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Love v. Connor

November 30, 2007

ROSEMARY LOVE, ET AL., PLAINTIFFS,
v.
CHARLES F. CONNOR, ACTING SECRETARY, U.S. DEPARTMENT OF AGRICULTURE, DEFENDANT.



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

MEMORANDUM

This case is here on remand from the Court of Appeals for "further development" of the merits of the plaintiffs' claims under the APA. Love v. Johanns, 439 F.3d 723, 732-33 (D.C. Cir. 2006); Garcia v. Johanns, 444 F.3d 625, 636-637 (D.C. Cir. 2006) (companion case). The facts have been stated elsewhere and will be summarized only briefly here.

Plaintiffs are women farmers who allege discrimination by USDA in the administration of its farm benefit programs, and who further complain that USDA utterly failed to process or investigate their discrimination complaints when they filed them with the agency many years ago. There is little dispute that USDA dismantled its civil rights investigation program between the early 1980's and the mid-1990's, and did so without informing farmers that their discrimination complaints would be either ignored or summarily denied. See generally USDA Civil Rights Action Team Report: Civil Rights at the U.S. Dept. of Agriculture, [80, Exhibit 3]; 144 Cong. Rec. S11,433 (Sen. Robb). When Congress learned of this state of affairs, it extended for two years the period of limitations for any cause of action that a plaintiff might bring to redress claims she had filed with USDA in an "eligible complaint." See Pub. L. No. 105-277, 112 Stat. 2681-30, Title VII, Sec. 741 (codified at 7 U.S.C. § 2279 Note) (hereafter "§ 741"). Eligible complaints were defined as complaints filed with USDA between 1981 and 1996 that complained of violations of the Equal Credit Opportunity Act (ECOA), 15 U.S.C. § 1691 et seq., or of discrimination in the administration of a commodity assistance or disaster relief program.

See § 741(e). Plaintiffs filed this action days before that extended period ran out. They seek relief both for USDA's alleged discrimination and for USDA's failure to investigate.

In earlier proceedings, I denied a motion to certify a plaintiff class alleging discrimination in violation of ECOA but found that some individual plaintiffs may have viable ECOA claims. I also dismissed plaintiffs' attempt to bring their failure to investigate claim under ECOA. The Court of Appeals affirmed these rulings. Love, 439 F.3d at 728-732 (D.C. Cir. 2006). What remains on this remand is the question whether plaintiffs' failure to investigate claim can be brought under the APA, and whether certain ancillary claims of discrimination in the administration of non-credit benefits can proceed under the APA as well.

Analysis

A. The Regulatory Regime

The regulations that bear upon this case have changed over time. In 1981, departmental regulations stated that persons could file discrimination complaints, that they would be handled "in accordance with the procedures established . . . for the handling of complaints or appeals . . . which are not based on discrimination," and that the "investigative function . . . shall be discharged by the Office of the Inspector General in the manner determined by the Inspector General." See 31 Fed. Reg. 8175. In 1985, this regulation was amended to replace the Office of the Inspector General with the Assistant Secretary for Administration, but the provision that the investigative function would be discharged "in the manner determined by the Assistant Secretary" was unchanged. See 50 Fed. Reg. 25687.

In 1989, the provision that discrimination complaints would be processed in the same manner as other complaints disappeared.*fn1 Also, the regulation was amended to read: "The Director, Office of Advocacy and Enterprise, will make determinations as to the merits of complaints under this subpart and as to corrective actions required to resolve the complaints." See 54 Fed. Reg. 31163 (emphasis added). The commentary that accompanied publication of the final rule noted that this change was intended to "authorize" the Office of Advocacy and Enterprise to investigate and make determinations on complaints, and to clarify delegations of authority. Id.

In 1999, after Congress passed § 741 and after the expiration of the period Congress had established for "eligible complaints," the regulations were amended again. References to the Office of Advocacy and Enterprise were replaced with references to the Office of Civil Rights, and a provision that the "complain[ant] will be notified of the final determination on his or her complaint" was added. See 64 Fed. Reg. 66709; 7 C.F.R. § 15d.4. Also in 1999, the Department promulgated an internal "departmental regulation" specifying, apparently for the first time, the manner in which investigations would be conducted. See Nondiscrimination in USDA-Conducted Programs and Activities, DR-4330-3 [Garcia Dkt. 150, Exhibit 15].

The evolution of these regulations sheds at least some light on the question whether they imposed a duty to investigate discrimination claims at the time that plaintiffs filed their eligible complaints, or instead only "authorized" such investigations and described the manner in which they would be carried out. Although I find that to be an interesting question,*fn2 the parties evidently do not. The government may even have implicitly conceded that the regulations did impose a duty to investigate -- focusing its argument instead on the assertion that its exercise of that duty is unreviewable for lack of manageable standards. See Webster v. Doe, 486 U.S. 592 (1988); Heckler v. Cheney, 470 U.S. 821 (1985); Slyper v. Attorney General, 827 F.2d 821 (D.C. Cir. 1987).

In any event, both questions -- whether the regulations required an investigation and whether investigation decisions are unreviewable -- are beside the point, because even if plaintiffs have an APA claim under the 1999 regulations, that claim is barred by the existence of an adequate alternative remedy at law.

B. Adequate Alternative Remedy

The APA provides for judicial review only where plaintiffs have "no other adequate remedy in a court." 5 U.S.C. § 704. The definitive interpretation of this section comes from Bowen v. Massachusetts, 487 U.S. 879 (1988), where the Supreme Court cited Attorney General Clark's manual on the APA for the proposition that ยง 704 "does not provide additional judicial remedies in situations where the Congress has provided special and adequate review procedures." Id. at 903. In this case, it is clear that Congress ...


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