Opinion
No. 4:01CV3025
April 18, 2001.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS
In their Amended Petition and Request for Temporary Injunction, filing 2, the plaintiffs LaVerne H. Meints and Christopher L. Meints seek "Redress of Grievances and Punitive Damages" as a result of the discriminatory actions, including acts of genocide, allegedly engaged in by the defendants, the United States Department of Agriculture, the Farm Service Agency (hereinafter FSA), and the Gage County FSA Office. The plaintiffs also seek a temporary injunction barring the defendants from selling or renting certain farm property. Apparently, the plaintiff LaVerne H. Meints was the prior owner of the farmland at issue. The defendant FSA foreclosed on this land and subsequently rented it to the plaintiff Christopher L. Meints for a five-year term. This five-year term has expired, and the FSA is now in the process of selling the land to qualified buyers.
The case is presently before me on the Defendant's [sic] Motion to Dismiss or in the Alternative, Motion for Summary Judgment, filing 4, and the plaintiffs' Request for Temporary Injunction, filing 2. In its motion, the defendants argue, inter alia, that because the plaintiffs have failed to exhaust their administrative remedies, this court lacks jurisdiction over their discrimination claim. At the April 13, 2001, hearing on the plaintiffs' request for a temporary injunction, the sole issue addressed was that of exhaustion. After reviewing the plaintiffs' amended petition, as well as the arguments presented at the hearing, I find that the petition must be dismissed for failure to exhaust administrative remedies.
The defendants also argue that the plaintiffs' amended complaint should be dismissed because (1) it does not state any jurisdictional basis for the action, and (2) it does not state any legal basis for the plaintiffs' requests for relief.
I. Standard of Review
The defendants have moved to dismiss the plaintiffs' complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) permits dismissal based on a "lack of jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1). In deciding a motion under Rule 12(b)(1), courts must distinguish between "facial attacks" and "factual attacks." Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990) (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980), cert. denied, 449 U.S. 953 (1980); Mortensen v. First Fed. Sav. Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). With respect to facial challenges, "[a]court restricts itself to the face of the pleadings . . . and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6)." Id. (citations omitted). However, in evaluating factual attacks, a court may "consider matters outside the pleadings, . . .and the non-moving party does not have the benefit of 12(b)(6) safeguards." Id. (citations omitted). A court's election to consider such matters "does not convert the 12(b)(1) motion to dismiss into a motion for summary judgment." Deuser v. Vecera, 139 F.3d 1190, 1192 n. 3 (8th Cir. 1998), cert. denied, 513 U.S. 1084 (1995) (citing Osborn, 918 F.2d at 729).
In the alternative, the defendants move for summary judgment in accordance with Rule 56. Since I have determined that dismissal is appropriate pursuant to Rule 12(b)(6) , see infra Part II, I shall not set forth the standards governing summary judgment motions.
Pursuant to Rule 12(b)(6), "a motion to dismiss a complaint should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986) (citation omitted); see Hishon v. King Spalding, 467 U.S. 69, 73 (1984). In resolving such motions, all well-pleaded allegations in the complaint must be taken as true. Morton, 793 F.2d at 187. Furthermore, the complaint and all reasonable inferences arising therefrom must be weighed in favor of the plaintiff. Id.
II. Analysis
The defendants contend, inter alia, that because the plaintiffs have failed to exhaust their administrative remedies, their amended petition should be dismissed. Exhaustion may be either mandated by statute or judicially created and imposed. See, e.g., Bastek v. Federal Crop Ins. Corp., 145 F.3d 90, 94 (2d Cir. 1998), cert. denied, 525 U.S. 1016 (1998). According to the United States Supreme Court: "Where Congress specifically mandates, exhaustion is required. But where Congress has not clearly required exhaustion, sound judicial discretion governs." McCarthy v. Madigan, 503 U.S. 140, 144 (1992 (internal citations omitted); see also Bastek, 145 F.3d at 94 ("Statutory exhaustion requirements are mandatory, and courts are not free to dispense with them. Common law (or `judicial') exhaustion doctrine, in contrast, recognizes judicial discretion to employ a broad array of exceptions that allow a plaintiff to bring his case in district court despite his abandonment of the administrative review process.").
See supra note 1 for a discussion of the defendants' other grounds for dismissal.
With respect to suits against the Department of Agriculture and its agencies, Congress has specifically mandated the exhaustion of administrative remedies in 7 U.S.C. § 6912(e), which provides as follows:
Notwithstanding any other provision of law, a person shall exhaust all administrative appeal procedures established by the Secretary or required by law before the person may bring an action in a court of competent jurisdiction against-
(1) the Secretary;
(2) The Department; or
(3) an agency, office, officer, or employee of the Department.7 U.S.C. § 6912(e). As one district court has recognized in interpreting this provision, "[i]t is hard to imagine more direct and explicit language requiring that a plaintiff suing the Department of Agriculture, its agencies, or employees, must first turn to any administrative avenues before beginning a lawsuit . . . ." Gleichman v. United States Dep't of Agric., 896 F. Supp. 42, 44 (D.Me. 1995). The Second Circuit has also recognized that "[t]here can be little doubt that Congress's intent, in enacting this statute, was to require plaintiffs to exhaust all administrative remedies before bringing suit in federal court." Bastek, 145 F.3d at 95.
According to the defendants, the plaintiffs have failed to exhaust the administrative remedies found at 7 C.F.R. Part 15. In their brief, the defendants allege that "[n]o complaint of `discrimination' has been filed by either plaintiff with the United States Department of Agriculture." See Memorandum in Support of Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment at 7. This appears to be true with respect to the plaintiff Christopher L. Meints. The plaintiffs' amended petition does not include any allegations whatsoever relating to exhaustion. Nor was there anything presented at the temporary injunction hearing suggesting that Christopher Meints has pursued his discrimination claim administratively. Accordingly, there is no basis for me to infer that the plaintiff Christopher Meints has exhausted the administrative remedies found at 7 C.F.R. Part 15, as required by 7 U.S.C. § 6912(e).
Part 15 pertains to discrimination in federally-assisted programs of the Department of Agriculture.
With respect to the plaintiff LaVerne H. Meints, however, there was evidence presented at the April 13, 2001, hearing relating to exhaustion. LaVerne indicated that he has filed an administrative claim for damages under the Federal Tort Claims Act (hereinafter FTCA), based on alleged acts of discrimination on the part of the United States Department of Agriculture, the Consolidated Farm Service Agency, and the Farm Service Agency. In order to maintain a lawsuit against the United States under the Federal Tort Claims Act, a plaintiff must comply with the requirements of 28 U.S.C. § 2675(a), which provides as follows:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death 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, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.28 U.S.C. § 2675(a) (emphasis supplied). During the temporary injunction hearing, LaVerne admitted that his Notice of Administrative Claim is dated October 20, 2000. Apparently, there has been no administrative action taken with respect to LaVerne's FTCA claim. However, since six months have not yet passed since the claim was filed, LaVerne cannot deem the agency's failure to act as a final denial of his discrimination claim, and he cannot rely on this Notice as evidence of exhaustion. Accordingly, in light of the absence of allegations regarding exhaustion in the plaintiffs' amended petition, there appears to be no basis for me to infer that the plaintiff LaVerne Meints has exhausted his administrative remedies as required by 7 U.S.C. § 6912(e).
Thus, the final question remaining is whether the plaintiffs' amended petition should be dismissed pursuant to Rule 12(b)(1), for lack of subject matter jurisdiction, or Rule 12(b)(6), for failure to state a claim upon which relief can be granted. In their brief, the defendants recognize that federal courts have disagreed as to whether a plaintiff's failure to satisfy § 6912's exhaustion requirement divests federal courts of jurisdiction, or whether the failure to exhaust is an affirmative defense subjecting the plaintiff's petition to a Rule 12(b)(6) motion. Compare Gilmer-Glenville Ltd. Partnership v. Farmers Home Admin., 102 F. Supp.2d 791, 794 (N.D.Ohio. 2000) ("[T]he failure to exhaust administrative remedies [as required by 7 U.S.C. § 6912 (e)] is not an affirmative defense, but rather a jurisdictional requirement to filing suit in federal court. When Congress establishes an exhaustion requirement in a particular statute, the requirement is jurisdictional." (citation omitted)), and Utah Shared Access Alliance v. Wagner, 98 F. Supp.2d 1323, 1333 (D.Utah 2000) ("Plaintiffs' failure to exhaust existing administrative remedies [pursuant to 7 U.S.C. § 6912(e)] deprives this court of competent subject matter jurisdiction."); and Calhoun v. United States Dep't of Agric. Farm Service Agency, 920 F. Supp. 696, 702 (N.D.Miss. 1996) ("The plaintiff has failed to exhaust his administrative remedies [as required by 7 U.S.C. § 6912 (e)]. The exhaustion of his administrative remedies in this case is a statutorily-required prerequisite to this court's exercise of jurisdiction in this matter."); and Gleichman, 896 F. Supp. at 44 n. 2 (citing a Fifth Circuit decision for the proposition that "`[w]hile courts may exercise discretion in applying the judicially created doctrine of exhaustion, such discretion is severely limited with respect to a statutory exhaustion requirement because failure to exhaust deprives courts of jurisdiction.'" (quoting Information Resources, Inc. v. United States, 950 F.2d 1122, 1126 (5th Cir. 1992)), with In re Cottrell, 213 B.R. 33, 37 (M.D.Ala. 1997) (analogizing § 6912(e)'s exhaustion requirement to the exhaustion requirement of Title VII, and noting that in the context of Title VII "[a] claim that does not meet the requirement still fails, but under Rule 12(b)(6), for failure to state a claim, and not Rule 12(b)(1), for lack of jurisdiction."). Although the Eighth Circuit has not directly addressed whether § 6912(e)'s exhaustion requirement is jurisdictional in nature, the case of Chelette v. Harris does provide some guidance in distinguishing "between jurisdictional prerequisites and mere codifications of administrative exhaustion requirements." See Chelette v. Harris, 229 F.3d 684, 686-87 (8th Cir. 2000), cert. denied, 121 S.Ct. 1106 (2001). In Chelette, the Eighth Circuit recognized that "a plaintiff's failure to fulfill a statutory requirement does not necessarily deprive the federal courts of subject matter jurisdiction." Id. at 686. According to the court:
In Weinberger v. Salfi, the Supreme Court distinguished between provisions that merely codify the requirement that administrative remedies must be exhausted and those that impose jurisdictional requirements. The latter must contain "sweeping and direct" statutory language indicating that there is no federal jurisdiction prior to exhaustion, or the exhaustion requirement is treated as an element of the underlying claim. . . . An administrative exhaustion requirement is jurisdictional only if it goes beyond the language necessary to codify an exhaustion requirement.Id. at 687 (citations omitted). The court then went on to conclude that the language of 42 U.S.C. § 1997e(a), which requires prisoners to exhaust administrative remedies before bringing an action challenging prison conditions, was not the sort of "sweeping and direct" language that would impose a jurisdictional requirement: "[r]ather, the language `[n]o action shall be brought . . . until such administrative remedies as are available are exhausted' governs the timing of the action, indicating `merely that only those actions shall be brought in which administrative remedies have been exhausted.'" Id. (citations omitted). Likewise, in this case, the language of § 6912(e) seems to govern the timing of actions brought in federal courts against certain governmental entities and individuals. See 7 U.S.C. § 6912(e). Thus, based on Chelette analysis, § 6912(e) appears to be merely a codification of the exhaustion doctrine, as opposed to a jurisdictional requirement. Accordingly, the defendants' motion to dismiss will be granted pursuant to Rule 12(b)(6), for failure to exhaust administrative remedies as required by 7 U.S.C. § 6912 (e).
IT IS ORDERED that the Defendant's [sic] Motion to Dismiss or in the Alternative, Motion for Summary Judgment, filing 4, is granted.
IT IS FURTHER ORDERED that the plaintiffs' Amended Petition, filing 2, is dismissed without prejudice, and the plaintiffs' Request for Temporary Injunction, filing 2, is denied.
JUDGMENT
In accordance with the Memorandum and Order on Defendants' Motion to Dismiss,
IT IS ORDERED that judgment be entered for the defendants and against the plaintiffs.