Robinson v. McAlister, WC 6959.

• Decision Date: 24 March 1970
• Docket Number: No. WC 6959.,WC 6959.
• Citation: 310 F. Supp. 370
• Parties: Brooks ROBINSON, Plaintiff, v. L. T. McALISTER et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

310 F. Supp. 370

Brooks ROBINSON, Plaintiff, v. L. T. McALISTER et al., Defendants.

No. WC 6959.

United States District Court, N. D. Mississippi, W. D.

March 24, 1970.

Kent Spriggs, Oxford, Miss., for plaintiff.

H. M. Ray, U. S. Atty., Oxford, Miss., for defendants.

MEMORANDUM OPINION

ORMA R. SMITH, District Judge.

This action is before the Court on defendants' motion to dismiss. Defendants assert that the Secretary of Agriculture is an indispensable party, and the Court is without jurisdiction of the subject matter, because the action is one against the United States, without its consent.

The plaintiff alleges that defendants, Committeemen of the Benton County, Mississippi Farmers Home Administration and the office supervisor of said Administration violated his rights under the Farmers Home Administration Act of 1961, 7 U.S.C.A. § 1921 et seq.¹ and the Fifth Amendment to the Constitution of the United States.

Plaintiff asserts that defendants have foreclosed a prior deed of trust held by FHA, on plaintiff's property, which was brought about because of racial prejudice.

Plaintiff also contends that defendants acted in an arbitrary and capricious manner in determining that plaintiff was not eligible for a loan, thereby violating his rights under the FHA Act.

Plaintiff is a retired Negro farmer who resides in Benton County. He has received FHA loans in the past and is currently an applicant for a rural housing loan. FHA foreclosed on plaintiff's property in 1967. This action was taken by FHA because plaintiff defaulted in the payment of a loan which was outstanding at the time.

In the latter part of 1968 plaintiff sought a rural housing loan from FHA. Plaintiff's application for the loan was rejected by defendants because of his failure to fulfill the requirements of 7 C.F.R. § 1822.7(g) (6) which governs applicants who have suffered foreclosure by FHA.

The Court is of the opinion that defendants are not immune from a suit of this nature but that the Secretary of Agriculture is an indispensable party to the final disposition of the action.

It appears to the Court that plaintiff is actually seeking relief under 42 U.S. C.A. §§ 1471 et seq. wherein the primary concern is farm housing.

The Court feels that plaintiff is entitled to judicial review of his grievances under 5 U.S.C.A. § 701 et seq. In the case of Work v. United States ex rel. Rives,² the United States Supreme Court said:

"Mandamus issues to compel an officer to perform a purely ministerial duty. It cannot be used to compel or control a duty in the discharge of which by law he is given discretion. The duty may be discretionary within limits. He cannot transgress those limits, and if he does so, he may be controlled by injunction or mandamus to keep within them. The power of the court to intervene, if at all, thus depends upon what statutory discretion he has. Under some statutes, the discretion extends to a final construction by the officer of the statute he is executing. No court in such a case can control by mandamus his interpretation, even if it may think it erroneous. The cases range, therefore, from such wide discretion as that just described to cases where the duty is purely ministerial, where the officer can do only one thing which on refusal he may be compelled to do."

In the case of Switchmen's Union of North America v. National Mediation Board,³ the United States Supreme Court said:

"Generalizations as to when judicial review of administrative action may or may not be obtained are of course hazardous. Where Congress has not expressly authorized judicial review, the type of problem involved and the history of the statute in question become highly relevant in determining whether judicial review may be nonetheless supplied."

In two recent cases the United States Supreme Court has emphatically endorsed liberal judicial review under the Administrative Procedure Act. One such case is Assn. of Data Processing Service Organizations, Inc. v. Camp.⁴ In this case plaintiffs sold data processing services to businesses generally. Plaintiffs challenged a ruling by defendant, Comptroller of the Currency, that, as an incident to their banking services, National Banks, including defendant American National Bank & Trust Company, were authorized to make data processing services available to other banks and to bank customers. The District Court dismissed the complaint for lack of standing of plaintiffs to bring the suit and the Court of Appeals for the Eighth Circuit affirmed. In reversing the lower courts, the United States Supreme Court said:

"The Administrative Procedure Act provides that the provisions of the Act authorizing judicial review apply `except to the extent that—(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.' 80 Stat. 392, 5 U.S.C. 868, § 701(a).

In Shaughnessy v. Pedreiro, 349 U. S. 48, 51, 75 S.Ct. 591, 593-594, 99 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, 794-795, 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."⁵

In the case of Barlow v. Collins,⁶ the question before the court was whether tenant farmers eligible for payments under the Upland Cotton Program, enacted as part of the Food and Agriculture Act of 1965, had standing to challenge the validity of an amended regulation promulgated by the Secretary of Agriculture in 1966. The District Court held that the petitioners lacked standing to maintain the action against government officials because the officials had not taken any action which invaded any legally protected interests of plaintiffs. The Court of Appeals for the Fifth Circuit affirmed. 398 F.2d 398. The Fifth Circuit held that petitioners lacked standing not only because they alleged no invasion of a legally protected interest but also because petitioners had not shown any provision of the Food and Agriculture Act of 1965 which either expressly or impliedly gives standing to challenge the administrative regulation or gives the Court authority to review such administrative action. The United States Supreme Court, in reviewing the case, said:

"It is, however, `only upon a showing of "clear and convincing evidence" of a contrary legislative intent' that the courts should restrict access to judicial review. Abbott Laboratories v. Gardiner, supra, 387 U.S. at 141, 87 S.Ct. at 1511 18 L.Ed.2d 681. The right of judicial review is ordinarily inferred where congressional intent to protect the interests of the class of which the plaintiff is a member can be found; in such cases, unless members of the protected class may have judicial review the statutory objectives might not be realized."⁷

The Court does not find any indication in 42 U.S.C.A. § 1472 et seq. of an intention on the part of Congress to preclude a judicial review under the statute.

The Court finds that the Secretary of Agriculture is an indispensable party to this action and therefore must be joined as a party defendant. The Fifth Circuit clearly expressed the general rule in the case of Simons v. Vinson,⁸ which was an action by certain landowners against federal agencies, the agencies' oil and gas lessees, and a pipeline company and purchaser from lessees to quiet title to alleged accreted land held and administered as public land. The lower court dismissed the action holding the United States was an indispensable party and had not consented to be sued. The court said:

"Generally, the relief sought nominally against an officer is against the sovereign if the decree would operate against the sovereign. * * * For, as stated in Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed. 2d 15 (1963):

`The general rule is that a suit is against the sovereign if "the judgment sought would expend itself on the public treasury or

...