Shiplet v. Veneman

• Decision Date: 15 May 2009
• Docket Number: No. CV-05-15-BLG-RFC-CSO.,CV-05-15-BLG-RFC-CSO.
• Citation: 620 F.Supp.2d 1203
• Parties: Jacqueline SHIPLET, Plaintiff, v. Ann M. VENEMAN, Secretary the United States Department of Agriculture 14th and Independence Ave. S.W. Washington, D.C. 20250, Defendant.
• Court: U.S. District Court — District of Montana

620 F.Supp.2d 1203

Jacqueline SHIPLET, Plaintiff, v. Ann M. VENEMAN, Secretary the United States Department of Agriculture 14th and Independence Ave. S.W. Washington, D.C. 20250, Defendant.

No. CV-05-15-BLG-RFC-CSO.

United States District Court, D. Montana, Billings Division.

May 15, 2009.

Terry F. Schaplow, Schaplow Law Firm, Bozeman, MT, for Plaintiff.

Timothy J. Cavan, Office of the U.S. Attorney, Billings, MT, for Defendant.

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE

RICHARD F. CEBULL, District Judge.

On December 23, 2008, United States Magistrate Judge Carolyn Ostby entered Findings and Recommendation (F & R)(Doc. 125) with respect to Plaintiffs appeal from an administrative ruling (Doc. 1). Magistrate Judge Ostby recommends that Judgment be entered in Defendant's favor. Judge Ostby concluded that Plaintiff could not set forth a prima facie case under the Equal Credit Opportunity Act ("ECOA") because she failed to establish two essential elements of her claim. With respect to various loan applications Judge Ostby determined Plaintiff did not establish that (1) she qualified for the credit she applied for and (2) similarly situated persons, outside of plaintiffs protected class, were given favorable treatment.¹

Upon service of a magistrate judge's findings and recommendation, a party has 10 days to file written objections. 28 U.S.C. § 636(b)(1). In this matter, Plaintiff filed an objection on January 12, 2009. Defendants responded to Plaintiffs objections on January 30, 2009. Plaintiffs objections require this Court to make a de novo determination of those portions of the Findings and Recommendations to which objection is made. 28 U.S.C. § 636(b)(1). Plaintiff's seventy-three pages of objections are not well taken.

Plaintiff objects to the Findings and Recommendation in its entirety. Plaintiff boldly comes to the conclusion that Magistrate Ostby did not exercise independent judgment and, "never even looked at the Plaintiffs proposed Findings and Conclusions." See Plaintiff's Objections to Magistrate's Findings and Recommendations (Objections) p. 2. However, aside from Plaintiffs Counsel's subjective point of view, she provides no additional basis for this allegation. Indeed, Plaintiffs objections are premised largely on conclusory statements that the Court ignored, or did not give sufficient weight to, all of Plaintiffs evidence. However, this Court can not find error on that basis alone. The Court can not presume to simply supplant the judgment of the Magistrate Judge, who held a three-day hearing and evaluated the evidence. The objections set forth by Plaintiff do not provide a compelling basis upon which to disturb Judge Ostby's findings and conclusion.

The primary objection offered by Plaintiff is that the Court impermissibly substituted its own judgment and definition of "similarly situated" without citing legal precedent. See Objections p. 14. Specifically, Plaintiff suggests that her expert, Mr. O'Brien's definition of "similarly situated" was appropriate. In support, Plaintiff cites a Third Circuit pre-Daubert case, Japanese Electronic Prod. Antitrust Litig., 723 F.2d 238 (3d Cir.1983), (rev'd on other grounds) as supporting the position that the Court may not ignore expert testimony and substitute its opinion. However, it is now generally accepted that expert testimony can be excluded based on judicial determination of relevance and reliability. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Consequently the Court agrees with Defendant that Japanese Electronic Prod. Antitrust Litig. is not persuasive authority in this case.

Nevertheless, in order to show more favorable treatment, a plaintiff must demonstrate that they are similarly situated in all material respects. See Moran v. Selig, 447 F.3d 748, 755 (9th Cir.2006). Plaintiff contends that Judge Ostby improperly substituted her definition of "similarly situated" for that of O'Brien which allowed the Court to arbitrarily reject Plaintiffs crop production figures and land values.

Defendant counters that Judge Ostby correctly determined whether Plaintiffs selected borrowers were similarly situated. Defendant acknowledges that O'Brien's criteria for similarly situated may be appropriate in some circumstances. However, Defendant argues, the cases O'Brien worked on in the past are distinguished because they were class actions which might require grouping individuals in broad categories. In this case though, the Plaintiff is an individual borrower in a case alleging that other borrowers received favorable treatment. Consequently, Defendant suggests that the facts and circumstances of this case might well require a more narrow analysis of whether the selected borrowers were similarly situated in all material respects.

A review of the Findings and Recommendations indicates that Judge Ostby neither arbitrarily rejected nor ignored O'Brien's calculations. On the contrary, the Order sets forth in detail how selected borrowers are distinguished, mainly because; (1) FMHA was not the Plaintiffs primary lender as it was with the selected borrowers, and; (2) the FMHA servicing area covered four counties which encompasses incredible geographic diversity in terms of elevation, soil type, climate, and amounts of productive farm land available. See F & R ¶¶ 83, 84, 85.

After a review of the objections, this Court finds that Judge Ostby set forth a reasonable basis for "similarly situated" under the particular circumstances of this case and Plaintiff's objections on that score are unavailing.

Plaintiff argues that the Court ignored alleged Code of Federal Regulations (CFR) violations which constitutes discrimination. In support, Plaintiff cites Anderson v. United Finance Co., 666 F.2d 1274 (9th Cir.1982) as standing for the proposition that even a technical violation of a CFR constitutes discrimination under the ECOA.

Defendant counters that certain technical violation of the CFRs concerning non-related farm programs do not automatically establish violations of the ECOA. Defendant acknowledges that a violation of the regulation under ECOA may be actionable as it was in Anderson. However, Defendant points out that Plaintiff misconstrues Anderson in that it does not find that a technical violation of a regulation outside the ECOA amounts to actionable discrimination absent a waiver of sovereign immunity.

The Court agrees with Defendant in that technical violations of other CFRs, not under ECOA, are not independently actionable absent a waiver of sovereign immunity. See United States v. Nordic Village, Inc., 503 U.S. 30, 37, 112 S.Ct. 1011, 1016, 117 L.Ed.2d 181 (1992) ("As in the Eleventh Amendment context, the `unequivocal expression' of elimination of sovereign immunity that we insist upon is an expression of statutory text.").

The remainder of Plaintiff's objections consist of Plaintiff attempting to re-litigate the hearing before the Magistrate Judge by purging her evidence and revisiting the same arguments².

Again, after reviewing the record before it, the Court can find no clear error on Judge Ostby's part. Without some compelling reason, this Court will not presume to substitute its judgment on the credibility of the witnesses and sufficiency of the evidence for that of Judge Ostby, who was in the best position to evaluate such evidence.

After a de novo review, the Court determines the Findings and Recommendation of Magistrate Judge Ostby are well grounded in law and fact and HEREBY ORDERS they be adopted in their entirety.

Accordingly, IT IS HEREBY ORDERED that Plaintiffs Complaint (Doc.# 1) is DISMISSED WITH PREJUDICE.

The Clerk of Court shall notify the parties of the making of this Order and close this case accordingly.

FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

CAROLYN S. OSTBY, United States Magistrate Judge.

I. INTRODUCTION

Plaintiff Jacqueline Shiplet ("Shiplet") filed this action against the Secretary of the United States Department of Agriculture ("USDA") on January 21, 2005. Her complaint alleges that employees of Farm Service Agency (FSA), formerly known as Farmers Home Administration (FmHA), discriminated against her on the basis of her gender, age and marital status in administering farm programs. See Final Pretrial Order (Court's Doc. No. 95) at 2. She contends that this discrimination deprived her of equal and fair access to farm credit and farm programs in violation of the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691 et seq. For relief, she seeks damages, attorneys fees, and FSA debt forgiveness. Id. at 6-7.

This is an appeal from an administrative ruling denying Shiplet relief. Although such appeals ordinarily are decided considering only the administrative record, Shiplet was allowed an opportunity to conduct discovery to supplement the administrative record with evidence showing disparate treatment. See Order dated February 15, 2006 (Court's Doc. No. 25)(applying the governing standard of review set forth in the Historical and Statutory Note to 7 U.S.C. § 2279).

After a period of extended discovery,¹ this Court conducted an evidentiary hearing on September 25, 26, and 29, 2008. The purpose of the evidentiary hearing was to allow the parties to present additional evidence to supplement the administrative record with respect to Shiplet's claims of disparate treatment.

Based on a review of the administrative record as supplemented by the evidence presented at the evidentiary hearing, the Court recommends that the following Findings of Fact and Conclusions of Law be adopted.

II. FINDINGS OF FACT

A. Administrative Procedural History

1. Shiplet initially filed administrative complaints with the USDA dated October 26, 1996, and December 26, 1996, alleging discrimination on the basis of sex, age, and marital status by FmHA and its successor agency FSA. (See ALJ Pleadings, Doc. No. 51 at 1)("ALJ...