Cottrell v. Vilsack ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
JEFFREY D. COTTRELL, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 11-1511 (RMC)
)
TOM VILSACK, Secretary, )
Department of Agriculture, )
)
Defendant. )
_________________________________ )
OPINION
Pro se plaintiff Jeffrey Cottrell alleges that the U.S. Department of Agriculture
(USDA) discriminated against him in violation of the Equal Credit Opportunity Act and the Age
Discrimination in Federal Programs Act, failed to investigate his civil rights complaints in
violation of the Administrative Procedure Act, violated the Privacy Act, and denied him
procedural due process. USDA moves to dismiss because the claims are barred by res judicata
due to multiple prior law suits; because the claims were filed out of time; and because the
Complaint otherwise fails to state a claim. As explained below, the motion to dismiss will be
granted.
I. FACTS
Starting in 1989, Jeffrey Cottrell filed administrative complaints as well as
various federal lawsuits against USDA regarding his attempts to participate in two separate
benefits programs––the Production Flexibility Contract (PFC) program and the Conservation
Reserve Program (CRP). He now sues again, based on the same underlying facts.
1
A. 1989 CRP Claim
In 1989, Mr. Cottrell was 22 years old. He leased and farmed 2 parcels of land,
consisting of more than 538 acres in Coshocton and Knox Counties, Ohio. The land was owned
by his grandmother, Lucille Stuller. Mr. Cottrell had entered into long-term leases for the farms,
with options to purchase. On July 17, 1989, he and his grandmother applied for a ten-year CRP
agreement with USDA.
CRP is an agricultural program created to aid owners and operators of highly
erodible cropland in conserving and improving the soil and water resources of their farms or
ranches. 16 U.S.C. § 3831(a). To implement the program, USDA is authorized to enter into
rental contracts with the owners/operators of eligible land. Id. § 3831(e). Such rental contracts
provide that USDA will pay rent to the owner/operator in exchange for the owner/operator’s
agreement to use the land for purposes that promote conservation such as for grass or pasture.
Id. §§ 3832(a)(1), 3833. To qualify for CRP, an applicant must include (1) a conservation plan
approved by the district in which the lands are located, 7 C.F.R. § 1410.3, and (2) non-owner
operators (like Plaintiff) must provide assurance of control of the land for the duration of the
contract period. Id. § 1410.5.
Six weeks after Mr. Cottrell leased the two parcels, on September 4, 1989, Ms.
Stuller died. She had four children who were heirs to 1,754 acres of land, including the land she
had leased to Mr. Cottrell. While the District Conservationist approved Mr. Cottrell’s
conservation plan on September 5, 1989 (thereby satisfying the first of the prerequisites to
qualify for CRP), on November 14, 1989, the Coshocton County Agricultural Stabilization and
2
Conservation Service Committee (County Committee) 1 sent Mr. Cottrell a letter indicating that
he had not shown that he had control over the land for the full contract period. The County
Committee indicated that approval of his application would be delayed pending consent of the
executor and all heirs to Ms. Stuller’s estate. Mr. Cottrell was not able to obtain the consent of
the heirs.
For twelve years after the death of Ms. Stuller, her heirs litigated the rights to her
land. Mr. Cottrell and his mother took an adversarial position against his aunts and uncle, who
claimed that the leases expired upon Ms. Stuller’s death and that the option rights were then
extinguished. The heirs sought partition of the land. See Mot. to Dismiss [Dkt. 15], Ex. A (2007
Final Decision) at 3.
In the meantime, Mr. Cottrell pursued his CRP application. He appealed the
denial by the County Committee to the State Committee. The State Committee affirmed the
denial on July 19, 1990. Mr. Cottrell then appealed to the Deputy Administrator of the
Agricultural Stabilization and Conservation Service, and on March 3, 1991, the Deputy
Administrator also affirmed the denial of his CRP application. The Deputy Administrator noted
that its decision concluded Mr. Cottrell’s administrative appeal rights.
Before the Deputy Administrator reached a determination of his claim, 2 Mr.
Cottrell filed suit against USDA in the Southern District of Ohio, asserting that USDA’s denial
1
The Agricultural Stabilization Conservation Service is now known as the Farm Service
Agency.
2
At the time, exhaustion of administrative appeals was not required. In 1994, exhaustion
became mandatory. 7 U.S.C. § 6912(e); see Federal Crop Insurance Reform and Department of
Agriculture Reorganization Act of 1994, Pub. L. No. 103-354 (codified mainly at 7 U.S.C.
§ 6991 et seq.).
3
of his CRP application was arbitrary and capricious. The district court denied the claim and
entered judgment in favor of USDA, and the Sixth Circuit affirmed. See Cottrell v. Yuetter, 38
F.3d 1215, 1994 WL 560967 at *1, *3 (6th Cir. Oct. 11, 1994) (Table; Text in Westlaw). The
Sixth Circuit noted:
Cottrell must concede that the specter of a will contest between
heirs apparent looming on the horizon might well lead one to
conclude that there is certainly not satisfactory evidence of
Cottrell’s long-term control of the land, regardless of the actual
outcome of any such will contest.
Id. at *3.
About five years later, Mr. Cottrell filed another case in the Southern District of
Ohio against the USDA. See Cottrell v. Glickman, Civ. No. 2:99-282 (S.D. Ohio, filed March
18, 1999). In that second suit, he alleged breach of contract, claiming that his CRP application
was an offer that USDA accepted when it approved his conservation plan. On July 18, 2000, the
district court dismissed the case for three reasons: (1) the district court lacked jurisdiction, since
jurisdiction rested with the Court of Claims; (2) Mr. Cottrell failed to exhaust administrative
remedies; and (3) res judicata barred the suit since he should have raised the breach of contract
claim in the prior district court case. See Cottrell v. United States, 71 Fed. Cl. 559, 561 (Ct. Cl.
2006) (relying on the case record and describing the 1999 suit). 3
In 2001, the family litigation over rights to Ms. Stuller’s estate finally ended. The
Ohio Supreme Court declined to hear an appeal of a decision by the Ohio Appellate Court. The
Appellate Court had ruled that Mr. Cottrell owned the land he had originally leased from his
3
The district court opinion dismissing this suit was not published.
4
grandmother, since he had exercised his options to purchase. See 2007 Final Decision at 3
(describing Cottrell family litigation in Ohio state courts). 4
Despite winning ownership rights to the two farms, Mr. Cottrell still continued to
litigate. On September 13, 2005, he filed suit against USDA in the U.S. Court of Federal
Claims. See Cottrell v. United States, 71 Fed. Cl. 559 (Ct. Cl. 2006). He alleged that USDA
improperly denied his 1989 CRP application and thus breached a binding contract. The Court of
Claims dismissed Mr. Cottrell’s CRP claim, finding it was barred by the applicable six-year
statute of limitations. Id. at 566.
B. 1996 PFC Claim
In the 2005 Court of Claims suit, Mr. Cottrell also alleged that USDA wrongfully
denied payment to him in 1996 under the Production Flexibility Contract (PFC) program. Id. at
562-63. PFC is an agricultural program designed to “support farming certainty and flexibility
while ensuring continued compliance with farm conservation and wetland protection
requirements.” 7 U.S.C. § 7201(b)(1). Under this program, USDA agrees make an annual
payment to owners or producers in exchange for compliance with certain planting, conservation,
and land use restrictions. Id. § 7211(a). As with CRP, in order to participate in the PFC
program, a non-owner operator must be able to demonstrate that he will maintain control over
the land for the duration of the PFC contract. Id. § 7211(b).
Mr. Cottrell’s PFC claim also concerns the two farms he leased from his
grandmother. On December 1, 1994, Mr. Cottrell assigned one of the leases to his mother,
4
During the years of family litigation, certain federal payments had been held in escrow. When
the litigation ended, the state court ordered that the escrowed monies be distributed to the
appropriate land owners.
5
Nancy Cottrell, in exchange for debt forgiveness. Cottrell, 71 Fed. Cl. at 562. On July 12, 1996,
Mr. Cottrell and his mother applied to enroll the two properties in the PFC program. The County
Committee determined that it could not issue payment because of the litigation regarding Ms.
Stuller’s estate. Further, Mr. Cottrell’s uncle, James Stuller, had raised questions regarding
whether Mr. Cottrell had an interest in the leases at all, since one of them had expired and the
other had been assigned to Nancy Cottrell. Id.
On January 8, 2001, the County Committee reiterated that it could not issue
payment unless Mr. Cottrell provided (1) an agreement signed by all the parties with a claim to
the land or (2) a final court order. Id. at 562-63. Mr. Cottrell appealed, and on March 26, 2001,
the National Appeals Division denied the appeal. Id. at 563. When the family estate litigation
ended, Mr. Cottrell sent the final court determination to the County Committee. The County
Committee responded by letter on August 15, 2001, indicating that it would consider Mr. Cottrell
as owner of the property for the 1996 crop year, and Nancy Cottrell as tenant. Id. Because the
PFC application incorrectly designated Nancy Cottrell as the owner, the County Committee
denied the application; suggested that Mr. Cottrell submit a revised application; and noted that
Mr. Cottrell had 30 days to appeal to the National Appeals Division. Mr. Cottrell did not appeal.
Instead, he alleges that on September 17, 2001, the County Executive Director told him and his
mother that if they did not agree to a revised PFC providing for all payment to Nancy Cottrell, no
monies would be paid. Mr. Cottrell asserts that he signed the revised PFC under duress. As a
result, Mr. Cottrell submitted an amended application, leading the Committee to make all PFC
payments to his mother. Id. at 568.
6
In the 2005 Court of Claims suit, Mr. Cottrell also alleged that USDA wrongfully
denied payment for the 1996 PFC program. The Court of Claims dismissed the PFC claim,
finding that Mr. Cottrell failed to exhaust administrative remedies. Id.
C. 2006 Administrative Complaint
In 2006, Mr. Cottrell filed yet another claim, this time an administrative
complaint with USDA Office of Adjudication and Compliance (OAC). Mr. Cottrell alleged that
USDA discriminated against him in favor of older farmers and retaliated against him when he
complained. As a basis for his claims of discrimination and reprisal, Mr. Cottrell alleged:
(1) In 1999, the Farm Service Agency (FSA) 5 refused to provide
an accounting of funds under Mr. Cottrell’s CRP contract;
(2) From 1995-2000, FSA failed to properly reconstitute land he
leased and was later held to own, resulting in the nonpayment of
benefits;
(3) From 1995-2001, FSA improperly handled his loan file,
causing unfavorable decisions on his program applications;
(4) On January 1, 2001, FSA informed Mr. Cottrell that he was
“being removed as a producer/operator” without prior notice;
(5) In September 2001, FSA coerced him into giving up his right to
mediation on a Coshocton County FSA decision; and
(6) On September 5, 2001, FSA did not honor his 1995 crop
acreage report, thereby denying him payment for the 1995 crop
year.
2007 Final Decision at 1-2.
OAC described three events that likely were the genesis of Mr. Cottrell’s age
discrimination claim against USDA. Id. at 2 n.1. First, he took a youth loan in 1984 when he
5
FSA was formerly known as Agricultural Stabilization Conservation Service.
7
was just 16. He did not repay the loan according to the schedule, and instead the loan was
consolidated with two others. He used the loan to purchase cattle, which served as collateral on
the loan, and then in 1992 or 1993, he sold or traded the cattle for farm equipment. He failed to
notify FSA that he had conveyed the cattle and thus that FSA had lost the collateral on the loan.
An FSA County Executive Director requested an investigation by the Office of Inspector
General, but the Inspector General did not pursue it. Id. Thereafter, Mr. Cottrell was not
approved for any more FSA loans. In 1994, USDA charged off the balance owed on the 1984
loan.
Second, when Mr. Cottrell was 18 years old (sometime around 1984), he sought
to purchase inventory property, but his bid was rejected and the property was sold to an older
farmer. At the time, the Coshocton County Executive Director said to Mr. Cottrell’s father, “I
know how badly the boy wanted the farm.” This comment almost caused a fist fight between
Mr. Cottrell and the Director. Id.
Third, in 1994 the Knox County Executive Director also reported to the Inspector
General regarding another unspecified transaction involving Mr. Cottrell. The Inspector General
again declined to proceed. Id.
On December 14, 2007, OAC entered a Final Decision finding that Mr. Cottrell’s
age discrimination and retaliation claims were untimely. Id. at 8. The complaint was based on
events that occurred in 1999–2001. Administrative claims alleging discrimination in USDA
programs must be filed within 180 days after the alleged act of discrimination, see 7 C.F.R. §
15.6, but Mr. Cottrell did not file his OAC complaint until 2006, five years after the last alleged
act of discrimination.
8
OAC also found that, if treated as timely, Mr. Cottrell’s claim lacked merit. OAC
held that age did not play a part in USDA decision-making regarding the CRP contract:
Consistently for twelve (12) years, the Coshocton County FSA
Office and County Committee followed the advice of Agency
Counsel, and relied on regulations, that they could do no more than
make no decisions with respect to [Ms. Stuller’s] estate lands
under the CRP, pending the outcome of the Cottrell family
litigation, or unless all potential heirs agreed. Since [Mr. Cottrell]
was the only member of his generation involved in the land dispute
litigation, it is not surprising that [he] held a perception that
everyone who did not affirmatively support his position, was
against him. . . . In fact, it was [Mr. Cottrell] who injected “age”
into the County program decisions.
2007 Final Decision at 9. Further, OAC held that Mr. Cottrell did not establish a causal
connection between the alleged retaliation and his various lawsuits against USDA. Id. at 11-12.
D. This Lawsuit
Mr. Cottrell filed this suit against USDA in 2011, alleging the following claims:
(1) discrimination in violation of the Equal Credit Opportunity Act
(ECOA), 15 U.S.C. § 1691 et seq.;
(2) discrimination in violation of the Age Discrimination in Federal
Programs Act (ADFPA), 42 U.S.C. § 6101 et seq.;
(3) violation of the Administrative Procedure Act, 5 U.S.C. §§ 553,
701B706, due to USDA’s failure to investigate his civil rights claims;
(4) violation of the Privacy Act, 5 U.S.C. § 552a; and
(5) denial of due process under the Fifth Amendment.
Am. Compl. [Dkt. 13] at 40-42.
In support of these claims, Mr. Cottrell makes 136 rambling allegations of fact.
See id. ¶¶ 5-1–5-136. Among those allegations, Mr. Cottrell complains about USDA’s 1989
refusal to approve his CRP contract and USDA’s 2001 denial of his 1996 PFC application. See
9
id. ¶¶ 5-54–5-61 (USDA would not approve the CRP application during the estate probate
action); id. ¶¶ 5-104–105 (USDA denied the PFC application because an amended application
needed to be filed). He also alleges that in 1987 USDA denied his bid for an inventory farm and
referred to him as a “boy” even though he was an adult. Id. ¶ 5-23–25; see also 2007 Final
Decision at 2 n.1 (referring to this same incident but stating that it occurred in 1985).
USDA moves to dismiss; Mr. Cottrell opposes. As explained below, the motion
will be granted.
II. LEGAL STANDARD
USDA contends that the Complaint should be dismissed based on res judicata,
applicable statutes of limitations, and failure to state a claim. 6 A motion to dismiss for failure to
state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a
complaint on its face. Fed. R. Civ. P. 12(b)(6). A complaint must be sufficient “to give a
defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Although a complaint
does not need detailed factual allegations, a plaintiff=s obligation to provide the grounds of his
entitlement to relief “requires more than labels and conclusions” and the facts alleged “must be
enough to raise a right to relief above the speculative level.” Id. (internal citations omitted). In
deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint,
documents attached to the complaint as exhibits or incorporated by reference, and matters about
6
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and not a motion to
dismiss under Rule 12(b)(1), is the proper vehicle for USDA’s assertion, as res judicata is not a
jurisdictional bar to suit. Smalls v. United States, 471 F.3d 186, 189 (D.C. Cir. 2006). Further,
as a general rule, time limits for suing the government are presumptively subject to equitable
tolling and therefore nonjurisdictional. Menominee Indian Tribe v. United States, 614 F.3d 519,
525 (D.C. Cir. 2010).
10
which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059
(D.C. Cir. 2007). To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim for relief that is “plausible on its face.” Twombly, 550
U.S. at 570. When a plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged, then the claim has facial
plausibility. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
A court must treat the complaint=s factual allegations as true, “even if doubtful in
fact.” Twombly, 550 U.S. at 555. But a court need not accept as true legal conclusions set forth
in a complaint. Iqbal, 129 S. Ct. at 1949. “While legal conclusions can provide the framework
of a complaint, they must be supported by factual allegations. When there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id. at 1950.
III. ANALYSIS
A. Res Judicata
Under the doctrine of res judicata, also known as claim preclusion, “a judgment
on the merits in a prior suit bars a second suit involving identical parties or their privies based on
the same cause of action.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.5 (1979); Apotex
Inc. v. FDA, 393 F.3d 210, 217 (D.C. Cir. 2004). Res judicata advances the “purpose for which
civil courts have been established, the conclusive resolution of disputes within their
jurisdictions.” Montana v. United States, 440 U.S. 147, 153 (1979). “To preclude parties from
contesting matters that they have had a full and fair opportunity to litigate protects their
adversaries from the expense and vexation attending multiple lawsuits, conserves judicial
resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent
11
decisions.” Montana, 440 U.S. at 153-54. In short, the doctrine embodies the principle “that a
party who once has had a chance to litigate a claim before an appropriate tribunal usually ought
not to have another chance to do so.” SBC Comms. Inc. v. FCC, 407 F.3d 1223, 1229 (D.C. Cir.
2005) (quoting the Restatement (Second) of Judgments ch. 1 at 6 (1982)).
In sum, the four res judicata elements traditionally applied by this Court are:
(1) an identity of parties; (2) a judgment from a court of competent jurisdiction; (3) a final
judgment on the merits; and (4) an identity of the cause of action. See, e.g., Am. Forest Res.
Council v. Shea, 172 F. Supp. 2d 24, 29 (D.D.C. 2001); see also U.S. Indus., Inc. v. Blake
Constr. Co., 765 F.2d 195, 205 (D.C. Cir. 1985). A plaintiff is required to present in a single suit
all claims for relief that he may have arising out of the same transaction or occurrence. U.S.
Indus., 765 F.2d at 205 (adopting pragmatic, transactional approach set forth in Restatement
(Second) of Judgments § 23(2)).
Mr. Cottrell’s claim regarding his 1989 CRP application already has been litigated
on the merits. The Southern District of Ohio granted summary judgment to USDA, finding that
the denial of the 1989 CRP claim was not arbitrary and capricious, and the Sixth Circuit affirmed
in 1994. See Cottrell, 1994 WL 560967. Due to res judicata, Mr. Cottrell’s second suit in the
Southern District of Ohio was barred. See Cottrell, 71 Fed. Cl. at 561. Mr. Cottrell attempted to
litigate his 1989 CRP claim (again) and his 1996 PFC claim in the Court of Claims in 2005. The
Court of Claims determined that the CRP claim was barred by the statute of limitations and that
the PFC claim was precluded because Mr. Cottrel failed to exhaust his administrative remedies.
Id. at 566, 568. Mr. Cottrell argues that he never before brought an age discrimination claim or
an equal credit opportunity claim under ADFPA or ECOA, respectively. But Mr. Cottrell was
required to bring in a single suit all claims arising out of the same transaction or occurrence, in
12
this case all claims arising from the facts surrounding the 1989 CRP claim. See U.S. Indus., 765
F.2d at 205. He had a chance litigate all claims arising from the facts surrounding the 1989 CRP
application and he is not entitled to yet another chance to do so. See SBC Comms, 407 F.3d at
1229. Therefore, all of Mr. Cottrell’s claims arising from the facts surrounding his 1989 CRP
application are barred by res judicata.
B. Statute of Limitations
The following claims are barred by the statutes of limitations: (1) claim regarding
the 1989 CRP application; (2) claim regarding the 1996 PFC application; (3) claim regarding the
1987 denial of the bid for an inventory farm.
A claim under the Equal Credit Opportunity Act must be filed within two years
after the alleged discrimination occurred. See Palmer v. Homecomings Financial LLC, 677 F.
Supp. 2d 233, 239 (D.D.C. 2010) (citing prior version of 15 U.S.C. § 1691e(f)). 7 Mr. Cottrell
here alleges that USDA denied him access to credit due to his young age, because of actions
taken by USDA between 1987 and 2001. He filed this suit on August 19, 2011, ten years after
the last of these events. Thus, the statute of limitations had expired, and the Amended Complaint
was filed too late. 8
7
The statute of limitations was two years at the applicable time. Congress has since amended
ECOA and the statute of limitations is now five years. 15 U.S.C. § 1691e(f) (2010 Amendment).
Mr. Cottrell’s claims are not timely under the old or the new statute.
8
In 1998, Congress passed legislation reviving ECOA claims that were filed with USDA
between 1981 and 1996 but that had been barred by the two year statute of limitations. Section
741 of the 1999 Supplemental Appropriations Act created a window where farmers could choose
to file their claims in federal court or with the USDA, and (if USDA denied the claim) farmers
could then seek review under section 741. See Agriculture, Rural Development, Food and Drug
Administration and Related Agencies Appropriation Act, Pub. L. No. 105-277, Div. A, § 101(a)
[referred to as “Section 741”], 112 Stat 2681-30 (1998), reprinted in 7 U.S.C. § 2279 (Notes). A
13
Unless another statute prescribes otherwise, a suit challenging a final agency
action under the APA must be commenced within six years of the time the claim accrues. Harris
v. FAA, 353 F.3d 1006, 1009-10 (D.C. Cir. 2004) (applying general limitations period set forth in
28 U.S.C. § 2401, which governs suits against the United States). An APA right of action
accrues on the date of final agency action. Id. at 1010. The last USDA action complained of
here occurred in 2001 and this suit was not filed until 2011; thus any APA claim is barred
because more than six years passed. 9
Mr. Cottrell believed at the relevant times that he was wronged by USDA’s denial
of his participation in various programs, as evidenced by his many persistent complaints over the
past twenty years. He cannot assert that he did not know of his claims, and he has not provided
any evidence that USDA somehow concealed its actions. Accordingly, equitable tolling is not
available, and the ECOA and APA claims are barred.
C. Age Discrimination In Federal Programs
A claim under ADFPA––alleging age discrimination in federal programs––simply
does not apply to programs, like those at issue here, that are conducted directly by a federal
agency using its own budget. Maloney v. Social Security Admin., 517 F.3d 70, 75-76 (2d Cir.
prerequisite is that a plaintiff must submit a request for treatment under Section 741. See Benoit
v. USDA, 608 F.3d 17, 19-20 (D.C. Cir. 2010). Mr. Cottrell never made a Section 741 request.
9
It is not clear, exactly, which USDA actions Mr. Cottrell alleges violated the APA. It appears
he intends to claim that USDA denied access to credit based on his age. The APA, however,
provides for judicial review only where there is no other adequate remedy. 5 U.S.C. § 704;
Garcia v. Vilsack, 563 F.3d 519, 523 (D.C. Cir. 2009); Love v. Connor, 525 F. Supp. 2d 155, 158
(D.D.C. 2005). “[W]here a victim of discrimination can sue directly to remedy her injury, no
action will lie under the APA for failure to adequately investigate, monitor, or police that
discrimination.” Love, 525 F. Supp. 2d at 160. Mr. Cottrell’s claims regarding denial of credit
are adequately covered by ECOA. Thus for this reason as well, Mr. Cottrell’s APA claims are
not actionable.
14
2008); cf. Williams v. Glickman, 936 F. Supp. 1, 5-6 (D.D.C. 1996) (Title VI of the Civil Rights
Act of 1964, 42 U.S.C. § 2000d et seq., does not apply to programs conducted by federal
agencies). Accordingly, Mr. Cottrell’s ADFPA claim against USDA must be dismissed.
D. Privacy Act
Mr. Cottrell also alleges that USDA violated the Privacy Act, 5 U.S.C. § 552a,
due to its failure to maintain a “Master File” regarding the CRP contract. Am. Compl. at 41;
Opp. [Dkt. 20] at 39-41, 43. Mr. Cottrell seeks money damages for allegedly intentional
wrongful conduct under 5 U.S.C. § 552a(g)(4). The situation regarding the Master File is more
fully explained in a letter from USDA to Mr. Cottrell dated October 6, 2010. See Am. Compl.,
Ex. 117 [Dkt. 13-4] at 68-69 (Oct. 6, 2010 Letter). The October 6 letter responded to Mr.
Cottrell’s request for the release of the Master File regarding the 1989 CRP application and
explained why the request was denied as follows:
In this case, the CRP contract file that was created when you
submitted the 1989 application existed only in paper format. The
automated Master CRP Contract File [the format you requested]
included only CRP contract information for approved contracts.
Your 1989 CRP application was not accepted because producer
and land eligibility requirements in effect for CRP in 1989 were
not met. As your 1989 contract was not approved, the Coshocton
County FSA Office did not add the contract information in the
automated Master CRP Contract File.
Id. While Mr. Cottrell does not specify the nature of his Privacy Act claim, it appears to arise
from his request for the automated Master File regarding the 1989 CRP application and the
agency’s response that the information was not in the automated file.
The Privacy Act requires an agency to “maintain all records which are used by the
agency in making any determination about any individual with such accuracy . . . and
completeness as is reasonably necessary to assure fairness to the individual in the
15
determination.” 5 U.S.C. § 552a(e)(5). The Privacy Act does not require that USDA maintain
computerized records of unapproved CRP applications. Mr. Cottrell’s complaint that certain
records were not held in an automated Master File does not state a claim under the Privacy Act. 10
E. Fifth Amendment Due Process
Mr. Cottrell also alleges that USDA violated his right to due process under the
Fifth Amendment because “his several administrative civil rights complaints . . . had been
dismissed thus denying him opportunity to appeal the agency’s decision.” Am. Compl. at 40-41.
The fundamental requirement of due process is the opportunity to be heard “at a meaningful time
in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). To make out a claim
for denial of due process, a plaintiff must identify the process that was due but denied. Doe v.
District of Columbia, 93 F.3d 861, 869-70 (D.C. Cir. 1996). Mr. Cottrell fails to point to any
particular instance where he was denied an opportunity to be heard on any particular issue.
Further, he was afforded substantial process, as demonstrated by his many lawsuits. His due
process claim will be dismissed.
F. Additional Plaintiffs and Motion to File Second Amended Complaint
1. Lloyd Morrison, Jr.
When Mr. Cottrell filed an Amended Complaint, he added Lloyd
Morrison, Jr. as an additional pro se plaintiff. see Am. Compl. [Dkt. 13]. Mr. Morrison asserts
10
USDA contends that Mr. Cottrell’s Privacy Act claim is barred by the applicable two-year
statute of limitations under 5 U.S.C. § 552a(g)(5) because “he was under an obligation to review
his records and request amendment within two years” since he should have known the records
were inaccurate. See Reply [Dkt. 23] at 4 (citing Bernard v. Dep’t of Justice, 362 F. Supp. 2d
272, 279 (D.D.C. 2005)). However, Mr. Cottrell does not claim that the Master File was
inaccurate and should be amended. He appears to object to USDA’s maintenance of
nonapproved CRP applications in paper files. As explained in the text above, this objection does
not state a Privacy Act claim.
16
that USDA discriminated against him based on age when it denied him credit in 1988 and again
in 1992. See Opp., Att. 2 (Morrison Aff.). 11 Thus, Mr. Morrison attempts to state an ECOA
claim. As with Mr. Cottrell’s ECOA claim, Mr. Morrison’s ECOA claim must be dismissed as
untimely. See 15 U.S.C. § 1691e(f) (two-year statute of limitations applies to ECOA claims).
2. Michael A. Cottrell
Mr. Cottrell also filed a motion for leave to file a Second Amended Complaint.
The proposed Second Amended Complaint would add a new plaintiff, Mr. Cottrell’s brother,
Michael A. Cottrell. See Second Am. Compl. [Dkt. 19-1] ¶¶ 6-31, 6-35, 8-1–8-18. Michael
Cottrell asserts that the USDA discriminated against him in 1988 and 1994 when it denied his
applications to rent inventory farm property and that USDA failed to maintain the “Master File”
of his 1989 CRP contract. As with Mr. Morrison’s claims, Michael Cottrell’s claims are
improperly joined and he may not be added to this case. See Fed. R. Civ. P. 20. Moreover, to
add Michael Cottrell’s claims would be futile. See Howell v. Gray, 843 F. Supp. 2d 49, 54
(D.D.C. 2012) (a motion to amend may be denied if to do so would be futile); Fed. R. Civ. P.
15(a)(2)). If the amendment were allowed, Michael Cottrell’s claims would have to be dismissed
for the same reasons that Mr. Cottrell’s claims will be dismissed.
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Mr. Morrison’s claims are separate and distinct from Mr. Cottrell’s claims and are not properly
joined here. See Fed. R. Civ. P. 20 (persons may be joined as plaintiffs in one action if they
assert a claim arising out of the same transaction or occurrence or if they assert common
questions of law or fact). The joining of Mr. Marshall cannot be construed as a request to bring a
class action, as pro se plaintiffs may not bring class actions. Herrera-Venegas v. Sanchez-
Rivera, 681 F.2d 41, 42 (1st Cir. 1982) (“[F]ederal courts have consistently rejected attempts at
third-party lay representation.”).
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3. Additional Factual Allegations
While the proposed Second Amended Complaint does not incorporate any new
legal claims, it does include additional factual allegations. Even so, the new allegations do not
save the case from summary judgment. For example, the additional allegations state that: (1) the
1989 CRP application was not added to the Master File, see Second Am. Compl. ¶¶ 6-57, 6-64,
6-165; (2) government agencies “intentionally concealed” Mr. Cottrell’s rights, see id. ¶¶ 6-76–
6-77, 6-112, 6-124; and (3) USDA “fraudulently” paid benefits to older farmers, see id. ¶¶ 6-97.
These additional alleged facts do not alter the analysis set forth in this Opinion. See Howell, 843
F. Supp. 2d at 54; Fed. R. Civ. P. 15(a)(2). Accordingly, the motion for leave to file a Second
Amended Compliant will be denied as futile.
IV. CONCLUSION
For the reasons stated above, the Secretary’s motion to dismiss [Dkt. 15] will be
granted, the motion for leave to file a Second Amended Complaint [Dkt. 19] will be denied, and
this case will be dismissed. A memorializing Order accompanies this Opinion.
Date: January 4, 2013
/s/
ROSEMARY M. COLLYER
United States District Judge
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