Opinion
Civil No. 02-0022 (JBS) Consolidated, Civil No. 02-660 (JBS).
March 10, 2003
Christopher J. Christie, United States Attorney, By: Paul A. Blaine, Assistant U.S. Attorney, Camden, NJ, Attorneys for Plaintiff United States of America.
Anna M. Codario, Minotola, NJ, Defendant Pro Se.
OPINION
Plaintiff the United States of America brings this action seeking an order of possession ejecting defendant Anna Marie Codario from the farm property that it has owned since 1984, when it purchased the property at a sheriff's sale following foreclosure by the senior mortgage holder on a first mortgage security interest held by Codario. Defendant Codario seeks judicial review of her administrative complaint with the USDA pursuant to § 741, claiming that she is entitled to unspecified equitable and legal relief on her gender and national origin discrimination claims under the Equal Credit Opportunity Act ("ECOA").
The congressional authorization regarding waiver of statute of limitations under which Codario raises her discrimination claim is § 741 of the Agriculture, Rural Development, Food and Drug Administration, and Related Appropriations Act, 1999, enacted in Division A, § 101(a) of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub.L. 105-277.
Presently before the Court is plaintiff's motion for summary judgment, arguing that defendant's counterclaim must be dismissed because she is not eligible to proceed with her discrimination claims under § 741, and that her counterclaim is time-barred absent any waiver of the statute of limitations under § 741. Codario filed a motion for leave to file a motion for summary judgment on February 21, 2003. For reasons discussed herein, the government's motion for summary judgment will be granted.
I. BACKGROUND
The real property in this dispute has been the subject matter of litigation between these parties for the past twenty years. Defendant Codario previously attempted to purchase the farm, which consists of 130 acres, a residence and associated farm building located at 364 Cedar Lake Road in Buena, New Jersey, (Compl. ¶¶ 1-3), in 1977, by acquiring loans from the Federal Land Bank of Springfield, and the United States Department of Agriculture through the Farmers Home Administration (now known as the Farm Service Agency or referred to as "FmHA" herein). (Id. ¶¶ 4-5.) Plaintiff United States was the holder of a recorded mortgage lien against the real property, which Codario gave to the government as security for a loan which the FmHA issued to Codario on July 13, 1978, in the principal amount of $64,000.00. (Id. ¶ 4.) The government's mortgage lien was second and junior to a first mortgage lien held by the Federal Land Bank of Springfield, which held the lien as security for a loan it gave to Codario in the amount of approximately $60,000.00. (Id. ¶¶ 4-5; County Comm. Certif. of Recommendation, 12/77, Pl.'s Br. Ex. 29.)
Codario's promissory note to the FmHA required her to make a payment of $1,780.00 on January 1, 1979, and payments of $3,730.00 on January 1 of each successive year for the life of the note. (Gouryeb Aff. ¶ 4, Pl.'s Ex. 4, Attachmt. to Notice.) Codario made the first payment on December 27, 1978, but failed to make the subsequent annual payments that began on January 1, 1980. (Id. ¶ 5.) The FmHA contacted Codario in person and in writing numerous times to discuss her payment schedule. (Id. ¶ 6.) James Gouryeb, State Director of the FmHA at the time recounts that five separate letters or notices were sent and three personal meetings or visits with Codario were conducted from March 7, 1980 to January 4, 1982, to remind her about her delinquency on the note. (Id.) By September 1981, Codario was $11,190 in arrears to FmHA. (Conyer Letter, 9/1/81, Pl.'s Ex. 4, Attachmt. to Notice.) In March 1982, Gouryeb and Acting Farmer Programs Chief Rocco Denise met with Codario and reached a mutual agreement by which Codario was to bring her account current by making payments of $4,945.60 by March 18, 1982; $4,000.00 by July 1, 1982; $4,000.00 by September 30, 1982; and any remaining balancing to be paid by December 30, 1982. (Id.) Although there were alternatives of applying for interest credit assistance or a moratorium on her loan payments, (Conyer Letter, 9/1/81, Pl.'s Ex. 4, Attachmt. to Notice), there is no indication that Codario ever applied for these types of relief. Codario's brother Angelo DeFelice, also a farmer who was § 26,010.71 in arrears on FmHA loans, attended the meeting. (Gouryeb Aff. ¶ 7, Pl.'s Ex. 6A, Attachmt. to Notice.) The FmHA and DeFelice agreed to a repayment schedule that required DeFelice to pay $15,000 by September 1, 1982, with the balance of his delinquency to be paid by December 31, 1982. (Id.)
Codario paid only one payment under the repayment agreement with the FmHA. Gouryeb Aff. ¶ 10. Accordingly, the FmHA initiated foreclosure documents in August and September 1982. Id. Although Gouryeb signed on December 6, 1982 a recommendation to foreclose on Codario's farm, the Federal Land Bank initiated foreclosure proceedings on the farm property. Id. ¶ 12.
On September 8, 1982, the Federal Land Bank notified Codario that she was in arrears on her loan to that institution in the approximate amount of $11,500 (a mortgage payment of $8,705.10 and a 1981 tax lien totalling $2,762.30 plus interest). (Fairchild Letter, 9/7/82, Pl.'s Ex. 8, Attachmt. to Notice.) The Federal Land Bank required Codario to bring her account current by November 1, 1982. (Id.) When Codario failed to do so, the Federal Land Bank initiated foreclosure proceedings on its first mortgage security interest. (Gouryeb Aff., ¶¶ 12-14, Pl.'s Ex. 6A, Attachmt. to Notice.)
The Federal Land Bank's foreclosure proceedings were stayed for a time due to Codario's filing of a petition in bankruptcy in April 1983. (Gouryeb Aff., ¶ 13, Pl.'s Ex. 6A, Attachmt. to Notice.) Pursuant to her Chapter 13 Plan, Codario paid the following to FmHA: $44.98 on October 4, 1983; $632.00 on November 4, 1983; and $133.00 on December 7, 1983. (Codario v. Gouryeb, Civ. No. 87 — 1119 (JFG), slip op. at 3-4, Pl.'s Ex. 2A, Attachmt. to Notice.) The Federal Land Bank's motion to lift the stay was granted in January 1984, and Codario's bankruptcy petition was subsequently dismissed in February 1984 after failing to comply with her Chapter 13 plan. (Id.) The Federal Land Bank subsequently obtained a foreclosure judgment on April 17, 1984, (Compl. ¶ 5), and sold the property at a sheriff's sale to the FmHA on June 7, 1984, by deed dated June 21, 1984. (Gouryeb Aff., ¶¶ 12-14, Pl.'s Ex. 6A, Attachmt. to Notice; Compl. ¶ 6.) Since the time the FmHA bought the property at the sheriff's sale, Codario has resided on the property continuously and has retained possession of the land without interruption without giving the FmHA any remuneration for it. (Compl. ¶ 9.)
Codario filed a civil action in the District of New Jersey on March 30, 1987, seeking damages from the FmHA and its federal officials, claiming that the FmHA failed to implement the loan deferral program pursuant to the Agricultural Credit Act, 7 U.S.C. § 1981, which caused her to lose her farm. (Codario v. Gouryeb, Civ. No. 87-1119 (JFG), slip op. at 1, Pl.'s Ex. 2B, Attachmt. to Notice (herein referred to as Codario I).) The action was dismissed by Opinion and Order dated April 24, 1994, in which Chief Judge John F. Gerry granted defendants' motion to dismiss, because Codario lacked the standing necessary to raise such a claim where it was determined that the FmHA did not cause the Federal Land Bank's foreclosure to be brought against her. (Id. at 8-9.) Chief Judge Gerry's decision was affirmed on appeal to the Third Circuit, (Codario v. United States, 52 F.3d 314 (Table) (3d Cir. Feb. 22, 1995); Compl. ¶ 7), and the Supreme Court denied certiorari in Codario v. United States, 516 U.S. 836 (1995) (memorandum opinion).
Codario brought a second suit in this Court, seeking damages from the United States Department of Agriculture for acts of alleged constitutional violations and negligence in making determinations regarding her lease payments. (Compl. § 7.) The Court, in an Opinion and Order dated March 16, 1996, granted the United States's motion and dismissed the complaint, but denied the defendant's motion for summary judgment seeking an Order of Possession and an Order of Judgment, without prejudice to its right to its rights to refile, outlining the basis for such a request under Rules 12C G, within 20 days. (Codario v. United States, Civ. No. 95-2211 (JBS), at Order, Pl.'s Ex. 2B, Attachmt. to Notice (herein referred to as Codario II.) This Court in Codario II cited approvingly to the decision ofCodario I, which "held that Ms. Codario had no standing to sue because the federal officials did not cause the foreclosure of her farm by the Federal Land Bank of Springfield in 1984" and that Codario "is estopped in the present case from claiming that the FmHA failed to give her proper notice" of her rights under 7 U.S.C. § 1981a, which pertains to deferral and moratorium rights. (Codario II, at 3 n. 3.)
Codario submitted a bid on the farm property in a public sale by FmHA on June 20, 1997. (USDA Final Decision, 0/28/99, Pl.'s Br. Ex. A8.) Of the four accepted bids, Codario's bid, at $135,000, was the highest. (Id.) FmHA rejected all of these offers because the bids were nowhere near the appraised value of $292,000. (Id.) Because some prospective bidders were given the wrong address for submitting bids, the FmHA accepted late bids, but rejected these also because they were too low. (Id.) On August 11, 1997, the FmHA held another public sale of the farm, which resulted in two bids of $151,000 and $160,000. The FmHA rejected both bids as insufficient. (Id.)
Codario filed a complaint with the USDA Office of Civil Rights on October 27, 1997, alleging that she was discriminated against by the Farm Service Agency ("FSA") because of her gender, marital status and national origin (Italian-American) from 1977 and continuing through 1997. (Compl. Determination Data, 10/27/97, Pl.'s Br. Ex. A5.) Codario also based her claims on the June 20, 1997 bid, which was ultimately rejected by the FmHA. An initial Report of Investigation ("ROI") dated April 29, 1998, determined that certain officials of the FmHA discriminated against Codario with respect to certain loan applications and servicing that took place between 1977 and 1980, and the recommendation for foreclosure in 1982 by Gouryeb, because of her gender and national origin, though not on her marital status. (Report of Investigation, 4/29/98, Pl.'s Br. Ex. B5.) The ROI determined that she was subjected to discrimination in reprisal for her complaints made against FmHA, and that there were violations of FmHA regulations with respect to a bid Codario made to purchase the farm property in June 1997, though there was no evidence that the FmHA's decision to not accept her bid was based on either her marital status, gender, or national origin. (Id.)
The USDA OCR Final Decision, issued on October 28, 1999, determined that there was no civil rights violation with respect to the FmHA's rejection of Codario's June 20, 1997 bid to purchase the farm property. (USDA OCR Final Decision, 10/28/99, Pl.'s Br. Ex. A8.) The OCR, stating that Codario's discrimination allegations were made prior to 1993 and therefore "were not timely raised with the Office of Civil Rights (CR) and as a result will not be considered in this decision," thus considered only the 1997 rejection of Codario's bid to purchase her property from the FSA. (Id. at 2.) The OCR found that no civil rights violation occurred, reasoning that the FmHA acted consistently in applying its regulations in its rejection of Codario's bid, that five other bids from persons similarly situated to Codario were also rejected, and that no nexus could be established between discriminatory comments made many years ago and the FmHA's attempted sale of the farm property, which was the only timely raised issue in her complaint. (Id.)
In 1998, Congress enacted legislation allowing certain claims alleging discrimination in violation of the Equal Credit Opportunity Act ("ECOA") in the administration of certain Department of Agriculture programs, to proceed despite being otherwise barred under the applicable statute of limitations. (§ 741 of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act 1999, enacted in Division A, § 101(a) of the Omnibus Consolidated and Emergency Supplemental Appropriations Act 1999, Pub.L. 105-277,cited in 7 U.S.C. § 2279 (referred to herein as "§ 741").) This waiver of the statute of limitations found in § 741 applies only to "eligible complaints," which is defined as "a nonemployment 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." (Id. (emphasis added).) A complainant may seek an opportunity for a hearing on the record with an Administrative Law Judge before making a determination under § 741(b)(1). (Id.) Once a determination is made, the complainant may seek review by the USDA Assistant Secretary for Administration ("ASA"), who then makes the final determination. ( 7 C.F.R. § 15f.24.) A complainant may seek review of the final administrative determination within 180 days in either the United States Court of Federal Claims or the United States District Court. (§ 741(c) (d).)
Codario filed a request for hearing of her case under § 741 with the Office of Civil Rights of the United States Department of Agriculture on October 17, 2000, seeking redress for injuries allegedly caused by discriminatory treatment by the FmHA and its successor FSA, in violation of the Equal Credit Opportunity Act ("ECOA"). (ALJ Decision, 10/4/01, Pl.'s Ex. 10, Attachmt. to Notice.) The ALJ determined that Codario's complaint must be dismissed because "none of the complaints filed by Complainant is eligible for consideration under Section 741" and further, that the finding in Codario I that Codario did not have standing to pursue her claims "precludes relitigation of the same standing issue in this forum." (Id.) Upon review of the ALJ decision, the ASA of the USDA, Lou Gallegos, adopted the finding of the ALJ, concluding that Codario's matter must be dismissed. (ASA Decision, 1/9/02, Pl.'s Ex. 11, Attachmt. to Notice.)
Codario's filing of her "request for hearing" on October 17, 2000, was timely filed, according to § 741, which provides, in part:
The complainant may, in lieu of filing a civil action, seek a determination on the merits of the eligible complaint by the Department of Agriculture if such complaint was filed not later than 2 years after the date of enactment of this Act [Oct. 21, 1998].
§ 741(b). The timeliness of Codario's filing of her request for hearing under § 741 is not at issue in this case.
The United States filed the instant action against defendant Codario on January 4, 2002, seeking to recover possession of its real property and an order for ejectment of defendant Codario, who has continuously resided on the property at issue since 1984. (Compl. ¶¶ 1-10.) The government also seeks a money judgment representing the accrued unpaid fair market value of the property's rental, and any such further relief as is just and equitable. (Id.) Defendant Codario filed a motion to dismiss on February 15, 2002, which this Court denied on March 15, 2002. (Memorandum Order, 3/15/02.)
The government stated, however, that "[i]n the event that the United States succeeds on this motion in defeating Ms. Codario's ECOA claims, and in obtaining an order of possession, the Government anticipates that it will voluntarily dismiss its claim for recovery of the property's unpaid rental values." Pl.'s Br. at 32 n. 21.
Codario filed a separate action against Ann Veneman, Secretary of the USDA, Civil Action No. 02-660 (JBS), on February 15, 2002. Codario cites the bases for jurisdiction as 28 U.S.C. § 1331, 42 U.S.C. § 1981, the Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq. ("ECOA"), the Civil Rights Act, and the Fifth Amendment. (Codario Compl. ¶ 22.) The government's suit and Codario's suit were consolidated under this civil action, Civil No. 02-0022, by Order dated March 26, 2002. (Order of Consolidation, 3/26/02.) In her counterclaim, Codario seeks review of the USDA's final administrative determination dated January 9, 2002, upholding the ALJ's proposed determination of October 4, 2001, dismissing her discrimination complaint. (Codario Compl.; USDA Decision, 1/9/02, at 7, Codario Compl. Ex. 2.) Codario seeks a ruling that she has already prevailed on her discrimination complaint, Case No. 971027-1175, filed with the USDA, in which the OCR issued a final decision that no civil rights violation occurred with respect to her June 20, 1997 bid to purchase the farm property. (Codario Compl. ¶ 5.) Codario argues that her communications to agency officials and members of Congress constitute "eligible complaints" and are therefore entitled to the waiver of the statute of limitations under § 741. Codario seeks unspecified damages and to enjoin the United States from taking any administrative or judicial action against her with regard to her continued possession and occupancy of the property. (Codario Compl. at 9.) The government's instant motion for summary judgment was filed on July 15, 2002. Codario recently filed a motion on February 21, 2003, for leave to file a motion for summary judgment.
This Court will review the administrative determination de novo. As stated in § 741, "[t]he standard of review for judicial review of an agency action with respect to an eligible complaint is de novo review." § 741(g).
According to the Court's Order of July 19, 2002, defendant was required to serve and file opposition to plaintiff's motion for summary judgment on or before September 16, 2002. Defendant did so here, accompanying her brief with exhibits and attachments. To the extent that Codario seeks to supplement her opposition to the United States' summary judgment motion five months after such date, and given that Codario has had ample opportunity to raise such arguments in the context of this and prior litigation, her request is untimely. In the absence of good cause, the deadline set by the prior order for submission of summary judgment materials will not be extended, see Rule 16(b), Fed.R.Civ.P. The new materials upon which Ms. Codario seeks to base another summary judgment motion pertain not to the facts or history of her case but rather to the government's processing of another, unrelated case involving a Mr. Whitehead. First, it is not apparent that Whitehead presented his claim under § 741. Second, Whitehead's claims do not appear to be related in any way to Codario's claims in this case. Even if Codario's request is based on allegedly new information about another claimant, however, the United States' summary judgment motion leaves no genuine issue of material fact in dispute about Codario's own case, and Codario's request for leave to file a summary judgment motion will therefore be dismissed as moot.
II. DISCUSSION
The United States moves for summary judgment under Rule 56, Fed.R.Civ.P., arguing that the repayment schedule entered into with the FmHA in March 1982 had no effect on Codario's eventual loss of the farm in the foreclosure action brought by the Federal Land Bank, and will not support a claim that the ECOA was violated. In addition, the government argues that Codario does not have an "eligible complaint" under § 741, that any claim brought directly under the ECOA is barred by the two-year statute of limitations, and that the Administrative Procedure Act is inapplicable to the instant action. The Court first considers whether Codario has sufficiently asserted "eligible complaints" to allow her to bring this ECOA discrimination claim under § 741, below.A. Summary Judgment Standard
Plaintiff the United States moves for summary judgment pursuant to Rule 56(a), Fed.R.Civ.P. A court may grant summary judgment 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); see Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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.See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996). Once the moving party has carried its initial burden of establishing the absence of a genuine issue of material fact, the non-moving party 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). If the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment.Liberty Lobby, 477 U.S. at 249-50.
B. Analysis
1. Issue Preclusion — Standing Issue
Defendant contends that principles of issue preclusion prevent relitigation that the repayment schedule did not cause Codario to lose her farm, citing to Chief Judge Gerry's decision in Codario I. In Codario I, the district court held that Codario lacked standing to bring her claim alleging that the FmHA's actions in failing to implement the loan deferral program mandated by the Agricultural Credit Act, 7 U.S.C. § 1981. There, because the foreclosure on Codario's farm was instituted by Federal Land Bank, who subsequently sold the farm in a sheriff's sale to the FmHA, Codario could not bring claims that the FmHA's actions caused her to lose her farm.
When an issue of fact or law that is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or different claim. See Nat'l R.R. Passenger Corp. v. Pennsylvania Pub. Util. Comm'n, 288 F.3d 519, 525 (3d Cir. 2002) (citing Restatement (Second) of Judgments § 27 (1980)). Because the issue that Codario was not injured due to the 1982 repayment schedule of the FmHA's loan to her was litigated and decided previously, Codario does not have standing to assert a similar claim here.
Codario raises two arguments on this point. First, Codario asserts that the standing issue was misapplied, citing to Smith v. Block, 784 F.2d 993 (9th Cir. 1986). Second, Codario argues that the standing issue does not apply in the instant matter because the issue here is not whether the FmHA caused her to lose her farm, but whether the alleged discriminatory actions as identified in Codario's administrative complaint filed in October 1997 "poisoned the well of good faith" and has affected all subsequent transactions with the FmHA since 1977. Def.'s Br. at 12.
Smith v. Block fails to support Codario's claim, however. That case provides:
In determining whether the Smiths have standing to sue, we ask whether (1) the Smiths have suffered a distinct and palpable injury, (2) there is a connection between the injury and the FmHA's conduct, and (3) there is a substantial likelihood that the relief requested will offer redress.Smith, 784 F.2d at 995 (citing cases). In that case, the Ninth Circuit held that, because a third-party non-FmHA lender foreclosed on an FmHA borrower, the economic injury suffered by plaintiffs was not connected to FmHA conduct, and therefore plaintiffs had no standing to sue.
Even using the standard provided in Smith, Codario would not have had standing to sue in Codario I. The facts in Smith, almost identical to the case at bar, necessitate the same outcome. Because foreclosure on Codario's farm was instituted by a third-party non-FmHA lender, the Federal Land Bank, the FmHA did not cause the loss of her farm. Thus, Smith confirms the holding in Codario I, and provides no support that the district court misapplied the standing analysis.
Codario further argues that Shick v. FmHA, 583 F. Supp. 534 (D. Mass. 1984), aff'd in part rev'd in part, 748 F.2d 35 (1st Cir. 1984), supports her argument that the FmHA's acceleration of her loan repayment schedule is the causal link of the fiduciary and discriminatory animus she experienced from 1977 through 1997. Shick, however, presents no support with respect to Codario's discrimination claims. In Shick, plaintiffs brought suit against the FmHA asserting that their property was taken in violation of the Consolidated Farm and Rural Development Act, the Agricultural Credit Act, 7 U.S.C. § 1921 et seq., 7 U.S.C. § 1981a, and the Fifth Amendment. Although the district court granted defendant's motion to dismiss on grounds that plaintiffs had failed to exhaust their administrative remedies, the First Circuit affirmed in part and reversed in part, holding that the FmHA District Director was required to give plaintiffs notice of their right under 7 U.S.C. § 1981a to apply to the Secretary for a moratorium on the payment of their loans when their loans were accelerated by the FmHA, and that this failure excused plaintiffs from exhausting their administrative remedies.
The First Circuit's holding in Shick does not support Codario's argument, however. First, an allegation that Codario failed to administratively exhaust, specifically confronted by the First Circuit, is not raised in this case. Second, unlike plaintiffs in Shick, Codario was notified in writing by FmHA of the opportunity to explore the possibility of applying for a loan deferral or moratorium with respect to servicing of her loans in the early 1980s, in a letter dated September 1, 1981. That letter provided:
According to our records, your account is now delinquent in the amount of $11,190.00. We are making an appointment to meet you in our office on September 14, 1981 at 10:00 AM to discuss the following options and to evaluate the Government's security.
1. Are you willing and can you afford to make additional payments in excess of the scheduled payment to bring the account current?
2. If you have had a loss or reduction in income, do you qualify for interest credit assistance or a moratorium on your loan payments? This means that your loan payment may be reduced or permission may be given to you to temporarily suspend making loan payments.
3. If you do not qualify for interest credit assistance or a moratorium on your payments and cannot or will not make a firm commitment to making additional payments to bring the account current, the FmHA is willing to give you an opportunity to voluntarily liquidate your loan in one of the following ways:
b. Sell the property and pay your FmHA loan in full,
c. Transfer the loan by assumption to an FmHA applicant, or
d. Convey your property to the Government.
If you cannot keep this appointment, please notify the FmHA Office and we will arrange a time more suitable for you.
Conyer Letter, 9/1/81, Pl.'s Ex. 4, Attachmt. to Notice. UnlikeShick, Codario was notified of the possible courses of action, including that of seeking a moratorium. Although the First Circuit revived the plaintiffs' claim because the FmHA never sent notice to plaintiffs of their opportunity to seek a moritorium, that situation is not presented here. Furthermore, because the court did not discuss the merits of plaintiffs' claim that the FmHA caused the foreclosure on their property despite being initiated by a third-party lender, Shick provides no support for Codario's argument that her injury was caused by the FmHA's actions in this case.
The Court next examines Codario's argument that the standing issue is inapplicable because she complains of FmHA's discrimination based on gender and national origin since 1977 to 1997, exclusive of any claims that the FmHA's 1982 repayment schedule caused her to lose her farm. Because Codario brings these discrimination claims in the context of seeking judicial review of the final decision of her § 741 request for hearing, this Court will examine Codario's argument in the context of § 741 of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act of 1999, below.
2. "Eligible Complaint" under § 741
The United States contends that Codario did not file an "eligible complaint" alleging discrimination under ECOA with the USDA before July 1, 1997, pursuant to § 741, and therefore Codario's counterclaim is barred. The Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691 et seq., upon which Codario brings her complaint, 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. Under the normal governing statute of limitations, a plaintiff may bring an ECOA discrimination claim not later than two years from the occurrence of the violation, except in two specific circumstances where either the agency responsible for the violation or the Attorney General commences a civil action within two years of the violation. See 15 U.S.C. § 1691e(f).
Congress's enactment of § 741 waives the applicable statute of limitations and allows for a complainant to file a discrimination complaint if he or she had previously filed an "eligible complaint" as defined in § 741 with the USDA alleging discrimination under the Equal Credit Opportunity Act ("ECOA"), with the USDA prior to July 1, 1997. § 741(e). 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 administrative process for review of civil rights complaints filed with the USDA "did not function effectively" during the 1980s and 1990s, resulting in many filed complaints but little actual relief due to administrative delays. 63 Fed. Reg. 67392. Thus, despite the United States's ordinary immunity from suit and the condition that it be sued only in accordance with its express written consent, see, e.g., Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999), Congress provided for a waiver of the statute of limitations for certain "eligible complaints" that had been filed but were previously neglected, delayed, or inadequately considered. Id. Under section 741, an "eligible complaint" is
[A] nonemployment 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.
Section 741(e).
In this case, Codario seeks damages for discrimination she experienced from 1977 to 1997. Since Codario filed suit in federal court on February 15, 2002 under the judicial review provision of § 741, and none of the alleged ECOA violations in this case occurred within the two-year time frame prior to February 15, 2002, her ECOA discrimination claims are time-barred. Codario's suit thus may be maintained only if she had previously filed discrimination complaints that fall within the parameters of an "eligible complaint" as defined in § 741.
The parties agree that Codario filed discrimination complaints with the USDA on July 12, 1997 and October 27, 1997, alleging discrimination based on sex and national origin. See Myart Letter, 7/12/97, Pl.'s Br. Ex. A4; Compl. Determination Data Form, Pl.'s Br. Ex. A5. The July 12, 1997 letter was a letter by Codario's attorney, James Myart, notifying the USDA that the USDA's actions in rejecting Codario's June 20, 1997 bid were motivated by discrimination based on her national origin and sex.See Myart Letter, Pl.'s Br. Ex. A4. Codario also filed a complaint of discrimination on October 27, 1997, for "[d]iscrimination [that] began in 1977 and continued through 1997." Compl. Determination Data Form, Pl.'s Br. Ex. A5. Because neither of these complaints were made before the date of July 1, 1997, however, they cannot be considered "eligible complaints" under § 741, and Codario's complaint cannot be maintained on such a basis.
Furthermore, the June 20, 1997 bid incident did not involve an application for credit as required under 15 U.S.C. § 1691a(b).
In the context of the previous administrative proceedings, specifically her request for hearing dated October 17, 2000, Codario raised five documents that she claims constituted an "eligible complaint" under § 741. See, e.g., USDA Decision, 10/4/01, at 6, Pl.'s Ex. 10, Attachmt. to Notice. These are: a letter written by Codario to John Bartalone, dated August 23, 1982 (Pl.'s Ex. 12, Attachmt. to Notice); a letter written by Codario to Patricia Preim of the FmHA, dated August 15, 1984 (Pl.'s Ex. 13, Attachmt. to Notice); a letter dated March 10, 1986, written by Codario to Ms. Preim (Pl.'s Ex. 9, Attachmt. to Notice); a letter by Codario to the USDA's Office of Inspector General, dated June 9, 1997 (Pl.'s Ex. 14, Attachmt. to Notice); and Codario's fourth amended complaint filed in Codario I (Pl.'s Ex. 2A, Attachmt. to Notice).
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 these letters and documents to allege discrimination that is covered by section 741 unless a letter or document fits within the statutory definition of an "eligible complaint" as defined by Congress.
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 merely 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). 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 allege any 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 it may be subject to such a charge. 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).
The first document is a letter to FmHA dated August 23, 1982, in which Codario acknowledges that she received notice of the acceleration and demand for payment on August 20, and states the following:
I feel I have just cause to request an investigation of the former administration of the Mays Landing office. I firmly believe my account was handled with malice and discrimination from the beginning. I believe that the information sent to the . . . present FmHA Director will verify my accusations. As you will recall this information contained several statements that were false and misleading. I have also retained an attorney, to investigate this.
Codario Letter, 8/23/82, Pl.'s Ex. 12, Attachmt. to Notice. Although the letter mentions "discrimination," it fails to specify any type of discrimination prohibited by ECOA, that is, discrimination on the basis of race, color, religion, national origin, sex or marital status, or age. See 15 U.S.C. § 1691. There is nothing in the letter indicating that Codario is asserting discrimination on a protected basis. The letter is demonstrating, rather, that Codario received the notice of acceleration and demand for payment with respect to her loan issued by the FmHA, and that she was requesting a meeting and had retained an attorney regarding her allegation that her account had been handled with malice and discrimination. Absent any demonstration that Codario alleged a basis for discrimination that is prohibited under ECOA, the letter dated August 23, 1982 is insufficient to be deemed an "eligible complaint."
In addition, as plaintiff notes, the letter does not concern a direct application for an extension, renewal or continuation of credit, as required under 15 U.S.C. § 1691a(b).
The second letter, dated August 15, 1984, is a four-page document to Patricia Preim of the FmHA, in which Codario complains of how Ms. Preim had handled a meeting earlier that day and generally expresses her frustrations regarding her loan servicing with the FmHA. In one sentence, Codario states, "This is the same office out of which came the discriminating remark what did I know about farming, I was just a teacher." Pl.'s Ex. 13, Attachmt. to Notice. Although she mentions "discrimination" within the context of this letter, Codario fails to assert a protected basis under ECOA. Codario appears to imply that the FmHA officers discriminated against her because she was a teacher and not a farmer. There being no mention of discrimination on any other basis, and because profession is not a protected basis under ECOA, this letter cannot constitute an "eligible complaint."
Codario also complained to Patricia Preim in a four-page letter of March 10, 1986, explaining her efforts to contest the proposed foreclosure by FmHA, which in fact never occurred. Pl.'s Ex. 9, Attachmt. to Notice. Codario refers to her efforts to seek help from Congressman Hughes, stating in part:
On March 6, 1986, I received correspondence from you dated February 10, 1986. If I am not mistaken, this correspondence is your way of telling me that I am to vacate the premises which I have called "home" for 49 years.
I will respond to that notice at this time. If you want me to vacate these premises, you better be prepared to do it by force! . . .
. . .
In spite of these falsehoods, Congressman Hughes managed to get a meeting with Mr. Gouryeb, Mr. Angelo DeFelice, who is my brother, and myself. At the time of that meeting, Mr. Gouryeb finally agreed to give me another chance. He said that if I paid FmHA $4,000.00 by March 18, 1982 and the amount of $5,000.00 in a couple of months, he would withdraw the foreclosure. On March 12, 1982, I sent to Mr. Gouryeb a check in the amount of $4,945.60, but because of circumstances beyond my control, I could not keep the rest of the agreement.
With the above background, I want to pose the following questions:
1. Was the false report sent to the State Director regarding my behavior and my not farming meant to prejudice him against me?
2. Did the State Director show discrimination when he demanded a payment schedule from me? (In the above mentioned letters to Congressman Hughes, Mr. Gouryeb stated that my brother was as delinquent as I was, however, M[r]. Gouryeb never demanded a payment schedule from him. In fact, my brother was permitted to reorganize!)
This last accusation, in my opinion, is a very serious one, because I am charging fraud.
Pl.'s Ex. 9, Attachmt. to Notice. Though Codario claims that she was being treated differently than her brother, she makes no allegation in this exchange that she was discriminated against because of her gender. Underscoring this is her following statement that she is charging fraud, an allegation wholly different from that of discrimination. There being no demonstration that Codario gave the government adequate notice of her claim asserting discrimination prohibited under ECOA, Codario's letter of March 10, 1986 is not an "eligible complaint" that provides notice to the United States of an ECOA claim.
Codario's letter dated June 9, 1997, to the Office of the Inspector General, provides the following:
Since 1984, I have been requesting an investigation of the Farmers Home Administration of the State of New Jersey as well as the FmHA office that serviced Atlantic, Cumberland and Cape May Counties in New Jersey.
I have sent evidence of fraud, abuse, and mismanagement of servicing by the employees of this Agency to the F.B.I., Attorney General, Members of Congress, and other concerned parties. The targets of this fraud, etc. are the very farmers who entrusted their lives to the Agency.
Evidently, I am having a difficult time making people understand what I want investigated when I request an investigation. I have been asking for an investigation since 1984 as to possible conspiracy, by FmHA employees, to purposely cause farmers to fail so that farms can be confiscated and sold for kickbacks. . . .
Pl.'s Ex. 14, Attachmt. to Notice. This letter makes a claim for fraud, abuse and mismanagement, as well as conspiracy to obtain kickbacks by the FmHA employees, but nowhere asserts a form of discrimination prohibited by ECOA. The letter additionally refers to the experience of black farmers:
On April 23, 1997, the Black Political Caucus arranged to bus in black farmers from all over the country to meet with Secretary of Agriculture, Dan Glickman. During the three-hour meeting they related horror stories pertaining to their treatment by the local, state and federal offices of Farmers Home Administration. These horror stories paralleled the same abuses that I have experienced. In fact, I viewed this program with two other farmers from the area who were also targets of the same offices of FmHA as myself.Id. While Codario explains that she relates to these experiences of the black farmers, she does not refer to any claim of discrimination based on her gender or national origin, which she advances in this counterclaim. Consisting of little more than inferences of mistreatment, Codario's letter of June 9, 1997 thus fails to constitute an "eligible complaint" under § 741.
Codario filed a complaint in the District of New Jersey in 1987 against the USDA and USDA employees, as discussed above. See Codario I, Pl.'s Ex. 2A, Attachmt. to Notice. In her fourth amended complaint in that case, Codario alleged, inter alia, that the FmHA failed to implement the loan deferral program mandated by the Agricultural Credit Act, 7 U.S.C. § 1981, which allegedly caused her to lose her farm. Codario raised claims that certain repayment schedules "were imposed on plaintiff simply because of her sex." Fourth Amended Compl. ¶ 29. While this facially states a claim of gender discrimination, the complaint was filed with the district court, not with the Department of Agriculture as required under § 741. Thus, Codario's complaint filed in the district court in 1987 is insufficient to constitute an "eligible complaint" as defined in § 741. In any event, even if the district court complaint were somehow deemed to be an "eligible complaint," the late Chief Judge Gerry determined that plaintiff had suffered no cognizable harm arising from any such gender discrimination, finding that federal officials did not cause the foreclosure of her farm by the private bank. See Codario I, Pl.'s Ex. 2A, supra. Judge Gerry's Order dismissed for lack of harm caused by any federal action and also, in the alternative, granted summary judgment, which, as explained above, was affirmed on appeal. Id. Plaintiff could not, in any event, refile an administrative claim reasserting a claim of discrimination which had already been determined adversely on the merits in the District Court.
3. Administrative Procedure Act
The government further asserts that, although Codario refers to "the judicial review provisions of the Administrative Procedure Act," 5 U.S.C. § 701 et seq. ("APA"), Codario Compl. ¶ 3, the APA has no application in this action because it does not provide for an additional remedy for review of final agency action when another "adequate remedy in a court" is provided for such review.See 5 U.S.C. § 704; see, e.g., Schaeuble v. Reno, 87 F. Supp. 2d 383, 393 (D.N.J. 2000) (citing 5 U.S.C. § 704; Massachusetts v. Bowen, 487 U.S. 879, 903 (1988)). Section 741 explicitly provides that "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." § 741(c). Because § 741 provides judicial review, that is, an "adequate remedy in a court," the APA is inapplicable here.
4. Codario's Fifth Amendment Claim
The government also contends that Codario's assertion that her Fifth Amendment due process right was violated when she was not afforded an "adjudicatory hearing as provided in a[n] administrative a[d]judicatory proceeding, which statu[t]e (Sec 741) was particularly created to provide," Compl. ¶ 2, must be rejected because § 741(b) provides a complainant with a "an opportunity for a hearing on the record" before the USDA makes a determination on an eligible complaint. Section 741(b) provides that
The complainant may, in lieu of filing a civil action, seek a determination on the merits of the eligible complaint by the Department of Agriculture if such complaint was filed not later than 2 years after the date of enactment of this Act [Oct. 21, 1998]. The Department of Agriculture shall —
(1) provide the complainant an opportunity for a hearing on the record before making that determination;. . . .
§ 741(b)(1). Under these procedures, the OCR turns over to the ALJ its entire file on the complaint and a report stating its position on the merits of Codario's complaint. 63 Fed. Reg. 67392, at 67393. The complainant may request that the ALJ render a proposed determination on the written record consisting of the complaint, the § 741 complaint request, the OCR report, and other submissions of the parties, or proceed with a full hearing. Id. Section 741 thus provides not an "adjudicatory" hearing, but a "hearing on the record," and that was conducted in this case. After an initial decision by the ALJ, the ASA issued a final decision on Codario's discrimination complaint, based on the record of voluminous administrative documents compiled before it.See Admin. Record Ex. Furthermore, under § 741, a complainant has:
a right to a hearing as part of the process for USDA to render a final determination on your eligible complaint. However, if at any time the ALJ determines that your complaint is not an eligible complaint, he or she may dismiss your complaint with a final determination and USDA review of your complaint will then have been completed. You also are not entitled to a hearing if there are no material issues of fact in dispute between you and USDA. In other words, if the only dispute remaining is a question of law, you will not receive a hearing and the ALJ will make a final determination under § 15f.16.7 C.F.R. § 15f.12. The OCR provided a position statement, and the ALJ considered the record, including Codario's complaint, the OCR report, and the submissions of the parties. There is no indication that the USDA terminated or dismissed Codario's complaint prior to consideration of the merits of her claims, or on any basis other than review of the record before it. The procedures provided by the regulations thus afforded Codario with notice and the opportunity to present her claims. Because "[a]ll that is necessary is that the procedures be tailored, in light of the decision to be made, to `the capacities and circumstances of those who are to be heard, to insure that they are given a meaningful opportunity to present their case," Mathews v. Eldridge, 424 U.S. 319, 349 (1976) (citing Goldberg v. Kelly, 397 U.S. 254, 268-69 (1970)), here, where Congress has specifically provided for these procedures which were followed in this case, Codario was afforded a meaningful opportunity to present her claims, and she cannot sustain a Fifth Amendment claim on this basis.
5. Codario's Claim Under 42 U.S.C. § 1981
The government argues that Codario's § 1981 claim and her reference to "the Civil Rights Act" are inapplicable in this case because that statute provides for protection against the impairment of certain contract rights by non-governmental discrimination, which is not alleged in this case. Section 1981(c) provides that "[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law." 42 U.S.C. § 1981(c). In this case, the allegations of discrimination are focused upon the actions of the federal government, not a nongovernmental actor. Further, Codario's allegations are premised upon federal, not state law. See, e.g., Davis-Warren Auctioneers, J.V. v. F.D.I.C., 215 F.3d 1159, 1161 (10th Cir. 2000) (noting that "the weight of judicial authority has held that § 1981 does not protect against alleged discrimination under color of federal law") (citing Davis v. United States Dep't of Justice, 204 F.3d 723, 725-26 (7th Cir. 2000)). Accordingly, § 1981 is inapplicable to Codario's claims.
6. Possession of Property
The government asserts that it, as owner of the subject real property, is entitled to an order of ejectment. As this Court has previously stated, "[p]laintiff has the right to an order of ejectment so long as it has both ownership and the right to possession and if it makes a showing that defendant has possession." United States v. White, Civ. No. 99-1147 (Dec. 9, 1999), slip op. at 4 (citing United States v. Santos, 878 F. Supp. 1359, 1363 (D. Guam 1993)), Attachmt. to Pl.'s Br.
In this case, the government alleges that it is the owner of the subject real property, and has been since June 1984, that Codario has occupied the property the entire time without paying rent, and that her continued unauthorized possession of the property is unlawful. See Compl. ¶¶ 1, 6, 9, 10. Here, by virtue of the deed it acquired in the sheriff's sale in 1984 from Federal Land Bank, see Deed, Attachmt. to Compl., the government proves that it owns the property at issue. In addition, there is no dispute that Codario has been occupying the property since 1984, see Def.'s Br. at 8 ("defendant still technically resides on the farm"), having paid no rent for use of the premises. The undisputed record reflects that Codario has enjoyed possession of these premises during this period of the United States' ownership from 1984 until the present time without making one dollar in payment of rent and without taking steps to satisfy her loan default to the government. Having paid no rent, loans or taxes upon this farm in almost 19 years, the period of Ms. Codario's tenancy has now come to an end. Accordingly, because it demonstrates ownership and that Codario presently possesses the property, the government is entitled to an order of ejectment which grants it possession of the property and requires Codario to vacate the premises.
III. CONCLUSION
Based on the above, the Court finds that Codario's letters of complaint and her complaint filed in district court, raised in the context of her administrative request for hearing under § 741, fail to constitute "eligible complaints" such that the statute of limitations is waived on her ECOA claims under § 741. Codario's counterclaims must therefore be dismissed. Because the government has demonstrated possession and ownership, the United States's request for an order for ejectment will be granted. Defendant Codario's motion for leave to file a summary judgment motion will be dismissed as moot. The accompanying Order will be entered.
ORDER
THIS MATTER having come before the Court upon the United States's motion for summary judgment [Docket Item 9-1] against defendant Anna Codario's counterclaims and for an order for ejectment; and the Court having considered the parties' submissions; and for the reasons stated in the Opinion of today's date; and for good cause shown;
IT IS on this day of March, 2003, hereby
ORDERED that the United States's motion for summary judgment [Docket Item 9-1] be, and hereby is, GRANTED, and Codario's counterclaims against the government are hereby DISMISSED ; and it is
FURTHER ORDERED that the government's request for order for ejectment be, and hereby is GRANTED, and the United States, as the lawful owner, is awarded full, unimpeded and peaceable possession of the subject real property (commonly known as 364 Cedar Lake Road, Buena, New Jersey), and the defendant is ejected therefrom. The defendant shall permanently vacate and remove herself and all of her personal belongings within 45 days of the date of this order. In the event the defendant refuses or otherwise fails to vacate and remove herself and her personal belongings within that time, the United States Marshal, upon certification by an Assistant United States Attorney, is authorized to effectuate this order by physically dispossessing and removing the defendant and her personal belongings from the premises of the subject property; and
IT IS FURTHER ORDERED that defendant Codario's motion for leave to file a summary judgment motion [Docket Item 13-1] be, and hereby is, DISMISSED AS MOOT.