                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 14 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JACQUELINE SHIPLET,                              No. 09-35614

              Plaintiff - Appellant,             D.C. No. 1:05-cv-00015-RFC-
                                                 CSO
  v.

ANN VENEMAN, Secretary, United                   MEMORANDUM *
States Department of Agriculture,

              Defendant - Appellee.



                   Appeal from the United States District Court
                            for the District of Montana
                 Richard F. Cebull, Chief District Judge, Presiding

                             Submitted June 10, 2010 **
                                 Portland, Oregon

Before: THOMPSON, McKEOWN and PAEZ, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Jacqueline Shiplet appeals the district court’s judgment that the Farm

Service Agency (“FSA”)1 of the U.S. Department of Agriculture did not

discriminate against her on the basis of gender, age, and marital status in

administering its farm credit programs. Shiplet argues that the FSA deprived her

of equal and fair access to farm credit in violation of the Equal Credit Opportunity

Act (“ECOA”), 15 U.S.C. § 1691 et seq. We have jurisdiction under 28 U.S.C.

§ 1291 and affirm.

      The district court correctly held that the regulations that Shiplet alleges the

FSA violated are not independently actionable absent a waiver of sovereign

immunity. This case is distinct from Anderson v. United Finance Company, which

addressed a regulatory violation that categorically violated the ECOA’s ban on

marital status discrimination. 666 F.2d 1274, 1276-77 (9th Cir. 1982). In contrast,

the regulations at issue do not concern “the type of discrimination which the Act

was created to prohibit,” id. at 1276, and thus do not fall within the ambit of the

ECOA’s waiver of sovereign immunity.

      The district court also correctly found that Shiplet failed to establish a prima

facie case of discrimination regarding her applications for direct loans in 1981,



      1
        The FSA is the successor agency to the Farmers Home Administration.
For ease of reference, we refer to the FSA throughout this memorandum.

                                           2
1984, 1994, and 1995, as Shiplet was not qualified for credit at the outset. The

district court’s findings that Shiplet was ineligible for credit and that her loan

applications were infeasible were not clearly erroneous. As a result, we need not

address Shiplet’s argument that she was treated differently from similarly situated

borrowers.

      The district court correctly found that the FSA did not discriminate against

Shiplet in processing her 1984 and 1985 emergency loan applications. As the

district court found, Shiplet failed to show that she was treated differently from

similarly situated persons. In addition, even assuming that Shiplet made a prima

facie case of discrimination, the government rebutted that case by articulating

legitimate, nondiscriminatory reasons for delay, such as Shiplet’s failure to meet

loan application requirements. See McDonald Douglas Corp. v. Green, 411 U.S.

793, 802 (1973).

      Finally, Shiplet’s claim that the FSA discriminated against her by denying

her loan servicing is not supported by the record. Rather, the record reflects that

the FSA attempted to provide Shiplet servicing on her emergency loans.

      AFFIRMED.




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