). Id. ¶ 13. That loan was in the amount of $95,390 at a 5% annual rate of interest. Def. Ex. 2, Promissory Note dated April 24, 1981 ("1981 Note"); see also Am. Compl. ¶ 13. The promissory note specified that the loan's principal and interest would be repaid in 41 installments over 40 years, with the first installment of $5,560.00 due on January 1, 1982. See 1981 Note. Mr. Williams pledged his farm located near Palestine, Texas as collateral for the loan. Def. Ex. 3, Real Estate Deed of Trust for Texas. On October 24, 1986, Mr. Williams rescheduled his 1981 loan, on which a principal balance of $93,446 was still owing, for repayment over 30 years in 31 installments at an annual rate of interest of 8.25%. Def. Ex. 4, Promissory Note dated October 24, 1986.
In 1992, Mr. Williams' loan was accelerated when he was deemed to be in default. Am. Compl. ¶ 8. He alleges that the acceleration was in violation of the USDA's own rules. Id. Mr. Williams wrote a letter at that time to his then-Congressman, Craig Washington, saying that he was "having difficulty negotiating a settlement of a delinquent loan" with the FmHA. Def. Ex. 5, Letter from Darrell Williams to the Honorable Craig Washington, dated December 2, 1992. He went on to state that after he requested a meeting with FmHA's County Supervisor, he was told that FmHA has a Primary and Preservation Loan service program for debt restructuring, but he was refused consideration because he had not submitted a complete application within 60 days. Id. Nowhere in his letter did Mr. Williams make any reference to race or to discrimination. Instead he asked Congressman Washington to assist him in his appeal of the defendant's decision not to permit him to participate in the program for debt restructuring.
Congressman Washington apparently inquired into the matter. In response, then-Acting FmHA Administrator Sharron S. Longino wrote a letter to Congressman Washington explaining that on January 11, 1993 an FmHA National Appeals Staff hearing officer had reversed the initial decision to deny plaintiff's application for loan servicing as untimely. Def. Ex. 7, Letter from Acting Administrator Sharron S. Longino to the Honorable Craig A. Washington, dated May 21, 1993. Ms. Longino further stated to Congressman Washington that the FmHA would give Mr. Williams "every consideration so that he may resolve his delinquency and continue to farm." Id.
On December 16, 1994, the FmHA sent Mr. Williams a notice of intent to accelerate his loan once again because he was $28,422 in arrears on his payment and had not asked for or accepted an offer for primary loan service programs. See Def. Ex. 8, Notification of Intent to Accelerate or Continue Acceleration of Loans and Notice of Your Rights, dated December 16, 1994; see also Def. Ex. 9, Domestic Return Receipt, signed by Darrell Williams. The notice set forth the steps that Mr. Williams could take before this acceleration would begin, including requesting a meeting with the FmHA County Official, appealing the decision, or voluntarily signing over the property used as security and asking to be released from the debt. See id.
On January 31, 1995, the FmHA issued a report pursuant to 7 C.F.R. § 1955.15(b) recommending foreclosure on the plaintiff's Palestine farm. See Def. Ex. 10, Report on Real Estate Problem Case, dated January 31, 1995. According to that report, Mr. Williams was 48 months in default and owed a total of $157,042.70 -- $93,446.18 in principal and $31,301.91 in interest. See id. at 1. The market value of the property was assessed at $98,000. Id. The report further stated that Mr. Williams had been sent procedural notices giving him "[i]nformation for referral, rescheduling, reamortization, preservation and primary servicing" by mail and in person, but that he had not submitted the "[i]nformation needed for granting servicing options." Id. at 2.
On May 19, 1995, Mr. Williams submitted an application to settle his debt, listing the total unpaid balance as $151,000, and offering $98,000 to settle the debt in full. See Def. Ex. 11, Application for Settlement of Indebtedness, dated May 19, 1995; see also Am. Compl. ¶ 38. That offer was not accepted, and Mr. Williams' farm was sold in September 1995. See Sworn Statement of Darrell W. Williams ("Williams State.") at 1; Am. Compl. ¶¶ 37-38. Between May 1995 and June 29, 2001, Mr. Williams claims that he received no further communications from the USDA regarding his debt. See Am. Compl. ¶¶ 42-44.
On June 29, 2001, Mr. Williams received a notice via certified mail concerning his continued debt. See Williams State. at 1. He received another notice concerning his debt in January 2002, informing him that he owed a total of $132,913.72, and that the Farm Service Agency (the successor agency to the FmHA) was preparing to refer his debt to the United States Department of Treasury for collection. See id. at 2; Def. Ex. 20, January 3, 2002 Notice Advising of Potential for Referral to Treasury for Cross-Servicing and the Availability of Debt Settlement ("January 3, 2002 Letter") at 1. That letter further informed Mr. Williams of various programs available to him for settling the remaining debt. See January 3, 2002 Letter at 2. Mr. Williams claims that during the time period in which he did not receive, or claims not to have received, notice of his debt, the USDA fraudulently concealed from him the fact that it was continuing to assert the debt against him.
1. Rule 12(b)(1): Lack of Subject Matter Jurisdiction
When deciding a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court may dispose of the motion on the basis of the complaint alone or may consider materials beyond the pleadings. "[W]here necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992). This Court has interpreted Herbert to allow a court to "consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections and Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000) (citing Herbert v. Nat'l Acad. of Sciences, 974 F.2d ...