Law v. United States Department of Agriculture

• Decision Date: 30 October 1973
• Docket Number: Civ. A. No. 1486,1487.
• Citation: 366 F. Supp. 1233
• Parties: Robert Lee LAW, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE et al., Defendants. Bud LAW, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

366 F. Supp. 1233

Robert Lee LAW, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE et al., Defendants.

Bud LAW, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE et al., Defendants.

Civ. A. Nos. 1486, 1487.

United States District Court, N. D. Georgia, Gainesville Division.

October 30, 1973.

William F. Welch, Atlanta, Ga., James H. Morawetz, John L. Cromartie, Jr., David F. Walbert, Bettye H. Kehrer, Atlanta, Ga., for plaintiffs.

William D. Mallard, Jr., Asst. U. S. Atty., John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., for defendants.

SIDNEY O. SMITH, Jr., Chief Judge.

These are companion suits attacking the attempted collection of debts and foreclosure of security created by loans made through the Farmers Home Administration in 1967 for an ill-fated swine raising program. In each instance, the underlying debt is challenged on various grounds. Presently before the court, however, is the serious problem occasioned by the defendants' efforts to foreclose against plaintiffs' real estate under a contractual power of sale in conformity with Georgia Code Section 67-1506. Insofar as that question is concerned, the only distinction between the two cases is that one plaintiff (Number 1486) seeks to enjoin the threatened contractual foreclosure under advertisement; while the other (Number 1487) seeks to set aside the sale under foreclosure on the first Tuesday of August, 1972, by the defendant public officials. As the statute itself is claimed to be unconstitutional, a temporary restraining order issued and a three-judge court was impaneled. However, it was determined under the narrow construction required that a three-judge court was not warranted because of the absence of action by a state officer and the panel was dissolved. Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967); Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L. Ed.2d 378 (1970); Giordano v. Stubbs, 335 F.Supp. 107 (N.D.Ga.1971). Prior thereto by agreement of the parties the temporary restraining order continued in force for the development of the jurisdictional and constitutional issues.

JURISDICTION

While the facts of this case do not present the difficult threshold question of the need for state action in a due process claim under the 14th Amendment,¹ the presence of federal officials as defendants under the Fifth Amendment raises other jurisdictional considerations.

Defendants' argument on this issue is that the doctrine of sovereign immunity bars the action unless the government has consented, which it has not done according to defendants. Plaintiff argues that the government has waived its immunity in quiet title actions and also that the Administrative Procedure Act (hereinafter APA) allows maintenance of the action.

1. Plaintiff argues that his quiet title claims fits under 28 U.S.C. § 2409a and its jurisdictional counterpart, 28 U.S.C. § 1346(f). This statute is relatively new (Oct. 25, 1972), and there appear to be no reported cases in which it has been construed. The legislative history of the statute seems to suggest that the present case falls within the scope of § 2409a. Furthermore, plaintiff points out that in the context of 28 U.S.C. § 2410 (statute permits United States to be joined as a defendant in suit to quiet title to property to which the United States claims a mortgage or other lien) a court has said the words "quiet title" were not used in the limited sense. United States v. Coson, 286 F.2d 453, 457 (9th Cir. 1961).

Plaintiff's arguments are persuasive. The present action appears to fit easily within the scope of § 2409a. Plaintiff claims the land is still his because the foreclosure was done in an unconstitutional manner and so was void. Accordingly, he wants the government's deed removed from the record. On the other hand, the government claims that its title is good. If a boundary dispute is covered by § 2409a, it seems to follow that Congress also intended to include a dispute such as exists in this case. Consequently, jurisdiction exists to entertain the quiet title claim against the government proper. As the Farmers Home Administration is the grantor in the deed sought to be set aside, this ruling necessarily includes it. However, the Department of Agriculture is dismissed as a party defendant.

2. (a) Secondly, plaintiff asserts that sovereign immunity does not bar his action because of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. The APA has been interpreted as providing "a clear waiver of sovereign immunity in actions to which it applies." Estrada v. Ahrens, 296 F.2d 690, 698 (5th Cir. 1961).² Also see Scanwell Laboratories, Inc. v. Shaffer, 137 U.S. App. D.C. 371, 424 F.2d 859, 873 (1970).

5 U.S.C. § 702 provides:

"A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof."

But 5 U.S.C. § 701(a)(2) states that the APA applies except to the extent that "agency action is committed to agency discretion by law." Then § 706(2) (A) says that a reviewing court shall set aside agency action found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." According to Professor Davis the net effect is that,

"Within the meaning of § 701, some such discretionary power is so far `committed' to agency discretion as to be unreviewable, and some such discretionary power is not so far `committed.'" Davis, Administrative Law Treatise, 1970 Supp., § 28.16, p. 965.

It is obvious that the actions of the officials in the present case involved the exercise of some discretion. The question becomes whether or not the exercise is reviewable, or in terms of Estrada whether this is a case to which the APA applies.

In Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), the plaintiffs, whose business was selling data processing services to businesses, sought judicial review of a ruling by the Comptroller of the Currency that national banks, as incident to their banking services, could make data processing services available to their customers and to other banks. The Court said at 397 U.S. 156-157, 90 S.Ct. 827, 831:

"In Shaughnessy v. Pedreiro, 349 U.S. 48, 51, 75 S.Ct. 591, 90 L.Ed. 868, we referred to `the generous review provisions' of that Act; and in that case as well as in others (see Rusk v. Cort, 369 U.S. 367, 379-380, 82 S.Ct. 787, 7 L.Ed.2d 809) we have construed that Act not grudgingly but as serving a broadly remedial purpose.

"We read § 701(a) as sympathetic to the issue presented in this case. As stated in the House Report:

"`The statutes of Congress are not merely advisory when they relate to administrative agencies, any more than in other cases. To preclude judicial review under this bill a statute, if not specific in withholding such review, must upon its face give clear and convincing evidence of an intent to withhold it. The mere failure to provide specially by statute for judicial review is certainly no evidence of intent to withhold review.' H.R.Rep. No. 1980, 79th Cong., 2d Sess., 41."

The Court ruled that the plaintiffs were aggrieved persons under § 702 and so entitled to judicial review.

The case most nearly on point to the present one appears to be Robinson v. McAlister, 310 F.Supp. 370 (N.D.Miss. 1970). In that case plaintiff alleged that the defendants, officials of the FHA, had violated his rights under 7 U.S.C. § 1921 et seq. and the Fifth Amendment. He also alleged that defendants had foreclosed on a deed of trust on plaintiff's property because of racial prejudice and that defendants had acted arbitrarily and capriciously in denying plaintiff an FHA loan. The court said it appeared plaintiff was seeking relief under 42 U.S.C. § 1471 et seq. (provides for financial assistance for farm housing), and it is not clear whether the court entertains plaintiff's claim based on 7 U.S.C. § 1921 et seq. Whatever, the court, relying upon Data Processing, supra, and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 60 (1970), held that the plaintiff was entitled to judicial review under the APA.

In the present case Data Processing, Barlow, and Robinson all weigh in favor of plaintiff's obtaining judicial review under the APA. However, the APA does not confer "any additional jurisdiction not expressly authorized by a separate statutory grant of power." Arizona St. Dept. of Pub. W. v. Department of Health, E. & W., 449 F.2d 456, 464 (9th Cir. 1971). Here plaintiff could rely upon federal question jurisdiction since he is attacking the constitutionality of a statute.

(b) The parties acknowledge:

"The general rule is that a suit is against the sovereign if `the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' . . . or if the effect of the judgment would be `to restrain the Government from acting, or to compel it to act.' . . ." Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963) (citations omitted). Also see Larson v. Domestic & Foreign Corp., 337 U.S. 682, 689-690, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).

Two exceptions to the general rule permit relief against individual officers. These exceptions are (1) actions by officers beyond their statutory powers and (2) even if the actions are within the scope of authority, the powers themselves or the manner in which they are exercised are constitutionally void. Dugan, supra, 372 U.S. at 621-622, 83 S.Ct. 999. In accord with Dugan are Carter v. Seamans, 411 F.2d 767, 770 (5th Cir. 1969), Simons v. Vinson, 394 F.2d 732, 736 (5th Cir. 1968), and Gardner v. Harris, 391 F.2d 885, 887-888 (5th Cir. 1968). In the Fifth Circuit's view, "in these two instances the sovereign's consent to be sued is not required and the defense of sovereign immunity is unavailable." Carter, supra, 411 F.2d at 770. Insofar as the constitutional issue is...