                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit



                            No. 94-40945



                         LARRY W. MOORE and
                           NAOMI S. MOORE,

                                              Plaintiffs-Appellants,


                               VERSUS


                    UNITED STATES DEPARTMENT
                      OF AGRICULTURE o/b/o
                  Farmers Home Administration,

                                                Defendant-Appellee.




          Appeal from the United States District Court
              for the Western District of Louisiana
                    (         June 6, 1995       )


Before LAY1, DUHÉ and DEMOSS, Circuit Judges.

DEMOSS, Circuit Judge:

     Nearly five years ago, Larry Moore and his wife, Naomi Moore,

sued the Farmers Home Administration (FmHA), alleging that FmHA's

refusal to extend them credit because they are white violated the

equal protection component of the Fifth Amendment and the Equal

Credit Opportunity Act (ECOA), 15 U.S.C. §§ 1691-1691f.         The

district court originally dismissed the suit for lack of standing,



      1
          Circuit Judge of the Eighth Circuit Judge, sitting by
designation.
but we reversed and remanded the case for further proceedings.

Moore v. U.S. Dep't of Agric., 993 F.2d 1222 (5th Cir. 1993) (Moore

I). On remand, the district court once again dismissed the Moores'

suit, but for different reasons.              The Moores appeal.    We now vacate

the judgment below and render judgment for the Moores, but remand

the case for a determination of damages.

                                         I.

     The Agricultural Credit Act of 1987, Pub. L. No. 100-233,

authorizes the Department of Agriculture (DOA) to establish "target

participation       rates"    to     ensure      that    members    of    "socially

disadvantaged       groups"   will    receive     loans    to   acquire   DOA-held

farmland.        7 U.S.C. § 2003(a)(1).          The Act defines a "socially

disadvantaged group" as "a group whose members have been subjected

to racial or ethnic prejudice because of their identity as members

of a group without regard to their individual qualities."                       Id. §

2003(d).    As of December 1989, the FmHA, which is an agency within

the DOA, implemented § 2003's mandate by setting aside a certain

portion     of    DOA-held    properties        for     "socially   disadvantaged

applicants" (SDAs).           The FmHA would then sell SDA-designated

properties exclusively to qualified minorities2 and sell non-SDA-

designated       properties   to   any   qualified       applicant.       The    FmHA

required all applicants, regardless of SDA status, to produce

evidence of an "acceptable credit history."


     2
      Current regulations further define "socially disadvantaged
groups to consist only of Women, Blacks, American Indians, Alaskan
Natives, Hispanic, Asians, and Pacific Islanders."     7 C.F.R. §
1955.103, at 344 (1995).

                                          2
       In December 1989, Larry Moore, a white male, applied to

purchase an SDA-designated property, namely a 183-acre farm in

Rayville, Louisiana.    Moore did not indicate whether he qualified

as an SDA, whereupon the FmHA requested further information. Moore

failed to do so.      The FmHA formally denied his application in

December 1989, stating only that

       "[y]ou have failed to provide proof that you meet the criteria
       of SDA. (No Whites)."

The Moores filed an administrative appeal, which was summarily

dismissed in February 1990 on the basis that the FmHA could not

waive his unacceptable racial classification.       The Moores then

applied for a non-SDA-designated property.     The FmHA again denied

his application, this time on the basis of his poor credit history

as reflected in a January 1990 credit report.      The report, among

other things, indicated that Larry Moore had been sporadically

employed since 1967, that the Moores had declared bankruptcy in

1982, and that their home had been foreclosed on in the late 1980s.

       In September 1990, the Moores filed suit against the DOA and

the FmHA, alleging violations of their rights under the Fifth

Amendment and the ECOA.3      The Moores requested actual damages

(i.e., loss of income from farming operations and mental anguish


        3
        The ECOA broadly prohibits credit discrimination, stating
that
     It shall be unlawful for any creditor to discriminate against
     any applicant, with respect to any aspect of a credit
     transaction --
          (1) on the basis of race, color, religion, national
          origin, sex or marital status, or age (provided the
          applicant has the capacity to contract).
15 U.S.C. § 1691(a)(1).

                                   3
and suffering), punitive damages, and attorneys fees, but made no

specific    request    for    injunctive    or   declaratory   relief.   The

district court dismissed the Moores' suit on the ground that Larry

Moore had failed to complete the initial application.             The Moores

appealed.    In June 1993, we reversed and remanded the case for

further proceedings.         Moore I, 993 F.2d 1222 (5th Cir. 1993).      We

held that the Moores' failure to complete the application did not

deprive them of standing to sue.

     On remand, the Moores never amended their pleadings. The FmHA

prior to trial offered alternative defenses to its actions: (1)

notwithstanding       its    board   prohibition    against    discriminatory

lending, the ECOA exempts refusals to extend credit that are

pursuant to "any credit assistance program expressly authorized by

law for an economically disadvantaged class of persons," 15 U.S.C.

§ 1691(c)(1); and (2) the ECOA does not include a waiver of

sovereign immunity.         At trial, however, the FmHA changed tack and

defended its actions on a third theory: the Moores failed to make

a prima facie case of discrimination.4

     Providing alternative reasons, the district court dismissed

the Moores' suit in July 1994.         The court first held that the ECOA

does not include a waiver of sovereign immunity, despite the fact

that the FmHA had proffered but eventually abandoned precisely the

same theory.    The court alternatively held (as the FmHA argued at

trial) that the Moores failed to make out a prima facie case of


      4
       In particular, the FmHA argued that the Moores failed to
demonstrate that they were qualified for an extension of credit.

                                        4
discrimination.         The   elements       of   an   ECOA    prima   facie   case,

according to the district court, are: (1) the applicant is a member

of the protected class; (2) the applicant in fact applied and was

qualified for credit; and (3) the applicant was denied credit

notwithstanding his qualifications.5               The court easily concluded

that the Moores could not establish the second element, i.e., that

they were qualified for credit, and therefore dismissed the Moores'

suit.       The Moores, once again, appeal.

                                        II.

       We are obligated to satisfy ourselves that the jurisdiction of

both    this    court   and   the    district      court      have   been   properly

established, "`even though the parties are prepared to concede

it.'"       Mocklin v. Orleans Levee Dist., 877 F.2d 427, 428 n.3 (5th

Cir. 1989) (quoting Bender v. Williamsport Area School Dist., 475

U.S. 534, 541 (1986)).              And because "[s]overeign immunity is

jurisdictional in nature," FDIC v. Meyer, 114 S. Ct. 996, 1000

(1994), we must now determine whether the ECOA contains a waiver of

the United States' sovereign immunity.                     As we mentioned, the

district court below concluded that Congress never "unequivocally

expressed" an intention to waive the United States' sovereign

immunity in ECOA claims.            The court did concede that the plain

language of the ECOA provides that governmental entities are liable

under the Act. See 15 U.S.C. § 1691a(e),(f) (respectively defining

        5
       The court correctly noted that very little ECOA case law
exists.   But given the similarity between an ECOA refusal-to-
extend-credit case and a Title VII refusal-to-hire case, the court
borrowed freely from the wealth of Title VII case law to craft the
elements of an ECOA prima facie case.

                                         5
"creditor" to mean "person," and "person" to mean "government or

governmental subdivision or agency"). But the court construed this

to mean that Congress waived the liability of state governmental

entities only, leaving intact the United States' immunity.

     There are two problems with the district court's reasoning.

First, as the FmHA points out, Congress has used identical language

in a closely related statute, yet inserted an additional provision

preserving the United States' immunity.        Specifically, Congress

codified the Truth in Lending Act (TILA), 15 U.S.C. §§ 1601-1667e,

and the ECOA, 15 U.S.C. §§ 1691-1691f, as Subchapters I and IV of

the Consumer Credit Protection Act, respectively. The TILA defines

"person" to mean any "government or governmental subdivision or

agency," see id. § 1602(c),(d),(f), just as the ECOA does.             Yet

Congress also expressly preserved the United States' sovereign

immunity against TILA claims.          Id. § 1612(b).        Clearly, TILA

indicates   that   Congress   intended   "government    or    governmental

subdivision or agency" to include the United States, because

otherwise it would not have specifically preserved the United

States' immunity unless it believed that such immunity had been

previously waived.    Considering that ECOA was passed after TILA6

and does not include an express preservation of U.S. sovereign

immunity as did TILA, we conclude that Congress intended to waive

U.S. immunity in the ECOA.



      6
       The TILA was enacted in 1968, see Pub. L. No. 90-321, 82
Stat. 146, and the ECOA was enacted in 1974, see Pub. L. No. 93-
495, 88 Stat. 1521.

                                   6
     Second, and perhaps equally compelling, the district court's

conclusion creates a paradox.   The courts have developed virtually

identical tests for determining whether Congress has waived the

United States' sovereign immunity and whether it has abrogated the

states' Eleventh Amendment immunity.   That is, Congress' intention

must be either "unequivocally expressed" (when the United States'

immunity is at issue) or "unmistakably clear" (when the states'

immunity is at issue).   In Interfirst Bank Dallas, N.A. v. United

States, 769 F.2d 299, 310 (5th Cir. 1985), we stated that a waiver

of the United States' sovereign immunity "must be expressly stated

by Congress and should not be inferred."     For support, we cited

among other cases Atascadero State Hospital v. Scanlon, 473 U.S.

234 (1985), wherein the Supreme Court discussed the test for

determining whether Congress has abrogated the states' Eleventh

Amendment immunity.   We purposely cited Scanlon in Interfirst Bank

for one reason: the two tests are extremely similar, if not

identical.   See also United States v. Nordic Village, Inc., 112 S.

Ct. 1011, 1016 (1992) ("As in the Eleventh Amendment context, the

`unequivocal expression' of elimination of sovereign immunity that

we insist upon is an expression of statutory text.") (quoting

Hoffman v. Connecticut Dep't of Income Maintenance, 492 U.S. 96,

104 (1989)); Pennsylvania v. Union Gas Co., 491 U.S. 1, 31-32

(1989) (Scalia, J, concurring and dissenting) (states' Eleventh

Amendment immunity reflected "a consensus that the doctrine of

sovereign immunity, for States as well as the Federal Government,




                                 7
was     part    of     the   understood         background   against     which   the

Constitution was adopted") (emphasis added).

      So, given the uniformity with which courts must assess any

governmental         immunity,     the    district    court's   reasoning    cannot

withstand scrutiny.            The ECOA either waives federal and state

immunity together, or waives none at all.               But it certainly cannot,

as the district court concluded, abrogate the states' immunity and

preserve the United States' immunity.                We, like the parties, read

the ECOA to include a broad waiver of governmental immunity.                     The

plain       language   of    the   ECOA    unequivocally     expresses    Congress'

intentions: governmental entities are liable under the Act. See 15

U.S.C. § 1691a(e),(f) (respectively defining "creditor" to mean

"person,"       and    "person"     to    mean    "government   or     governmental

subdivision or agency").7            We therefore have jurisdiction to hear

the Moores' appeal.

                                           III.

      The Moores allege that the FmHA violated their rights under

both the equal protection component of the Fifth Amendment and the

ECOA.       We will address each claim separately.

                                            A.

      With regard to the equal protection claim, the Moores' amended

complaint names only the FmHA as a defendant and requests only

monetary relief (e.g., actual damages, punitive damages, attorneys

fees).       The Moores never made any specific request for any type of


        7
      See also 15 U.S.C. § 1691e(b) (limiting ECOA claims against
governmental entities to actual damages only).

                                            8
injunctive or declaratory relief.                     In doing so, the Moores have

failed to properly state an equal protection claim.                       We suggested

in   Moore    I    that       "the    Moores'       allegations   pose    more      than   a

possibility of recovery under a Bivens-type action founded in the

equal protection component of the Fifth Amendment."                       Moore I, 993

F.2d at 1223.       But, as the district court below noted, the Supreme

Court's intervening decision in FDIC v. Meyer, 114 S. Ct. 996

(1994), forecloses the Moores from bringing a Bivens claim.                            The

Moores have sued only the FmHA. And because Meyer established that

Bivens-type claims cannot be brought against federal agencies (as

opposed to federal officers), id. at 1004-05, the Moores cannot

rely on Bivens.          Their equal protection claim fails.

                                             B.

      Thus,       the    Moores'      only   basis      for   relief     is   the    ECOA.

Interestingly,          the    FmHA    concedes       liability   in   this   instance.

Specifically, the FmHA argues that its only viable defense would

have been to argue that the SDA program is exempted from the ECOA's

broad prohibition against credit discrimination.                       See 15 U.S.C. §

1691(c) (exempting from liability any "credit assistance program

expressly authorized by law for an economically disadvantaged class

of persons").           The FmHA admits, however, that it abandoned this

defense at trial when it chose to argue, in lieu of a § 1691(c)

defense, that the Moores failed to make a prima facie case of

discrimination.

      But the FmHA on appeal has abandoned that defense, too.                          The

agency concedes that its December 1989 letter to Larry Moore,


                                                9
wherein it    stated    that     "[n]o   whites"      could   qualify      for   SDA-

designated    properties,      constitutes      direct     evidence     of    racial

discrimination.       As such, the Moores are entitled to bypass the

McDonnell Douglas burden-shifting framework commonly applied in

discrimination cases and proceed directly to the question of

liability.    Trans World Airlines, Inc. v. Thurston, 469 U.S. 111,

121 (1985) ("the McDonnell Douglas test is inapplicable where the

plaintiff presents direct evidence of discrimination"). As we have

stated before, "`In the rare situation in which the evidence

establishes   that     an   employer     openly      discriminates    against     an

individual it is not necessary to apply the mechanical formula of

McDonnell Douglas to establish an inference of discrimination.'"

Kendall v. Block, 821 F.2d 1142, 1145 (5th Cir. 1987) (quoting

Ramirez v. Sloss, 615 F.2d 163, 168 (5th Cir. 1980)).                   In short,

the FmHA has no defense to the Moores' ECOA claim.                         The FmHA

acknowledges this fact and thus concedes the claim.                 We accept the

FmHA's concession and render judgment for the Moores as to their

ECOA claim.

     The question of damages, however, still remains.                   The Moores

requested    actual    damages    (i.e.,      loss    of   income   from     farming

operations and mental anguish and suffering), punitive damages, and

attorneys fees.       The FmHA counters that the Moores' damages, at

most, are nominal given that their poor credit history inde-

pendently precludes them from qualifying for a non-SDA-designated

property.    In fact, the FmHA notes, the Moores' second application

for a DOA-held property was denied solely on the basis of their


                                         10
poor credit history.              Either way, the district court is the

appropriate venue for determining the Moores' damages, if any.                               We

note only that, while the after-acquired evidence of the Moores'

poor   credit    history        cannot    defeat       the   FmHA's        liability,       the

evidence can aid the court in assessing the Moores' damages.                                See

McKennon v. Nashville Banner Publish. Co., 115 S. Ct. 879, 883-87

(1995)    (after-acquired         evidence       of    wrongdoing      by     an    employee

terminated for unlawful reasons does not relieve the employer of

liability      for   the   unlawful       termination,          but   it    is     useful    in

fashioning the appropriate remedy).

                                           IV.

       The district court erred in concluding that the ECOA does not

include    a    waiver     of    the     United       States'    sovereign         immunity.

Furthermore, we accept as correct the FmHA's concession on appeal

that it is liable to the Moores under the ECOA.                              However, the

Moores' damages, if any, must be determined by the district court.

Accordingly, we VACATE the judgment of the district court, RENDER

judgment for the Moores as to their ECOA claim, and REMAND the case

for a determination of damages.




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