Moore v. U.S. Dept. of Agriculture on Behalf of Farmers Home Admin.

• Citation: 993 F.2d 1222
• Decision Date: 30 June 1993
• Docket Number: No. 92-4681,92-4681
• Parties: Larry W. MOORE and Naomi W. Moore, Plaintiffs, Larry W. Moore, Plaintiff-Appellant, v. U.S. DEPARTMENT OF AGRICULTURE, on Behalf of FARMERS HOME ADMINISTRATION, Defendant-Appellee. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1222

993 F.2d 1222

Larry W. MOORE and Naomi W. Moore, Plaintiffs Larry W. Moore, Plaintiff-Appellant, v. U.S. DEPARTMENT OF AGRICULTURE, on Behalf of FARMERS HOME ADMINISTRATION, Defendant-Appellee.

No. 92-4681

Summary Calendar.

United States Court of Appeals Fifth Circuit.

June 30, 1993.

Cary J. Deaton, Metairie, LA, M. Randall Donald, Monroe, LA, for plaintiff-appellant.

John A. Broadwell, Asst. U.S. Atty., Joseph S. Cage, Jr., U.S. Atty., Shreveport, LA, for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Moore and his wife filed suit against the United States Department of Agriculture under the Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq., alleging that they were denied the opportunity to participate in a sale of inventory farmland held by the Farmers Home Administration because they were "white." Incredibly, the letter sent them from the Farmers Home Administration on December 29, 1989, rejecting their application to participate in the sale, stated precisely that. Nevertheless, the district judge found their lawsuit "premature" and dismissed it for that reason. We reverse.

It is trite to say that over 130 years ago a Civil War was fought in this nation and beginning 40 years ago a legal war was re-fought to stop racial discrimination. Yet in 1989, the Moores received a letter from FMHA rejecting their loan application for the following "specific reason[s]":

You have failed to provide proof that you meet the criteria of SDA. (No Whites).

This statement apparently reflected the policy of the Agriculture Department in implementing the Socially Disadvantaged Farm Ownership Outreach program, established pursuant to the Agricultural Credit Act of 1987, 7 U.S.C. § 2003. ¹ Because of the overt racial discrimination, the Moores' allegations pose more than a possibility of recovery under a Bivens-type action founded in the equal protection component of the Fifth Amendment. See Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). What other remedies might be available to appellants we need not speculate at this time.

The government's brief fails to defend its agents' conduct. But there is no mea culpa. The government high-handedly supports dismissal on the basis of lack of justiciability, characterized as lack of standing or ripeness. The Moores, it contends, never filled out a complete loan application, hence they could never have qualified for the FMHA program. Perhaps, in the end, this would have been true. But how does the government know this? And who can fault the Moores if they were cowed, following their rejection based solely on skin color, into forgetting some of the procedural details as they groveled before FMHA in order to make their record for later administrative proceedings or a lawsuit? ² The case should never have been dismissed on this basis.

It is no different from our court's holding in Bentley v. Beck, 625 F.2d 70 (5th Cir.1980), where a prisoner had been told he could not work in the jail kitchen until there was an opening for a "white boy." The district court dismissed the case on the county's urging that a prisoner has no constitutional right to be assigned any particular job. This court held:

Both the court's order and appellee miss the point. As plaintiff states in his pro se brief, he is not claiming to have a constitutional right to a particular job. His claim is that his application for the position of kitchen orderly should not be denied solely because of his race, clearly unconstitutional conduct.... Inmates have a constitutional right to be free from racial discrimination.

625 F.2d at 70-71. Surely the Moores stand on the same constitutional footing as prison inmates. See also, Williams v. Meese, 926 F.2d 994, 998 (10th Cir.1991); Regents of University of California v. Bakke, 438 U.S. 265, 281 n. 14, 98 S.Ct. 2733, 2743 n. 14, 57 L.Ed.2d 750 (1978) (lack of consideration is harm enough for standing); Finch v. Mississippi State Medical Association, 585 F.2d 765, 771-72 (5th Cir.1978). Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, --- U.S. ----, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) (discussing and endorsing the Bakke standing rational).

We add to Bentley's reasoning only the observation that granting a dismissal for lack of standing in this case has particularly pernicious ramifications. Where there are allegations of direct, overt racial discrimination, as were made here, a court should think long and hard before dismissing a case for lack of "justiciability." The badge of inequality and stigmatization conferred by racial discrimination is a cognizable harm in and of itself providing grounds for standing. Flanagan v. Aaron E. Henry Community Center, 876 F.2d 1231, 1236 (5th Cir.1989); Woods-Drake v. Lundy, 667 F.2d 1198, 1203 (5th Cir.1982); Gore v. Turner, 563 F.2d 159, 164 (5th Cir.1977).

Here the district judge found that an incomplete application would not have been approved even if the Moores were members of a minority. That is doubtless correct, if they had persisted in refusing to complete the application. But the suggestion of the initial letter to the Moores is that FMHA would have worked with them to complete the application if they had been minorities, and, conversely, that they might well not have completed it simply because they had been told, by that same letter, that unless they were members of a minority group FMHA would not consider the application at all, whether or not they completed it. ³...