Roman v. Korson
| Decision Date | 25 July 1995 |
| Docket Number | No. 1:91:CV:274.,1:91:CV:274. |
| Parties | Rogelio ROMAN; Maria Roman; Ruben Roman; Robert Roman; David Peralez; Rosalinda Peralez; Ester Paredes; Raquel Roman, a minor, by and through her next friend, Maria Roman; Maria Cruz; Asuncion Aparicio; Guadencio Aparicio; Jesus Mojica; Maria I. Espinoza; and Ceferino Borja, on behalf of themselves and all others similarly situated, Plaintiffs, v. Gerald KORSON, individually and d/b/a Jerry Korson Farms; Doroteo Carrizales; Edward Madigan, in his official capacity as Secretary, United States Department of Agriculture; Laverne Ausman, in his official capacity as Administrator, Farmers Home Administration; Calvin Lutz, in his official capacity as State Director, Farmers Home Administration; Harry Brumer, in his official capacity as District Director, Farmers Home Administration; United States Department of Agriculture and Farmers Home Administration, both agencies of the United States, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
COPYRIGHT MATERIAL OMITTED
Gary N. Gershon, Michigan Migrant Legal Assistance Project, Inc., Grand Rapids, MI, Joseph V. Walker, Plunkett & Cooney, PC, Detroit, MI, Michael S. Bogren, Elizabeth A. Bennett, Plunkett & Cooney, PC, Kalamazoo, MI, Roger C. Rosenthal, Migrant Legal Action Program, Washington, DC, Lee Philip Reno, Reno, Cavanaugh & Hornig, Washington, DC, for Rogelio Roman, Maria Roman, Ruben Roman, Robert Roman, Ramiro Roman, Jorge Luis Roman, David Peralez, Rosalinda Peralez, Ester Paredes, Raquel Roman, Maria Cruz, Asuncion Aparicio, Guadencio Aparicio, Jesus Mojica, Maria I. Espinoza, Ceferino Borja.
Richard M. Van Orden, Tolley, Vandenbosch & Walton, PC, Grand Rapids, MI, for Jerry Korson, Doroteo Carrizales.
Ruth Ann Ernst, Asst. U.S. Atty., Michael H. Dettmer, United States Attorney, Grand Rapids, MI, Anne L. Weismann, U.S. Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, Eric Johnson Mahr, U.S. Department of Justice, Washington, DC, for Edward Madigan.
Agnes M. Kempker-Cloyd, U.S. Asst. Attorney, Ruth Ann Ernst, Asst. U.S. Atty., Michael H. Dettmer, United States Attorney, Grand Rapids, MI, Anne L. Weismann, U.S. Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, Eric Johnson Mahr, U.S. Department of Justice, Washington, DC, for Laverne Ausman, Calvin Lutz, Harry Brumer, United States Department of Agriculture, Farmers Home Administration.
This matter is before the Court on the motion of the federal defendants for summary judgment and the motion of the plaintiffs for summary judgment against the federal defendants. Pursuant to Federal Rule of Civil Procedure 56, the Court determines for the reasons given below that the motion of the plaintiffs should be granted and the motion of the federal defendants should be denied.
In this case, the federal defendants (the United States Department of Agriculture, the Farmers Home Administration1 and various officers of the Department and Administration) have requested summary judgment as to the two counts against them: Count I for alleged non-enforcement of labor housing regulations requiring that the Department require borrowers to follow notice and comment procedures prior to increasing rents, and to rollback and refund illegally charged rents (under 7 C.F.R. § 1930 Subpart C, Exhibit C (1986)); and, Count II for enforcing labor housing regulations which are arbitrary, capricious and contrary to the law in that they allowed borrowers to be exempt from a loan agreement requirement (which otherwise would have restricted their ability to charge rent) and that they further allowed borrowers to be exempt from reporting requirements relating to the charging of rent (see 7 C.F.R. § 1930.101(e)(1) and 7 C.F.R. § 1944.164). Defendants argue that summary judgment should be granted because the record establishes that these regulations were rational and consistent with statutory authorizations, and that there is no evidence to indicate abdication of statutory duties.
Studies by the Department in 1986 and 1990 indicate that the Department's policy of allowing these waivers — for the alleged purpose of allowing local authorities to maintain compliance with the statute — was resulting in substantial violations of the statute and regulations. Hence, the Department amended its regulations in January 1993 by eliminating the loan agreement exception. See 57 Fed. Reg. 59900 (Jan. 17, 1993). While plaintiffs assert that allowance of these waivers was arbitrary and contrary to law, the federal defendants take the position that they were merely permitting state FmHA directors to utilize such discretion as is explicitly given them by statute. These defendants assert that the administrative record supports their contention that they have taken active and reasonable approaches to enforcement by studying past enforcement efforts and changing practices when necessary.2 Exhibit 7 to defendants' brief gives examples of past monitoring and enforcement efforts made by FmHA officials. The Exhibit indicates that both before and after the 1993 change in regulations FmHA employees sought to increase compliance by contacting borrowers with instructions that rent was not be charged as to Section 514 properties. The defendants conclude from such information that they have not completely abdicated their enforcement responsibilities as alleged and that the regulations have been rational in light of the information available to the agency at the various times.
Plaintiffs, however, maintain in their motion for summary judgment that the record clearly establishes the federal defendants' liability as to these counts. First, they point to the voluminous administrative record in this case to show that the violations of the agency's mandatory regulations requiring notice, comment, rollback and refund are legion. In fact, according to their computation from the administrative record and defendants' Exhibit 7, 62 percent of the 168 borrower files surveyed demonstrate violations in that rent was illegally charged.3 Further, despite these widespread violations, the records indicate only one instance between 1983 and present in which a borrower was notified by the federal defendants of its responsibilities to rollback and refund rents. Likewise, the records do not indicate a single instance in which the FmHA required that the formal notice and comment procedures of Exhibit C be utilized prior to a rental increase by a borrower.
Since these motions are made pursuant for summary judgment, the pertinent federal rule is Federal Rule of Civil Procedure 56. According to it, summary judgment is appropriate only where no genuine issue of fact remains to be decided so that the moving party is entitled to judgment as a matter of law. Historic Preservation Guild v. Burnley, 896 F.2d 985 (6th Cir.1989). No genuine issue of material fact exists unless, in viewing the evidence in favor of the nonmoving party, a reasonable fact finder could return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). United States Supreme Court decisions encourage granting summary judgments where no genuine issue of material fact exists. Historic Preservation, 896 F.2d at 993. "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249, 106 S.Ct. at 2510 (citations omitted). Mere allegations are insufficient. The party with the burden of proof must provide concrete evidence in support of a claim and thereby demonstrate the existence of a genuine issue of material fact. Cloverdale Equipment Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir.1989).
The party moving for summary judgment bears the initial responsibility of informing the court of the basis of its motion and identifying those portions of the record which demonstrate the absence of a material issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once this has been done, the nonmoving party must come forward with specific facts showing that there is a genuine issue of material fact on which the nonmoving party will bear the burden of proof at trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-54. If after adequate discovery the party bearing the burden of proof fails to make a showing sufficient to establish an essential element of his claim, summary judgment is appropriate. Id.
While the parties have assembled a mountain of administrative paperwork relating to these motions, it appears from reading the arguments advanced by them that many of them simply restate arguments previously ruled upon by the Court's Opinion and Order of March 31, 1994, which dealt with the federal defendants' motion to dismiss under Federal Rule of Civil Procedure 12. In connection with such, the plaintiffs are correct in observing that the previous Opinion serves as the law of the case. United States v. Todd, 920 F.2d 399, 403 (6th Cir.1990). Accordingly, the Court will revisit those legal determinations only "`when the court has `a clear conviction of error' with respect to a point of law on which its previous decision was predicated.'" Moses v. Business Card Express, Inc., 929 F.2d 1131, 1137 (6th Cir.1991).
First, as to defendants' arguments, they have cited no new law nor explained any clear legal error made in the Court's prior Opinion relating to the issue of whether an abdication claim is consistent with the holding in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). Defendants' argument that other courts have failed to apply the theory glosses over the factual situations in those cases — under which application of the theory would not have been appropriate. In this case, contrariwise, there is clear evidence that the agency completely ignored...
To continue reading
Request your trial
-
Roman v. Korson
...from the reporting requirement relating to charging of rent if borrowers stated that they would not charge rent. Roman v. Korson, 918 F.Supp. 1108, 1113-14 (W.D.Mich.1995). After further briefing, the Court then entered its Judgment and Permanent Injunction against the Federal Defendants. T......
- Kramer v. Van Dyke Public Schools
-
Roman v. Korson, 1:91-CV-274.
...and from the reporting requirement relating to charging of rent if borrowers stated that they would not charge rent. Roman v. Korson, 918 F.Supp. 1108 (W.D.Mich.1995). The Court then required further briefing as to the injunctive relief to be entered. Id. After receiving multiple briefings ......