Binion et al v. United States Department of Agriculture et al (MAG+)

Filing 36

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1) Plfs' 33 Objections are OVERRULED; 2) The 32 Recommendation is ADOPTED; 3) Dfts' 20 motion to dismiss Plfs' Pigford litigation claims for lack of subject matter is GRA NTED, and Plfs' Pigford litigation claims are DISMISSED without prejudice; 4) Dfts' 20 alternative motion for summary judgment is DENIED as moot; 5) Dfts' 22 motion to dismiss Plf Oden's non-Pigford claims due to improper venu e is GRANTED, and Oden's non-Pigford claims are DISMISSED without prejudice; 6) Dfts' 22 motion to dismiss Plf Stovall's non-Pigford claims due to improper venue is DENIED as moot on grounds that Plf Stovall did not state a non-Pigfo rd claim in the amended complaint; 7) Dfts' 22 alternative motion to dismiss pursuant to FRCP 12(b)(6) and Dfts' 22 alternative motion for summary judgment as to the non-Pigford litigation claims is DENIED as moot; 8) Plfs' 25 mo tion for partial summary judgment is DENIED as moot; 9) Plfs' 26 motion to defer consideration of the motions to dismiss is DENIED as moot; 10) Plfs' 28 motion to submit a tendered order is DENIED as moot; 11) Plfs' 30 motion to bifurcate is DENIED as moot; 12) Plfs' 30 motion to transfer venue is DENIED; 13) Plfs' 34 & 35 motions to amend are DENIED; 14) Plfs' 34 motion for summary judgment is DENIED; 15) The 17 motion compel is DENIED as moot; 16) This action is DISMISSED without prejudice. Signed by Chief Judge William Keith Watkins on 9/28/2017. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ROBERT R. BINION, et al.,
Plaintiffs,
v.
UNITED STATES DEPARTMENT
OF AGRICULTURE, et al.,
Defendants.

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) CASE NO. 2:16-CV-657-WKW
) (WO)
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)

MEMORANDUM OPINION AND ORDER
On September 7, 2017, the Magistrate Judge filed a Recommendation.
(Doc. # 33.) On September 20, 2017, Plaintiffs filed Objections. (Doc. # 33.)
Also on September 20, 2017, Plaintiffs filed a proposed second amended petition
for declaratory judgment and a motion for summary judgment, which is construed
as containing a motion to amend and a proposed amended complaint. (Doc. # 34.)
Plaintiffs filed a second motion to amend on September 21, 2017. (Doc. # 35.)
The court has conducted an independent and de novo review of those portions of
the Recommendation to which objection is made. See 28 U.S.C. § 636(b).
I.
A.

DISCUSSION

Dismissal of Pigford Claims
Plaintiffs do not contest that this court lacks jurisdiction over their Pigford

claims.

In fact, Plaintiffs’ proposed second amended complaint (Doc. # 34)

purports not to contain Pigford claims. The Magistrate Judge correctly concluded
that Plaintiffs’ Pigford claims are due to be dismissed without prejudice for lack of
subject matter jurisdiction.
B.

Dismissal of Non-Pigford Claims
The Magistrate Judge concluded that Plaintiff Oden’s non-Pigford claims

are due to be dismissed without prejudice on grounds that those claims already are
being litigated in the Court of Federal Claims and on grounds that Plaintiff Oden
already has litigated his non-Pigford claims to a final judgment in the Southern
District of Alabama. Plaintiffs do not point out any specific legal or factual error
in the Magistrate Judge’s conclusion that Plaintiff Oden’s non-Pigford claims are
subject to dismissal. The court finds no error in the Recommendation with respect
to dismissal Plaintiff Oden’s non-Pigford claims. See United States v. Beane, 841
F.3d 1273, 1283 (11th Cir. 2016) (setting forth the elements of res judicata and
collateral estoppel);  Manuel v. Convergys Corp., 430 F.3d 1132, 1135 (11th Cir.
2005) (“Where two actions involving overlapping issues and parties are pending in
two federal courts, there is a strong presumption across the federal circuits that
favors the forum of the first-filed suit under the first-filed rule.”); Aadyn Tech.,
LLC v. Prof’l LED Lighting, Ltd., No. 14-CIV-61376, 2014 WL 12489975, at *3
(S.D. Fla. Dec. 10, 2014) (collecting cases in support of the conclusion that,

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“[b]ecause the first-filed doctrine involves a court’s exercise of jurisdiction, a court
may (and indeed, should) raise the issue sua sponte”).
After noting Plaintiff Stovall’s contention that he sought to present nonPigford claims, the Magistrate Judge explained that the amended complaint does
not lend itself to any reasonable construction that would include such claims.
(Doc. # 32 at 9.) In their Objections, Plaintiffs present no specific legal argument
or factual information that would call into question the Magistrate Judge’s
construction of the amended complaint, which is a reasonable construction even in
light of the liberal construction due pro se litigants. GJR Invs., Inc. v. County of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds
by Ashcroft v. Iqbal, 556 U.S. 662, 666 (2009) (holding that the leniency shown to
pro se litigants “does not give a court license to serve as de facto counsel for a
party, or to rewrite an otherwise deficient pleading in order to sustain an action”
(citations and internal quotation marks omitted)).
In their Objections, Plaintiffs present a conclusory argument that they all
raised non-Pigford claims, and that their non-Pigford claims should not be
dismissed for lack of jurisdiction. Plaintiffs present no additional information,
specific factual averments, or legal argument about the circumstances or timing of
any alleged violation(s) of their constitutional rights that could explain why the

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Magistrate Judge erred in concluding that, other than Plaintiff Oden’s non-Pigford
claims, all the claims raised in the complaint were Pigford claims.1
C.

Motions to Amend
In their motion to amend (Doc. # 35), which purports to serve as a “second

amended petition for declaratory judgment,” Plaintiffs seek declaratory judgment
on their non-Pigford claims.

However, Plaintiffs do not provide any factual

allegations explaining which of them have non-Pigford claims (other than those
non-Pigford claims discussed in the Recommendation) or explaining the factual
basis of those claims. Construed liberally in the light most favorable to the pro se
Plaintiffs, the proposed amended complaint for declaratory judgment (Doc. # 35),
at most, is an attempt to reassert whatever non-Pigford claims they asserted in the
amended complaint and that previously were the subject of the Recommendation
for dismissal. Plaintiffs’ attempt to reassert those claims in a second amended
complaint for declaratory judgment is futile because Plaintiffs have not corrected
any of the deficiencies in those claims already pointed out in the Recommendation.
Among the claims Plaintiffs are attempting to assert in the second amended
complaint is a claim that Plaintiffs were deprived of due process by an agency rule
that precludes a hearing before an administrative law judge except upon the

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In the amended complaint, Plaintiff Binion contends that he “requested a formal hearing
on the merits for an accepted discrimination complaint in 2013.” (Doc. # 11 at 8.) However,
Plaintiff Binion has not provided any factual allegations or argument to explain why his 2013
discrimination complaint arises out of a non-Pigford claim.
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referral of the Assistant Secretary of Civil Rights. That claim is futile because it
necessarily involves claims that are currently being litigated in another court or
have previously been litigated in another court. (Doc. #34 at 7 (describing the rule
and citing to “Exhibit 1, Oden Final Agency Decision” as an agency statement of
the rule); Doc. # 29-1 (the Department of Agriculture’s September 5, 2014 letter to
Plaintiff Oden explaining the agency’s rule that “authority to resolve claims
against USDA pending in court rests with the DOJ” (emphasis added)). See
Beane, 841 F.3d at 1283 (setting forth the elements of res judicata and collateral
estoppel);  Manuel, 430 F.3d at 1135 (explaining the operation of the first-filed
rule). 
Because the motions to dismiss (Doc. # 34; Doc. # 35) are due to be denied
as futile, they do not preclude dismissal on the grounds stated in the
Recommendation. See Laborers Local 938 Joint Health & Welfare Tr. Fund v.
B.R. Starnes Co. of Fla., 827 F.2d 1454, 1456 n.1 (11th Cir. 1987) (“Although,
pursuant to Fed. R. Civ. P. 15(a), leave to amend is to be freely given where justice
so requires, there is no obligation to allow amendment if to do so would be
futile.”). 
II.

CONCLUSION

Accordingly, it is ORDERED as follows:
1.

Plaintiffs’ Objections (Doc. # 33) are OVERRULED.
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2.

The Recommendation (Doc. # 32) is ADOPTED.

3.

Defendants’ motion (Doc. # 20) to dismiss Plaintiffs’ Pigford litigation

claims for lack of subject matter is GRANTED, and Plaintiffs’ Pigford litigation
claims are DISMISSED without prejudice.
4.

Defendants’ alternative motion for summary judgment (Doc. # 20) is

DENIED as moot.
5.

Defendants’ motion (Doc. # 22) to dismiss Plaintiff Oden’s non-Pigford

claims due to improper venue is GRANTED, and Oden’s non-Pigford claims are
DISMISSED without prejudice.
6.

Defendants’ motion (Doc. # 22) to dismiss Plaintiff Stovall’s non-Pigford

claims due to improper venue is DENIED as moot on grounds that Plaintiff Stovall
did not state a non-Pigford claim in the amended complaint.
7.

Defendants’ alternative motion (Doc. # 22) to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(6) and Defendants’ alternative motion (Doc. # 22)
for summary judgment as to the non-Pigford litigation claims is DENIED as moot.
8.

Plaintiffs’ motion for partial summary judgment (Doc. # 25) is DENIED as

moot.
9.

Plaintiffs’ motion to defer consideration of the motions to dismiss (Doc. #

26) is DENIED as moot.

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10.

Plaintiffs’ motion to submit a tendered order (Doc. # 28) is DENIED as

moot.
11.

Plaintiffs’ motion to bifurcate (Doc. # 30) is DENIED as moot.

12.

Plaintiffs’ motion to transfer venue (Doc. # 30) is DENIED.

13.

Plaintiffs’ motions to amend (Doc. # 34; Doc. # 35) are DENIED.

14.

Plaintiffs’ motion for summary judgment (Doc. # 34) is DENIED.

15.

The motion compel (Doc. # 17) is DENIED as moot.

16.

This action is DISMISSED without prejudice.
Final judgment will be entered separately.
DONE this 28th day of September, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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