Love v. Connor, Civil Action No. 00-2502 (JR).

• Citation: 525 F.Supp.2d 155
• Decision Date: 30 November 2007
• Docket Number: Civil Action No. 00-2502 (JR).
• Parties: Rosemary LOVE, et al., Plaintiffs, v. Charles F. CONNOR, Acting Secretary, U.S. Department of Agriculture, Defendant.
• Court: U.S. District Court — District of Columbia

525 F.Supp.2d 155

Rosemary LOVE, et al., Plaintiffs, v. Charles F. CONNOR, Acting Secretary, U.S. Department of Agriculture, Defendant.

Civil Action No. 00-2502 (JR).

United States District Court, District of Columbia.

November 30, 2007.

Alexander John Pires, Jr., Barbara S. Wahl, Arent Fox Kintner Plotkin & Kahn, Kristine J. Dunne, Marc L. Fleischaker, Arent Fox PLLC, Phillip. L. Fraas, Washington, DC, for Plaintiffs.

Carlotta Poter Wells, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM

JAMES ROBERTSON, District. Judge.

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.Q.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.¹ 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,² 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, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988); Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (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, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), where the Supreme Court cited Attorney General Clark's manual on the APA for the proposition that § 704 "does not provide additional judicial remedies in situations where the Congress has provided special and adequate review procedures." Id. at 903, 108 S.Ct. 2722. In this case, it is clear that Congress has expressly addressed the exact injury of which plaintiffs complain, and provided a "special" and "adequate" remedy for their wrong.

The remedy that Congress fashioned to deal with years of neglect and malfeasance by the Department of Agriculture was "special" because it was an express response to the injuries of these very plaintiffs. The "special" intent of Congress appears on the face of the Congressional Record, see 144 Cong. Rec. S11,433 (Sen.Robb), and is made self-evident by the definition of "eligible complaint" and the limitation of the extension remedy to those persons who actually filed complaints that had been neglected.

The special remedy Congress provided is also plainly "adequate." Not only did it extend all applicable periods of limitation for those prejudiced, by agency inaction, but it also allowed any eligible complainant to "seek a determination on the merits of the eligible complaint by the Department of Agriculture" — in other words, to take up her complaint again with the agency. § 741(b). The legislation required the agency to process such renewed complaints within 180 days if possible, required the agency to award appropriate relief, and required the agency to afford a hearing on the record before making a determination. § 741(b)(1)-(3). Congress also provided for de novo review of any such determination in federal court. § 741(c). In short, Congress's remedy allowed any member of the group plaintiffs seek to represent to renew her complaint with the agency and to get her long-delayed investigation conducted before going to court to vindicate her underlying claim of discrimination if the agency's determination was not entirely to her liking. Congress did not require exhaustion of this newly-enacted procedure, however, and no plaintiff states that she resorted to it before joining this action.

Even in the absence of the "special and adequate" procedures Congress enacted to remedy plaintiffs' particular injuries, circuit precedent precludes an APA suit against an agency charged with overseeing and policing discrimination where a direct cause of action for discrimination exists. The issue has been brought again and again to the D.C. Circuit, and it has repeatedly reaffirmed its en banc decision in Council of and for the Blind v. Regan, 709 F.2d 1521 (1983).

Council of and for the Blind denied APA review of the alleged failure of federal officers to terminate the federal funding of discriminating entities because direct suits for discrimination against state and local governments were an adequate remedy. The court was troubled by a hypothetical world in which every instance of agency recalcitrance would require a court to enter an injunction or contempt order. See Council of and for the Blind, 709 F.2d at 1532. It rejected the suggestion of amicus that it oversee "an investigation of the specific and ongoing practices of [the agency]," noting that such a role would be "more properly conducted by a Congressional subcommittee as part of its oversight function." Id. at...