         Case: 15-12325   Date Filed: 05/16/2016   Page: 1 of 9


                                                    [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                          No. 15-12325
                      Non-Argument Calendar
                    ________________________

              D.C. Docket No. 4:14-cv-00171-MW-CAS



JOHNNY L. CANNON,

                                            Plaintiff - Appellant,


                                versus


SECRETARY, U.S. DEPARTMENT OF AGRICULTURE,

                                            Defendant - Appellee.

                    ________________________

             Appeal from the United States District Court
                 for the Northern District of Florida
                   ________________________


                           (May 16, 2016)
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Before MARTIN, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.

JILL PRYOR, Circuit Judge:

      Plaintiff Johnny Cannon appeals the dismissal of his claim against Thomas

Vilsack, Secretary of the United States Department of Agriculture (“USDA”), for a

violation of the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691e. We

agree with the district court that Cannon’s ECOA claim is time-barred and affirm

the district court’s dismissal.

                                          I.

      This case arises out of subsidies the USDA paid to Cannon. From 2005

through 2007, Cannon leased a farm, known as Farm 4360, from Thomas Beddard.

Cannon applied for subsidy payments through the USDA’s Direct and Counter-

Cyclical Payments Program. After the USDA’s local Farm Service Agency

(“FSA”) approved his application, he was paid subsidies.

      In 2007, the FSA found that although Cannon enrolled 733.5 acres of land in

the Direct and Counter-Cyclical Payments Program, he leased and controlled only

13 acres. The FSA determined that, contrary to its own records, Beddard did not

own all of Farm 4360 and thus Cannon should not have received subsidy payments

for the land that Beddard did not own. The FSA’s county office determined that

Cannon was not required to refund the overpayments from 2005 and 2006 because

he relied on incorrect information maintained by the FSA. In August 2007, the


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FSA’s state executive director rejected the county office’s findings and required

Cannon to repay the subsidies he had received for the land that Beddard did not

actually own.

       Cannon appealed this decision to the USDA’s National Appeals Division,

which affirmed the state executive director’s decision. Cannon subsequently

requested review by the National Appeals Division Director, who ordered him to

repay $42,000 he received for land leased, but not owned, by Beddard.

       In May 2011, Charlotte Blackburn-Smith, a UDSA employee, told Cannon

that he had been the victim of discrimination based on his race during the entire

review and appeal process. In November 2011, Cannon filed a race discrimination

complaint with the USDA.

       On March 31, 2014, Cannon filed this lawsuit in federal district court against

Vilsack. In his amended complaint, Cannon brought an ECOA claim, alleging that

the USDA discriminated against him based on his race throughout the

administrative process. 1 Vilsack moved to dismiss the claim as time-barred. The

district court granted the motion. 2 This appeal followed.

       1
         In the first amended complaint, Cannon also asserted claims against a John Doe
defendant, the unidentified USDA employee who was responsible for investigating Cannon and
representing the USDA’s interests, alleging the employee improperly discriminated against him.
Because Cannon voluntarily dismissed the claims against John Doe under Federal Rule of Civil
Procedure 41(a), they are not before us on appeal.
       2
         The district court dismissed under Federal Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction, holding that because ECOA’s statute of limitations barred the claim,
the United States had not waived its sovereign immunity and the court lacked subject matter
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                                                II.

       ECOA prohibits discrimination against an applicant for credit based on

“race, color, religion, national origin, sex or marital status, or age” and gives

aggrieved applicants a private right of action to sue “[a]ny creditor who fails to

comply with any requirement imposed under [ECOA].” 15 U.S.C. §§

1691(a), 1691e(a). As part of the Dodd-Frank Wall Street Reform and Consumer

Protection Act (“Dodd-Frank Act”), Pub L. No. 111-203 § 1085(7), 124 Stat. 1376,

2085 (2010), Congress extended the statute of limitations period for ECOA claims

from two years to five years. Compare 15 U.S.C. § 1691e(f) (2011) (requiring

claims to be brought in five years); with id. § 1691e(f) (2010) (requiring claims to

be brought in two years). The parties agree that the amended statute of limitations

went into effect in July 2011. Although Cannon’s ECOA claim accrued no later




jurisdiction. In the alternative, the district court held that even if ECOA’s time bar was not
jurisdictional, the ECOA claim was still time-barred and should be dismissed for failure to state a
claim.
        We need not decide for purposes of this appeal whether ECOA’s time bar is jurisdictional
such that a time-barred ECOA claim should be dismissed for lack of subject matter jurisdiction
rather than failure to state a claim. There is no question that, like the district court, we have
jurisdiction to consider and apply ECOA’s statute of limitations in this case. Whether ECOA’s
time bar is a jurisdictional requirement or only an affirmative defense does not impact our
analysis here because the parties raise no issue on appeal about whether Vilsack waived the
statute of limitations, whether Cannon is entitled to equitable tolling, or who bears the burden of
proof. See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-34 (2008) (discussing
whether time bars are jurisdictional or constitute an affirmative defense). For our purposes and
for the parties’ purposes, it makes no difference in this case whether we treat ECOA’s time bar
as a jurisdictional requirement or an affirmative defense. Accordingly, we leave this issue for
another day.
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than May 2011, 3 he waited until March 2014 to sue. Vilsack asserts that Cannon’s

claim is time-barred because the two-year statute of limitations, which was in

effect when his claim accrued, applies. But Cannon argues that his claim is not

time-barred because the amended five-year statute of limitations, which was in

effect when he filed suit, governs. We agree with Vilsack.

       We review de novo the district court’s grant of Vilsack’s motion to dismiss.

See Gonsalvez v. Celebrity Cruises Inc., 750 F.3d 1195, 1197 (11th Cir. 2013).

“[D]ismissal on statute of limitations grounds is appropriate if it is apparent from

the face of the complaint that the claim is time-barred.” Id. (internal quotation

marks omitted). Because we conclude that a two year statute of limitations applies,

it is apparent from the allegations in the complaint that Cannon’s claim is time-

barred.

       We have previously held that an amended statute of limitations retroactively

applies to a cause of action that accrued prior to, but was filed after, the

amendment went into effect only when (1) the “limitations statute is remedial or

procedural in nature and not a substantive limitation on a statutory right” or (2) the

legislature “clearly manifest[ed] an intent to have an amended limitations statute

       3
         Under ECOA, the limitations period begins to run on “the date of the occurrence of the
violation.” 15 U.S.C. § 1691e(f). Vilsack asserts that Cannon’s claim accrued on August 13,
2007, when the state executive director ordered him to repay, because this was the first adverse
action the USDA took against him. Cannon asserts that his claim did not accrue until May 2011,
when he first learned of the discrimination. We need not decide precisely when Cannon’s claim
accrued because even if it did not accrue until May 2011, it was untimely.

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apply to existing causes of action.” Sarfati v. Wood Holly Assocs., 874 F.2d 1523,

1525 (11th Cir. 1989). Applying this test, we hold that ECOA’s amended five-

year limitations period is not retroactive.

       First, we consider whether ECOA’s limitations period is a substantive

limitation on a statutory right that is neither remedial nor procedural in nature. In

Sarafti, we explained that “[a] statute of limitations that restricts a right created by

a statute rather than a right at common law generally is deemed to be a substantive

limit on the right as opposed to a mere procedural limit on the remedy.” Id. We

recognized an exception to this general rule when “a right created by statute is in

one act and the limitations period is in another act.” Id. at 1526. When the private

right of action and limitations period are in separate acts, then we presume the

limitations period is “not . . . an integral part of the right itself” but “only a

procedural limit on the remedy.” Id.

       We conclude that ECOA’s limitations period is a substantive limitation that

is neither remedial nor procedural in nature. The limitations provision restricts a

right of action created by a statute—that is, an aggrieved party’s private right of

action to sue a creditor under ECOA—not a common law claim. See 15 U.S.C.

§ 1691e(a). Also, the provision creating the private right of action is contained in

the same section of the United States Code as the limitations period. See id.

§ 1691e(a), (f). Moreover, both provisions are found in the same act. See Act of


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October 28, 1974, Pub. L. No. 93-495 § 503, 88 Stat. 1500, 1521, 1524 (1974).

Although Congress subsequently extended ECOA’s limitations period in the Dodd-

Frank Act, Sarfati makes clear that when the provisions setting forth the original

limitations period and creating the cause of action are in the same piece of

legislation, we should treat the statute of limitations as substantive. See Sarfati,

874 F.2d at 1527. Accordingly, ECOA’s amended limitations period does not

apply retroactively to claims that accrued before, but were filed after, the amended

limitations period’s effective date.

      Cannon argues that we should treat ECOA’s statute of limitations as

remedial because ECOA as a whole is remedial in nature. Under Cannon’s

reasoning, any time Congress amends the limitations period for any private right of

action created by statute, the amendment should be retroactive because any statute

creating a private right of action is remedial. This argument cannot be squared

with Sarfati. If Cannon is correct, then in Sarfati we would have retroactively

applied the amended limitations period because the underlying statute as a whole

was remedial; it created a private right of action. Instead, we focused on whether

the statute of limitations provision, as opposed to the statute as a whole, was




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procedural in nature or a substantive limitation on a statutory right. 4 See id. at

1525.

        Second, we consider whether Congress clearly manifested an intent to have

ECOA’s amended statute of limitations apply to existing causes of action. We

conclude it did not. Indeed, Cannon presents no argument and points to no

evidence showing that Congress intended the amendment to apply retroactively.

        Instead, Cannon argues that we are not bound by Sarfati because we silently

overruled it in Berman v. Blount Parrish & Co., 525 F.3d 1057 (11th Cir. 2008).

As an initial matter, a later “panel cannot overrule a prior one’s holding even

though convinced it is wrong” unless the first panel’s holding is overruled by our

Court sitting en banc or by the Supreme Court. Smith v. GTE Corp., 236 F.3d

1292, 1300 n.8 & 1303 (11th Cir. 2001) (internal quotation marks omitted).

Accordingly, to the extent that Sarfati and Berman conflict, we are bound by

Sarfati because it is the earlier case and has not been overruled en banc or by the

Supreme Court.



        4
          Cannon asserts that the district court in Grady v. Bunzl Packaging Supply Co., 874 F.
Supp. 387 (N.D. Ga. 1994), adopted his approach and considered whether a statute as a whole
was remedial to determine whether an amendment to a statute of limitations applied
retroactively. Of course, we are not bound by the district court’s analysis in Grady. What’s
more, Grady does not actually support Cannon’s position. Although in Grady the district court
used some ambiguous language when it suggested that whether a limitations period applies
retroactively depends on whether “the statute is remedial or procedural in nature,” its analysis
focused on whether the “statute of limitations is procedural or substantive,” not whether the
statute as a whole is remedial. Id. at 392.

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      In any event, we see no conflict between our decisions in Berman and

Sarfati. In Berman, we considered whether a statute that extended the limitations

period for certain securities claims from three years to five years revived claims

that had expired at the time the amendment went into effect. We held that because

the plaintiff’s claims “had expired before the effective date of the . . . new statute

of limitations . . . [,] the district court did not err by dismissing the complaint.”

Berman, 525 F.3d at 1059. Berman never addressed whether an amended statute

of limitations applied retroactively to a claim that had accrued but not expired at

the time the amended statute of limitations went into effect.

      At the time Cannon’s ECOA claim accrued, he had two years to sue.

Although ECOA’s limitations period was extended to five years before Cannon

filed suit, we hold the extended limitations period does not apply retroactively to

Cannon’s claims. Because Cannon failed to sue within two years of when his

claim accrued, the district court correctly concluded that his claim was barred by

the statute of limitations.

                                           V.

      Because the statute of limitations bars Cannon’s ECOA claim, we affirm the

district court’s dismissal.

      AFFIRMED.




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