Wise v. Glickman

• Decision Date: 31 March 2003
• Docket Number: No. CIV.A. 00-2508(JR).,CIV.A. 00-2508(JR).
• Citation: 257 F.Supp.2d 123
• Parties: Eddie WISE and Dorothy Monroe-Wise, et al., Plaintiff's, v. Dan GLICKMAN, Secretary, U.S. Department of Agriculture, Defendant.
• Court: U.S. District Court — District of Columbia

257 F.Supp.2d 123

Eddie WISE and Dorothy Monroe-Wise, et al., Plaintiff's, v. Dan GLICKMAN, Secretary, U.S. Department of Agriculture, Defendant.

No. CIV.A. 00-2508(JR).

United States District Court, District of Columbia.

March 31, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Stephon J. Bowens, Executive Director, Marcus Jimison, Director of Litigation, Durham, NC, for Plaintiff's.

Michael Sitcov, Judry L. Subar, Department of Justice, Civil Division, Washington, DC, for Defendant.

MEMORANDUM AND ORDER

ROBERTSON, District Judge.

Plaintiff's are African-American and female farmers who claim that the United States Department of Agriculture (USDA) discriminated against them on the basis of race and sex by denying them credit and other benefits under farm programs. Plaintiff's bring their claims under the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691 et seq., the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq., Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, the Fifth and Thirteenth Amendments to the Constitution of the United States, and several regulations of the United States Department of Agriculture. The government moves to dismiss certain of these claims under Fed.R.Civ.P. 12(b)(6), to strike plaintiffs' demand for a jury trial, and for a stay of proceedings in this case.

Background

This case is another in a series of suits filed after Congress, responding to reports that USDA dismantled its civil rights enforcement program in the early 1980's, extended the statute of limitations to October 21, 2000 for "eligible complaints" of discrimination alleged to have taken place at USDA between 1981 and 1996. See Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub.L. No. 105-277, Div. A § 101(a), § 741 112 Stat. 2681 (Oct. 21, 1998) (codified at 7 U.S.C. § 2279 Notes). One of those suits was a class action, filed on behalf of African-American farmers, that was settled by consent decree allowing individual plaintiffs to present their claims for compensation. Pigford v. Glickman, 185 F.R.D. 82 (D.D.C.1999), affd 206 F.3d 1212 (D.C.Cir. 2000). Three other suits, Keepseagle v. Veneman, No. 99-3119 (suit by Native American farmers), Love v. Veneman, No. 00-2502 (suit by female farmers), and Garcia v. Veneman, No. 00-2445 (suit by Hispanic farmers), continue in litigation.

Here, plaintiffs filed their complaint on October 19, 2000, alleging that defendant's credit agencies, which are authorized to make loans to farmers who are unable to secure credit from commercial lenders, administered and maintained USDA's farm credit program in a discriminatory fashion. They specifically allege that USDA discriminated against African-American and female farmers (1) in the processing of applications for farm credit, loan servicing, and non-credit benefits; (2) by placing a disproportionate number of loan funds of African-American and female farmers in supervised bank accounts; (3) by maintaining a local county administration program under which local administrators are not held accountable for discriminatory conduct; and (4) by failing to maintain a competent Office of Civil Rights to process and investigate discrimination complaints in a timely fashion.

Defendant now seeks to dismiss all claims made under the APA and Title VI, as well as all claims of failure to investigate discrimination complaints. Defendant also moves to dismiss all claims by certain of the named plaintiffs. Finally, defendant moves to strike plaintiffs' demand for a jury trial, and seeks a stay pending the class certification decision in Love.

Analysis

Standards on a Motion to Dismiss

A complaint may not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45^6, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). On a Rule 12(b)(6) motion to dismiss, the complaint must be construed in the light most favorable to plaintiff, and plaintiff will have "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994) (internal citations omitted). Claims Made Under the APA

The government first moves to dismiss all claims under the APA. No other judge is bound by my decision in Love, No. 00-2502, mem. op. of Dec. 13, 2001, at 12-14, but I believe that I am. In that case, I followed the rule that APA review is not available for agency action for which there is an adequate alternative remedy in court, Love, mem. op. at 13-14; see Women's Equity Action League v. Cavazos, 906 F.2d 742, 750-51 (D.C.Cir.1990); Council of & for the Blind of Del. County Valley, Inc. v. Regan, 709 F.2d 1521, 1531-33 (D.C.Cir.1983) (en banc). ECOA provides an adequate remedy for credit discrimination claims and claims related to credit discrimination, such as failure to investigate complaints of discrimination in the credit transaction process. I concluded, accordingly, that no such claims may be pursued under the APA,¹ and ruled that failures to investigate complaints are not "credit transactions" under the meaning of ECOA. Love, mem. op. at 13. Plaintiff's' allegations of failure to investigate civil rights complaints do not state claims under either ECOA or the APA, and must be dismissed in this case as well.²

One claim in the complaint may be actionable under the APA. Leonard Cooper alleges that the USDA discriminated against him by "erect[ing] obstacle after obstacle," Complaint at 1131, to his attempts to market his organic peanut crop in 1991. A final agency action that impeded Cooper's ability to market his crop, if not a credit transaction under ECOA, would be actionable under the APA. 5 U.S.C. §§ 702, 704. The government argues, however—and not unreasonably— that the delphic description of this claim in the complaint does not provide adequate notice of the nature of the claim, so that Cooper should not be allowed to pursue it. See Sinclair v. Kleindienst, 711 F.2d 291, 293 (D.C.Cir.1983) (allegation in complaint must give "the defendantf ] fair notice of the plaintiffs claim and the grounds upon which it rests"). The complaint does not identify a final agency action that created an obstacle to his marketing of his peanut crop. Cooper may have twenty (20) days from the filing of this memorandum to amend or supplement the complaint by providing detailed factual allegations more clearly stating his APA claim. See Empagran S.A. v. F. Hoffman-La Roche, Ltd., No. 00-1686, 2001 WL 761360 at *4 (D.D.C. June 7, 2001) (requiring plaintiffs to supplement amended complaint with more detailed factual allegations), rev'd on other grounds, 315 F.3d 338 (D.C.Cir. 2003). If he fails to do so, this claim will be dismissed.³

Res Judicata (Claim Preclusion) effect of the Pigford litigation

The government also moves to dismiss certain claims under the doctrine of res judicata, or claim preclusion, which dictates that

the parties to a suit and their privies are bound by a final judgment and may not relitigate any ground for relief which they already have had an opportunity to litigate—even if they chose not to exploit that opportunity—whether the initial judgment was erroneous or not.

The judgment bars any further claim based on the same nucleus of facts, for it is the facts surrounding the transaction or occurrence which operate to constitute the cause of action, not the legal theory upon which a litigant relies.

Page v. United States, 729 F.2d 818, 820 (D.C.Cir.1984) (internal quotations and footnotes omitted); see Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C.Cir.1981). In order to invoke this doctrine successfully, defendant must establish identity of the cause of action in both suits; identity of parties in both suits; and a final judgment on the merits rendered by a court of competent jurisdiction. Jane Does I through III v. District of Columbia, 238 F.Supp.2d 212, 217 (D.D.C.2002). Res judicata "does not apply when the party against whom the earlier decision is asserted did not have a full and fair opportunity to litigate the claim or issue." Kremer v. Chemical Constr. Corp., 456 U.S. 461, 480-81, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982) (internal quotation and citations omitted).

The claims of those plaintiffs who were part of the Pigford class are obviously precluded by the doctrine. In Pigford, Judge Friedman certified a class consisting of "[a]ll African American farmers who (1) farmed, or attempted to farm, between January 1, 1981 and December 31, 1996; (2) applied to the United States Department of Agriculture (USDA) during that time period for participation in a federal farm credit or benefit program and who believed that they were discriminated against on the basis of race in USDA's response to that application; and (3) filed a discrimination complaint on or before July 1, 1997, regarding USDA's treatment of such farm credit or benefit application." Pigford, 185 F.R.D. at 92. The class was certified under Fed.R.Civ.P. 23(b)(3), thereby allowing putative class members to opt out of that lawsuit. Id. at 94. African-American farmers who opted out of Pigford are not bound by the judgment in that case. See, e.g., Kyriazi v. W. Elec. Co., 647 F.2d 388, 393 (3d Cir.1981); Valentino v. United States Postal Serv., No. 77-0331, 1978 WL 110 at *2 n. 8 (D.D.C. June 14, 1978). On the other hand, persons who did not opt out and who pursued their claims under the Pigford consent decree⁴ cannot raise claims here that they raised, or could have raised, in Pigford. See Peters v. Nat'l R.R. Passenger Corp., 966 F.2d 1483, 1487 (D.C.Cir.1992) (res judicata barred new suit by plaintiff who had not opted out of previous class action because he had not received notice).

Eddie Wise, Dorothy Monroe-Wise, and Matthew Grant (who is now deceased, and whose claims are...