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Wilkinson v. Vilsack

October 29, 2009


The opinion of the court was delivered by: John D. Bates United States District Judge


Petitioner Wilbur Wilkinson brings this action on behalf of his parents, Ernest and Mollie Wilkinson, for a writ of mandamus directed to respondents Tom Vilsack, the Secretary of Agriculture, and the United States Department of Agriculture ("USDA"). Wilkinson contends that respondents have a duty to pay damages resulting from an administrative adjudication concluding that USDA discriminated against his parents. Now before the Court is respondents' motion to dismiss the verified petition for a writ of mandamus.


Wilkinson's parents, Mollie and Ernest Wilkinson, now deceased, were American Indians from North Dakota. See V. Pet. for Writ of Mandamus ("Pet.") [Docket Entry 1], ¶¶ 2, 5. They allegedly filed a complaint against USDA on March 5, 1990, claiming that a predecessor of the Farm Services Agency, a component of USDA, discriminated against them in administering a USDA credit program. See id. USDA did not take any action on the Wilkinsons' complaint. In the late 1990s, however, USDA admitted that "[d]uring much of the 1980s and 1990s, USDA administrative processes for review of program civil rights complaints filed against USDA agencies by program participants did not function effectively." Administrative Civil Rights Adjudications Under Section 741, 63 Fed. Reg. 67,392, at 67,392 (Dec. 4, 1998). In response, Congress enacted a special adjudication statute, known as Section 741, "to waive the applicable statutes of limitation for those individuals who had filed non-employment related discrimination complaints with USDA alleging discrimination during [the 1980s and early 1990s]." Id. Pursuant to this legislation, USDA's Office of Civil Rights notified the Wilkinsons in September of 2000 that they could file a request for the 1990 discrimination complaint to be processed under Section 741. See Pet. at ¶ 8.

The Wilkinsons filed such a request the following month, and USDA set the 1990 discrimination complaint for Section 741 processing in April 2003. Id. In August 2006,*fn2 USDA notified the Wilkinsons that their Section 741 Complaint Request was "eligible," and therefore the Wilkinsons could request an adjudication before an administrative law judge ("ALJ"). Id. at ¶ 9. The Wilkinsons did so, and the case proceeded before senior ALJ Victor Palmer. See id. at ¶¶ 10, 11. The parties agreed to bifurcate this proceeding, such that the ALJ would determine liability before assessing damages. See Pet., Exhibit B (Determination Part Two), 1. The ALJ then found USDA liable to the Wilkinsons, concluding that the agency had discriminated against the Wilkinsons in violation of the Equal Credit Opportunity Act. See id., Exhibit A (Determination Part One), 1. The ALJ set a hearing to determine the appropriate damages award.

See id., Exhibit A at 17.

Section 741 authorizes USDA's Assistant Secretary for Civil Rights ("ASCR") to review any ALJ determination, and conclude whether it will become USDA's final adjudication. See 7 C.F.R. § 15f.24(a). Here, the Assistant Secretary, Margo McKay, intervened before the damages hearing. Invoking her discretion under Section 741 to review a proposed determination, she stayed the damages hearing in order to review the liability determination. See Resp'ts' Mem. in Supp. of Mot. to Dismiss ("Resp'ts' Mem.") [Docket Entry 7], Exhibit 2 (ASCR's Order), at 2. Wilkinson opposed the stay, and filed a motion with the ALJ to proceed with the scheduled damages hearing. See Pet., Ex. B at 3. The ALJ construed McKay's "request that the scheduled hearing not be held" as "an election" that the ALJ reach a damages finding without a hearing, see id., and issued the damages determination on June 18, 2008, finding damages of $5,284,647, see id. at 6. In other words, the case proceeded on two separate tracks: as the ALJ was awarding damages notwithstanding the stay of that hearing, McKay was completing her review of the liability determination.

Wilkinson sought payment of those damages on September 5, 2008, a request that the Farm Services Agency opposed and USDA rejected. See Pet. at ¶ 18. McKay issued her final liability determination on October 27, 2008, concluding that the Wilkinsons' complaint was not eligible for Section 741 relief.*fn3 Wilkinson then commenced this action on October 27, 2008, for a writ of mandamus requiring respondents to satisfy the ALJ's damages award.


Mandamus is a drastic remedy to be invoked only in extraordinary situations and granted only when essential to the interests of justice. See Oglala Sioux Tribe of Pine Ridge Indian Reservation v. U.S. Army Corps of Eng'rs, 570 F.3d 327, 333 (D.C. Cir. 2009); Chatman-Bey v. Thornburgh, 864 F.2d 804, 806 n.2 (D.C. Cir. 1988). Mandamus is appropriate only where "(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff." In re Medicare Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005) (citations omitted). The party seeking mandamus has the "'burden of showing that [his] right to issuance of the writ is clear and indisputable.'" Gulfstream Aerospace Corp v. Mayacamas Corp., 485 U.S. 271, 289 (1988) (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384 (1953)).

Respondents contend here that because the ASCR reversed the ALJ's liability determination, Wilkinson does not have a clear right to damages. See Resp'ts' Mem. at 4. In fact, they offer that "the ALJ lacked any authority to enter an award of damages because the [ASCR] had already divested the ALJ of jurisdiction by agreeing to review the liability determination." Id. at 5.*fn4

Wilkinson responds that the ASCR's action was an improper "interlocutory review" of the ALJ's determination. See Pet'r's First Mem. in Opp'n to Mot. to Dismiss ("Pet'r's 1st Opp'n") [Docket Entry 11], at 5; Pet'r's Second Mem. in Opp'n to Mot. to Dismiss ("Pet'r's 2d Opp'n") [Docket Entry 12], at 3-4.*fn5 Although Wilkinson concedes that the ASCR has a right to review an ALJ's determination, he asserts that the ASCR can only do so within 35 days of an ALJ's determination. See Pet'r's 1st Opp'n at 6 (citing 7 C.F.R. § 15f.24(a)). Because the parties agreed to bifurcate the ALJ's adjudication, Wilkinson claims, the ALJ could not render his determination until after the damages award. See id.; see also Pet'r's 2d Opp'n at 3-4. The ASCR's review of the liability determination was therefore an improper "interlocutory review" of an ALJ ruling. See Pet'r's 1st Opp'n at 5 (citing 7 C.F.R. § 15f.21(d)(8) ("Interlocutory review of rulings by the ALJ will not be permitted.")); see also Pet'r's 2d Opp'n at 3 (citing same). The ALJ's damages determination therefore is the USDA's final, enforceable decision according to Wilkinson.

Not so, say respondents. 7 C.F.R. § 15f.24 "expressly" permits the ASCR to review an ALJ's determination "without regard to the scope of that proposed decision." Resp'ts' Reply at 5. And even though the parties agreed to bifurcate the adjudication, "[n]othing in the regulations requires the [ASCR] to wait until there is also a proposed determination on damages." Id. at 6. Indeed, "[t]here would be no need for a damages determination if the [ASCR] reversed the decision on liability . . . ." Id. At the least, respondents suggest, the absence of specific procedures governing when the ASCR is empowered to review an ALJ determination requires the Court to give "the Secretary [of Agriculture's] interpretation of his rules . . . controlling weight." Id. at 7. Accordingly, the ASCR validly stayed the proceedings in the Wilkinsons' case and thereby divested the ALJ of jurisdiction. See id. at 9.

Respondents have the better of this argument. The Court "must give substantial deference to an agency's interpretation of its own regulations." Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); see also Orion Reserves Ltd. P'ship v. Salazar, 553 F.3d 697, 707 (D.C. Cir. 2009). It may only invalidate USDA's adjudicative procedures "if the plain language of the regulation or 'other indications of the [agency's] intent' require another interpretation.'" See Orion Reserves, 553 F.3d at 707 (quoting Thomas Jefferson Univ., 512 U.S. at 512, and Fabi Constr. Co. v. Sec'y of Labor, 508 F.3d 1077, 1080-81 (D.C. Cir. 2007)). A court's task "is not to decide which among several competing interpretations best serves the regulatory purpose. Rather, the agency's ...

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