Opinion
Civil Action No. 01-5409 (JBS).
February 3, 2003
John and Mary Visconti, Bridgeton, New Jersey, Plaintiffs pro se.
Christopher J. Christie, United States Attorney, By: Louis J. Bizzarri, A.U.S.A., Camden, New Jersey, Counsel for Defendant.
OPINION
The owners of a vegetable farm in New Jersey have alleged that the United States Department of Agriculture (USDA) Farm Services Agency (FSA) discriminated against them on the basis of national origin, sex, and disability when determining whether to grant them financial assistance in violation of the Equal Credit Opportunity Act (ECOA), 15 U.S.C. §§ 1691, et seq. Plaintiffs complained of such discrimination in letters dated October 31, 1988, June 17, 1991, April 1, 1997, and August 1, 1997. The issue to be determined here is whether the ECOA statute of limitations has run on the claims, and if it has, whether the statute of limitations has been waived for the claims 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 certain eligible ECOA claims of discrimination filed with the USDA prior to July 1, 1997.
The FSA, formerly known as the Farmers Home Administration (FmHA), is an agency within the USDA which administers federally funded credit and benefit programs to provide and guarantee loans to eligible farmers for farm purchases, debt restructuring, or disaster relief. For ease of reference in this Opinion, the agency will be referred to as FSA.
This matter is presently before the Court upon the motion of defendant, Ann Veneman, Secretary, United States Department of Agriculture (USDA), for summary judgment pursuant to Rule 56, Fed.R.Civ.P. Defendant argues that summary judgment should be entered in its favor because the ECOA statute of limitations has run and because plaintiffs' claims are not eligible claims under section 741. Plaintiffs contend that summary judgment should not be entered because they filed timely claims of discrimination. For the reasons stated herein, defendant's motion for summary judgment on plaintiffs' Complaint will be granted in part as to all claims presented in plaintiffs' letters dated October 31, 1988, June 17, 1991, April 1, 1997, and as to claims in plaintiffs' August 1, 1997 letter which allege discrimination prior to February 1, 1997. Summary judgment will be denied in part as to claims in plaintiffs' letter dated August 1, 1997 which allege discrimination between February 1, 1997 and August 1, 1997.
I. BACKGROUND
John and Mary Visconti began borrowing from the Farm Service Agency (FSA) in the early 1970s, and in October 1977, they acquired a farm in Cumberland County, New Jersey. (R. III, Ex. B. at 34.) When unable to pay their FSA debts, they filed for bankruptcy in 1988. (R. II at 5.) They continued to farm the land and apply for FSA financing, but they incurred more debts and in 1993, they lost title to their farm through foreclosure by the first mortgage holder on the farm. (Id.) On May 27, 1993, the USDA purchased the farm from the first mortgage holder to protect its interests. (Id.) The Viscontis continue to use the land, though the FSA has not authorized such use. (Id.)
The Viscontis allege that they were discriminated against in their dealings with the FSA because of their national origin (Italian American), sex, and disability when the FSA denied them comprehensive loan service, rejected a leaseback/buyback agreement, refused to become sole mortgage holder on the property, improperly accelerated their debt, and denied disaster payment. (R. III at 14.) These alleged actions, and the USDA's defenses to them, are detailed in the record. This Court is not to determine on this motion for summary judgment whether the alleged discriminatory actions occurred, but is to determine whether the Viscontis' letters about them were timely, so the Court will not discuss the alleged discrimination in detail here.
A. October 31, 1988 Letter
On October 31, 1988, the Viscontis wrote to the Office of the United States Attorney in Camden, New Jersey to complain about the conduct of the FSA. They explained the troubles they were having viewing their FSA files and stated that:
This just seems to be a continuance of the hassles my husband and I have been experiencing from Federal and State Agencies since 1987. I find it necessary at this point to turn to you to ask if we have any rights left and what recourse we have, as victims, to regain those rights?
(R. II, Ex. 2.) (emphasis added). The Viscontis explained that they had taken a woman named Martha Clemmons into their house as a guest and that she, a former "patient in the mental wing, . . . became upset with us [and] she started her harassment by writing to any agency or anyone who would listen." (Id.) The Viscontis said that the letters included "vicious and absurd charges against us" and that "[i]t is costing us a small fortune in attorney fees to prove we are innocent of charges of wage violations and work related injuries brought against us." (Id.) The Viscontis wanted help gaining access to their FSA files to counter the charges. (Id.) B. June 17, 1991 Letter
On June 17, 1991, the Viscontis wrote to FSA to complain about the agency's acceleration of their mortgage and stated:
Over the past few months we have researched our rights as clients of [FSA]. We had continuously asked our previous attorney to investigate the violation of our rights. Specifically, the right to apply for a moratorium on our loan and interest when we first experienced difficulties. There is no doubt in our mind that our rights were violated under the law dealing with 1981a.
(R. II, Ex. 3.) As explained below, plaintiffs' reference to "1981a" refers to 7 U.S.C. § 1981a, pertaining to "loan moratorium and policy on foreclosures."
C. April 1, 1997 Letter
On April 1, 1997, Mary Visconti wrote to the New Jersey FSA State Executive Director, Debra Borie-Holtz, and stated:
I would still like to discuss with you any assistance you can give me. . . . Even though Mr. Pete Morrow is handling my case I feel it might be beneficial for us to meet since I already have had personal contacts with you. Mr. Clyde Evans informed me that I will not be allowed to plant any crops on the property. For this reason I feel that a meeting with you is necessary to discuss the matter. Since I am a minority I sincerely need your help in trying to solve my problems.
(R. II, Ex. 1.) (emphasis added)
D. August 1, 1997 Letter
On August 1, 1997, the Viscontis, through an attorney, sent a letter to the USDA requesting an investigation into the Viscontis' case because "a cursory review of the Visconti/FSA file indicates that the . . . FSA . . . has violated the Viscontis' rights pursuant to the ECOA." (R. III at 1.) He further stated that:
there [exists] a course of discriminatory conduct that can be traced, historically and actions related thereto that constitute continuing violations that clearly bring the action within all applicable Statute of Limitations. Discrimination is claimed in all such prior actions.
(Id.)
On September 12, 1997, the Viscontis attended a Congressional Black Caucus session and spoke with Jeremy Wu, the Deputy Director of the USDA's Program Investigations Division (PID), and asked about the status of their discrimination complaint. (R. III at 61.) Dr. Wu wrote to the Viscontis on October 20, 1997 to inform them that "PID has searched their records and they do not show an active complaint from you." (R. III at 60.) On October 27, 1997, the Viscontis completed the Complaint Determination form and alleged discrimination from 1979 through 1997 on the basis of national origin, sex, and disability. (R. III at 50.) Specifically, they alleged that FSA failed to provide comprehensive loan service from 1978 to 1980, denied assistance with applications for emergency loans in 1980 and 1984, refused to become the sole mortgage holder on their property, delayed the processing of a disaster payment, and accelerated the administrative offset process. (R. II, Ex. 5.)
Mary Visconti also testified to these allegations before the United States House of Representatives Committee on Agriculture on October 23, 1997. (Pls.' Br., Ex. E.)
The USDA Office of Civil Rights (OCR) investigated the Viscontis' complaint in May 1998. (R. III at 29.) In the report of the investigation, Helen Nuttall, Investigator for HUB Consulting Group, detailed the extensive evidence that she considered and finally concluded that "the investigation shows that FSA officials had legitimate reasons for those actions that were denied or disapproved." (R. III at 35.) On October 28, 1999, OCR issued its final determination, also finding that there was no "discrimination based on national origin, sex, or disability. . . . FSA had legitimate non-discriminatory reasons for its actions in this case." (R. III at 14-18.) E. Section 741
As will be explained infra, section 741 of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act of 1999 applies only to "eligible complaints" which are:
· non-employment related complaints;
· filed with the USDA before July 1, 1997;
· alleging discrimination between January 1, 1981 and December 31, 1996; and
· alleging discrimination either:
(1) in violation of ECOA in the administration of a farm ownership loan, a farm operating loan, an emergency loan, or a rural housing loan; or
(2) in the administration of a commodity program or a disaster assistance program.
On October 29, 1999, Rosalind D. Gray, Director of the USDA Office of Civil Rights (OCR), sent the Viscontis a letter explaining that the USDA had determined that discrimination did not occur in their case but that "[t]his decision does not prevent you from exercising any rights that you may have in accordance with Section 741 of Public Law 105-277." (R. III at 11.) On October 17, 2000, Mary Visconti sent a letter to Director Gray requesting a hearing before an Administrative Law Judge (ALJ) pursuant to section 741. (R. II at 9.) Frederick Isler, Deputy Director for Programs at OCR, wrote to the Viscontis on October 24, 2000 in response to their request and attached a copy of the agency's position statement. (R. II at 2.) In the position statement, Rosalind D. Gray, Director of OCR, stated that:
The August 1, 1997 complaint is not eligible under § 741 because the complaint was filed outside the statutory time frame. A number of the allegations which Complainants raise occurred before 1981 and thus are not eligible for consideration under § 741. Events which occurred between 1981 and 1996 are not eligible for consideration under § 741 because: 1) Complainants did not file a complaint of discrimination with USDA prior to July 1, 1997 or 2) the allegation of discrimination does not involve a program subject to the provisions of § 741.
(R. II at 5.) Director Gray further stated that:
It is important to note that the first complaint of discrimination filed with USDA by Complainants was filed in August of 1997. Therefore, all issues raised by Complainants in this case failed to meet the second prong of eligibility pursuant to the provisions of § 741. However, in an effort to ensure the correctness of our determination, [OCR] reviewed its entire case file and did not find a complaint letter which would be eligible for processing under § 741. While no eligible complaint letter was found, [OCR] did locate a document, dated prior to July 1, 1997, which asserted that FSA acted inappropriately. However, this document did not allege that FSA's actions were discriminatory. While the document refers to a violation of Complainant's "rights" the document intimates the "rights" being referred to were "program rights" relative to loan servicing. There is no evidence available that Complainants filed a complaint of discrimination with USDA prior to July 1, 1997.
(R. II at 6.)
By an October 31, 2000 Order to Show Cause, the Viscontis were notified that they had until November 20, 2000 to show cause why the proceeding should not be dismissed for failure to file a complaint before July 1, 1997. (R. II at 10-11.) The Viscontis, through counsel, filed their response on December 15, 2000, arguing that their letters dated October 31, 1988, June 17, 1991, and April 1, 1997 were pre-July 1, 1997 eligible complaints. (R. II at 38.)
The case was assigned to ALJ William C. Cregar who issued his determination on February 20, 2001. (R. II, Ex. 5.) ALJ Cregar found that the three letters, dated April 1, 1997, June 17, 1991, and October 31, 1988, were not eligible section 741 complaints. (Id.) He explained that:
The word "discrimination" is not used in any of the letters, nor is there any language which would lead one to believe that Complainants were complaining of national origin, sex, or handicap discrimination. By Complainants' reasoning, the filing of a general complaint of any nature concerning the FSA loan process together with the mere mention of membership in an unspecified minority would preserve, indefinitely, a complainant's right to a hearing on any basis prohibited by Section 741(e)(1).
(Id.) (emphasis in original).
The Viscontis filed a request for review of the ALJ's dismissal on March 20, 2001. (R. II, Ex. 5.) On May 22, 2001, Paul W. Fiddick, Assistant Secretary for Administration of the USDA submitted the final determination of the USDA. (Id.) The determination adopted the ALJ's prior determination, finding that:
The letters are dated October 31, 1988; June 17, 1991; and April 1, 1997. Neither singly, nor together, do they constitute a discrimination complaint. None gives the agency any notice that you had a discrimination complaint. . . .
In fact, none of the letters uses the word "discrimination" . . . In fact, none of the letters makes a statement to the effect that an adverse event happened on the basis of national origin, sex, or handicap. Each of the letters does address alleged loan program problems that you experienced. Only one word in the April 1997 letter — "minority" — is even suggestive of a complaint of discrimination; and its use in the context of the letter is in reference to providing you with help; it does not make a connection with alleged discrimination . . . there is no basis for reversing the ultimate determination by the ALJ that your complaint is time-barred.
(Id.) The Viscontis filed the current appeal of the USDA final determination with this Court on November 21, 2001.
II. DISCUSSION A. Summary Judgment Standard
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law.Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "the nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quotingAnderson, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250;Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted).
The moving party bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial.See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, where the nonmoving party bears the burden of persuasion at trial, as plaintiffs do in the present case, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325.
The non-moving party, here plaintiffs John and Mary Visconti, "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). Plaintiffs must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Anderson, 477 U.S. at 249-50. Thus, if the plaintiff's evidence is a mere scintilla or is "not significantly probative," the court may grant summary judgment. Id. at 249-50.
B. Analysis
On this motion for summary judgment, this Court must determine whether the plaintiffs' Complaint with this Court was timely. This depends on whether plaintiffs' filed an ECOA claim that was (1) eligible for the section 741 waiver of the statute of limitations or (2) eligible under the regular ECOA statute of limitations.
1. Section 741 Eligibility
Plaintiff's claims in their letters dated October 31, 1988, June 17, 1991, April 1, 1997, and August 1, 1997 are not eligible for section 741 consideration. Congress passed section 741 of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act of 1999 because it determined that the USDA's administrative process "did not function effectively" during the 1980s and 1990s so that many had filed complaints that had never been answered. 63 Fed. Reg. 67392. With section 741, Congress provided "extraordinary relief" for the administrative "delay, neglect, and inadequate consideration" by waiving the statute of limitations for certain "eligible complaints." Id. Under section 741, an "eligible complaint" is:
Section 741(a) states:
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.
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 ( 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 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).
Section 741(e).
The Viscontis argue that their letters dated October 31, 1988, June 17, 1991, April 1, 1997, and August 1, 1997 are eligible complaints under section 741. In its final determination, the USDA found that each was ineligible under section 741. It found that the October 31, 1988, June 17, 1991, and April 1, 1997 letters were all filed before July 1, 1997, but did not allege discrimination and found that the August 1, 1997 complaint alleged discrimination, but was not filed before July 1, 1997. Plaintiffs appealed this determination in a timely manner pursuant to section 741(c). The Court has applied a de novo standard of review in accordance with section 741(g) and has determined that there is no material issue of fact regarding the ineligibility of the four letters.
Section 741(c) states:
if an eligible claim is denied administratively, the claimant shall have at least 180 days to commence a cause of action in a Federal court of competent jurisdiction seeking a review of such denial.
The Viscontis were notified on May 22, 2001 that they had 180 days to file a civil action; they filed their complaint on November 21, 2001.
(a) The October 31, 1988, June 17, 1991, and April 1, 1997 Letters
The October 31, 1988, June 17, 1991, and April 1, 1997 letters clearly meet the eligibility requirement that the complaint be filed before July 1, 1997. The problem with the three letters which makes them ineligible for section 741 relief is their subject matter. For any of all of the letters to constitute an eligible complaint under section 741, there must be an allegation of non-employment related discrimination that occurred between January 1, 1981 and December 31, 1996 either in the administration of a farm ownership loan, a farm operating loan, an emergency loan, a rural housing loan, a commodity program, or a disaster assistance program. The three letters do not allege such discrimination.
Under ECOA, eligible discrimination is that which is based on the complainant's race, color, religion, sex, age, national origin, marital status, familial status, sexual orientation, disability, need for public assistance, or prior challenge of a discriminatory practice. 15 U.S.C. § 1691(a); 7 C.F.R. § 15d.
The 1988 letter also fails section 741's eligibility requirements because it was not filed with the USDA, but was sent to the Office of the United States Attorney. The letter was forwarded to the USDA, though, so it was available for their review.
The three letters do not contain the word "discrimination" or any reference to ECOA. Instead, each letter contains a vague reference to certain legal rights. The 1988 letter states that "I find it necessary at this point to turn to you and ask if we have any rights left and what recourse we have, as victims, to regain these rights?" The 1991 letter states that "[t]here is no doubt in our minds that our rights were violated under the law dealing with 1981a." The April 1997 letter asks for help from the agency "since I am a minority." The Viscontis argue that these statements should be liberally construed to state a claim of discrimination on the basis of national origin, sex, and disability. While it is true that this Court holds pro se complaints to "less stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519, 520 (1972), this Court still cannot construe the letters to allege discrimination that is covered by section 741.
The Court holds pro se submissions to less stringent standards because "technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process," Love v. Pullman Co., 404 U.S. 522, 527 (1972). Charges of discrimination alleged by pro se plaintiffs are generally construed broadly. See Motorola, Inc. v. McLain, 484 F.2d 1339, 1334 (7th Cir. 1973); Wetzel v. Liberty Mutual Ins. Co., 511 F.2d 199, 202-03 (3d Cir. 1975), rev'd on other grounds, 424 U.S. 737 (1976). However, the charge of discrimination must still be clear enough to give fair notice to the defendant that a discrimination charge has been brought. See cf. Swierkiewicz v. Sorema, 534 U.S. 506 (2002) (finding that petitioner must plead type of discrimination and relevant incidents to give defendant fair notice of the claims and their grounds). Therefore, if a private party makes a technical error in its discrimination claim, but still clearly alleges discrimination, courts will liberally construe the claim so that procedural technicalities do not stop the private party from enforcing the anti-discrimination laws. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974); see also Wetzel, 511 F.2d at 202-03 (denying access to federal courts because of technical error undermines policies of Title VII). The Third Circuit allowed a claim to continue when the plaintiff claimed sex discrimination based on her pregnancy but indicated the reason for her claim by checking a box labeled "benefits" instead of "terms and conditions." Wetzel, 511 F.2d at 202-03. The Seventh Circuit allowed a claim for sex discrimination when the plaintiff checked race and color discrimination on the form and also alleged that she was accused of "being a leader of the girls on the floor." Jenkins v. Blue Cross Mutual Hosp. Ins., Inc., 538 F.2d 164, 169 (7th Cir. 1976).
However, when the plaintiff makes more than a technical error and files a document that does not clearly allege a specific type of discrimination, the court will not expand the pleading to allege discrimination if the defendant could not have reasonably known the plaintiff was charging such discrimination. Vela v. Village of Sauk Village, 218 F.3d 661, 664 (7th Cir. 2000). The Court cannot expand a charge if the defendant was never put on notice that he may be subject to such a charge. Therefore, when a plaintiff's charge alleged sexual discrimination, she could not later claim that the charge also encompassed a charge for sexual harassment because the two charges arose from sets of facts wholly distinct from one another. Vela, 218 F.3d at 664;Sandom v. Travelers Mortgage Servs., Inc., 752 F. Supp. 1240, 1247-48 (D.N.J. 1990). Likewise, when a plaintiff alleged race discrimination, he could not later claim that his charge encompassed age and disability discrimination because such charges are not reasonably related, especially when plaintiff did not allege any facts that would have caused an agency to think that charges of age or disability discrimination had been brought. Pickens v. Intercommunity Agency, No. 96-8415, 1997 WL 727604 at *3-4 (E.D. Pa. Nov. 21, 1997); see also Hawkins v. Groot Indus., Inc., No. 01-1731, 2002 WL 31064313 at *4 (N.D. Ill. 2002) (finding court could not "even liberally construe" charge to allege national origin discrimination when plaintiff never mentioned his national origin).
Here, the three letters do not mention discrimination and, viewed in their totality, do not allege discrimination by the FSA. The October 1988 letter focuses on "vicious and absurd charges . . . of wage violations and work related injuries brought against us by this Martha Clemmons." The Viscontis explained that they housed Martha Clemmons because they were "sorry for her," but that she became upset with them and started charging them with "all sorts of wrong doings." The Viscontis wrote to the Office of the United States Attorney to ask for help because they were frustrated with the "hassles" of the federal and state agencies investigating Martha Clemmons' charges. The letter asks what "rights" they have "as victims" of the Clemmons' charges, not what "rights" they have from FSA discrimination.
The 1991 letter focuses on problems that the Viscontis were suffering because of the foreclosure of their farm. They stated that they had researched their rights as clients of the FSA "[s]pecifically the right to apply for a moratorium on our loan and interest when we first experienced difficulties." They then stated that there was "no doubt in our minds that our rights were violated under the law dealing with 1981a," thereby referencing 7 U.S.C. § 1981a which is titled "Loan moratorium and policy on foreclosures." The Viscontis did not allege discrimination on the basis of national origin, sex, or disability when they wrote this letter; they alleged that they were not granted enough financial assistance when their farm was foreclosed.
In the April 1997 letter, Mary Visconti wrote to Debra Borie-Holtz at the New Jersey FSA Office to ask for help. She acknowledged that Peter Morrow was handling their FSA file, but asked to meet with Ms. Borie-Holz because they had previously spoken. Ms. Visconti explained that she needed the meeting because "Mr. Clyde Evans informed me that I will not be allowed to plant any crops on the property. For this reason, I feel that a meeting with you is necessary to discuss the matter." Then, Ms. Visconti added that "[s]ince I am a minority I sincerely need your help in trying to solve my problems." In this letter, Mary Visconti did not allege that she had been discriminated against because of her minority status or that she was not allowed to plant crops because she was a minority. Instead, she asked for special help to solve her problems, and stressed her minority status as a reason that she should be accorded such help.
The three letters do not alert any reasonable person that they are claiming national origin, sex, or disability discrimination. None takes the form of a complaint; none mentions sex, disability, or their Italian-American heritage. The letters are not at all suggestive of a complaint of discrimination. As such, they do not, alone or in combination, constitute an eligible complaint under section 741.
(b) August 1, 1997 Letter
The Viscontis, through their attorney, sent a letter to the USDA on August 1, 1997 which clearly alleges discrimination on the basis of the Viscontis' national origin, sex, and disability. There is no question that the August 1, 1997 letter was sent after section 741's July 1, 1997 eligibility date. However, the Viscontis seem to argue that they began alleging discrimination before July 1, 1997 that finally culminated in the filing of the August 1, 1997 complaint. Therefore, they argue that the August 1, 1997 complaint should be treated as a pre-July 1, 1997 complaint.
This argument is unavailing for two reasons. First, discrimination charges must be in writing, 7 C.F.R. § 15f.4, and, as noted supra, the Viscontis did not allege discrimination in writing until the August 1, 1997 letter. Therefore there was no pre-July 1, 1997 discrimination charge.
Second, this Court cannot expand the plain language of section 741 to allow the August 1, 1997 complaint because the Court must strictly construe the section 741 waiver of sovereign immunity. Under the doctrine of sovereign immunity, the United States and its agencies cannot be sued unless it consents to a waiver of 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 the waiver, which must be "unequivocally expressed," define the court's jurisdiction over such suits. United States v. Nordic Village, 503 U.S. 30, 33 (1992); Sherwood, 312 U.S. at 586. Waivers must not be liberally construed, but should be "construed strictly in favor of the sovereign . . . and not enlarged beyond what the language requires." Nordic Village, 503 U.S. at 34 (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." This Court cannot expand it to allow a post-July 1, 1997 complaint. Therefore, the August 1, 1997 letter is not an eligible complaint under section 741.
2. ECOA Statute of Limitations
The issue remains as to whether any of plaintiffs' claims were timely under the regular ECOA statute of limitations. The only claims that can be considered are those within the August 1, 1997 letter; the claims in the other letters did not allege discrimination in violation of ECOA, as explained supra, and were not appealed through the administrative process. The United States Department of Agriculture, Office of Civil Rights, issued its final decision on the August 1, 1997 claims on October 28, 1999. This Court must thus determine whether the current action based on the October 28, 1999 decision is timely.
7 U.S.C. § 6913(e) 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
This Court has jurisdiction to review final decisions of the USDA under 7 U.S.C. § 6999.
This Court holds pro se complaints to "less stringent standards than formal pleadings drafted by lawyers" in accordance with Haines v. Kerner, 404 U.S. 519, 520 (1972). As a result, it construes plaintiffs' complaint to seek an appeal of two USDA decisions: (1) the May 22, 2001 determination that plaintiffs could not proceed under section 741, and (2) the October 28, 1999 determination that plaintiffs had not suffered actionable discrimination based on the claims in their August 1, 1997 Complaint. This Court construes the statement in plaintiffs' Complaint that "OCR has administratively determined that its previous administrative decision to investigate and decide the case on its merits by the director (in 1997) of the OCR is negated and has been cancelled," to mean that the plaintiffs' seek review of the 1997 decision as well as the 2001 decision.
In order to appeal a USDA determination on an ECOA claim to the federal district court, a plaintiff must satisfy two time requirements: (1) file a timely administrative appeal, and (2) file a timely court appeal. Lewis v. Glickman, 104 F. Supp. 2d 1311, 1319-21 (D. Kan. 2000). Plaintiff can do so by (1) filing the administrative appeal within 180 days from the date of the alleged discrimination, 7 C.F.R. § 15.6, and (2) filing the court action within ECOA's two-year statute of limitations, measured from "the date of the occurrence of the violation," 15 U.S.C. § 1691e(f).
7 C.F.R. § 15.6 states, in part:
Any person who believes himself/herself or any specific class of individuals to be subjected to discrimination prohibited by the regulations in this part may be himself/herself or by an authorized representative file with the Secretary or any Agency a written complaint. A complaint must be filed no later than 180 days from the date of the alleged discrimination, unless the time for filing is extended by the Agency or by the Secretary . . .
15 U.S.C. § 1691e(f) states:
Any action under this section may be brought in the appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction. No such action shall be brought later than two years from the date of the occurrence of the violation, except that —
(1) whenever any agency having responsibility for administrative enforcement under section 1691c of this title commences an enforcement proceeding within two years from the date of the occurrence of the violation,
(2) whenever the Attorney General commences a civil action under this section within two years from the date of the occurrence of the violation,
then any applicant who has been a victim of the discrimination which is the subject of such proceeding or civil action may bring an action under this section not later than one year after the commencement of that proceeding or action.
Here, most of plaintiffs' August 1, 1997 claims fail the first timing requirement because they were not filed in the administrative process within 180 days of their occurrence. In their August 1, 1997 letter, plaintiffs alleged that the FSA discriminated against them when it failed to provide them with comprehensive loan service from 1978 to 1980, denied assistance with applications for emergency loans in 1980 and 1984, refused to become the sole mortgage holder on their property in 1993, delayed the processing of a disaster payment in 1994, denied them a Leaseback/Buyback Agreement in 1994 and December, 1996, and accelerated the administrative offset process on their property in February and March 1997. (R. III, Exs. A, 10.) The only timely claim is the last one; the alleged discriminatory acceleration of the administrative offset process in February and March 1997 occurred within 180 days of the August 1, 1997 filing.
This Court recognizes that the USDA did not initially consider the plaintiffs' August 1, 1997 letter to be a filed complaint as the plaintiffs were told on October 20, 1997 that there was no active complaint from them on file. (R. III at 60.) However, after plaintiffs provided additional information on October 27, 1997, (R. III at 50), the USDA considered the date of their complaint to be August 1, 1997, (R. III at 14). Therefore this Court will also consider the date of their complaint to be August 1, 1997, especially because it clearly alleges discriminatory conduct.
The issue then is whether the February and March 1997 offset acceleration claim satisfies the second timing requirement. The determination of this issue depends on whether the ECOA statute of limitations was tolled while the plaintiffs were involved in the administrative process. If the statute of limitations was not tolled, then this action filed November 21, 2001 would be barred as untimely because the statute of limitations would have run two years after the events of February and March 1997. If, however, the statute of limitations tolled during the administrative process, then this action would be timely. This issue requires the Court to consider an issue of first impression; namely the interplay of the ECOA statute of limitations with the exhaustion requirement of 7 U.S.C. § 6912(e). This Court finds that the ECOA statute of limitations was tolled while plaintiffs were required to pursue their administrative remedies and will allow the claims concerning February and March, 1997 discrimination, as alleged August 1, 1997, to proceed as timely.
The relevant dates are 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
Thus, if the statute of limitations was tolled while plaintiffs pursued their claims in the administrative process, the statute of limitations 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 administrative process from October 17, 2000 through May 22, 2001 was based on the eligibility of plaintiffs claims for a hearing based on section 741 and not on an appeal of the October 28, 1999 decision. The record shows, though, that their cooperation with the process was based on their wish to receive a hearing. They likely pursued their claims as section 741 claims because when they learned of the October 28, 1999 final determination, they were told that their avenue of redress was under section 741; they were not told that they could appeal the October 28, 1999 determination directly to the court. (Gov't Br., Ex. E.) See also 7 U.S.C. § 6994 (requiring Secretary to provide notice of appeal rights within ten working days of an adverse decision). The record makes clear that throughout the entire process plaintiffs have been trying to receive a hearing on the discrimination claims that they included in their August 1, 1997 letter, whether that hearing came in the form of a section 741 hearing or a regular appeal, and this Court will consider that all the time they spent in the appellate process was focused on a resolution of the August 1, 1997 claims.
For this exhaustion requirement, see n. 10 supra.
The ECOA statute is often used to allege discrimination against a private creditor as it generally is the entity that "regularly extends, renews, or continues credit; . . . regularly arranges for the extension, renewal, or continuation of credit; or . . . participates in the decision to extend, renew, or continue credit." 15 U.S.C. § 1691a(e); 12 C.F.R. § 202.14. In such a case, there is little barrier to the plaintiff's ability to bring a claim within two years of the date of the allegedly discriminatory action. Here, though, the situation is quite different. The creditor here is a United States agency thatrequires the plaintiff to proceed through an administrative process before bringing the claim in court. 7 U.S.C. § 6912(e). This Court finds that this is a pivotal difference which warrants tolling of the statute of limitations under the facts of the present case.
Any statute of limitations is "necessarily arbitrary," but its length is intended to "reflect a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones." Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-64 (1975). In Johnson, the petitioner filed a timely charge with the Equal Employment Opportunity Commission (EEOC), a federal agency, alleging violation of Title VII of the Civil Rights Act of 1964. Id. at 467. He waited for the resolution of his charge at the EEOC, and then filed a court suit alleging violation of 42 U.S.C. § 1981. Id. By that time, however, the statute of limitations under section 1981 had run. Id. The petitioner argued that the timely filing of his Title VII charge with the EEOC should have tolled the statute of limitations for his section 1981 complaint because they arose from the same set of facts. Id. The Court found that the statute of limitations did not toll during the administrative process. Id. In making its decision, the Court distinguishedJohnson from other conceivable situations where the statute of limitations may toll. Id. at 464-67. All of the distinctions are present here.
First, the Johnson Court explained that the petitioner understood that he had an "unfettered right" to file his section 1981 cause of action at any time after it accrued. Id. at 466. His failure to file may have "been induced by faith in the adequacy of his Title VII remedy," but was not caused by any requirement that he file for the Title VII remedy. Id. Here, on the other hand, plaintiffs were required to file the administrative complaint before they filed with the court; their failure to file the present complaint within two years was the result of the need to comply with the administrative process. On the date two years after the allegedly discriminatory incidents occurred on February 4, 1997 and March 3, 1997, they still were waiting for a final determination from the agency. They did not receive the determination until October 28, 1999.
Second, the Court explained in Johnson that its decision to not toll the statute of limitations would not conflict with any "significant underlying federal policy." Id. at 466. Here, a decision to not toll the statute of limitations would undermine significant federal policies. In effect, the Court would enable a United States agency to require administrative exhaustion in a lengthy process prolonged until after the two-year statute of limitations has run so that the agency would never be held accountable for discrimination. This Court knows of no policy that would support a decision which deprives plaintiffs of their appeal rights and ability to redress discrimination when an administrative process drags on through no fault of the plaintiffs.
Third, the Johnson Court explained that it would not toll the statute of limitations because "perhaps most importantly" the two filings were not identical. Id. at 467. The Court explained that if two filings had a "complete identity of the causes of action," then statute of limitation's interest in "prohibiting the prosecution of stale [claims]" would not be triggered. Id. at 467. In such a case, the opposing party has notice that a claim has been filed, and so has an "opportunity to protect itself against the loss of evidence, the disappearance and fading memories of witnesses, and the unfair surprise that could result from a sudden revival of a claim that long has been allowed to slumber." Id. n. 14 (citing Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-49 (1944)). Here, the causes of action are identical. In fact, unless plaintiffs filed the first claim, they could not file their civil complaint under the statutory exhaustion requirement. All parties have been aware from 1997 until the present that the plaintiffs have been dissatisfied with treatment that they believe was discriminatory.
In Johnson, the Court also reaffirmed two prior cases where it found that tolling was appropriate. In American Pipe and Construction Co. v. Utah, 414 U.S. 538 (1974), the first action was in state court and was dismissed for improper venue.Jackon, 421 U.S. at 467 n. 12. The Court found that the statute of limitations tolled during the state action because such a result was favored by the "express federal policy liberally allowing the transfer of improper venue cases." Id. In Burnett v. New York Central Rail Co., 380 U.S. 424 (1965), the first action was dismissed as an inappropriate class action filing.Id. The Court found that the statute of limitations tolled during the first filing because of the federal interest in the "litigatory efficiency served by class actions." Id. Here, this Court finds that the clear federal interest in eradicating discrimination must allow tolling of the statute of limitations through the duration of the administrative process required by 7 U.S.C. § 6913(e), supra.
Therefore, this Court finds that the statute of limitations was tolled during the period when plaintiffs complied with the USDA's administrative process. As a result, this Court will deny summary judgment in part, only allowing the claim that plaintiffs were discriminated against in February 1997 and March 1997 when their administrative offset was accelerated.
III. CONCLUSION
In conclusion, this Court finds that plaintiffs did not file a complaint that meets the eligibility requirements of section 741, but did file an August 1, 1997 letter which timely complained of February 1997 and March 1997 discrimination. This Court also finds that the statute of limitations tolled during the time plaintiffs have spent seeking relief in the administrative process. Therefore, this Court will grant defendant's motion for summary judgment in part and will deny defendant's motion for summary judgment in part, allowing only one discrimination claim to proceed, namely that defendant's accelerated offset during February 1997 and March 1997 was discriminatory. The accompanying Order is entered.
ORDER
This matter having come before the Court upon the motion of defendant Ann Veneman, Secretary, United States Department of Agriculture, for summary judgment on the claims contained in the complaint of plaintiffs John Visconti and Mary Visconti pursuant to Rule 56, Fed., R. Civ. P. [Docket Item 11-1]; and the Court having considered the parties' written submissions; and for the reasons expressed in Opinion of today's date;IT IS this ____ day of February, 2003, hereby
ORDERED that defendants' motion for summary judgment on plaintiffs' complaint [Docket Item 11-1] be, and hereby is, GRANTED IN PART as to all claims presented in plaintiffs' letters dated October 31, 1988, June 17, 1991, April 1, 1997, and as to claims in plaintiffs' August 1, 1997 letter which allege discrimination prior to February 1, 1997; IT IS FURTHER ORDERED that JUDGMENT BE ENTERED against plaintiffs and in favor of defendants as to all claims presented in plaintiffs' letters dated October 31, 1988, June 17, 1991, April 1, 1997, and as to claims in plaintiffs' August 1, 1997 letter which allege discrimination prior to February 1, 1997, without costs; and
IT IS FURTHER ORDERED that defendants' motion for summary judgment on plaintiffs' complaint [Docket Item 11-1] be, and hereby is, DENIED IN PART as to claims in plaintiffs' letter dated August 1, 1997 which allege discrimination between February 1, 1997 and August 1, 1997.