                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 11-1271


EDDIE WISE; DOROTHY MONROE-WISE,

                  Plaintiffs – Appellants,

           and

ALL PLAINTIFFS,

                  Plaintiff,

           v.

TOM VILSACK, Secretary, U.S. Department of Agriculture,

                  Defendant – Appellee.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:10-cv-00197-BO)


Argued:   September 19, 2012              Decided:   November 1, 2012


Before GREGORY, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Dwight E. Jefferson, COATS, ROSE, YALE, RYMAN & LEE, PC,
Houston, Texas, for Appellants.     Neal Fowler, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON   BRIEF:   Thomas   G.   Walker,   United  States   Attorney,
Jennifer May-Parker, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Appellants Eddie and Dorothy Wise (“the Wises”) appeal the

district court’s dismissal of their Equal Credit Opportunity Act

(“ECOA”), 15 U.S.C. § 1691 et seq. discrimination claim under

Federal Rule of Civil Procedure 12(b)(6).                          Because Appellants

failed     to   plead       any   facts    comparing      their    treatment         to   the

treatment       of    non-minority        applicants,     we    affirm     the      district

court’s dismissal.


                                             I.

      On    October         19,   2000,    nine       African-American        and    female

farmers brought a class action suit in the District Court for

the   District         of    Columbia      alleging      that     the    United      States

Department       of    Agriculture        (“USDA”)      had    discriminated        against

them on the basis of sex and race by denying access to credit

and   other          benefits.         Plaintiffs        brought     various        claims,

including the ECOA discrimination claim currently before this

Court.     In 2003, the District Court for the District of Columbia

stayed     the        entire      action     pending      resolution        of      related

litigation.           In 2007, the court denied Plaintiffs’ motion to

certify a class, and transferred venue to the Eastern District

of North Carolina.             In 2010, the district court lifted the stay

and   severed        the    distinct      discrimination        claims   of    the    eight

remaining       plaintiffs,       including       the   Wises’     claim    before        this



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Court.     The Wises did not seek leave to amend their complaint

after severance, nor after the district court’s grant of the

motion to dismiss.

      The Wises allege that in 1991, they initiated the process

for purchasing a 105.4 acre farm known as the “Lynch farm,” that

was held in the inventory of the United States Department of

Agriculture by the Farmers Home Administration (FmHA). The FmHA

identified      the      Lynch    farm,    located       in     Nash     County,   North

Carolina, as suitable for 250 swine and targeted the property

for “socially disadvantaged applicants.”                      The Wises allege that

when they attempted to obtain loans to purchase the Lynch farm,

the     local     County     Supervisor        for      USDA,     F.     Sidney    Long,

discriminated       against      them    because     they     were     African-American

by:     failing     to    provide       them    with     loan     applications      when

requested;      failing     to    provide      technical      support;      failing   to

submit their applications to USDA in a timely manner; failing to

appropriately assist and advise them; failing to process their

completed         applications;          summarily          denying       their     loan

applications; and retaliating against them for appealing Long’s

decision and filing complaints of discrimination with the USDA.

The     Wises     also    allege    that       the     USDA     failed    to   properly

investigate complaints of discrimination they submitted to the

USDA.



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      USDA    filed   a    motion    to   dismiss      under       Fed.    R.   Civ.    P.

12(b)(6), or alternatively, for summary judgment.                          The district

court granted the motion under 12(b)(6).                    The Wises appealed to

this Court.


                                          II.

      We review de novo the decision of a district court to grant

or   deny    a    motion   to   dismiss     pursuant        to    Fed.     R.   Civ.    P.

12(b)(6).        Brockington v. Boykins, 637 F.3d 503, 505 (4th Cir.

2011).      A Rule 12(b)(6) motion challenges the legal sufficiency

of a plaintiff’s complaint.               Francis v. Giacomelli, 588 F.3d

186, 192 (4th Cir. 2009).            In evaluating legal sufficiency, the

Court assumes that all alleged facts are true.                            Eastern Shore

Markets v. J.D. Associates, 213 F.3d 175, 180 (4th Cir. 2000).

While    detailed     factual       allegations       are        not   required,       the

complaint must contain more than “a formulaic recitation of the

elements of a cause of action.”             Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007).            The complaint must plead sufficient

facts to establish “facial plausibility . . . that allows the

court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.”                 Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).

      ECOA establishes that it is “unlawful for any creditor to

discriminate against any applicant . . . on the basis of race.”


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15 U.S.C. § 1691(a)(1).           Most courts that have considered ECOA

discrimination claims have allowed plaintiffs to proceed under

the burden-shifting framework laid out by the U.S. Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in the

context    of    Title   VII    employment          discrimination.           See,   e.g.,

Lewis v. ACB Business Services, Inc. 135 F.3d 389, 406 (6th Cir.

1998); Mercado-Garcia v. Ponce Fed. Bank, 979 F.2d 890, 893 (1st

Cir. 1992); Cooley v. Sterling Bank, 280 F. Supp. 2d 1331, 1338

(M.D. Ala. 2003); Davis v. Strata Corp., 242 F. Supp. 2d 643,

651-52 (D.N.D. 2003); Gross v. United States Small Bus. Admin.,

669 F.Supp. 50, 53 (N.D.N.Y. 1987), aff’d 867 F.2d 1423 (2d Cir.

1988).     But see Latimore v. Citibank Fed. Sav. Bank, 151 F.3d

712,    715     (7th   Cir.    1998).      We       followed     suit    in    our    sole

unpublished opinion on the subject.                  See Crestar Bank v. Driggs,

995 F.2d 1062 (4th Cir. 1993).                  Applying McDonnell Douglas in

the ECOA context, the Wises had to set forth a prima facie case

consisting of four elements:             1) they are members of a protected

class; 2) they applied for and were qualified for an extension

of     credit;    3) USDA’s     office    in        Nash     County   rejected       their

application for credit despite their qualifications; and 4) USDA

continued to extend credit to others of similar credit stature

outside    of    the   Wises’    protected          class.      See     Rowe   v.    Union

Planters Bank of Southeast Missouri, 289 F.3d 533, 535 (8th Cir.

2002).

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      The district court determined that even though the Wises

pled sufficient facts to establish that they are members of a

protected class, applied for an extension of credit, and were

rejected despite their qualifications, ∗ the complaint was “devoid

of any plausible substantive allegations” that established the

fourth prong -- that non-minority applicants of similar credit

stature     were     extended   credit      or    were     otherwise       given   more

favorable treatment than plaintiffs.

      The Wises argue that the multiple allegations of improper

treatment by Supervisor Long and the USDA establish the fourth

prong     of     McDonnell    Douglas.           While    the     Wises’     complaint

describes what might be considered harassment, it does not set

forth     any    facts   alleging    that    non-minority         credit    applicants

were treated different than they were treated.                     Neither the four

paragraphs setting forth the facts relevant to their specific

case in the complaint, nor the class complaint read as a whole,

compares Supervisor Long’s treatment of the Wises to any non-

minority        credit   applicant   of     similar      credit    stature    in   Nash

County.



      ∗
         The Wises alleged in their complaint that they appealed
the   denial of their loan to the USDA National Appeals Division
and   prevailed.   As such, they are entitled to an inference at
the   12(b)(6) stage that they have satisfied the third prong of
the   prima facie case.



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       The Wises argue for the first time on appeal that reports

by the Office of Inspector General and Civil Rights Action Team

along    with       the    settlement           in       the     high       profile       Pigford      v.

Glickman class action lawsuit establish that there was a pattern

or    practice       of    discrimination            at       USDA     that       establishes         that

Appellants were treated different than white farmers.                                        See 185

F.R.D. 82 (D.D.C. 1999).

       This    Court       has     not        had    occasion          to     decide       whether      a

plaintiff      in    an    ECOA    discrimination                claim       is    limited       to    the

standard approach requiring a comparator, or whether a plaintiff

can    put    forward       pattern-or-practice                  evidence          to    fulfill       the

fourth   prong       of    a     prima    facie          case.         We    do    not    reach       this

question here because the Wises did not raise the issue below.

Generally, a federal appellate court does not rule on issues

that are not presented to the district court.                                           Singleton v.

Wulff, 428 U.S. 106, 120 (1976).                          This Court has repeatedly held

that issues which are not raised at the district court level

will     not        be     considered               on        appeal        unless        exceptional

circumstances exist such that “refusal to consider the newly-

raised       issue       would    be     plain           error    or        would       result    in    a

fundamental         miscarriage          of    justice.”               Holland       v.    Big    River

Minerals, 181 F.3d 597, 605 (4th Cir. 1999) (quoting Muth v.

United States, 1 F.3d 246, 250 (4th Cir. 1993)).                                          The Wises’

attempt at introducing this new pattern-or-practice theory of

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the case for the first time on appeal is only acceptable if

there are exceptional circumstances present.                      See Muth, 1 F.3d

at   250   (ruling       that   Appellant      could    not      bring    forward    new

theories    for    the     first   time   on       appeal   to    avoid    statute   of

limitations       unless    exceptional     circumstances          existed).         The

Wises do not attempt to identify any exceptional circumstances

that would justify this Court’s consideration of a new theory

that they did not present to the district court.                     As such, we do

not consider the viability of using pattern-or-practice evidence

to establish the fourth prong of a prima facie case or whether

the pattern-or-practice evidence in this case has any effect on

the Wises’ effort to satisfy the relevant pleading requirements.

      Similarly, the Wises’ argument on appeal that they have

successfully       pled    discrimination          under    direct       evidence    and

disparate impact theories fails because they did not raise these

theories at the district court level.

      For the foregoing reasons, we affirm the judgment of the

district court.


                                                                              AFFIRMED




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