American State Bank and Trust Company of Williston v. Anderson et al
Filing
35
ORDER granting 19 Federal Third Party Defendants Motion for Summary Judgment. Third Party Complaint against all Federal Defendants is DISMISSED for failure to state a claim and because it is barred by sovereign immunity. Signed by Judge Richard F. Cebull on 12/14/2011. (EMA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
AMERICAN STATE BANK AND TRUST
COMPANY OF WILLISTON,
)
)
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Plaintiff,
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vs.
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)
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ROY J. ANDERSON, TIFFANI ANDERSON )
JAMES ANDERSON, and John Does 1-4,
)
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Defendants.
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_______________________________________)
ROY J. ANDERSON, and
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TIFFANI ANDERSON, husband and wife,
)
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Counter Defendants,
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vs.
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UNITED STATE OF AMERICA,
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UNITED STATES DEPARTMENT OF
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AGRICULTURE, FARM SERVICE
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AGENCY, RICHLAND COUNTY,
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MONTANA, and PATRICK TURNER,
)
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Third Party Defendants.
)
_______________________________________)
CV 10-154-BLG-RFC
ORDER
Federal Third Party Defendants/United States has moved the Court for
summary judgment as to the claims set forth in Andersons’ Third Party Complaint.
The basis for their motion is that the United States is the only proper party in an
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action under the Federal Tort Claims Act; the Third Party Complaint fails to state
a claim under the Federal Tort Claims Act and is further barred by 28 U.S.C. §
2680(a) and (h); and there is no waiver of sovereign immunity to assert claims
under 42 U.S.C. § 1981 as against the United States, its agencies and employees.
STANDARD OF REVIEW
Summary judgment is proper when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c). An issue is “genuine” only if there is a sufficient
evidentiary basis on which a reasonable fact finder could find for the nonmoving
party and a dispute is “material” only if it could affect the outcome of the suit
under the governing law. Anderson, v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
The party moving for summary judgment has the initial burden of showing
the absence of a genuine issue of material fact. Anderson, 477 U.S. at 256-57.
Once the moving party has done so, the burden shifts to the opposing party to set
forth specific facts showing there is a genuine issue for trial. In re Barboza, 545
F.3d 702, 707 (9th Cir. 2008). The nonmoving party “may not rely on denials in
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the pleadings but must produce specific evidence, through affidavits or admissible
discovery material, to show that the dispute exists.” Id.
On summary judgment, the evidence must be viewed in the light most
favorable to the non-moving party. Id. The court should not weigh the evidence
and determine the truth of the matter, but determine whether there is a genuine
issue for trial. Anderson, 477 U.S. at 249.
ANALYSIS
As an initial matter, the Court notes that the Andersons have not responded
to the motion for summary judgment. Pursuant to L.R. 7.1(d)(1)(B):
Any party that opposes a motion must file a response brief.
Responses to motions to dismiss, for judgment on the
pleadings, or for summary judgment must be filed within
twenty-one (21) days after the motion was filed. . . failure to
file a response brief may be deemed an admission that the
motion is well-taken.
The Court set a briefing schedule and ordered a response from Andersons
on or before October 18, 2011. Almost 90 days has passed since the United States
has moved for summary judgment. More than sufficient time has passed for
Andersons to respond. Even if Andersons had responded, the motion for summary
judgment would be granted for the reasons set forth below.
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I.
Andersons’ Third Party Tort Claims are Subject to the Federal Tort
Claims Act, and the United States is the Only Proper Party Defendant.
Andersons’ Third Party Complaint is unclear as to the basis of jurisdiction
for their claims against the United States, the Department of Agriculture, Farm
Service Agency, and Patrick Turner. No basis for federal court jurisdiction or a
waiver of sovereign immunity is set forth in the Third Party Complaint as required
under Fed. R. Civ. P. 8(a)(1). The claims against the United States, USDA Farm
Service Agency (FSA), and Patrick Turner, an FSA employee, set forth in Counts I
through IV, are based in tort. The only proper party for a tort claim under the
Federal Tort Claims Act (FTCA) is the United States. Therefore, USDA Farm
Service Agency and its employee Patrick Turner must be dismissed.
There is no waiver of sovereign immunity to sue a federal agency on claims
cognizable under the FTCA. FDIC v. Meyer, 510 U.S. 471,476-477 (1994). See
also, Owyhee Grazing Assoc., Inc. v. Field, 637 F.3d 694, 697 (9th Cir. 1981). In
addition, Andersons have named Patrick Turner for actions taken within the
course and scope of his employment in his official capacity. An action taken by a
federal employee in his official capacity is, in essence, a suit against the sovereign,
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and the sovereign immunity of the United States extends to employees sued in
their official capacity. Daddona v. Gaudio, 156 F. Supp.2d 153, 157-58 (D. Conn.
2000) (citing Monell v. Depart. of Social Services, 436 U.S. 658, 691 n. 55
(1978)); Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985).
If the complaint is intended to be a tort suit against any federal employee in
their personal capacity, such suit is barred by the Federal Employees Liability
Reform and Tort Compensation Act, 28 U.S.C. § 2679(b)(1). The United States
has filed a Certification of the United States Attorney for the District of Montana
that the individually named federal employee defendant, Patrick Turner, was
acting within the scope of his employment at the time of the incidents giving rise
to this claim.1 Once certification is given, the Act mandates the substitution of the
United States as the defendant. 28 U.S.C. § 2679(d)(1); Meridian Intern.
Logistics, Inc. v. United States, 939 F.2d 740, 743-44 (9th Cir. 1991). Therefore,
the only proper party to tort claims against the Third Party Federal Defendants is
the United States.
In addition, to the extent that Andersons may be seeking to assert a
constitutional tort, they do not have a claim. First, there is no waiver of sovereign
1
The Attorney General is authorized to certify that a United States employee was acting with the
scope of his employment. 28 U.S.C. §2679(d)(1). This authority has been delegated to United States
Attorneys. See 28 C.F.R. § 15.4.
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immunity to bring a constitutional tort claim against the United States or an
agency. FDIC v. Meyer, 510 U.S. 471, 486 (1994); Arnsberg v. United States, 757
F.2d 971, 980 (9th Cir. 1985). Second, Andersons are pleading common law torts,
which should not be pursued under the rubric of “constitutional tort.” The
Supreme Court has instructed lower courts not to constitutionalize common law
torts and has repeatedly emphasized that the Constitution was not drafted to
replace traditional tort law. See e.g., Daniels v. Williams, 474 U.S. 327, 332
(1986). The Court has uniformly and repeatedly rejected efforts to elevate
common law tort claims to a constitutional dimension by artful pleading. Daniels,
474 U.S. at 332; Baker v. McCollan, 443 U.S. 137 (1979); Estelle v. Gamble, 429
U.S. 97 (1976); Davidson v. Cannon, 474 U.S. 344 (1986).
The proper party to this litigation for tort claims is the United States.
II.
Third Party Complaint Tort Claims Fail to State a Claim and are
Barred by Sovereign Immunity.
The United States, as a sovereign, is immune from suit except to the extent
of its express consent. Reed ex rel. Allen v. U.S. Dept. of Interior, 231 F.3d 501,
504 (9th Cir. 2000); United States v. Mitchell, 463 U.S. 206, 212 (1983). “Absent
a waiver, sovereign immunity shields the Federal Government and its agencies
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from suit.” FDIC v. Meyer, 510 U.S. 471, 476 (1994). No action lies against the
United States unless Congress has authorized it. United States v. Testan, 424 U.S.
392, 399 (1976).
A.
Counts III and IV do not Allege a Tort Duty Owed by a Private
Person and Cannot be Brought under the FTCA.
In Counts III and IV of the Third Party Complaint, Andersons assert a
negligent violation of administrative regulations and the Agricultural Credit Act of
1987 as a basis for their tort claims. First, it should be noted that there is no
private right of action under the statutes or the regulations. Buck v. U.S. Dept. of
Agriculture, Farmers Home Admin., 960 F.2d 603, 610 (6th Cir. 1992); Farm
Credit Bank of Texas v. Farish, 32 F.3d 184, 189 (5th Cir. 1994).
In Harper v. Federal Land Bank of Spokane, 878 F.2d 1172, 1174-75 (9th
Cir. 1989), the Court found no private right of action. In doing so it noted as
follows:
We look at the overall purpose of the 1987 Act, however, and
conclude that the major impetus for the legislation was the
financial crisis of the Farm Credit System. “[The bill] is
necessary to reassure both American farmers and our financial
markets that the Farm Credit System will remain a viable entity
next year and into the 21st century.” 133 Cong. Rec. S. 16831
(Dec. 1, 1987)(remarks of Sen. Leahy). “[The bill] has two
major objectives: First, provide meaningful assistance to the
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system; and second, minimize to the greatest extent possible
exposure to the Federal budget.” 133 Cong. Rec. S. 16833
(Dec. 1, 1987)(remarks of Sen. Boren).
Harper, 878 F.2d at 1174-75. Thus, violations of the statute and act do not
create a private right of action.
In addition to there being no private right of action, there is also no viable
tort claim under Counts III and IV because no “private person” in Montana owes
any such tort duty. The Federal Tort Claims Act (FTCA) provides that the United
States shall be liable “for money damages, . . .for injury . . .caused by the negligent
or wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment, under circumstances where the
United States, if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.” 28 U.S.C. §
1346(b)(emphasis added).
In order to support their FTCA claim a plaintiff must demonstrate that under
state law, a private person in similar circumstances would owe a tort duty. State
law controls the question of duty, breach of duty, causation, and damages.
Trombetta v. United States, 613 F. Supp. 169 (D. Mont. 1985); 28 U.S.C. § 2674.
State law controls even when the alleged negligent act or omission occurs on
Indian land located within a state. Mentz v. United States, 359 F. Supp.2d 856,
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860 (D.N.D. 2005). The FTCA does not create new causes of action but serves to
make the United States liable only in accordance with local tort law. Art MetalUSA, Inc., v. United States, 753 F.2d 1151,1157 (D.C. Cir. 1985).
Although Andersons assert violations of federal regulations as a basis for
their tort claim in Counts III and IV, the only regulations cited require the lender
to consider or take some action, not the United States. See 7 C.F.R. § 762.143(b),
and 7 C.F.R. § 762.149(a). The Court agrees with the conclusion made by the
United States that there is no statute or regulation that states that a private lender
under the guaranteed loan statutes or regulations “must” restructure a loan when
the borrower is in default. No statute or regulation provides that the guarantor
FSA can force a lender to restructure loans which are in default. Rather, the
lender is to enforce the notes and security agreements. Although a lender may
“consider” restructuring, it need not do so. There is no dispute that the record in
this case reflects years of restructuring by the lender. Although Andersons claim
they were not offered Interest Assistance (IA), the record reflects that they in fact
received and exhausted their eligibility for IA.
A violation of a federal statute or federal regulation does not itself provide
the foundation for an FTCA claim in any event. United States Gold & Silver
Investments, Inc. v. United States, ex. rel. Director, U.S. Mint, 885 F.2d 620, 621
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(9th Cir. 1989) (“[T]he FTCA is not intended to encompass” a claim based solely
on a “violation of a federal statute.”); Younger v. United States, 662 F.2d 580, 582
(9th Cir. 1981). Nor do internal agency instructions or manuals cited by
Andersons have the force of law and therefore cannot provide a basis for creating
a duty. Schweiker v. Hanson, 450 U.S. 785, 789 (1981). Jacobo v. United States,
853 F.2d 640, 641-42 (9th Cir. 1988).
The tort obligation must be that of a private person in Montana for
sovereign immunity to have been waived. There is no duty by a private person
guaranteeing a loan which would give rise to a tort duty in this case. Love v. U.S.
Dept. of Agriculture, 647 F. Supp. 141, 144 (D. Mont. 1986), aff’d, 848 F.2d 198
(9th Cir. 1988).
Counts III and IV must be dismissed because there is no duty owed by the
guarantor to the borrower.
B.
Counts I, II, III and IV Barred by Statutory Exceptions to the
FTCA Waiver of Sovereign Immunity Under 28 U.S.C. § 2680.
The FTCA provides statutory exceptions for certain tort liability set forth in
28 U.S.C. § 2680. If a claim falls within one of the statutory exceptions to the
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FTCA, the court is without subject matter jurisdiction to hear the case. Mundy v.
United States, 983 F.2d 950, 952 (9th Cir. 1993).
The first applicable exception is the discretionary function exception. Title
28 U.S.C. § 2680(a) provides as follows:
The provisions of this chapter and section 1346(b) of this title
shall not apply to:
(a) Any claim based upon an act or omission of an employee of
the Government, exercising due care, in the execution of a
statute or regulation, whether or not such statute or regulation
be valid, or based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty
on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused.
28 U.S.C. § 2680(a)(emphasis added).
A two-step analysis is utilized to determine whether the challenged conduct
falls under the discretionary function exception. First, the court must look to
whether the challenged conduct involves “an element of judgment or choice.”
United States v. Gaubert, 499 U.S. 315, 322 (1991). The second step is to
determine whether the judgment is the type the discretionary function exception
was designed to shield. Id. “[I]f the judgment involves considerations of social,
economic, or political policy, the exception applies.” In re Glacier Bay, 71 F.3d
1447, 1450 (9th Cir. 1995).
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It is not necessary to show that the employee involved actually weighed the
social, political, or economic considerations for the exception to apply. It is
sufficient to bar suit if the decision is “susceptible” to policy analysis. The
discretionary function exception is applicable even in the absence of a conscious
decision weighing policy concerns. Miller v. United States, 163 F.3d 591, 593-94
(9th Cir. 1998) (citing Gaubert, 499 U.S. at 324, and FDIC v. Craft, 157 F.3d 697,
707 (9th Cir. 1998)).
The discretionary function exception applies “whether or not the discretion
involved be abused.” 28 U.S.C. § 2680(a). Negligence is irrelevant to the inquiry
as to whether the discretionary function exception applies. Gaubert, 499 U.S. at
332. The issue is whether judgment or choice exists, not whether, in fact, the
discretion was exercised in a negligent manner. Daniels v. United States, 967 F.2d
1463, 1465 (10th Cir. 1992).
The case law has also found that where the government is exercising
discretion, “it must be presumed that the agent’s acts are grounded in policy when
exercising that discretion.” Gaubert, 499 U.S. at 324; Miller, 163 F.3d at 593-94.
Likewise, the fact that there may be broad policy declarations in the regulations,
i.e., that upon request the United States is to “assist in developing solutions” for a
borrower in default, 7 C.F.R. § 762.143(b)(3)(ii), does not mean that discretion
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does not exist as to how best to accomplish that broad policy statement. Broad
policy mandates may exist which are only attainable by the exercise of
discretionary decisions. Valdez v. United States, 56 F.3d 1177, 1180 (9th Cir.
1995); Blackburn v. United States, 100 F.3d 1426, 1430-31 (9th Cir. 1996).
In addressing FTCA claims arising out of farm program cases, courts have
found that the decisions regarding the granting, administration, and application of
loan servicing options are decisions protected by the discretionary function
exception and may not be second guessed in tort litigation. Williamson v. USDA,
815 F.2d 368, 375-76 (5th Cir. 1987) (statute replete with discretionary
responsibility regarding the Agency’s power to make or insure loans, and
compromise, adjust or reduce claims, therefore tort suit dismissed under
discretionary function exception); Teupker v. Farmers Home Administration, 708
F.2d 1329, 1332-33 (8th Cir. 1983) (decision to deny request for additional loan
barred by discretionary function exception).
In this case the United States guaranteed loans under contracts with ASB.
Andersons failed to make timely payments. The bank rolled over and restructured
debt for years instead of foreclosing, resulting in a pyramiding obligation which
exceeded over $930,000 in guaranteed loans. Andersons assert that they were
entitled to Interest Assistance (IA), but they had already received IA and were
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capped out under the regulations. Under the statutes and regulations there is room
for discretion in determining what recommendations FSA should make, if any, in
dealing with a distressed borrowers like the Andersons. Assisting farmers to
maintain their farm is one social policy to consider, while a countervailing policy
of reducing claims against the public fisc, also exists. How to weigh these matters
is much like the banking decisions protected by the discretionary function
exception in Gaubert. The Court has determined that no specific mandatory
regulations were violated by FSA. Thus, tort claims against the United States are
barred under 28 U.S.C. § 2680(a).
In addition to discretion protecting management and application of farm
programs, the manner in which the United States selects, trains, and supervises its
employees also generally falls within the discretionary function exception. See
K.W. Thompson Tool Co. Inc. v. United States, 836 F.2d 721, 727-28 (1st Cir.
1988) (allegations regarding supervision of its employees by the EPA fell within
the discretionary function exception and any alleged negligence based on that
conduct was not actionable); Gager v. United States, 149 F.3d 918, 922 (9th Cir.
1998) (court found that decision on whom to train and how to train postal service
employees regarding mail bomb detection were grounded in social, economic, and
political policy and barred claims for negligent training under discretionary
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function exception); Dretar v. Smith, 752 F.2d 1015, 1017 n. 2 (5th Cir. 1985)
(court dismissed claims alleging negligent supervision finding that “[s]upervising
employees is certainly a discretionary function”); United States v. Faneca, 332
F.2d 872, 874 (5th Cir. 1964) (“formulation of plans and the manner of control
over Government personnel” are discretionary and protected by § 2680(a));
Attallah v. United States, 955 F.2d 776, 784-85 (1st Cir. 1992) (claim that customs
agents failed to supervise other agents, thus facilitating their criminal actions
against a courier, fell within § 2680(a)); Salvador v. Meese, 641 F. Supp. 1409,
1418 (D. Mass. 1986) (decision to employ a particular individual is a discretionary
function).
The facts, which have not been disputed, demonstrate that Patrick Turner
received extensive training. That being said, decisions on how or when to train
and on what, are the types of decisions protected by the discretionary function
exception. Claims that Turner should have been supervised closer also involve
policy decisions and are protected by the discretionary function exception.
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C.
Third Party Plaintiffs’ Claims Against Federal Defendants are
also Barred by Assault, Misrepresentation, and Interference with
Contract Exception Under 28 U.S.C. § 2680(h).
Andersons are asserting claims based on assault, misrepresentation and
interference with contract or prospective business advantage. Count II alleges
tortious interference with prospective business advantage asserting wrongful
interference with Andersons’ lending
contract with ASB. Count I references violence and abuse, which arises out of
assault claims. Such claims are barred under 28 U.S.C. § 2680(h) which provides
in pertinent part as follows:
[T]he provisions of this chapter and section 1346(b) of this title
shall not apply to ....
(h) Any claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or interference
with contract rights: . . . .
Title 28 U.S.C. § 2680(h), bars claims for misrepresentation and
interference with contract rights. Thus, claims against the United States based on
negligent or intentional misrepresentation of agency regulations or interference
with contract are barred by the doctrine of sovereign immunity. Williamson v.
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U.S. Dept. of Agriculture, 815 F.2d 368, 377, n. 8 (5th Cir. 1987). If the tort claim
arises out of the torts set forth in § 2680(h), the court is deemed without subject
matter jurisdiction to hear the case. Broudy v. United States, 661 F.2d 125, 127
(9th Cir. 1981).
If Andersons’ claims are based on misrepresentation, fraud or deceit, they
are also not allowed under § 2680(h). Some allegations in the complaint make
reference to claims that federal or bank employees falsely stated that if Andersons
liquidated some of their collateral, that any remaining debt would be restructured.
The United States has denied such allegations, asserting that any restructure would
be a bank decision, and would also require Andersons to be able to cash flow
remaining debt. However, any such claims against the United States arising out of
such allegations are also barred under § 2680(h) which applies whether the claim
is for intentional or negligent misrepresentation. United States v. Neustadt, 366
U.S. 696, 706-07 (1961).
It also appears in the Third Party Complaint that Andersons may be seeking
tort damages out of a fist fight that occurred when FSA employee Pat Turner was
out at the Andersons’ property to appraise equipment. There are questions of fact
about the fist fight. Regardless, as set forth above, also excepted from the waiver
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of sovereign immunity under § 2680(h), are claims arising out of assault or
battery.
Any tort claims arising out of assault or battery must be dismissed.
D.
Andersons Do Not Have a Viable 42 U.S.C. § 1981 Claim.
Count V of the Third Party Complaint against federal defendants alleges
civil rights violations under 42 U.S.C. § 1981. However, sovereign immunity bars
claims under 42 U.S.C. § 1981 as against the United States, its agencies and
employees. Section 1981 provides in pertinent part as follows:
(a) All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts, . . . as is enjoyed by white citizens, and shall
be subject to like punishment, pains, penalties, taxes, licenses,
and exactions of every kind, and to no other.
(b) For purposes of this section, the term “make and enforce
contracts” includes the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.
(c) The rights protected by this section are protected against
impairment by nongovernmental discrimination and
impairment under color of State law.
42 U.S.C. § 1981.
“Section 1981 claims do not lie against federal actors.” Farag v. United
States, 587 F. Supp.2d 436, 471 (E.D.N.Y. 2008).
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Decidedly missing from that statutory provision [1981(c)] is
any mention that the rights created by § 1981 are protected
from discrimination by those acting under color of federal law.
Therefore, a waiver of the sovereign immunity of the United
States is not “unequivocally expressed” in § 1981. Moreover,
every court which has addressed the question has concluded
that § 1981 does not constitute a waiver of the sovereign
immunity for suits against the United States or against federal
employees acting within their official capacities. See e.g.,
Affiliated Prof’l Home Health Care Agency v. Shalala, 164
F.3d 282, 285 (5th Cir. 1999) (“This Court has long recognized
that suits against the United States brought under the civil
rights statutes [42 U.S.C. §§ 1981, 1983, 1985, 1986, and
1988] are barred by sovereign immunity.”); United States v.
Timmons, 672 F.2d 1373, 1380 (11th Cir. 1982) . . . .
Norris v. Principi, 254 F. Supp.2d 883, 889 (S.D. Ohio, 2003). See also, Dotson
v. Griesa, 398 F.3d 156, 162 (2d Cir. 2005); Davis v. U.S. Dept. of Justice, 204
F.3d 723, 725-26 (7th Cir. 2000); Davis-Warren Auctioneers, J.V. v. FDIC, 215
F.3d 1159, 1161 (10th Cir.2000). Although the Ninth Circuit does not appear to
have directly addressed the issue under § 1981, in analyzing the “under color of
state law” language under 42 U.S.C. § 1983, it too has held that such language
“precludes liability in federal government actors.” Morse v. North Coast
Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir. 1997).
It is clear that the United States, Farm Service Agency and Pat Turner were
acting under color of federal law. First, they are federal actors. Second,
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Andersons allege that “Patrick Turner [was] acting in his capacity as an officer and
agent of FSA,” and “[A]t all times referenced herein, Patrick Turner was acting
within the course and scope of his employment with FSA.” It is also clear the
federal actors are acting under color of federal law as the Third Party Complaint is
based on the federal guaranteed loan program authorized by federal statute.
Andersons repeatedly make allegations that they had rights under the federal
guaranteed loan program which were allegedly denied, based on their references to
the Agricultural Credit Act of 1987 and Farm Service Agency regulations, and
Federal manuals throughout their Third Party Complaint.
Andersons make conclusory allegations that the United States is somehow
the agent of ASB. However, because ASB lacks control over the daily operations
of the United States, Farm Service Agency and FSA employee Patrick Turner,
there is no agency relationship. Causey v. Sewell Cadillac-Chevrolet, Inc., 394
F.3d 285, 290 (5th Cir. 2004) (court dismissed claims under § 1981 against GM,
finding that GM was independent from a local dealership, and there was no
showing of control of daily operations by GM over local dealership); see also,
Arguello v. Conoco, Inc., 207 F.3d 803 (5th Cir. 2000); Gen. Bldg. Contractors
Assn. v. Pennsylvania, 458 U.S. 375, 393 (1982). Moreover, the United States, its
agency and employees, have a federal basis under the statute and regulations, to
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evaluate collateral and to make recommendations, because the United States has
an independent statutory motive to minimize any loss claims under its guarantee.
The mere fact that a federal employee is present, when there is a federal purpose to
be present, does not mean the federal employee or the United States of America
works at the behest of the bank. Therefore, the case against the United States,
FSA and Turner, its employee, is barred by sovereign immunity.
Moreover, to succeed in a §1981 claim, the claimant needs to prove that an
official policy led to the discrimination. Fed’n of African Am. Contractors v. City
of Oakland, 96 F.3d 1204, 1215 (9th Cir. 1996); Jett v. Dallas Indep. Sch. Dist.,
491 U.S. 701, 737 (1989). Andersons allege that Turner had racial animus. But
the Third Party Complaint offers only one specific allegation of discriminatory
intent: that Turner commented that the collateral was on “Indian land.” This
statement is true and most likely was made as a reference to jurisdiction for
foreclosure actions or bank collateral enforcement orders. Beyond this,
Andersons’ Third Party Complaint presents merely “labels and conclusions,”
precisely the type of allegations that render pleadings insufficient under Bell Atl.
Corp. v. Twombly, 550 U.S. 554, 555 (2007). “‘Stray remarks’ are insufficient as
a matter of law to demonstrate discriminatory animus.” Johnson v. Grays Harbor
Community Hosp., 385 Fed. Appx. 647, 648-49 (9th Cir. 2010).
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CONCLUSION
Therefore, based upon the foregoing, the Motion for Summary Judgment by
the Federal Defendants is GRANTED. The Third Party Complaint against all
Federal Defendants is DISMISSED for failure to state a claim and because it is
barred by sovereign immunity.
DATED this 14th day of December, 2011.
_/s/ Richard F. Cebull__________
RICHARD F. CEBULL
U.S. DISTRICT COURT JUDGE
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