1 Circuit Judge of the Eighth Circuit Judge, sitting by

designation. 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 LAY 1 , DUHÉ and D E MOSS, Circuit Judges.

D E MOSS, 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 componen t of the Fifth Amendment and the Equal

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

district court originally dismissed the suit for lack of standing,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 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 qua lities." I d

. §

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 e xclusively to qualified minorities 2 and sell non-SD A

designated properties to any qualifie d applicant. The FmHA

required all applicants, regardless of SDA status, to produce

evidence of an "acceptable credit history."3 The E COA broadly prohibits credit discrimination, stating

that

It shall be unlawful for any creditor to discriminate against

any appli cant, 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 In December 1989, Larry Moor e, a white male, applied to

purchase an SDA-designated property, namely a 183-a cre 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 cla ssification. 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 1 990 credit report. The report, among

o ther things, indicated that Larry Moore had been sporadicall y

empl oyed 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 f rom farming operations and mental anguish4 In particular, the FmHA arg ued that the Moores failed to

demonstrate that they were qualified for an extension of credit.

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

specific request for inju nctive 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 offere d alternative defenses to its actions: (1)

notwithstanding its board prohibition against discriminatory

lending, the ECOA exempts refusals to extend credit t hat 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 E COA 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 of5 T he court correctly noted that very little ECOA case law

exists. But given the similarity between an ECOA refusal-toextend-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 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 cred it; 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 cour t have been properly

established, "`even though the parties are prepared to conc ede

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. S ee 15 U.S.C. § 1691a(e),(f) (respectively defining6 The TILA was enacted in 1968, see Pub. L. No. 90-321, 82

Stat. 146, and the ECOA was enacted in 1974, s ee Pub. L. No. 93-

495, 88 Stat. 1521.

6 "creditor" to mean "person," and "person" to mean "govern ment or

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

t o mean that Congress waived the liability of s tate governmental

entities only, leaving intact the United States' immunity.

There are two problems with th e 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 al so expressly preserved the United States' sovereign

immunity against TILA claims. I d

. § 1612(b). Clearly, TILA

indicates that Congress intended "government or governmental

subdivision o r agency" to include the United States, because

otherwise it would not have specifically preserved the United

States' immunity unless it believed tha t such immunity had been

previously waived. Considering that ECOA was passed after TILA 6

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.7

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

conclusion creates a paradox. The courts have developed virtually

identical test s 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 "unmistakab ly 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

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

among other cases A tascadero State Hospital v. Scanlon

, 473 U.S.

234 (1985), wherein the Supreme C ourt discussed the test for

determining whether Congress has abrogated the states' Eleventh

Amendment immunity. We purposely cited S canlon in Interfirst Bank

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

identical. S ee 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 See also 15 U.S.C. § 1691e(b) (limiting ECOA claims against

governmental entities to actual damages only).

8 was part of the understood b ackground against which the

Constitution was adopted") (emphasis added).

So, given the uniform ity with which courts must assess a ny

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 unequi vocally expresses Congress'

intentions: governmental entities are liable under the Act. S ee 15

U.S.C. § 1691a(e),(f) (respectiv ely 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 rig hts 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 of9

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 M eyer established that

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

opposed to federal officers), i d

. at 1004-05, the Moores c annot

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 in stance.

Specifically, the FmH A 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. §

1 691(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 fa iled to make a prima facie case of

discrimination.

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

agency concedes that i ts December 1989 letter to Larry Moore,10

wherein it stated that "[n]o whites" could qualify for SDAdesignated properties, constitutes direct evidence of racial

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

McDonnell Douglas burden-shifting framework commonly applied in

discriminatio n 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 e vidence

establishes that an employer open ly discriminates against an

individual it is not necessary to apply the mechanical formula of

McDon nell Douglas to establish an inference of discrimination.'"

Kendall v. Block

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

Ramirez v. Sl oss , 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

r equested actual damages (i.e., loss of income from far ming

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

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

most, are nom inal given that their poor credit history independently precludes them from qualifying for a non-SDA-designated

property. In fact, the FmHA notes, the Moores' s econd application

for a DOA-held property was denied solely on t he basis of their11

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

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

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

poor credit history cannot defeat the FmHA's lia bility, 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 o f 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 Stat es' 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.