Opinion
Civil Action No. 01-5409 (JBS)
July 9, 2003
John and Mary Visconti, Bridgeton, New Jersey, pro se, for Plaintiffs
Christopher J. Christie, Camden, Louis J. Bizzarri, Camden, New Jersey, for Defendant
OPINION
Presently before the Court are the motions of defendant Ann Veneman, Secretary of Agriculture, and plaintiffs, John and Mary Visconti, for reconsideration of this Court's Opinion and Order of February 3, 2003 in which the Court granted in part and denied in part defendant's motion for summary judgment. The Court has considered each motion and will deny each for the reasons stated herein.
I. BACKGROUND
Plaintiffs are owners of a vegetable farm in New Jersey. In letters dated October 31, 1988, June 17, 1991, April 1, 1997, and August 1, 1997, they complained to the United States Department of Agriculture ("USDA") about treatment they had received from the Farm Services Agency ("FSA"). Their letter complaints were handled by the USDA's Office of Civil Rights and were dismissed, either on procedural grounds or because the agency found that they had no merit.
The FSA, formerly known as the Farmers Home Administration (FmHA), is an agency within the USDA which administers federally funded credit and benefit programs which provide and guarantee loans to eligible farmers for farm purchases, debt restructuring, or disaster relief.
Plaintiffs filed a complaint with this Court on November 21, 2001, asserting that the Secretary of the USDA improperly dismissed their claims. On August 28, 2002, defendant filed a motion for summary judgment, which was decided by this Court on February 3, 2003. The sole issue before the Court was whether plaintiffs, in any or all of the four letters, had asserted timely claims of national origin, sex, and disability discrimination under the Equal Credit Opportunity Act (ECOA), 15 U.S.C. § 1691, et seq.
Under ECOA, it is "unlawful for any creditor to discriminate against any applicant with respect to any aspect of a credit transaction on the basis of . . . national origin, sex or marital status . . ." 15 U.S.C. § 1691(a)(1).
Defendant argued that summary judgment should be entered in its favor on all claims because they were untimely under the ECOA statute of limitations and were not eligible for a waiver of the statute of limitations under section 741 of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act of 1999. With section 741, Congress waived the statute of limitations for eligible ECOA claims of discrimination filed with the USDA prior to July 1, 1997.
Section 741(a) provides that:
To the extent permitted by the Constitution, any civil action to obtain relief with respect to the discrimination alleged in an eligible complaint, if commenced not later than 2 years after the date of the enactment of this Act [Oct. 21, 1998], shall not be barred by any statute of limitations.
Section 741(e) provides that an "eligible complaint" is:
a non-employment related complaint that was filed with the Department of Agriculture before July 1, 1997 and alleges discrimination at any time during the period beginning on January 1, 1981 and ending December 31, 1996 —
(1) in violation of the Equal Credit Opportunity Act[11] ( 15 U.S.C. § 1691 et seq.) in administering —
(A) a farm ownership, farm operating, or emergency loan funded from the Agricultural Credit Insurance Program Account; or (B) a housing program established under
title V of the Housing Act of 1949 . . .; or
(2) in the administration of a commodity program or a disaster assistance program.
The Court granted defendant's motion for summary judgment in part as to all claims in the October 31, 1988, June 17, 1991, and April 1, 1997 letters, and as to the claims in the August 1, 1997 letter which alleged discrimination prior to February 1, 1997. The Court denied summary judgment in part as to the claims in the August 1, 1997 which alleged discrimination between February 1, 1997 and August 1, 1997, namely claims that the FSA discriminated against plaintiffs by accelerating the administrative offset process on February 4, 1997 and March 3, 1997.
The Court had three reasons for this decision. First, the Court considered whether any of the letters asserted claims of discrimination and found that the only letter that alleged discrimination was the August 1, 1997 letter. The claims in the October 31, 1988, June 17, 1991, and April 1, 1997 letters were program complaints, not discrimination claims, and were thus not ECOA claims that could be eligible for a section 741 statute of limitations waiver. The Court thus granted summary judgment as to all claims in the October 31, 1988, June 17, 1991, and April 1, 1997 letters.
Second, the Court considered whether the ECOA discrimination claims in the August 1, 1997 letter were eligible for a section 741 waiver of the statute of limitations and found that they were not because they were not filed with the USDA prior to July 1, 1997 as required by section 741(e).
Third, the Court considered whether discrimination claims in the August 1, 1997 letter, though ineligible for a statute of limitations waiver, could proceed nonetheless under the ECOA statute of limitations. The Court found that the claims alleging discrimination between February 1 and August 1, 1997 could proceed, namely the February 4 and March 3, 1997 administrative offset claims, because they had been filed administratively within 180 days of the alleged discriminatory event, and were filed with the court within two years of the discriminatory event exclusive of time spent exhausting administrative remedies. 15 U.S.C. § 1681e(f); 7 C.F.R. § 15d.4.
The relevant dates were as follows:
Date incidents occurred: February 4, 1997; March 3, 1997
Plaintiffs filed claim: August 1, 1997
Final determination: October 28, 1999
Plaintiffs request hearing: October 17, 2000
Final determination: May 22, 2001
Appeal filed: November 21, 2001
If the statute was tolled while plaintiffs pursued their claims in the administrative process, it would have run from February 4, 1997 through August 1, 1997 (178 days), October 28, 1999 through October 17, 2000 (355 days), and May 22, 2001 through November 21, 2001 (179 days), totaling 712 days or 1.95 years.
This Court notes that the Court's reference to 7 C.F.R. § 15.6 (cited in Lewis v. Glickman, 104 F. Supp.2d 1311 (D. Kan. 2000)) was incorrect because it applies to claims brought pursuant to Title VI of the Civil Rights Act of 1964. See 7 C.F.R. § 15.1(a). The Court should have cited 7 C.F.R. § 15d.4 and will do so throughout the present opinion. The Court's reasoning in the summary judgment opinion is not changed by this oversight because the pertinent language for this issue is the same in 7 C.F.R. § 15.6 and 7 C.F.R. § 15d.4.
Defendant filed the present motion for reconsideration on February 19, 2003, arguing that this Court's third finding was flawed because the two-year statute of limitations contained in 15 U.S.C. § 1681e(f) does not toll while the plaintiff is involved in the administrative process. Defendant argues that the administrative process of 7 C.F.R. § 15d.4 is not mandatory, meaning that exhaustion of the process is not mandatory, and that, as a general rule, statutes of limitation are not tolled if a plaintiff engages in a non-mandatory administrative process. Defendant urges this Court to correct its "clear error of law," and grant summary judgment on the February 4, 1997 and March 3, 1997 administrative offset claims on timeliness grounds.
Plaintiffs did not file opposition to defendant's motion, but instead filed their own motion for reconsideration of this Court's Opinion and Order on February 20, 2003, seeking reconsideration of the Court's second finding that the August 1, 1997 letter was not an eligible claim for a section 741 statute of limitations waiver because it was filed after July 1, 1997. Plaintiffs presented this Court with three documents related to a currently pending civil action in the United States District Court for the Western District of Oklahoma, Whitehead v. Veneman, Civil No. 02-459 (LRW). Plaintiffs, who are not involved in the Oklahoma litigation, assert that the facts of the Oklahoma case, when compared to this case, show that the "defendant was administering Section 741 in an arbitrary and capricious manner" because the Office of Civil Rights offered the Oklahoma plaintiff a settlement under section 741 for a complaint he filed after July 1, 1997.
The Court will consider both motions for reconsideration and, for the reasons stated herein, will deny both motions.
II. DISCUSSION A. Standard for Reconsideration
Local Civil Rule 7.1(g) requires that a motion for reargument be served within 10 days of the entry of the order or judgment on which reargument is sought. Such motions should be accompanied by a "brief setting forth concisely the matters or controlling decisions which counsel believes the Judge or Magistrate has overlooked." Id. "A party seeking reconsideration must show more than a disagreement with the court's decision, and `recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden.'" Panna v. Firstrust Sav. Bank, 760 F. Supp. 432, 435 (D.N.J. 1991) (quoting Carteret Sav. Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989)).
A judgment may be altered or amended if the party seeking reconsideration shows at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. See Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). As this Court has stated, "motions for reargument succeed only where a `dispositive factual matter or controlling decision of law' was presented to the Court but not considered." Damiano v. Sony Music Entertainment, 975 F. Supp. 623, 634 (D.N.J. 1996) (quoting Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987)). Where no facts or cases were overlooked, the motion will be denied. Egloff v. N.J. Air Nat'l Guard, 684 F. Supp. 1275, 1279 (D.N.J. 1988); Resorts Int'l v. Greate Bay Hotel Casino, 830 F. Supp. 826, 831 (D.N.J. 1992).
If the record was inadequately developed on a particular issue, the court has discretion to reconsider the matter, Hatco Corp. v. W.R. Grace Corp., 849 F. Supp. 987, 990 (D.N.J. 1994), but not to the extent of considering new evidence that was available but not submitted while the motion was pending. Florham Park Chevron, Inc. v. Chevron, USA, Inc., 680 F. Supp. 159, 162 (D.N.J. 1988). A "motion for reconsideration is not a vehicle to reargue the motion or to present evidence which should have been raised before." Bermingham v. Sony Corp. of America, Inc., 820 F. Supp. 834, 856-67 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994). As the late Chief Judge Gerry noted, "[w]e are in fact bound not to consider such new materials, lest the strictures of our reconsideration rule erode entirely." Resorts, 830 F. Supp. at 831 n. 3 (emphasis in original). Consequently, only when the matters overlooked might reasonably have resulted in a different conclusion if the court had considered them will the court entertain such a motion. Panna, 760 F. Supp. at 435.
B. Defendant's Motion for Reconsideration
Defendant seeks reconsideration of this Court's finding that plaintiffs could proceed with claims of discrimination alleged in their August 1, 1997 letter about events occurring between February 1, 1997 and August 1, 1997, arguing that the "Court misconstrued the statutory authorities governing exhaustion requirements for suits against the Secretary and the regulatory scheme for Defendant's administrative discrimination complaint process." (Def.'s Br. at 3.) Defendant argues that this Court must correct this "clear error of law" in its decision which has "potentially far-reaching consequences for Defendant in that it potentially makes timely many discrimination claims that would otherwise be barred by the statute of limitations." (Id. at 4.) Though defendant admits that the cases it presently argues were not presented to the Court for consideration in the February 3, 2003 Opinion, defendant argues that the law should be considered now because Defendant argued section 741 waiver issues in its summary judgment papers, rather than ECOA statute of limitations issues, meaning that the record was not adequately addressed on this issue at that time. (Id. at 4 n. 1.) This Court will exercise its discretion and consider the material submitted by the defendant on this motion for reconsideration.
Defendant argues that this Court's ruling is clearly flawed because ECOA does not require exhaustion of administrative remedies. Defendant argues that while "pursuit of mandatory administrative remedies can delay the start or running of a statute of limitations," the "pursuit of remedies that are merely permissive does not toll a limitations period." (Def.'s Br. at 9.) Defendant argues that exhaustion of administrative remedies is not required prior to asserting an ECOA civil action, so the ECOA two-year statute of limitations should not be tolled during any administrative processes undertaken by plaintiffs. Defendant argues that this Court clearly erred by finding otherwise.
In a footnote, defendant also argues that this Court erred in stating that it has jurisdiction to review the Office of Civil Rights' determination under 7 U.S.C. § 6999 which states that a "final determination of the Division shall be reviewable and enforceable by any United States district court . . ." because the "Division" is defined in 7 U.S.C. § 6991(6) as the National Appeals Division and the decision here was made by the Office of Civil Rights. (Def.'s Br. at 8 n. 3.) Regardless, this Court still has jurisdiction over ECOA claims pursuant to 15 U.S.C. § 1691e(f).
The law on this issue, though, is far from clear. Defendant admits that 7 U.S.C. § 6912, which applies to the Department of Agriculture, states:
Notwithstanding any other provision of law, a person shall exhaust all administrative appeal procedures established by the Secretary or required by law before the person may bring an action in a court of competent jurisdiction against —
(1) the Secretary;
(2) the Department; or
(3) an agency, office, officer, or employee of the Department.
(emphasis added). Defendant argues that there are no administrative appeal procedures "required by law" or "established by the Secretary" for ECOA actions, so exhaustion is not required prior to filing suit.
Administrative appeal procedures are not "required by [the] law" here, namely ECOA. The statute has general applicability to any "natural person, corporation, government or governmental subdivision or agency, trust, estate, partnership, cooperative, or association" which "regularly extends, renews, or continues credit, . . . regularly arranges for the extension, renewal, or continuation of credit, or [is an] assignee of an original creditor who participates in the decision to extend, renew or continue credit." 15 U.S.C. § 1691a(e), (f). Therefore, while government agencies, such as the FSA, may be creditors subject to the ECOA, they, and their administrative structures, are not the focus of ECOA and the statute does not include an exhaustion provision.
Administrative procedures for bringing claims of discrimination based on "programs or activities conducted by the Department" of Agriculture, however, have been established by the Secretary. 7 C.F.R. § 15d sets forth the "nondiscrimination policy of the United States Department of Agriculture in programs or activities conducted by the Department," 7 C.F.R. § 15d.1, and provides that:
Any person who believes that he or she (or any specific class of individuals) has been, or is being, subjected to practices prohibited by this part may file on his or her own, or through an authorized representative, a written complaint alleging such discrimination. No particular form of complaint is required. The written complaint must be filed within 180 calendar days from the date the person knew or reasonably should have known of the alleged discrimination, unless the time is extended for good cause by the Director of the Office of Civil Rights or his or her designee. Any person who complains of discrimination under this part in any fashion shall be advised of his or her right to file a complaint as herein provided.
All complaints under this part should be filed with the Director of the Office of Civil Rights, United States Department of Agriculture, Washington, D.C. 20250, who will investigate the complaints. The Director of the Office of Civil Rights will make final determinations as to the merits of complaints under this part and as to the corrective actions required to resolve program complainants. The complaint will be notified of the final determination on his or her complaint. Any complaint filed under this part alleging discrimination on the basis of disability will be processed under 7 C.F.R. part 15e.7 C.F.R. § 15d.4 (emphasis added).
There is little caselaw on the issue of whether 7 U.S.C. § 6912, which states that a plaintiff "shall exhaust all administrative appeal procedures established by the Secretary . . . before the person may bring an action in a court of competent jurisdiction against the Secretary" requires that a plaintiff exhaust the administrative complaint procedures of 7 C.F.R. § 15d.4. In Lewis v. Glickman, 104 F. Supp.2d 1311 (D. Kan. 2000), a case cited by this Court in its summary judgment opinion, the Secretary of Agriculture did not dispute that the plaintiff "as a party seeking to affirmatively enforce rights under ECOA, was required to exhaust his administrative remedies." Id. at 1319. Here, though, defendant argues that the words "may file" in 7 C.F.R. § 15d.4 actually mean that the Secretary established "two alternative routes for seeking redress: (1) one may file a civil action in court under ECOA, or (2) one may avail oneself of the administrative complaint procedures described in 7 C.F.R. pt. 15d." (Def.'s Br. at 6.)
In support of this argument, defendant cites Love v. Veneman, Civ. No. 00-2502, Memorandum Order, (D.D.C. Dec. 13, 2001), where the court denied the Secretary of Agriculture's motion to dismiss for failure to exhaust, because it found that the 7 C.F.R. pt. 15d procedure was not mandatory.Id., slip opinion at 6-8. The district court based its decision on two main sources: (1) a January 29, 1998 Department of Justice Memorandum, 1998 WL 1180049, and (2) a November 10, 1998 explanation of the proposed Part 15d procedure by then-Secretary of Agriculture Dan Glickman, 63 Fed. Reg. 62962.
In the January 29, 1998 memorandum, Acting Assistant Attorney General Dawn Johnsen responded to Associate Attorney General Raymond Fisher's request for "advice on whether the statute of limitations in the Equal Credit Opportunity Act, 15 U.S.C. § 1691-1691f . . . might be tolled." 1998 WL 1180049. She concluded that "[f]iling an administrative claim with USDA does not toll ECOA's statute of limitations" unless the doctrines of equitable tolling and equitable estoppel apply. Id. She based her conclusion on the word "may" in the regulation, explaining that:
While pursuit of mandatory administrative remedies can delay the start or running of a statute of limitations, pursuit of remedies that are merely permissive does not toll a limitations period. . . . Accordingly, if filing an ECOA complaint with USDA is a voluntary, permissive administrative remedy, filing an administrative claim would not toll the ECOA limitations period. . . . USDA has promulgated regulations [which provide that] a person "may" file a written complaint of discrimination . . . USDA has suggested that § 6912(e) requires that an ECOA claimant exhaust the administrative procedure in [ 7 C.F.R. § 15d.4e] before bringing a civil action. . . . We believe [ 7 C.F.R. § 15d.4] is a permissive procedure, and filing an administrative complaint would not toll the statute of limitations.Id. In the November 10, 1998 explanation of the proposed Part 15d procedure, then-Secretary of Agriculture Dan Glickman, indicated that Department believed that the regulation created a permissive procedure, stating:
The Memorandum refers to 7 C.F.R. § 15.52(b) which was replaced by 7 C.F.R. § 15d.4 on November 30, 1999. See 64 Fed. Reg. 66709.
[I]t should be noted that Part 15d is not an ECOA administrative procedure . . . The proposed regulation merely informs the public of the Department's nondiscrimination policy and of an individual's right to file a complaint if he or she believes that he or she has been discriminated against by the Department so that the Department can take appropriate action. Of course, the availability of 15d and ECOA often will be coextensive, and it often will be the case that a 15d complaint will afford the Department an opportunity to provide relief to a complainant that may avoid an ECOA lawsuit. . . . There is no exhaustion of administrative requirement to filing an ECOA lawsuit.63 Fed. Reg. 62962 at 62963.
This Court notes that while Secretary Glickman stated that Part 15d would not be an ECOA administrative procedure in this quotation, when the final rule was issued he stated that it "reflects that the Director of the Office of Civil Rights has been delegated the authority to make final determinations as to whether prohibited discrimination occurred and the corrective action required to resolve program complaints." 64 Fed. Reg. 66709. Also, for purposes of this motion, the Secretary has conceded that Part 15d provides an administrative procedure for ECOA claims. (See Def.'s Br. at 6.) Here, the Secretary contests whether the procedure is mandatory or permissive, not whether it is an administrative procedure.
The Secretary of Agriculture urges this Court to rely on the Love decision, and its cited sources, and find that this Court clearly erred in finding that exhaustion is required prior to filing an ECOA action against the Secretary. (Def.'s Br. at 8.) This Court, however, finds that defendant has failed to show that this was a "clear error of law" that must be corrected "to prevent manifest injustice." See Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
First, there is no "clear" law that this Court must apply. This Court is not bound by the authority cited by the defendant and there is no binding law directly on point. The unpublished decision of the District Court for the District of Columbia in Love, the published decision of the District Court for the District of Kansas in Lewis, the Department of Justice advisory memorandum, and the Federal Register notes provide insight on the issue and are persuasive, but not one explains why the language in 7 U.S.C. § 6912, which states that a plaintiff "shall exhaust all administrative appeal procedures established by the Secretary . . . before the person may bring an action . . . against the Secretary," should not require that a plaintiff exhaust the administrative complaint procedure of 7 C.F.R. § 15d.4 that was established by the Secretary. It is true that the administrative procedure itself indicates that a plaintiff "may" use it. However, 7 U.S.C. § 6912 still requires that all administrative procedures established by the Secretary, not just mandatory administrative procedures, be exhausted prior to filing suit. Thus, this Court has not "clearly erred" legally in its decision.
Second, defendant has not shown that manifest injustice will occur should this Court deny reconsideration on this issue. Defendant argues that the Court's decision has "potentially far-reaching consequences for Defendant in that it potentially makes timely many discrimination claims that would otherwise be barred by the statute of limitations," but fails to show how equity supports depriving a plaintiff of the right to file a discrimination claim when she has followed the language of 7 C.F.R. § 15d.4 and 7 U.S.C. § 6912 by exhausting administrative procedures that have lingered on. Indeed, our government should not establish administrative appeal procedures for redress of complaints of discrimination prior to suit and then claim that the passage of time in which the claimant pursued the administrative procedures exceeded the limitations period for filing suit.
Therefore, this Court will deny the defendant's motion for reconsideration and will reaffirm its February 3, 2003 decision, thereby allowing plaintiffs' claims that the FSA discriminated against them by accelerating the administrative offset process on February 4, 1997 and March 3, 1997, as alleged in their letter of August 1997, to proceed.
C. Plaintiffs' Motion for Reconsideration
This Court will also deny the "Motion to Alter and Amend the Court's Summary Judgment Opinion and Order" filed by plaintiffs. In the motion, plaintiffs ask this Court to consider new "pleadings and exhibits" and "in light of such new facts and evidence in the record reconsider the standing Opinion and Order." (Pl.'s Br. at 1.) This Court will construe their motion as one for reconsideration pursuant to Local Civil Rule 7.1(g) based on new evidence.
Plaintiffs argue that this Court should reconsider its findings that the plaintiffs' claims, as presented in the August 1, 1997 letter, are ineligible for a section 741 waiver of the statute of limitations because they were not filed with the USDA prior to July 1, 1997. Plaintiffs argue that the facts of another civil action, Whitehead v. Veneman, Civil No. 02-459 (LRW) (W.D. Okla.), show that the Secretary of Agriculture has arbitrarily denied them relief. In Whitehead, the plaintiff had filed a complaint with the USDA on August 24, 1997, and on December 14, 1998, the USDA Office of Civil Rights provided plaintiff a settlement offer that the plaintiff accepted. (Pls.' Br., Exs. 1, 2.) In April 2002, the plaintiff filed the present Oklahoma action to enforce the December 1998 settlement. Here, plaintiffs' "new evidence" is a January 29, 2003 pleading filed in Whitehead by the Secretary of Agriculture which states that plaintiff Whitehead's August 24, 1997 "complaint was settled under section 741." (Pl.'s Br., Exs. 3.) Plaintiffs argue that the Secretary of Agriculture arbitrarily dismissed their post-July 1, 1997 complaint under section 741 because she allowed Mr. Whitehead's post-July 1, 1997 complaint to proceed to settlement. (Id.)
Defendant argues that this "new evidence" does not provide a basis to reconsider this Court's February 3, 2003 decision because even if the USDA considered a post-July 1, 1997 complaint under section 741 inWhitehead, the Court still cannot allow the Visconti plaintiffs' post-July 1, 1997 complaint to proceed. This Court agrees. In the February 3, 2003 Opinion, this Court explained that it cannot expand the plain language of section 741 to allow an August 1, 1997 complaint to proceed as a pre-July 1, 1997 complaint because the doctrine of sovereign immunity prevents suit against a United States agency unless the government has waived its sovereign immunity. United States v. Sherwood, 312 U.S. 584, 586 (1941); Stehney v. Perry, 101 F.3d 925, 933 (3d Cir. 1996). The terms of a waiver of sovereign immunity must be "construed strictly in favor of the sovereign . . . and not enlarged beyond what the language requires." United States v. Nordic Village, 503 U.S. 30, 34 (1992) (quoting McMahon v. United States, 342 U.S. 25, 27 (1951);Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983)). Here, the plain language of section 741 expressly and unambiguously restricts the waiver to "pre-July 1, 1997 complaints," so this Court cannot find that the waiver extends to plaintiffs' post-July 1, 1997 complaints. This Court need not decide here whether or not Mr. Whitehead was offered section 741 relief based on a post-July 1, 1997 complaint because even if he was, this Court is still bound by the express terms of section 741 in this case. Therefore, this Court again finds that plaintiffs' August 1, 1997 letter is not an eligible pre-July 1, 1997 complaint for purposes of section 741.
Defendant argues that it is not clear that plaintiff Whitehead's post-July 1, 1997 complaint was considered under section 741 because the settlement agreement does not explicitly state that it resolves claims under section 741. It does state that "USDA informed [Mr. Whitehead] of his rights to an administrative hearing, as authorized by Section 741," (Pls.' Br., Ex. 2 at ¶ 8), and the cover letter sent with the agreement explained that there was a backlog of complaints "filed prior to July 1997" and that "[t]he complaint you filed on August 24, 1997 is part of our backlog," (Pls.' Br., Ex. 1). Still, defendant argues that even if it was represented as a section 741 settlement, it was still a settlement, and thus a compromise of a disputed claim, so cannot be interpreted as a determination that defendant was liable to Mr. Whitehead under section 741.
This Court need not decide here whether plaintiff Whitehead's settlement agreement was, or was not, made under section 741. Even if it was, this Court still cannot offer plaintiffs the relief they seek.
This Court has considered plaintiffs' argument that the USDA's treatment of their complaint, when compared with Mr. Whitehead's complaint, violates section 706 of the Administrative Procedure Act, 5 U.S.C. § 706 as an "arbitrary and capricious" action. (Pl.'s Br. at 3.) However, an agency decision is only arbitrary and capricious if the agency:
relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Here, it is clear that the USDA denied plaintiffs' August 1, 1997 complaint under section 741 based on factors which Congress intended it to rely on, namely whether the complaint was filed before or after July 1, 1997. Therefore, this agency action was clearly not arbitrary nor capricious.
[11] The Equal Credit Opportunity Act (ECOA) prohibits discrimination by a creditor against any applicant with respect to any aspect of a credit transaction on the basis of race, color, religion, national origin, sex or marital status, or age. See 15 U.S.C. § 1691(a).
III. CONCLUSION
For the reasons discussed above, the pending motions for reconsideration of this Court's February 3, 2003 Opinion and Order will be denied. Defendant has not shown a clear error of law that requires reconsideration in order to prevent manifest injustice and plaintiffs have not shown new evidence that warrants a change.
The accompanying Order will be entered.
ORDER
This matter having come before the Court upon the motion of defendant Ann Veneman, Secretary, United States Department of Agriculture, for reconsideration of this Court's February 3, 2003 Opinion and Order, [Docket Item 17-1], and upon the motion of plaintiffs John Visconti and Mary Visconti for reconsideration of this Court's February 3, 2003 Opinion and Order, [Docket Item 18-1]; the Court having considered the parties' submissions; and for the reasons expressed in Opinion of today's date;
IT IS this ___ day of July, 2003, hereby
ORDERED that defendant's motion for reconsideration of this Court's February 3, 2003 Opinion and Order [Docket Item 17-1] be, and hereby is, DENIED ; and
IT IS FURTHER ORDERED that plaintiffs' motion for reconsideration of this Court's February 3, 2003 Opinion and Order [Docket Item 18-1] be, and hereby is, DENIED