Curtis Johnson v. AGRI , 833 F.3d 948 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1796
___________________________
Curtis Johnson
lllllllllllllllllllll Plaintiff - Appellant
v.
Department of Agriculture, Tom Vilsack, Secretary (USDA); Gary Cochran;
Hendra Woodfork; Shirley Moore; Dotson Collins; James G. Culpepper; Dianna
Shook; Linda Newkirk; Dennis L. Stephens; Linda Baker; Thomas Brown; M.
Terry Johnson; John Doe; Jane Does
lllllllllllllllllllll Defendants - Appellees
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: April 12, 2016
Filed: August 18, 2016
____________
Before GRUENDER and KELLY, Circuit Judges, and ERICKSEN,1 District
Judge.
____________
KELLY, Circuit Judge.
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota, sitting by designation.
This appeal follows the district court’s dismissal of Curtis Johnson’s statutory
and constitutional claims against the Department of Agriculture (USDA), the
Secretary of Agriculture, and various Department of Agriculture employees.
Although we agree with some of the district court’s bases for dismissal, we disagree
that taking advantage of the USDA’s internal anti-discrimination complaint
procedures can serve as a bar to later bringing federal-law claims in court, or that the
existence of those procedures insulates the USDA from constitutional claims. We
therefore affirm in part and reverse in part.
I. Background
As alleged in his complaint, the plaintiff, Curtis Johnson, ran a farm in Monroe
and St. Francis Counties in Arkansas until 2000.2 In 2000, he and his former wife,
Rubye Johnson, took out a loan, secured by mortgages on their property, in the
amount of $142,185.47 from the USDA’s Farm Service Agency (FSA). Because of
a drought in 2000, Johnson had to stop farming and began to miss payments on his
loans.
Starting in July 2001, the FSA began intercepting Johnson’s income tax
refunds through administrative offsets.3 Over the next several years, Johnson tried
to settle his debts with the FSA – offering to pay $15,500 in August and September
2003 and November 2004, $1,500 in February 2006, and $100 in December 2006 or
January 2007. The last two attempts included checks for the offered amounts, which
the FSA applied towards the loans, but in each case the FSA either did not respond
2
On appeal from a motion to dismiss, we treat the factual allegations in
Johnson’s complaint as true. See Wong v. Minn. Dep’t of Human Servs., 820 F.3d
922, 926 n.1 (8th Cir. 2016).
3
Administrative offsets are a way to collect non-tax debts by withholding funds
paid out by other federal agencies.
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to his offers or only provided him with general information on debt settlement. In
January 2008, the USDA began to intercept Johnson’s post office salary and pension
by administrative offset.
Finally, in October 2009, Linda Newkirk, an FSA employee and a defendant
in this case, sent Johnson a letter denying his debt settlement applications. Johnson
then met with Dennis Stephens, another FSA employee and defendant, in December
2009 to ask for reconsideration, which was denied. In January 2010, Johnson filed
an appeal with the USDA’s National Appeals Division (NAD). After conducting a
hearing, Thomas Brown, an NAD Hearing Officer, upheld the FSA’s denial of
Johnson’s settlement applications. Johnson then requested a Director’s Review, and
on August 2010, defendant M. Terry Johnson upheld the FSA’s decision.
The allegations discussed so far can be found in the complaint, but the district
court relied on additional information deduced from documents attached to the
defendants’ motion to dismiss Johnson’s complaint.4 The documents indicate that
Johnson, who is African American, wrote a letter to USDA’s Office of Adjudication
& Compliance on August 27, 2010, claiming that the FSA’s denials of his debt
settlement applications were racially discriminatory, and similar to the discriminatory
practices at issue in a class action called Pigford v. Glickman.5
4
Johnson argues that it was inappropriate to consider these materials on a
motion to dismiss. We disagree. Each of the documents the district court considered
was a public record, which a court can rely on even at the motion to dismiss stage.
See Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir. 2012).
While it is true, as Johnson says, that the documents were not accompanied by a
supporting affidavit, he does not meaningfully contest their authenticity, so the
district court was entitled to consider them.
5
The Pigford litigation was a class-action suit filed in 1997 against the USDA
alleging racial discrimination in the administration of federally-funded credit and
benefit programs. See Pigford v. Veneman, 292 F.3d 918, 920 (D.C. Cir. 2002).
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In response, the USDA’s Office of Adjudication, part of its Office of the
Assistant Secretary for Civil Rights (OASCR), wrote Johnson to say that it was
treating his letter as an administrative complaint to be processed under the procedures
codified at 7 C.F.R. Pt. 15d. The responsive letter assigned Johnson’s complaint a
number and stated that the “accepted issue” raised by the complaint was:
Whether the officials of the Farm Service Agency (FSA) discriminated
against you on the basis of race (Black) when FSA allegedly on or about
July 2010, denied you program servicing for debt relief pertaining to a
[sic] operating and equipment loans.
It explained that once a position statement was received from the FSA, an investigator
would be assigned to the case, and that a Final Agency Decision would be issued after
the investigation was complete.
The letter from the Office of Adjudication noted that Johnson’s administrative
complaint “may be covered by the Equal Credit Opportunity Act, 15 U.S.C. § 1691
et seq. (ECOA).” It also noted that ECOA had a two-year statute of limitations,6
warned Johnson that “[f]iling an administrative complaint with USDA does not stop
Shortly before the suit was settled, the Secretary of Agriculture issued a report
concluding that “local credit and loan agencies responsible for administering
Department programs often discriminated against the farmers” and USDA officials
had “‘effectively dismantled’ the Office for Civil Rights Enforcement – the very
office charged with addressing discrimination complaints.” Id. After Congress
passed legislation tolling the statute of limitations for filing suits under the Equal
Credit Opportunity Act, a statute forbidding discrimination in credit transactions, the
parties entered into a consent decree in 1999. See id. (citing Pigford v. Glickman,
185 F.R.D. 82 (D.D.C. 1999)). Johnson was a member of the Pigford class.
6
The statute of limitations has since been prospectively extended to five years.
See Dodd–Frank Wall Street Reform and Consumer Protection Act, Pub. L. No.
111–203, § 1085(7), 124 Stat. 1376, 2085 (2010), codified at 15 U.S.C. § 1691e(f).
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or suspend that time requirement,” and advised him that if he filed a suit in federal
court, “USDA may no longer be able to process [his] administrative complaint.”
OASCR issued a fifteen-page final agency determination on February 29, 2012.
The determination began its analysis by saying that the claim was “properly analyzed
under ECOA.” Applying a Third Circuit case that held that ECOA claims should be
analyzed under a modified version of the framework for adjudicating civil rights
complaints developed by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), the final agency determination concluded that the USDA had
failed to work with Johnson to give him the chance to make a viable debt settlement
offer. OASCR separately entered an order directing the FSA to pay Johnson damages
of $30,000, cancel his FSA debt, release its mortgages on Johnson’s property, and
implement comprehensive remedial action. The FSA has since complied. The final
agency determination did not order the FSA to pay back the money it had already
collected from Johnson through administrative offset.
Johnson was apparently dissatisfied with OASCR’s decision because it allowed
FSA to keep the money it had already taken through administrative offset and because
it did not award punitive damages. As a result, he filed the present lawsuit on
December 21, 2012, against Secretary of Agriculture Tom Vilsack and eleven USDA
employees whose names are listed in the caption above (the USDA employee
defendants), each in their individual and official capacities. Johnson’s complaint
claimed that the defendants violated ECOA because they denied his debt settlement
offers on the basis of his race and in retaliation for his being a member of the Pigford
class-action litigation. He also alleged that the defendants engaged in a conspiracy
under 42 U.S.C. § 1985(3) to interfere with his civil rights, and that they violated his
rights under the Fifth and Thirteenth Amendments.
On March 16, 2015, the district court granted the defendants’ motion to dismiss
all of Johnson’s claims. Two of the defendants, Dotson Collins and Dianna Shook,
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were dismissed because Johnson had failed to timely serve them. The individual
capacity claims against Vilsack were dismissed on the grounds that Johnson had not
alleged his personal involvement in the actions taken with respect to his debt
settlement offers. The constitutional claims against the defendants in their official
capacities were dismissed on the grounds of sovereign immunity. The Thirteenth
Amendment claims were dismissed on the grounds that that amendment does not
create a private cause of action. The conspiracy claims were dismissed on the
grounds that no agreement among the defendants had been alleged. Finally, and most
significantly for purposes of this appeal, the ECOA claims were dismissed on the
grounds that they were precluded by OASCR’s administrative proceedings, and, with
respect to the USDA employee defendants, on the alternative ground that Johnson
had not adequately alleged that they were “creditors” for ECOA purposes.
On appeal, Johnson does not challenge the dismissal of Tom Vilsack in his
individual and official capacities, or the dismissal of Dotson Collins and Dianna
Shook for failure of service. He also does not challenge the dismissal of his Fifth
Amendment claims against the USDA employee defendants in their official
capacities, or the Thirteenth Amendment claims against all defendants. He otherwise
contends that the district court erred in dismissing his claims.
II. Discussion
We address first whether the USDA’s decision pursuant to the administrative
procedures at 7 C.F.R. Pt. 15d precluded Johnson’s ECOA claims here. We then
address in turn whether he adequately pleaded an ECOA claim, and whether his
conspiracy and constitutional claims were properly dismissed.
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A. Preclusive effect of administrative proceedings on ECOA claims
The doctrine of claim preclusion, or res judicata, prevents a party from
relitigating claims and issues that have been previously adjudicated. AVR Comm’ns,
Ltd. v. Am. Hearing Sys., Inc., 793 F.3d 847, 851 (8th Cir. 2015). “When an
administrative agency is acting in a judicial capacity and resolves disputed issues of
fact properly before it which the parties have had an adequate opportunity to litigate,
the courts have not hesitated to apply res judicata to enforce repose.” Univ. of Tenn.
v. Elliott, 478 U.S. 788, 797–98 (1986) (quoting United States v. Utah Constr. &
Mining Co., 384 U.S. 394, 422 (1966)); see also Restatement (Second) of Judgments
§ 83(1) (explaining that with some exceptions “a valid and final adjudicative
determination by an administrative tribunal has the same effects under the rules of res
judicata, subject to the same exceptions and qualifications, as a judgment of a court”).
We review de novo a district court’s grant of a motion to dismiss on preclusion
grounds. See Corrado v. Life Inv’rs Ins. Co. of Am., 804 F.3d 915, 917 (8th Cir.
2015).
The key qualification in Elliott’s formulation is that the administrative agency
must be “acting in a judicial capacity” for claim preclusion to apply. See Restatement
(Second) of Judgments § 83(2) (“An adjudicative determination by an administrative
tribunal is conclusive under the rules of res judicata only insofar as the proceeding
resulting in the determination entailed the essential elements of adjudication . . . .”).
Whether the agency is acting in a judicial capacity, in turn, depends in part on the
procedural protections it provides: “Although administrative estoppel is favored as
a matter of general policy, its suitability may vary according to . . . the relative
adequacy of agency procedures.” Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501
U.S. 104, 109–10 (1991). As a result, we must examine the procedures the USDA
employs to resolve complaints like Johnson’s to determine whether preclusion is
warranted.
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1. Part 15d procedures
Since 1966, the USDA has had internal guidelines prohibiting discrimination
in its programs and activities and a mechanism for receiving and dealing with written
complaints from individuals who believe they have experienced discrimination at the
USDA’s hands. See 31 Fed. Reg. 8175 (1966) (promulgating 7 C.F.R. 15.52 (1967),
the predecessor to the current 7 C.F.R. 15d.4). Currently, the USDA’s anti-
discrimination policy provides:
(a) No agency, officer, or employee of the USDA shall, on the grounds
of race, color, national origin, religion, sex, sexual orientation, disabil-
ity, age, marital status, family/parental status, income derived from a
public assistance program, political beliefs, or gender identity, exclude
from participation in, deny the benefits of, or subject to discrimination
any person in the United States under any program or activity conducted
by the USDA.
(b) No person shall be subjected to reprisal for opposing any practice(s)
prohibited by this part, for filing a complaint, or for participating in any
other manner in a proceeding under this part.
7 C.F.R. § 15d.3. The regulations setting forth the procedures for processing
complaints pursuant to this non-discrimination policy are found at 7 C.F.R. Pt. 15d.
Part 15d’s mechanism for investigating complaints of discrimination is wholly
a creature of regulation; Congress did not mandate its creation in ECOA or any other
law. As the USDA itself explained in a notice of proposed rulemaking, the
regulations provide a mechanism for resolving complaints internally and thereby
avoiding the need for a lawsuit:
[I]t should be noted that Part 15d is not an ECOA administrative
procedure, nor an administrative procedure pursuant to any other
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Federal statute. The proposed regulation merely informs the public of
the Department’s nondiscrimination policy and of an individual’s right
to file a complaint if he or she believes that he or she has been discrimi-
nated against by the Department so that the Department can take
appropriate action. Of course, the availability of 15d and ECOA often
will be co-extensive, and it often will be the case that a 15d complaint
will afford the Department an opportunity to provide relief to a
complainant that may avoid an ECOA lawsuit.
63 Fed. Reg. 62962, 62963 (Nov. 10, 1998).
The body within the USDA responsible for fielding complaints under its anti-
discrimination policy has shifted over the years. See 31 Fed. Reg. 8175 (1981)
(stating that complaints of discrimination will be investigated by the Office of the
Inspector General); 54 Fed. Reg. 31163 (1989) (giving responsibility to the Director
of the Office of Advocacy and Enterprise); 64 Fed. Reg. 66709 (1999) (giving
responsibility to the Office of Civil Rights). Currently, responsibility lies with
OASCR. 7 C.F.R. § 15d.5(b).
Under OASCR’s procedures, as counsel for the USDA employees explained
at oral argument, an investigator is appointed to develop evidence relevant to the
claim. “The investigator is a neutral party who develops the official record of the
case. In the course of developing the record, the investigator is usually the person
who will have direct contact with the parties, witnesses and other informants.”
USDA Departmental Manual 4330–1, § 3.II.2a (Oct. 18, 2000),
http://www.ocio.usda.gov/sites/default/files/docs/2012/DM4330-001%5B1%5D.pdf
[https://perma.cc/EP44-8NC5]. The investigator can collect both documentary and
testimonial evidence from the complainant and the USDA, see id. § 3.III.8, but lacks
subpoena powers, see id. § 3.II.2.b (“[T]he investigator acts with the same authority
as [the Office of Civil Rights] and USDA to collect evidence, in whatever form, that
is relevant to the case. This authority, however, stops short of subpoena power.”).
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Following the investigation, the investigator creates a “record of investigation” or
ROI, which is approved by the Chief of the Investigation Unit and forwarded to the
Adjudication Unit. See id. § 3.III.13–14. An adjudicator then makes a determination
as to whether there was discrimination based on the information in the ROI and issues
a Final Agency Decision that must be approved by the Chief of the Adjudication Unit.
See id. §§ 3.IV.2–5.
The complainants may be represented by counsel. See id. § 3.I.6j. But as
conceded by counsel for the USDA and the individual plaintiffs at oral argument,
there is no procedure for questioning evidence submitted by the opposing party, much
less an evidentiary hearing – a fact confirmed by the absence of provisions for such
procedures in the USDA’s manual specifying procedures for Part 15d investigations.
See generally USDA Departmental Manual 4330–001, supra.
In addition, there appears to be no avenue for seeking judicial review of
OASCR’s final decisions.7 No statute provides for judicial review of decisions under
Part 15d, and we believe the Administrative Procedure Act does not do so either. The
APA authorizes judicial review of a final agency action, Bowen v. Massachusetts,
487 U.S. 879, 891–92 (1988), but only with respect to claims “for which there is no
other adequate remedy in a court.” 5 U.S.C. § 704. “[Section] 704 ‘does not provide
additional judicial remedies in situations where the Congress has provided special and
adequate review procedures.” Bowen, 487 U.S. at 903 (quoting Attorney General’s
Manual on the Administrative Procedure Act 101 (1947)).
Judicial review through the APA is precluded because there is an alternative
adequate remedy in court in the form of an ECOA suit. See Garcia v. Vilsack, 563
7
Tellingly, we have been unable to find any instance where a district court has
actually heard an appeal from a USDA decision pursuant to Part 15d.
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F.3d 519, 524–26 (D.C. Cir. 2009).8 The basis for Johnson’s complaint is that the
USDA discriminated against him on the basis of race in administering its loan
programs, which is precisely the type of injury ECOA is meant to remedy. 15 U.S.C.
§ 1691(a)(1).9 Because Congress has provided an adequate alternative remedy under
8
The district court cited Garcia for the proposition that there was de novo
judicial review of proceedings under Part 15d. See Johnson v. Vilsack, No.
4:012CV00793-JM, 2015 WL 1196764, at *5 (E.D. Ark. Mar. 16, 2015) (citing
Garcia, 563 F.3d at 523). But the portion of Garcia cited by the district court was not
speaking of the Part 15d procedures at issue in this case, but rather procedures created
pursuant to a special remedial statute passed by Congress in 1998 to deal with
discrimination complaints that the USDA had allowed to languish. See Garcia, 563
F.3d at 521–22; Omnibus Consolidated and Emergency Supplemental Appropriations
Act, 1999, Pub. L. 105–277, § 741, 112 Stat. 2681–31 (Oct. 21, 1998) (codified at 7
U.S.C. § 2279 note) (Section 741). In Section 741(c) and (g), Congress explicitly
provided for de novo judicial review for complaints under the remedial statute, and
it was this procedure that the portion of Garcia cited by the district court was referring
to.
Complaints filed pursuant to Section 741 are not handled under the Part 15d
procedures, but rather under a separate set of regulations codified at 7 C.F.R. Pt. 15f.
The Part 15f procedures, among other things, allow the complainant to request and
receive a formal hearing before an ALJ and to depose witnesses. See Administrative
Civil Rights Adjudications under Section 741, 63 Fed. Reg. 67392, 67393 (Dec. 4,
1998); 7 C.F.R. §§ 15f.10, 15f.13, 15f.18.
9
It may be objected that in saying that an ECOA suit is an adequate remedy in
court, we are begging the question by assuming that an ECOA suit would not be
precluded – the ultimate issue to be decided in this case. In fact, it is Congress’s
decision to pass ECOA to provide a specific remedy for claims like Johnson’s, rather
than any given plaintiff’s ability to file an ECOA suit, that provides the adequate
remedy in court and bars APA review. Cf. Mitchell v. United States, 930 F.2d 893,
897 (Fed. Cir. 1991) (“[T]he question posed by APA Section 704 is whether the
Claims Court offers adequate remedies, not whether [the plaintiff] will be entitled to
receive those remedies. The Claims Court offers a full and adequate remedy even if
[the plaintiff] does not qualify to receive that remedy.”).
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another statute, the APA does not authorize judicial review of OASCR’s final
decisions. See Cent. Platte Nat. Res. Dist. v. U.S. Dep’t of Agric., 623 F.3d 1142,
1148 (8th Cir. 2011); Great Rivers Habitat All. v. Fed. Emergency Mgmt. Agency,
615 F.3d 985, 989 (8th Cir. 2010); Defs. of Wildlife v. Adm’r, E.P.A., 882 F.2d 1294,
1301–03 (8th Cir. 1989).
2. Adequacy of Part 15d procedures
We turn next to whether the procedures just described provide sufficient
procedural protections to bar later suits in court based on the same claims. There is
no litmus test for deciding whether agency procedures are extensive enough to
warrant granting them preclusive effect. See 18b Wright & Miller, Federal Practice
& Procedure § 4475, at 483 (2d ed. 2002) (“It is difficult to state a general formula
to capture the essential elements of adjudicatory procedure that may entitle
administrative decisions to preclusion effects in subsequent judicial proceedings.”).
Agency procedures run the gamut from proceedings that are essentially identical to
those of a trial court, to far more ministerial functions that should not be given
preclusive effect:
When an agency conducts a trial-type hearing, makes findings, and
applies the law, the reasons for treating its decision as res judicata are
the same as the reasons for applying res judicata to a decision of a court
that has used the same procedure. But the formality may be diminished
in any degree, and when it is sufficiently diminished the decision may
not be res judicata. The starting point in drawing the line is the
observation that res judicata applies when the agency decision resembles
what a trial court does.
2 Richard J. Pierce, Jr., Administrative Law Treatise § 13.3, pp. 1131–32 (5th ed.
2010). Each agency proceeding must be considered on its own terms to see whether
its procedures sufficiently resemble those of the courts.
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Despite the lack of bright-line rules in this area, a review of cases from our
sister circuits involving administrative preclusion convinces us that the USDA’s
procedures under Part 15d are too bare bones to bar future federal-court litigation.
The Seventh Circuit has held that “[a]n agency acts in a judicial capacity when it
provides the following safeguards: (1) representation by counsel, (2) pretrial
discovery, (3) the opportunity to present memoranda of law, (4) examinations and
cross-examinations at the hearing, (5) the opportunity to introduce exhibits, (6) the
chance to object to evidence at the hearing, and (7) final findings of fact and
conclusions of law.” Reed v. AMAX Coal Co., 971 F.2d 1295, 1300 (7th Cir. 1992)
(per curiam). The Part 15d procedures would not qualify under this standard, since
at least the second, fourth, and sixth prerequisites are missing. See also 18b Wright
& Miller, supra, § 4475, at 489 (“[T]he absence of any opportunity to examine or
cross-examine live witnesses may defeat preclusion.”). Similarly, the Ninth Circuit
has held that the availability of judicial review of the administrative decision is a
prerequisite for claim preclusion. See Wehrli v. Cty. of Orange, 175 F.3d 692,
694–95 (9th Cir. 1999); see also Restatement (Second) of Judgments § 83, cmt. c
(“The fact that an agency adjudication was subjected to judicial review and was
upheld is a factor that supports giving it preclusive effect.”); 18b Wright & Miller,
supra, § 4475, at 491 (“[T]he opportunity for judicial review may prove important in
determining the availability of preclusion.”). This safeguard, too, is absent here. Cf.
Yancy v. McDevitt, 802 F.2d 1025, 1028 (8th Cir. 1986) (holding that school board
proceedings had preclusive effect under Iowa law because they provided for “a fairly
elaborate scheme of notice, subpoenas, presentation of evidence, cross-examination,
decision, and administrative and judicial review”); Kleenwell Biohazard Waste &
Gen. Ecology Consultants, Inc. v. Nelson, 48 F.3d 391, 394–95 (9th Cir. 1995)
(holding that an administrative proceeding had preclusive effect because it was
conducted in accordance with set rules of practice and procedure, it was presided over
by an independent ALJ, the parties were given notice and an opportunity to be heard,
the parties were represented by counsel, briefs were filed, evidentiary objections were
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made, exhibits were admitted into evidence, and direct testimony and cross-
examination were allowed).
In Herrera v. Churchill McGee, LLC, 680 F.3d 539, 548–50 (6th Cir. 2012),
the Sixth Circuit found it “somewhat of a close call” whether decisions of a state
human rights commission were rendered “in a judicial capacity,” given the fact that
(as in Part 15d proceedings) evidence was developed by an agency investigator and
no hearing was held. The court ultimately concluded that the commission’s decision
was preclusive, but did so in part because the claimant “seemingly could have
responded to any evidence submitted by or obtained from” respondent and could seek
“[a]dministrative reconsideration and judicial review” – neither of which was the case
here. Id. at 548–49. Under Herrera’s standard, if allowing preclusion was a close
call, this case would very likely be on the other side of the line.
The Part 15d proceedings resemble “what may be called executive procedure,
that is, unilateral decision by an official on the basis of whatever information he
deemed it appropriate to take into account. Parties did not have a right to present
evidence or argument, and sometimes had no rights of participation at all.”
Restatement (Second) of Judgments § 83, cmt. b. Administrative actions taken
according to such procedures, which were more common in the past, were generally
not accorded preclusive effect. See id. We think the same conclusion is appropriate
here.
We therefore hold that a final agency decision by the USDA resolving a
complaint under 7 C.F.R. Pt. 15d using the administrative procedures currently in
effect does not result in claim preclusion. It may be that if the plaintiff prevails on
the merits, a court will find that he has already received all the compensation he is
entitled to from the Part 15d process, but the administrative proceeding does not
operate as an automatic bar to suit.
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B. Adequacy of ECOA pleadings in Johnson’s complaint
The district court dismissed the ECOA claims against the USDA employees on
the alternative ground that Johnson had not adequately pleaded that they were
“creditors,” as defined by ECOA and applicable regulations. A “creditor” is defined
in ECOA as “any person who regularly extends, renews, or continues credit; any
person who regularly arranges for the extension, renewal, or continuation of credit;
or any assignee of an original creditor who participates in the decision to extend,
renew, or continue credit,” 15 U.S.C. § 1691a(e), and further defined by ECOA’s
implementing regulations to include “a person who, in the ordinary course of
business, regularly participates in a credit decision, including setting the terms of the
credit,” 12 C.F.R. 202.2(l).
We think it can fairly be inferred from their job titles that Gary Cochran,
Hendra Woodfork, Shirley Moore, James G. Culpepper, III, Dennis L. Stephens, and
Linda Baker meet the relevant definitions of “creditor.” See Miller, 688 F.3d at 933
n.4 (holding that in reviewing a motion to dismiss we draw all inferences in favor of
the nonmovant). Each is a Farm Loan Manager, a Farm Loan Officer, or a Farm Loan
Chief. It is plausible to suppose that individuals holding these positions will, in the
ordinary course of business, regularly participate in a credit decision. We also think
that it can be inferred that Linda Newkirk meets the applicable definitions, as she was
the one to provide a letter denying Johnson’s debt settlement applications. The fact
that she denied this debt settlement application indicates that doing so was part of her
job duties, making her “a person who, in the ordinary course of business, regularly
participates in a credit decision.” 12 C.F.R. 202.2(l). We agree with the district court
that the complaint does not contain sufficient allegations to state a plausible claim
that Thomas Brown and M. Terry Johnson, both of whom are employed with the
USDA’s National Appeals Division, are creditors for ECOA purposes.
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We therefore affirm the dismissal of the ECOA claims with respect to Thomas
Brown and M. Terry Johnson, and reverse the dismissal of these claims with respect
to the remaining defendants.
C. Conspiracy claims
Johnson’s conspiracy claims under 42 U.S.C. § 1985(3) were properly
dismissed. The conspiracy is alleged to have been between employees of the
Department of Agriculture. As a result, it is barred under the intracorporate
conspiracy doctrine, which shields agents of a single corporation and employees of
a single government department acting within the scope of their employment from
constituting a conspiracy under § 1985. Meyers v. Starke, 420 F.3d 738, 742 (8th
Cir. 2005); see also Larson ex rel. Larson v. Miller, 76 F.3d 1446, 1456 n.6 (8th Cir.
1996).
D. Bivens claims
Johnson also brought claims for violations of his Fifth Amendment rights under
the Bivens doctrine, which allows suits against federal employees for violating
constitutional rights. See Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388, 397 (1971). The district court dismissed these
claims, holding that any constitutional violation was of the sort that cannot be the
subject of a Bivens suit because “the design of [the] Government program suggests
that Congress has provided what it considers adequate remedial mechanisms for
constitutional violations that may occur in the course of its administration.”
Schweiker v. Chilicky, 487 U.S. 412, 423 (1988).
The problem with the district court’s holding is that the remedial scheme here
– the Part 15d process – was not created at the explicit direction of Congress, but
rather by the USDA through regulation. See 63 Fed. Reg. 62962, 62963 (Nov. 10,
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1998). When a remedial scheme is created entirely by regulation, it does not preclude
a Bivens claim. See Krueger v. Lyng, 927 F.2d 1050, 1055 (8th Cir. 1999);
Carpenter’s Produce v. Arnold, 189 F.3d 686, 689 (8th Cir. 1999). As a result, we
must also reverse the dismissal of the Bivens claims.
III. Conclusion
We affirm the dismissal of Johnson’s ECOA claims against Thomas Brown and
M. Terry Johnson and the dismissal of his conspiracy claims against all the
defendants. We otherwise reverse and remand the case to the district court for further
proceedings consistent with this opinion.
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