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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 9, 2009 Decided April 24, 2009
No. 08-5110
GUADALUPE L. GARCIA, FOR HIMSELF AND ON BEHALF OF
G.A. GARCIA AND SONS FARM, ET AL.,
APPELLANTS
v.
THOMAS VILSACK, SECRETARY,
UNITED STATES DEPARTMENT OF AGRICULTURE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:00-cv-02445-JR)
______
No. 08-5135
ROSEMARY LOVE, ET AL.,
APPELLANTS
v.
2
THOMAS VILSACK, SECRETARY,
UNITED STATES DEPARTMENT OF AGRICULTURE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:00-cv-02502-JR)
Stephen S. Hill argued the cause for appellants Guadalupe L.
Garcia, Jr., et al. With him on the briefs were Alan M. Wiseman,
Robert L. Green, and Kenneth C. Anderson.
Barbara S. Wahl argued the cause for appellants Rosemary
Love, et al. With her on the briefs were Marc L. Fleischaker,
Kristine J. Dunne, Jennifer A. Fischer, Roderic V.O. Boggs,
Susan E. Huhta, Alexander John Pires, Jr., and Phillip L. Fraas.
Charles W. Scarborough, Attorney, U.S. Department of
Justice, argued the causes the appellee. With him on the brief
were Gregory G. Katsas, Assistant Attorney General, Jeffrey A.
Taylor, U.S. Attorney, and Marleigh D. Dover, Attorney.
Before: ROGERS and GRIFFITH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: These appeals relate to the
continuing efforts by farmers to obtain relief from the
discriminatory distribution of federal farm benefits by the United
States Department of Agriculture (“USDA”). See, e.g., Pigford
v. Glickman, 206 F.3d 1212 (D.C. Cir. 2000). This time the
complaints were filed by female and Hispanic farmers who
3
alleged that since 1981 the USDA has unlawfully discriminated
against them in the administration of its farm benefit programs
and failed to act on their administrative complaints in accordance
with USDA regulations. This court affirmed the denial of class
action certification and the dismissal of the failure-to-investigate
claims brought under the Equal Credit Opportunity Act
(“ECOA”), 15 U.S.C. §§ 1691-1691f. Love v. Johanns, 439 F.3d
723 (D.C. Cir. 2006); Garcia v. Johanns, 444 F.3d 625 (D.C. Cir.
2006). The question in this second interlocutory appeal is
whether appellants’ failure-to-investigate claims are reviewable
under the Administrative Procedure Act (“APA”), 5 U.S.C. §§
701-706. Because appellants fail to show they lack an adequate
remedy in a court, we affirm the dismissals of their APA failure-
to-investigate claims and remand the cases to the district court.
I.
The ECOA provides that it is “unlawful for any creditor to
discriminate 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.” 15 U.S.C. §
1691(a). The statute authorizes the recovery of actual damages
from creditors, including the federal government, see id. §§
1691a(e)-(f), 1691e(a), and a court “may grant such equitable and
declaratory relief as is necessary to enforce [the ECOA],” as well
as “reasonable attorney’s fees” to applicants bringing a
“successful action.” Id. § 1691e(c)-(d). Claims under the ECOA
must be filed within two years of the “date of the occurrence of
the violation.” Id. § 1691e(f).
USDA regulations have long provided that applicants
alleging discrimination by the USDA in its direct benefit
programs may file administrative complaints with the USDA.
See 7 C.F.R. § 15d.4; see also Love v. Connor, 525 F. Supp. 2d
4
155, 157-58 (D.D.C. 2007).1 Appellants allege, however, that for
years the USDA ignored discrimination complaints like theirs.
Indeed, in 1997 the USDA publicly acknowledged that in the
early 1980s it “effectively dismantled” its civil rights
enforcement apparatus.2
In response, Congress enacted a special remedial statute in
1998 for applicants who had filed a “nonemployment related
complaint” with the USDA before July 1, 1997 that alleged
discrimination occurring between January 1, 1981 and December
31, 1996. Omnibus Consolidated and Emergency Supplemental
Appropriations Act of 1999, Pub. L. No. 105-277, § 741(e), 112
Stat. 2681-31 (codified at 7 U.S.C. § 2279 Note) (hereinafter
“Section 741”). The statute extended the ECOA statute of
limitations until October 21, 2000, and provided that such eligible
complainants could either file an ECOA action in federal court,
pursuant to Section 741(a), or renew their administrative
complaints and obtain a determination on the merits of their
claim from the USDA, pursuant to Section 741(b). Subsection
(b) of the statute required the USDA to timely process renewed
administrative complaints, to investigate the claims, and to issue
merits determinations after a hearing on the record. Subsections
1
The USDA regulations treat the filing of administrative
complaints alleging discrimination as permissive, rather than
mandatory. See Nondiscrimination in USDA Conducted Programs
and Activities, 63 Fed. Reg. 62,962, 62,963 (proposed Nov. 10, 1998).
2
CIVIL RIGHTS ACTION TEAM, USDA, CIVIL RIGHTS AT THE
UNITED STATES DEPARTMENT OF AGRICULTURE 46-47 (1997); see
also Pigford v. Veneman, 292 F.3d 918, 920 (D.C. Cir. 2002);
Treatment of Minority and Limited Resource Producers by the U.S.
Department of Agriculture: Hearings Before the H. Subcomm. on
Dep’t Operations, Nutrition and Foreign Agric. and the H. Comm. on
Agric., 105th Cong. 97 (1997) (statement of the Secretary of the
USDA).
5
(d) and (g) provided that complainants denied administrative
relief could seek de novo review in federal court.
Appellants, nearly all of whom appear to have filed
complaints with the USDA before July 1, 1997,3 chose the first
option: On the eve of the October 21, 2000 deadline, they filed
complaints in the federal district court here under the ECOA and
the Declaratory Judgment Act, 28 U.S.C. § 2201(a). Their
complaints also included claims under the APA.4 They alleged
that the USDA had discriminated against them with respect to
credit transactions and disaster benefits in violation of the ECOA,
and also had systemically failed to investigate complaints of such
discrimination in violation of USDA regulations. In the district
court only appellants’ ECOA credit transaction claims and the
Garcia appellants’ APA disaster benefit claims have survived the
USDA’s motion to dismiss. The district court also denied
3
Two Garcia appellants filed administrative complaints with
the USDA regarding discrimination occurring after 1996. Those
complaints would not be covered by Section 741. This is a
circumstance of no significance because we hold that all of the
appellants have an adequate remedy at law in the ECOA for their
failure-to-investigate claims. During oral argument government
counsel acknowledged, however, that were agency action on the post-
1996-occurrence complaints unreasonably delayed, these Garcia
appellants could seek judicial relief in the district court under
Telecommunications Research & Action Center v. FCC, 750 F.2d 70,
79-80 (D.C. Cir. 1984). Government counsel expressed no opinion on
whether such delay had occurred as to these two administrative
complaints. We leave for another day whether TRAC relief would be
available given our holding that the ECOA provides an adequate
remedy at law for failure-to-investigate claims.
4
See Love v. Veneman, Civ. No. 00-2502, slip op. at 1
(D.D.C. Dec. 13, 2001); Garcia v. Veneman, Civ. No. 00-2445, 2002
WL 33004124, at *1 (D.D.C. Mar. 20, 2002).
6
appellants’ motions for class certification on their remaining
ECOA discrimination claims, and this court affirmed upon
interlocutory review in 2006. See Love, 439 F.3d 723; Garcia,
444 F.3d 625. Following a remand of the APA failure-to-
investigate claims, the district court reaffirmed its dismissal of
those claims on the ground that Section 741 provided appellants
an adequate remedy at law. See Love v. Connor, 525 F. Supp. 2d
155; Order, Garcia v. Veneman, Civ. No. 00-2445. The district
court certified its interlocutory ruling, and this court granted
appellants’ petition for leave to appeal pursuant to 28 U.S.C.
§1292(b).
II.
The APA provides that “[a]gency action made reviewable by
statute and final agency action for which there is no other
adequate remedy in a court are subject to judicial review.” 5
U.S.C. § 704. In Bowen v. Massachusetts, 487 U.S. 879, 904
(1988), the Supreme Court interpreted § 704 as precluding APA
review where Congress has otherwise provided a “special and
adequate review procedure.” Id. at 904 (internal quotations
omitted). An alternative remedy will not be adequate under § 704
if the remedy offers only “doubtful and limited relief.” Id. at 901.
So understood, this court has held that the alternative remedy
need not provide relief identical to relief under the APA, so long
as it offers relief of the “same genre.” El Rio Santa Cruz
Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human
Servs., 396 F.3d 1265, 1272 (D.C. Cir. 2005). Thus, for example,
relief will be deemed adequate “where a statute affords an
opportunity for de novo district-court review” of the agency
action. Id. at 1270. In such cases, the court has reasoned that
“Congress did not intend to permit a litigant challenging an
administrative denial . . . to utilize simultaneously both [the
review provision] and the APA.” Id. at 1270 (quoting Envtl.
Defense Fund v. Reilly, 909 F.2d 1497, 1501 (D.C. Cir. 1990))
7
(omission and alteration in original). Relief also will be deemed
adequate “where there is a private cause of action against a third
party otherwise subject to agency regulation.” Id. at 1271. In
evaluating the availability and adequacy of alternative remedies,
however, the court must give the APA “‘a hospitable
interpretation’ such that ‘only upon a showing of clear and
convincing evidence of a contrary legislative intent should the
courts restrict access to judicial review.’” Id. at 1270 (quoting
Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967)); see also
Bowen v. Massachusetts, 487 U.S. at 904.
Appellants contend that the district court erred in two
respects in holding that they could not bring a claim under the
APA challenging the USDA’s failure to investigate their civil
rights complaints: First, the district court misapplied Bowen by
disregarding record evidence that under Section 741 there was no
real adequate alternative remedy in a court for their failure-to-
investigate claims; second, the district court mistakenly relied on
this court’s precedents involving claims against an agency for
failing to regulate third-party wrongdoers, and therefore failed to
follow circuit precedent that permits a plaintiff to bring an APA
claim for the agency’s failure to follow its regulations in addition
to a non-APA discrimination claim. Appellants emphasize that
their survival as farmers depends in significant part on their
ability to obtain federal benefits authorized by Congress to be
administered by the USDA, and that when the USDA fails to
comply with its regulations for handling and processing
administrative complaints, the benefits systems envisioned by
Congress are thwarted and their efforts to survive as farmers are
stymied. Although this court has no occasion to doubt
appellants’ claims of harm, their legal challenges to the dismissal
of their APA failure-to-investigate claims are unpersuasive.
First, there is clear and convincing evidence that in enacting
Section 741 Congress did not intend for complainants who
8
choose to proceed in the district court on their ECOA claims to
pursue their failure-to-investigate claims under the APA
simultaneously in the same lawsuit. In responding to the
dilemma presented by the USDA’s failure to investigate
discrimination claims, Congress resurrected time-barred claims
and gave such complainants two options: either file a complaint
in the district court or renew their administrative complaint with
the USDA with subsequent judicial review if the USDA denied
relief. Although appellants had the option first to renew their
administrative complaints with the USDA pursuant to Section
741(b), they chose not to do so. Had appellants done so, the
USDA would have been obligated to process, investigate, and
adjudicate appellants’ complaints of discrimination in a timely
fashion and absent relief de novo judicial review would be
available. Having chosen instead to proceed directly to the
district court pursuant to Section 741(a), appellants’ complaints
sought declaratory and injunctive relief that the USDA should
have investigated their old, unrenewed administrative complaints
about discrimination and requiring USDA to develop a better
processing system for such claims — in other words to grant
appellants the relief that they chose to forego when they filed
their lawsuits pursuant to Section 741(a). By extending the
statute of limitations for administrative complaints and by
providing for judicial review of USDA’s determinations,
Congress provided appellants an adequate remedy in court within
the meaning of the APA. Appellants are therefore barred from
relying on the APA to obtain relief they chose to forego.
Appellants contend, however, that they were entitled to seek
a court order pursuant to the APA to remedy the USDA’s failure
to investigate their old administrative complaints because the
alternative administrative option under Section 741(b) was
illusory. To that end, appellants offered unrebutted evidence that
the USDA never successfully implemented the required
administrative process; they also suggested that no plaintiff has
9
yet obtained de novo district court review pursuant to Section
741(b).5 Because of the flaws in the Section 741(b) option,
appellants conclude that they may obtain through their Section
741(a) complaint relief under the APA promised by Section
741(b).
There are two problems with appellants’ approach. The first
is simply a matter of statutory interpretation. Adoption of
appellants’ interpretation would effectively rewrite the statute
that Congress specifically enacted in response to the USDA’s
failure to address discrimination complaints. The plain text of
Section 741 required complainants to make a choice between
going to court immediately or first renewing their administrative
complaints. Congress required the USDA to process, investigate,
and adjudicate the renewed administrative complaints and
afforded complainants who obtained no relief the opportunity to
seek de novo review in the district court. Each option afforded an
in-court remedy. Moreover, had appellants renewed their
administrative complaints pursuant to Section 741(b) and thereby
attempted to obtain relief pursuant to the APA through the
USDA’s administrative process, and been unable to obtain a final
determination due to the USDA’s unreasonable delay, they could
have sought, as government counsel acknowledged during oral
argument, relief in the district court under Telecommunications
Research & Action Center v. FCC, 750 F.2d 70, 79-80 (D.C. Cir.
1984). Cf. In re Core Commc’ns, Inc., 531 F.3d 849, 855, 860
(D.C. Cir. 2008); In re Tennant, 359 F.3d 523, 531 (D.C. Cir.
2004). Appellants’ futility contention, then, fails to show that in
enacting Section 741 Congress did not intend to require eligible
complainants to make a choice between two remedial regimes.
5
See, e.g., Decl. of Rosalind Gray, Former Director, USDA
Office of Civil Rights, Apr. 6, 2002; Gray Supp. Decl., Oct. 18, 2006;
Gray Second Supp. Decl., Sept. 12, 2007; Benoit v. U.S. Dep’t of
Agric., 577 F. Supp. 2d 12 (D.D.C. 2008).
10
Cf. Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1088-89 (D.C. Cir.
1996).
The second problem arises because, even giving credence to
appellants’ futility suggestion, they still would be unable to show
that they lack an adequate remedy at law. Under the ECOA, to
the extent appellants can offer proof that the USDA discriminated
against them in the administration of its credit programs,
appellants will be entitled to recover money damages and
attorneys’ fees, and, as appropriate, also injunctive and
declaratory relief. 15 U.S.C. § 1691e. This court’s precedent in
Council of and for the Blind of Delaware County Valley, Inc. v.
Regan, 709 F.2d 1521 (1983) (en banc), and its progeny — Coker
v. Sullivan, 902 F.2d 84 (1990), and Women’s Equity Action
League v. Cavazos (“WEAL”), 906 F.2d 742 (1990) — make
clear that an ECOA discrimination claim filed directly against the
USDA would be adequate to preclude a cause of action under the
APA. In those cases the court held that the plaintiff could not
maintain an action under the APA directly against a federal
agency for failure to investigate and rectify the wrongdoing of a
third party where Congress had provided the plaintiff with a
private right of action against the third party. See Council, 709
F.2d at 1531-33; Coker, 902 F.2d at 89-90; WEAL, 906 F.2d at
750-51. For example, in Council, the plaintiffs had alleged that
the Office of Revenue Sharing had failed to process and resolve
administrative complaints in a timely manner. On appeal, they
contended that a national suit against the federal agency would be
more effective. This court held that even so the remedy in the
form of a private suit against state and local governments
provided by Congress was adequate to address the alleged
discrimination. Council, 709 F.2d at 1532-33.
The relevant question under the APA, then, is not whether
private lawsuits against the third-party wrongdoer are as effective
as an APA lawsuit against the regulating agency, but whether the
11
private suit remedy provided by Congress is adequate. See
Council, 709 F.2d at 1532; WEAL, 906 F.2d at 751. As a result,
the availability of actions against individuals may be adequate
even if such actions “cannot redress the systemic lags and lapses
by federal monitors” and even if such “[s]uits directly against the
discriminating entities may be more arduous, and less effective
in providing systemic relief, than continuing judicial oversight of
federal government enforcement.” WEAL, 906 F.2d at 751. This
is because the court concluded in Council, Coker, and WEAL,
“situation-specific litigation affords an adequate, even if
imperfect, remedy.” Id. As explained in El Rio Santa Cruz,
third-party suits are an adequate remedy for the alleged victims
of statutory violations, like unlawful discrimination, because they
provide relief of “the same genre” as that offered by an APA
claim. 396 F.3d at 1272 (quoting WEAL, 906 F.2d at 751).
Appellants’ attempts to avoid this precedent are
unpersuasive. The court has confirmed that its approach is
consistent with the Supreme Court’s construction of the APA in
Bowen. In El Rio Santa Cruz, the court explained that, consistent
with Bowen, Council, Coker, and WEAL held that an alternative
adequate remedy at law exists where Congress chooses to grant
those allegedly aggrieved by agency failure to remedy the wrongs
of a regulated third parties a private cause of action against those
third parties. 396 F.3d at 1270-71. The fact that appellants fault
the USDA’s regulation of itself and not its regulation of a third
party does not mean that Council and its progeny are inapposite,
because there is no material difference between the adequacy of
the ECOA remedy and the third-party actions in Council, Coker
and WEAL. The suggestion that ECOA relief would not vindicate
appellants’ interest in ensuring that the USDA adheres to its duty-
to-investigate regulations, was rejected in Council, Coker, and
WEAL when the court concluded that a direct action against a
regulated private party was an adequate remedy at law for
whatever additional injury a plaintiff suffered as a result of a
12
federal agency’s failure to remedy that violation administratively.
See Council, 709 F.2d at 1531-33; Coker, 902 F.2d at 89-90;
WEAL, 906 F.2d at 750-51. If anything, an ECOA discrimination
claim filed directly against the USDA affords a better remedy
than those available in Council, Coker, and WEAL. If successful,
a plaintiff can obtain declaratory and injunctive relief against the
agency itself, in addition to money damages, and such remedies
would presumably deter the USDA to the same extent as a
successful APA claim from discriminating against plaintiff-credit
applicants and failing to adhere to its duty-to-investigate
regulations. On appellants’ view of Council, Coker, and WEAL,
the availability of a direct ECOA claim against a private creditor
would constitute an adequate remedy barring APA challenges to
the FTC’s oversight of a private creditor, see 15 U.S.C. §§ 1691c,
1691c(a)-(c); see also 22 Op. Off. Legal Counsel 11, 1998 WL
1180049, at *1, but the availability of a nearly identical claim
against the USDA would not constitute an adequate remedy.
Appellants cannot show that Congress intended such disparate
results.
McKenna v. Weinberger, 729 F.2d 783 (D.C. Cir. 1984), is
of no assistance to appellants. In McKenna, the court held that
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, did
not provide the exclusive judicial remedy for a probationary
employee’s claim that the agency failed to follow its regulations
in effecting an allegedly discriminatory discharge. Id. at 791.
The court observed that “Ms. McKenna’s claim under the APA
is not one of discrimination. Rather, she charges that the agency,
whether its motive was legal or illegal, failed to conform to its
own regulations. She does not claim that these procedural
violations constitute employment discrimination.” Id. (emphasis
in original). In other words, her claim related to a personnel
matter that was completely distinct from her gender
discrimination. Here, by contrast, appellants’ APA failure-to-
13
investigate and lending discrimination claims are inextricably
linked.
As appellants read McKenna, it stands for the proposition
that a plaintiff may always bring an APA claim alleging that an
agency failed to follow its own regulations in processing or
investigating discrimination allegations, notwithstanding the
existence of other adequate remedies at law. But McKenna
cannot bear the weight that appellants place upon it. In
McKenna, the court did not address whether the judicial and
administrative procedures under Title VII constituted an adequate
remedy at law so as to preclude APA review and so cannot be
read, as appellants urge, as inconsistent with Council and its
progeny. Appellants cite to no case that reads McKenna that
way, and such precedent as we have found does not support their
position.6 In McKenna the court simply assumed without
deciding that Title VII procedures did not constitute an adequate
remedy at law. Cf. Trudeau v. FTC, 456 F.3d 178 (D.C. Cir.
2006). Appellants’ other authorities also provide no support. For
instance, their reliance on Esch v. Yeutter, 876 F.2d 976, 984-85
(D.C. Cir. 1989), is misplaced; the court held only that the
potential availability of a cause of action in the Claims Court was
not an adequate remedy because that court lacked equitable
jurisdiction and it was doubtful that court had jurisdiction over
the plaintiffs claims.
Remaining are appellants’ APA claims that the USDA
discriminated in dispersing non-credit disaster benefits, which are
not covered by Section 741. We remand these claims. As to the
Garcia appellants, the district court’s dismissal did not address
their non-credit claims. See Order, Garcia v. Veneman, Civ. No.
6
See Nichols v. Agency for Int’l Dev., 18 F. Supp. 2d 1, 3 &
n.2 (D.D.C. 1998); Lynch v. Bennett, 665 F. Supp. 62, 64-65 (D.D.C.
1987).
14
00-2445 (Nov. 30, 2007). As to the Love appellants, the district
court’s conclusion that there was no reason to allow them to
proceed with their non-credit claims “at this time,” Love, 525 F.
Supp. 2d at 161, was not a dismissal with prejudice, see Foremost
Sales Promotions, Inc. v. Dir., Bureau of Alcohol, Tobacco &
Firearms, 812 F.2d 1044, 1045-46 (7th Cir. 1987); 12 MOORE’S
FEDERAL PRACTICE § 58.02. Finally, the court will not address
the government’s jurisdictional and other contentions for
dismissal of these claims because the district court has yet to rule
on them and they were not adequately briefed in this interlocutory
appeal.
Accordingly, we affirm the dismissals of appellants’ APA
failure-to-investigate claims and otherwise remand the cases to
the district court.