Garcia v. Vilsack

• Decision Date: 24 April 2009
• Docket Number: No. 08-5135.,No. 08-5110.,08-5110.,08-5135.
• Citation: 563 F.3d 519
• Parties: Guadalupe L. GARCIA, for Himself and on Behalf of G.A. Garcia and Sons Farm, et al., Appellants v. Thomas VILSACK, Secretary, United States Department of Agriculture, Appellee Rosemary Love, et al., Appellants v. Thomas Vilsack, Secretary, United States Department of Agriculture, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

563 F.3d 519

Guadalupe L. GARCIA, for Himself and on Behalf of G.A. Garcia and Sons Farm, et al., Appellants v. Thomas VILSACK, Secretary, United States Department of Agriculture, Appellee Rosemary Love, et al., Appellants v. Thomas Vilsack, Secretary, United States Department of Agriculture, Appellee.

No. 08-5110.

No. 08-5135.

United States Court of Appeals, District of Columbia Circuit.

Argued January 9, 2009.

Decided April 24, 2009.

Stephen S. Hill argued the cause for appellants Guadalupe L. Garcia, Jr., et al. With him on the briefs were Alan M. Wiseman, Robert L. Green, and Kenneth C. Anderson.

Barbara S. Wahl argued the cause for appellants Rosemary Love, et al. With her on the briefs were Marc L. Fleischaker, Kristine J. Dunne, Jennifer A. Fischer, Roderic V.O. Boggs, Susan E. Huhta, Alexander John Pires, Jr., and Phillip L. Fraas.

Charles W. Scarborough, Attorney, U.S. Department of Justice, argued the causes the appellee. With him on the brief were Gregory G. Katsas, Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, and Marleigh D. Dover, Attorney.

Before: ROGERS and GRIFFITH, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

These appeals relate to the continuing efforts by farmers to obtain relief from the discriminatory distribution of federal farm benefits by the United States Department of Agriculture ("USDA"). See, e.g., Pigford v. Glickman, 206 F.3d 1212 (D.C.Cir. 2000). This time the complaints were filed by female and Hispanic farmers who alleged that since 1981 the USDA has unlawfully discriminated against them in the administration of its farm benefit programs and failed to act on their administrative complaints in accordance with USDA regulations. This court affirmed the denial of class action certification and the dismissal of the failure-to-investigate claims brought under the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. §§ 1691-1691f. Love v. Johanns, 439 F.3d 723 (D.C.Cir.2006); Garcia v. Johanns, 444 F.3d 625 (D.C.Cir.2006). The question in this second interlocutory appeal is whether appellants' failure-to-investigate claims are reviewable under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. Because appellants fail to show they lack an adequate remedy in a court, we affirm the dismissals of their APA failure-to-investigate claims and remand the cases to the district court.

I.

The ECOA provides that it is "unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction ... on the basis of race, color, religion, national origin, sex or marital status, or age." 15 U.S.C. § 1691(a). The statute authorizes the recovery of actual damages from creditors, including the federal government, see id. §§ 1691 a(e)-(f), 1691 e(a), and a court "may grant such equitable and declaratory relief as is necessary to enforce [the ECOA]," as well as "reasonable attorney's fees" to applicants bringing a "successful action." Id. § 1691 e(c)-(d). Claims under the ECOA must be filed within two years of the "date of the occurrence of the violation." Id. § 1691 e(f).

USDA regulations have long provided that applicants alleging discrimination by the USDA in its direct benefit programs may file administrative complaints with the USDA. See 7 C.F.R. § 15d.4; see also Love v. Connor, 525 F.Supp.2d 155, 157-58 (D.D.C.2007).¹ Appellants allege, however, that for years the USDA ignored discrimination complaints like theirs. Indeed, in 1997 the USDA publicly acknowledged that in the early 1980s it "effectively dismantled" its civil rights enforcement apparatus.²

In response, Congress enacted a special remedial statute in 1998 for applicants who had filed a "nonemployment related complaint" with the USDA before July 1, 1997 that alleged discrimination occurring between January 1, 1981 and December 31, 1996. Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Pub.L. No. 105-277, § 741(e), 112 Stat. 2681-31 (codified at 7 U.S.C. § 2279 Note) (hereinafter "Section 741"). The statute extended the ECOA statute of limitations until October 21, 2000, and provided that such eligible complainants could either file an ECOA action in federal court, pursuant to Section 741(a), or renew their administrative complaints and obtain a determination on the merits of their claim from the USDA, pursuant to Section 741(b). Subsection (b) of the statute required the USDA to timely process renewed administrative complaints, to investigate the claims, and to issue merits determinations after a hearing on the record. Subsections (d) and (g) provided that complainants denied administrative relief could seek de novo review in federal court.

Appellants, nearly all of whom appear to have filed complaints with the USDA before July 1, 1997,³ chose the first option: On the eve of the October 21, 2000 deadline, they filed complaints in the federal district court here under the ECOA and the Declaratory Judgment Act, 28 U.S.C. § 2201(a). Their complaints also included claims under the APA.⁴ They alleged that the USDA had discriminated against them with respect to credit transactions and disaster benefits in violation of the ECOA, and also had systemically failed to investigate complaints of such discrimination in violation of USDA regulations. In the district court only appellants' ECOA credit transaction claims and the Garcia appellants' APA disaster benefit claims have survived the USDA's motion to dismiss. The district court also denied appellants' motions for class certification on their remaining ECOA discrimination claims, and this court affirmed upon interlocutory review in 2006. See Love, 439 F.3d 723; Garcia, 444 F.3d 625. Following a remand of the APA failure-to-investigate claims, the district court reaffirmed its dismissal of those claims on the ground that Section 741 provided appellants an adequate remedy at law. See Love v. Connor, 525 F.Supp.2d 155; Order, Garcia v. Veneman, Civ. No. 00-2445. The district court certified its interlocutory ruling, and this court granted appellants' petition for leave to appeal pursuant to 28 U.S.C. § 1292(b).

II.

The APA provides that "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 5 U.S.C. § 704. In Bowen v. Massachusetts, 487 U.S. 879, 904, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), the Supreme Court interpreted § 704 as precluding APA review where Congress has otherwise provided a "special and adequate review procedure." Id. at 904, 108 S.Ct. 2722 (internal quotations omitted). An alternative remedy will not be adequate under § 704 if the remedy offers only "doubtful and limited relief." Id. at 901, 108 S.Ct. 2722. So understood, this court has held that the alternative remedy need not provide relief identical to relief under the APA, so long as it offers relief of the "same genre." El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep't of Health & Human Servs., 396 F.3d 1265, 1272 (D.C.Cir.2005). Thus, for example, relief will be deemed adequate "where a statute affords an opportunity for de novo district-court review" of the agency action. Id. at 1270. In such cases, the court has reasoned that "Congress did not intend to permit a litigant challenging an administrative denial ... to utilize simultaneously both [the review provision] and the APA." Id. at 1270 (quoting Envtl. Defense Fund v. Reilly, 909 F.2d 1497, 1501 (D.C.Cir.1990)) (omission and alteration in original). Relief also will be deemed adequate "where there is a private cause of action against a third party otherwise subject to agency regulation." Id. at 1271. In evaluating the availability and adequacy of alternative remedies, however, the court must give the APA "`a hospitable interpretation' such that `only upon a showing of clear and convincing evidence of a contrary legislative intent should the courts restrict access to judicial review.'" Id. at 1270 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)); see also Bowen v. Massachusetts, 487 U.S. at 904, 108 S.Ct. 2722.

Appellants contend that the district court erred in two respects in holding that they could not bring a claim under the APA challenging the USDA's failure to investigate their civil rights complaints: First, the district court misapplied Bowen by disregarding record evidence that under Section 741 there was no real adequate alternative remedy in a court for their failure-to-investigate claims; second, the district court mistakenly relied on this court's precedents involving claims against an agency for failing to regulate third-party wrongdoers, and therefore failed to follow circuit precedent that permits a plaintiff to bring an APA claim for the agency's failure to follow its regulations in addition to a non-APA discrimination claim. Appellants emphasize that their survival as farmers depends in significant part on their ability to obtain federal benefits authorized by Congress to be administered by the USDA, and that when the USDA fails to comply with its regulations for handling and processing administrative complaints, the benefits systems envisioned by Congress are thwarted and their efforts to survive as farmers are stymied. Although this court has no occasion to doubt appellants' claims of harm, their legal challenges to the dismissal of their APA failure-to-investigate claims are unpersuasive.

First, there is clear and convincing evidence that in enacting Section 741 Congress did not intend for complainants who choose to proceed in the district court on their ECOA claims to pursue their failure-to-investigate claims under the APA simultaneously in the same lawsuit. In responding to the dilemma presented by the USDA's failure to investigate discrimination claims, Congress resurrected time-barred claims and gave such complai...