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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ANDY ADAMS AND HEATHER ADAMS,

et al. 

Plaintiffs,

v.

UNITED STATES OF AMERICA, et

al.

Defendants. 

CIV-S-04-0979 DFL KJM PS

MEMORANDUM OF OPINION 

AND ORDER

I.

The thirteen named plaintiffs seek to certify a class of 200

individuals defined as “all individuals, as defined in 7 C.F.R.

1941.4 as a ‘borrower,’ whose loans were administered by Donna

Gordy (“Gordy”), which directly led to FSA’s [Farm Service

Agency] subsequent decision to designate the loans as

unauthorized financial assistance, had loan making and servicing

terminated, were subjected to administrative offset, and directed

to liquidate their farm operation.” (FAC ¶ 30.)

Plaintiffs allege that Gordy, a former FSA agent, violated

FSA regulations by: (1) approving loans for plaintiffs when they

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did not qualify for them; (2) permitting plaintiffs to use loan

proceeds and collateral inappropriately; (3) promising future FSA

loans; and (4) promising plaintiffs that their FSA loans would be

forgiven. (Opp’n at 2.) In addition, plaintiffs allege that

Does 1-10, as supervisors of Gordy, failed to prevent Gordy’s

violations of the FSA regulations. (Mot. at 6.)

Plaintiffs bring two claims against Gordy and Does 1-10: (1)

a Bivens claim for violation of plaintiffs’ due process rights;

and (2) a RICO claim (FAC ¶¶ 44-55.) In addition, plaintiffs

bring a claim against the United States for breach of the Privacy

Act of 1974, 5 U.S.C. § 552(a). (Id. 56-61.) Plaintiffs seek an

accounting, damages, declaratory relief, and injunctive relief. 

(Id. at 9-10.)

On December 27, 2004, the court entered default as to

defendant Donna Gordy. (12/27/2004 Order.) In the September 19,

2005 scheduling order the court dismissed the claims against the

Does. (9/19/2004 Order.) 

II.

“Class certification must be addressed on a claim-by-claim

basis.” James v. City of Dallas, 254 F.3d 551, 563 (5th Cir.

2001), cert. denied, 534 U.S. 1113, 122 S.Ct. 919 (2002). The

party seeking class certification bears the burden of

demonstrating that the requirements for class certification

stated in Fed.R.Civ.P. 23 have been satisfied. See Zinser v.

Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir.

2001). To obtain class certification, the plaintiffs must first

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satisfy the numerosity, commonality, typicality, and adequacy of

representation requirements of Rule 23(a). See Walters v. Reno,

145 F.3d 1032, 1045 (9th Cir. 1998). “These requirements

effectively ‘limit the class claims to those fairly encompassed

by the named plaintiff’s claims’” by ensuring that the named

plaintiffs have suffered the same injury and possess the same

interest as the other class members. General Tel. Co. v. Falcon,

457 U.S. 147, 156, 102 S.Ct. 2364 (1982). The plaintiffs must

then demonstrate that their claims fall under one of the

categories listed in Rule 23(b). 

Because “actual, not presumed,” compliance with Rule 23

remains the touchstone for class certification, a class may be

certified only after the court has conducted a “rigorous

analysis” to determine if class certification is appropriate in

light of the particular facts underlying the plaintiff’s claim. 

Falcon, 457 U.S. at 160-61. At the class certification stage,

plaintiffs need not prove the merits of their claims. However,

they “must provide more than bare allegations that they satisfy

the requirements of Rule 23 for class certification.” Morrison

v. Booth, 763 F.2d 1366, 1371 (11th Cir. 1985); see also Szabo v.

Bridgeport Machines Inc., 249 F.3d 672, 677 (7th Cir. 2001),

cert. denied, 534 U.S. 951, 122 S.Ct. 348 (2001). In addition,

because “motions for class certification are fact-specific, and

therefore, the outcome of these motions will vary based on the

specific facts of the case,” a careful analysis of class

certification issues may not be possible where the plaintiffs’

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claims are broad and the factual record is undeveloped. See

McReynolds v. Sodexho Marriott Services, Inc., 208 F.R.D. 428,

442 (D.D.C. 2002). Therefore, the vaguer the plaintiffs’ claims,

the less likely it is that plaintiffs will succeed in making the

necessary showing for class certification under Rule 23.

Plaintiffs’ motion does not adequately address the Privacy

Act claim on which the class action is predicated. Indeed, there

is no specific discussion of this claim whatsoever, yet this is

the only remaining claim in the case now that defendant Gordy has

defaulted. The court would not certify a class action on the

defaulted claims against Gordy because the only remaining issues,

after default, concern damages as to which each plaintiff is

differently situated from every other plaintiff. Because

plaintiffs only bring a breach of the Privacy Act of 1974 claim

against the remaining defendant, it was incumbent upon them to

explain why the legal elements of this claim, in the

circumstances here, lend themselves to class action treatment. 

Plaintiffs did not do this, and without a rigorous analysis of

the facts and issues relevant to the Privacy Act claim, the court

is not in a position to certify a class action based on that

claim. For this reason, the motion to certify a class is DENIED.

III.

The court notes two additional problems with plaintiffs’

motion.

A. Numerosity

Under Rule 23(a)(1), to certify a class, it must be “so

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numerous that joinder of all members is impracticable.” The

Supreme Court has held that fifteen individuals is too few to

meet the numerosity requirement. Harik v. California Teachers

Ass’n, 326 F.3d 1042, 1051 (9th Cir. 2003) (citing General Tel.

Co. v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698 (1980)).

Plaintiffs argue that they have met the numerosity

requirement because their proposed class consists of over 200

persons. (Mot. at 13.) In support of this number, plaintiffs

allege that the FSA has a list of at least 130 borrowers that

were harmed by its policies. (Reply at 2 (citing Shannon Adams

Decl. ¶ 6; Vera Adams Decl. ¶ 6).) In addition, plaintiffs note

that there were 312 calls, over a six week period, to a phone

hotline listed in newspaper advertisements for potential class

members. (Id. (citing Davis Decl. ¶ 3; John Ohm Decl. ¶ 2).) 

Plaintiffs claim that a number of people who called the hotline

did not want to be named as plaintiffs in the lawsuit because of

a fear of retribution from the FSA. (Id.)

These assertions are not adequate to establish numerosity. 

If the FSA has a list of people harmed by the FSA’s policies,

then plaintiffs should obtain that document before moving to

certify a class. And, even if plaintiffs received 312 calls to

their hotline, the court cannot determine from the affidavits 

whether each call was from a separate individual and how many

callers wished to be class members. Therefore, the court finds

that plaintiffs have not met their burden to establish the

numerosity element of Rule 23(a). 

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B. Adequacy of Representation

Although counsel is experienced in suits against the United

States on behalf of farmers, he concedes that he is a neophyte

when it comes to class action practice under Fed.R.Civ.P. 23. 

The briefing on this motion has revealed that lack of

familiarity. Class action practice is a speciality, and it is no

criticism of counsel’s overall competence that he lacks this

experience. Nonetheless, on the basis of the papers filed in

this action, the court cannot find that counsel can adequately

represent the class given the subtleties of class action

litigation. Therefore, the court finds that plaintiffs have not

met their burden to establish the adequacy of representation

element of Rule 23(a).

IV.

For the reasons stated above, the court DENIES plaintiffs’

motion to certify a class.

IT IS SO ORDERED.

Dated: 3/10/2006

DAVID F. LEVI

United States District Judge

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