                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-30-2006

Visconti v. Secretary Agri
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1315




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                                              NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
               ________________

                     No. 06-1315
                  ________________

         JOHN VISCONTI; MARY VISCONTI

                            v.

         ANN VENEMAN, SECRETARY,
 UNITED STATES DEPARTMENT OF AGRICULTURE


                    MARY VISCONTI,

                          Appellant
       ____________________________________

     On Appeal From the United States District Court
               For the District of New Jersey
                  (D.C. No. 01-cv-05409)
      District Judge: Honorable Jerome B. Simandle
       ____________________________________

       Submitted Under Third Circuit LAR 34.1(a)
                   October 26, 2006

Before: FISHER, ALDISERT and WEIS, CIRCUIT JUDGES.

                  (October 30, 2006)
              _______________________

                     OPINION
              _______________________
PER CURIAM

       Mary Visconti appeals pro se from the District Court’s entry of summary judgment

in favor of the United States Department of Agriculture (“USDA” or “the agency”) on

their claims of discrimination in the processing and servicing of farm loans.1 For the

reasons that follow, we will affirm.

                                               I.

       The parties are familiar with the facts, so we will only briefly revisit them here.

Beginning in the 1970s, the Viscontis periodically borrowed money from the USDA’s

Farm Service Agency (“FSA”) for operating their farm in Cumberland County, New

Jersey. When they were unable to repay their loans, the USDA, by letters dated

February 4, 1997 and March 3, 1997, declared the loans immediately due and notified the

Viscontis of its intent to use administrative offset to collect the debt. On August 1, 1997,

the Viscontis submitted an administrative complaint with the USDA’s Office of Civil

Rights, alleging discrimination under the Equal Credit Opportunity Act (“ECOA”).2 15

U.S.C. §§ 1691 et seq. The Office of Civil rights issued a decision finding no

discrimination.

       1
       John Visconti, the co-plaintiff in this action, died during the course of these
proceedings. Nevertheless, we will refer to the Visconits in the plural.
       2
         The ECOA creates a private right of action against a creditor, including the
United States, who “discriminate[s] against any applicant, with respect to any aspect of a
credit transaction . . . on the basis of race, color, religion, national origin, sex or marital
status, or age.” 15 U.S.C. § 1691(a). ECOA claims are subject to a two-year statute of
limitations. See 15 U.S.C. § 1691e(f).

                                               2
       On October 17, 2000, the Viscontis requested a hearing before an Administrative

Law Judge (“ALJ”) pursuant to section 741 of the Agriculture, Rural Development, Food

and Drug Administration, and Related Agencies Appropriations Act, 1999 (“§ 741”). See

Pub.L. No. 105-277, § 741, 112 Stat. 2681 (codified at 7 U.S.C.A. § 2279 notes).

       As relevant here, § 741 extended the ECOA’s two-year limitations period for

individuals who had filed administrative complaints with the USDA between January 1,

1981 and July 1, 1997, for alleged acts of discrimination occurring between January 1,

1981 and December 31, 1996. The ALJ concluded that the Viscontis’ complaint should

be dismissed for lack of jurisdiction because it was not filed before July 1, 1997, as

required by § 741. The ALJ also rejected the Viscontis’ contention that they had first

raised allegations of discrimination in three letters dated prior to July 1, 1997. In

particular, the ALJ noted that those letters did not mention the word “discrimination” or

contain “any language that would lead one to believe that Complainants were

complaining of national origin, sex, or handicap discrimination.” The Viscontis requested

review by the USDA, which affirmed and adopted the ALJ’s decision.

       The Viscontis then sought judicial review of the agency’s final decision. The

USDA filed a motion for summary judgment, asserting that the Viscontis had not filed

any claim of discrimination prior to July 1, 1997. The District Court granted the USDA’s

motion in part and denied it in part: the District Court concluded that the Viscontis were

time-barred from proceeding under § 741, but held that their discrimination claims arising



                                              3
out of the USDA’s February and March 1997 decisions to use administrative offset to

immediately collect the debt were timely brought within the general ECOA two-year

statute of limitations. The USDA addressed the latter claims in a second motion for

summary judgment, arguing that the Viscontis had not made out a prima facie case of

discrimination. The District Court agreed, granted the motion, and entered judgment in

favor of the USDA on September 20, 2005. The District Court later denied as untimely

the Viscontis’ efforts to seek reconsideration of its decision. The Viscontis timely

appealed.3

                                            II.

       The District Court had jurisdiction over this matter pursuant to 15 U.S.C.

§ 1691e(f), § 741, and 28 U. S.C. § 1331. This Court has appellate jurisdiction by virtue

of 28 U.S.C. § 1291. We exercise plenary review over the District Court’s grant of

summary judgment. See Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 219-20 (3d Cir.

2005). Summary judgment is proper if there is no genuine issue of material fact and if,

viewing the facts in the light most favorable to the non-moving party, the moving party is




       3
        We will construe the Viscontis’ October 26, 2005, motion for leave to seek
reconsideration of the September 20, 2005 order – in which Mary Visconti references her
desire to appeal from that order – as a timely notice of appeal. See Smith v. Barry, 502
U.S. 244 (1992) (“Courts will liberally construe the requirements of [Fed. R. App. P.] 3;”
and “[i]f a document, filed within the time specified by [Fed. R. App. P.] 4 gives the
notice required by Rule 3, it is effective as a notice of appeal.”); see also Dyszel v.
Marks, 6 F.3d 116, 122 n.9 (3d Cir. 1993) (stating that an untimely motion for
reconsideration has no effect on a simultaneously filed notice of appeal).

                                             4
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v.

Catrett, 477 U.S. 317 (1986).

                                            III.

       As noted above, ECOA claims are generally governed by a two-year statute of

limitations. See 15 U.S.C. § 1691e(f). However, in § 741, Congress retroactively

extended the limitations period for certain “eligible complaints.” The term “eligible

complaint” refers to a nonemployment related discrimination complaint filed with the

USDA prior to July 1, 1997, which alleged discrimination by the USDA at any time

between January 1, 1981, and July 1, 1997. See § 741(e); 7 C.F.R. § 15f.2. “Eligible

complaints” may be brought in a civil action or in an administrative proceeding. See

§ 741(a) & (b).

       The Viscontis’ discrimination complaint, submitted to the Office of Civil Rights

on August 1, 1997, is not eligible for consideration under § 741 because it was filed after

July 1, 1997. In addition, the Viscontis’ letters dated October 31, 1988, June 17, 1991,

and April 1, 1997, are not “eligible complaints.” Although these letters meet the time-

filing requirements of § 741, none alleges discrimination, even when construed broadly.

Cf. Swierkiewicz v. Sorema, 534 U.S. 506, 512 (2002) (holding that a charge of

discrimination must “give the defendant fair notice of what the plaintiff’s claim is and the

grounds upon which it rests.” (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957))). In the

October 1988 letter, addressed to the Office of the United States Attorney in Camden,



                                             5
New Jersey, the Viscontis sought assistance in obtaining records pertaining to themselves

from the USDA. The letter also attempted to explain why a woman who had lived with

the Viscontis was lodging “vicious and absurd charges” against them. The June 1991

letter, sent to the Farmers Home Administration (now the FSA), alleged that the USDA

violated the Viscontis’ right under 7 U.S.C. § 1981a to apply for a moratorium on their

loan principal and interest. Finally, the April 1997 letter, which was addressed to the

FSA office in New Jersey, sought a meeting to discuss whether the Viscontis would be

permitted to plant crops. Although Mary Visconti noted in the letter that she was a

“minority,” she neither identified the minority group nor claimed that she was

discriminated against on that basis; rather, she simply stated that “[s]ince I am a minority

I sincerely need your help in trying to solve my problems.” Thus, the letters were

insufficient to put the agency on notice that the Viscontis were asserting a discrimination

claim. Because the Viscontis have failed to point out any issues of material fact regarding

whether these letters constitute an eligible complaint under § 741, we conclude that the

District Court’s entry of summary judgment in favor of the USDA was proper.

                                             IV.

       Although the Viscontis may not pursue their claims under § 741, the District Court

concluded that they could proceed on their allegations of discrimination arising out of the




                                              6
USDA’s February and March 1997 collection letters.4 The District Court held, however,

that the Viscontis were unable as a matter of law to make out a case of discrimination.

We agree.

       The ECOA makes it unlawful for a creditor to discriminate against an applicant

“with respect to any aspect of a credit transaction.” 15 U.S.C. 1691(a). To establish a

prima facie case of discrimination under the ECOA in these circumstances, the Viscontis

must establish, inter alia, that others not in their protected class were treated more

favorably. See Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410-11 (3d Cir. 1999); cf.

Chiang v. Veneman, 385 F.3d 256, 259 (3d Cir. 2004). The Viscontis alleged that the

USDA discriminated against them on the basis of national origin and Mary Visconti’s sex

in its debt collection efforts. By letter dated February 4, 1997, the FSA declared that the

debt was due immediately because the Viscontis had been delinquent in their payments.

On March 3, 1997, the FSA notified the Viscontis of its intent to use administrative offset

to collect the debt. There is no evidence, however, that the Viscontis were treated

differently than other loan recipients who were delinquent in repaying the FSA, and the




       4
        In particular, the District Court held that the Viscontis’ August 1, 1997 complaint
was filed with the USDA within 180 days of the alleged discriminatory events, see 7
C.F.R. § 15d.4, and that the ECOA’s two-year statute of limitations was tolled while the
Viscontis pursued their administrative remedies. See 7 U.S.C. § 6912(e) (exhaustion
requirement for grievances filed against USDA). Because the USDA does not challenge
on appeal the determination that these claims were timely, we will not examine it. See
Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (noting that issues not raised and
argued on appeal are deemed abandoned and waived).

                                              7
Viscontis cannot demonstrate a violation of the ECOA by simply alleging that the agency

is attempting to collect on a debt. See Lewis v. ACB Business Services, Inc., 135 F.3d

389, 406 (6th Cir. 1998).

                                             V.

       The Viscontis raise several arguments in support of their contention that the

District Court erred in granting the USDA’s motions for summary judgment. As

explained below, these arguments lack merit.

       According to the Viscontis, the ALJ improperly failed to hold an administrative

hearing on their complaint. The right to an administrative hearing, however, does not

apply in every circumstance. The regulations provide that complainants have a right to a

hearing if they present an “eligible complaint,” and dismissal of the complaint without a

hearing is authorized if the ALJ determines that the complaint was not eligible under

section 741. See 7 C.F.R. § 15f.12. Further, the regulations allow for a complaint to be

decided without a hearing if the only dispute is a question of law. See id. Under this

scheme, it was proper for the ALJ to adjudicate the Viscontis’ claim based solely on a

written record since there was no evidence of a timely filed complaint or of disparate

treatment. Cf. State of Pa. v. Riley, 84 F.3d 125, 130 (3d Cir. 1996) (stating that “[a]n

administrative agency need not provide an evidentiary hearing when there are no disputed

material issues of fact . . . or when the dispute can be adequately resolved from the paper

record”) (citations omitted). In support of their claim, the Viscontis cite 5 U.S.C.



                                             8
§ 556(b) and numerous sections of the Code of Federal Regulations, including, 7 C.F.R.

§ 15.8(d), 9 C.F.R. § 202.110(b), and 29 C.F.R. § 1601.12(b). To the extent these

authorities had any applicability in the Visconits’ administrative proceedings, none

requires that the ALJ conduct a hearing. Moreover, the Viscontis had opportunities to

present evidence to the ALJ in their complaint, see 7 C.F.R. § 15f.6 (concerning what

should be included in complaint under § 741), and in response to the ALJ’s order to show

cause why the complaint should not be dismissed as untimely.

       The remainder of the claims raised in the Viscontis’ brief are not properly before

this Court because they were not raised in the District Court. See Harris v. City of

Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994) (issues raised for the first time on appeal

will not be considered). In any event, these claims lack merit.5




       5
         For instance, the Viscontis claim that Mary Visconti’s testimony before
Congress, as well as a civil action filed in 1996, constitute complaints under § 741.
Importantly, however, Mary Visconti testified before Congress in October 1997, several
months after the date by which § 741 complaints had to be filed, see § 741(e), and the
Viscontis 1996 civil complaint was not based on discrimination. Furthermore, contrary
to the Viscontis’ contention, the principles of relation back, equitable tolling, due
diligence, and continuing violation cannot remedy the defects in their discrimination
claims. Finally, the Viscontis have offered no persuasive support for their allegations
that the ALJ failed to consider whether the USDA retaliated against them for
complaining about discrimination and whether the USDA violated their rights under the
Takings Clause of the Fifth Amendment.

                                             9
                                           VI.

       Having considered the parties’ briefs and other submissions for our review, and

having reviewed the administrative record and the District Court record, we will affirm

the District Court’s order.




                                           10
