Full opinion text
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE RICHARD F. CEBULL, District Judge. On December 28, 2008, United States Magistrate Judge Carolyn Ostby entered Findings and Recommendation (F & R)(Doc. 125) with respect to Plaintiffs appeal from an administrative ruling (Doc. 1). Magistrate Judge Ostby recommends that Judgment be entered in Defendant’s favor. Judge Ostby concluded that Plaintiff could not set forth a prima facie case under the Equal Credit Opportunity Act (“ECOA”) because she failed to establish two essential elements of her claim. With respect to various loan applications Judge Ostby determined Plaintiff did not establish that (1) she qualified for the credit she applied for and (2) similarly situated persons, outside of plaintiffs protected class, were given favorable treatment. Upon service of a magistrate judge’s findings and recommendation, a party has 10 days to file written objections. 28 U.S.C. § 636(b)(1). In this matter, Plaintiff filed an objection on January 12, 2009. Defendants responded to Plaintiffs objections on January 30, 2009. Plaintiffs objections require this Court to make a de novo determination of those portions of the Findings and Recommendations to which objection is made. 28 U.S.C. § 636(b)(1). Plaintiffs seventy-three pages of objections are not well taken. Plaintiff objects to the Findings and Recommendation in its entirety. Plaintiff boldly comes to the conclusion that Magistrate Ostby did not exercise independent judgment and, “never even looked at the Plaintiffs proposed Findings and Conclusions.” See Plaintiffs Objections to Magistrate’s Findings and Recommendations (Objections) p. 2. However, aside from Plaintiffs Counsel’s subjective point of view, she provides no additional basis for this allegation. Indeed, Plaintiffs objections are premised largely on conclusory statements that the Court ignored, or did not give sufficient weight to, all of Plaintiffs evidence. However, this Court can not find error on that basis alone. The Court can not presume to simply supplant the judgment of the Magistrate Judge, who held a three-day hearing and evaluated the evidence. The objections set forth by Plaintiff do not provide a compelling basis upon which to disturb Judge Ostby’s findings and conclusion. The primary objection offered by Plaintiff is that the Court impermissibly substituted its own judgment and definition of “similarly situated” without citing legal precedent. See Objections p. 14. Specifically, Plaintiff suggests that her expert, Mr. O’Brien’s definition of “similarly situated” was appropriate. In support, Plaintiff cites a Third Circuit pre-Daubert case, Japanese Electronic Prod. Antitrust Litig., 723 F.2d 238 (3d Cir.1983), (rev’d on other grounds) as supporting the position that the Court may not ignore expert testimony and substitute its opinion. However, it is now generally accepted that expert testimony can be excluded based on judicial determination of relevance and reliability. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Consequently, the Court agrees with Defendant that Japanese Electronic Prod. Antitrust Litig. is not persuasive authority in this case. Nevertheless, in order to show more favorable treatment, a plaintiff must demonstrate that they are similarly situated in all material respects. See Moran v. Selig, 447 F.3d 748, 755 (9th Cir.2006). Plaintiff contends that Judge Ostby improperly substituted her definition of “similarly situated” for that of O’Brien which allowed the Court to arbitrarily reject Plaintiffs crop production figures and land values. Defendant counters that Judge Ostby correctly determined whether Plaintiffs selected borrowers were similarly situated. Defendant acknowledges that O’Brien’s criteria for similarly situated may be appropriate in some circumstances. However, Defendant argues, the cases O’Brien worked on in the past are distinguished because they were class actions which might require grouping individuals in broad categories. In this case though, the Plaintiff is an individual borrower in a case alleging that other borrowers received favorable treatment. Consequently, Defendant suggests that the facts and circumstances of this case might well require a more narrow analysis of whether the selected borrowers were similarly situated in all material respects. A review of the Findings and Recommendations indicates that Judge Ostby neither arbitrarily rejected nor ignored O’Brien’s calculations. On the contrary, the Order sets forth in detail how selected borrowers are distinguished, mainly because; (1) FMHA was not the Plaintiffs primary lender as it was with the selected borrowers, and; (2) the FMHA servicing area covered four counties which encompasses incredible geographic diversity in terms of elevation, soil type, climate, and amounts of productive farm land available. See F & R ¶¶ 83, 84, 85. After a review of the objections, this Court finds that Judge Ostby set forth a reasonable basis for “similarly situated” under the particular circumstances of this ease and Plaintiffs objections on that score are unavailing. Plaintiff argues that the Court ignored alleged Code of Federal Regulations (CFR) violations which constitutes discrimination. In support, Plaintiff cites Anderson v. United Finance Co., 666 F.2d 1274 (9th Cir.1982) as standing for the proposition that even a technical violation of a CFR constitutes discrimination under the ECOA. Defendant counters that certain technical violation of the CFRs concerning non-related farm programs do not automatically establish violations of the ECOA. Defendant acknowledges that a violation of the regulation under ECOA may be actionable as it was in Anderson. However, Defendant points out that Plaintiff misconstrues Anderson in that it does not find that a technical violation of a regulation outside the ECOA amounts to actionable discrimination absent a waiver of sovereign immunity. The Court agrees with Defendant in that technical violations of other CFRs, not under ECOA, are not independently actionable absent a waiver of sovereign immunity. See United States v. Nordic Village, Inc., 503 U.S. 30, 37, 112 S.Ct. 1011, 1016, 117 L.Ed.2d 181 (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.”). The remainder of Plaintiffs objections consist of Plaintiff attempting to re-litigate the hearing before the Magistrate Judge by purging her evidence and revisiting the same arguments. Again, after reviewing the record before it, the Court can find no clear error on Judge Ostb/s part. Without some compelling reason, this Court will not presume to substitute its judgment on the credibility of the witnesses and sufficiency of the evidence for that of Judge Ostby, who was in the best position to evaluate such evidence. After a de novo review, the Court determines the Findings and Recommendation of Magistrate Judge Ostby are well grounded in law and fact and HEREBY ORDERS they be adopted in their entirety- Accordingly, IT IS HEREBY ORDERED that Plaintiffs Complaint (Doc.# 1) is DISMISSED WITH PREJUDICE. The Clerk of Court shall notify the parties of the making of this Order and close this ease accordingly. FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE CAROLYN S. OSTBY, United States Magistrate Judge. I. INTRODUCTION Plaintiff Jacqueline Shiplet (“Shiplet”) filed this action against the Secretary of the United States Department of Agriculture (“USDA”) on January 21, 2005. Her complaint alleges that employees of Farm Service Agency (FSA), formerly known as Farmers Home Administration (FmHA), discriminated against her on the basis of her gender, age and marital status in administering farm programs. See Final Pretrial Order (Court’s Doc. No. 95) at 2. She contends that this discrimination deprived her of equal and fair access to farm credit and farm programs in violation of the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691 et seq. For relief, she seeks damages, attorneys fees, and FSA debt forgiveness. Id. at 6-7. This is an appeal from an administrative ruling denying Shiplet relief. Although such appeals ordinarily are decided considering only the administrative record, Shiplet was allowed an opportunity to conduct discovery to supplement the administrative record with evidence showing disparate treatment. See Order dated February 15, 2006 (Court’s Doc. No. 25) (applying the governing standard of review set forth in the Historical and Statutory Note to 7 U.S.C. § 2279). After a period of extended discovery, this Court conducted an evidentiary hearing on September 25, 26, and 29, 2008. The purpose of the evidentiary hearing was to allow the parties to present additional evidence to supplement the administrative record with respect to Shiplet’s claims of disparate treatment. Based on a review of the administrative record as supplemented by the evidence presented at the evidentiary hearing, the Court recommends that the following Findings of Fact and Conclusions of Law be adopted. II. FINDINGS OF FACT A. Administrative Procedural History 1. Shiplet initially filed administrative complaints with the USDA dated October 26, 1996, and December 26, 1996, alleging discrimination on the basis of sex, age, and marital status by FmHA and its successor agency FSA. {See ALJ Pleadings, Doc. No. 51 at 1)(“ALJ Det.”). 2. On May 14, 2001, Shiplet requested a hearing before an administrative law judge (ALJ). After the USDA Office of Civil Rights filed a required report of investigation on January 28, 2002, a hearing was scheduled for June 2002. The hearing was continued on multiple occasions due to attempts to clarify the issues for adjudication, and was finally conducted in August 2003, in Bozeman, Montana. 3. In a 35-page decision dated April 9, 2004, the ALJ determined that Shiplet failed to prove by a preponderance of the evidence that the agency denied her credit benefits or treated her less favorably than other credit applicants on the basis of sex, marital status, or age. He ordered that her complaints charging the agency with discriminatory conduct be dismissed with prejudice. (ALJ Det. at 35). 4. On May 10, 2004, Shiplet requested that the USDA Assistant Secretary of Civil Rights review the ALJ’s determination. (ALJ Pleadings at Doc. No. 52). In a 14-page decision, the Assistant Secretary affirmed dismissal of the Shiplet’s complaint, on July 29, 2004. See Third Supplement to Administrative Record, Court’s Doc. No. 117-2. 5. Shiplet then initiated this action under P.L. 105-277, Div. A [Title VII, § 741] (codified under the Historical Notes to 7 U.S.C. § 2279). That section provides for judicial review of a USDA determination concerning allegations of discrimination and contains a waiver of otherwise applicable statutes of limitation. B. USDA Farm Loan Programs 6. The USDA has two broad categories of farm loan programs which are currently administered by FSA. The agency has a direct loan program, in which a borrower applies directly to the agency for financing. If approved, the loan funds are provided directly by the agency to the borrower. (Tr. 319). In this situation, the debtor-creditor relationship is between FSA and the borrower, and FSA administers and services the loan. (Tr. 481). 7. The agency also has a guaranteed loan program. Under this program, a commercial lender applies to FSA for a guarantee on a loan to an agricultural borrower. (Tr. 492). If approved, FSA guarantees that it will reimburse the commercial lender for a percentage of any loss the lender may sustain on the loan. (Tr. 493). In this situation, the commercial lender, not FSA, provides the financing to the borrower, and the debtor-creditor relationship is between the commercial lender and the borrower. (Tr. 492). The commercial lender also administers the loan, and provides loan servicing. (Tr. 482). 8. These loan programs included farm ownership loans (designed to allow the applicant to acquire property), operating loans (to pay ongoing expenses of farming) and emergency loans, as well as others. (Tr. 43). 9. Because FSA provides taxpayer-subsidized loans, it is not authorized to compete with commercial lenders. (Tr. 485). To obtain credit from FSA, the borrower must be unable to obtain credit from any other source and must demonstrate economic feasibility. (ALJ Tr. 3 at 265; Tr. at 43, 45^46). Economic feasibility meant that an applicant had to demonstrate that the relevant farm and home plan “cash flowed”, that is, that money was left to service the debt after all expenses were deducted from all income. (Tr. at 46). C. Shiplet Land Purchases 10. On July 25, 1980, Shiplet and her husband, Robert Shiplet, Sr., (collectively referred to as the Shiplets), purchase a tract of land on contract from the Shields River Bench, a partnership consisting of Ronald L. Burgess, John L. Lake, Jr., and Nick Mallas. The purchase price was $110,000, with a down-payment of $21,500, and annual payments of $12,017. (ALJ Findings of Fact (FOF) # 4; ALJ Tr. 1, pp. 16-19; Burgess v. Shiplet, 230 Mont. 387, 388, 750 P.2d 460, 461 (1988)). Shiplet testified that she and her husband knew “it was out of our range” but claimed that someone advised them to do it. (ALJ Tr. 1 at 19,11. 6-7). 11. On February 2, 1981, the Shiplets submitted a certified statement of financial condition to First Security Bank of Livingston, listing their assets and liabilities as of that date. The financial statement stated that the Shiplets had total assets valued at $1,234,875, including 7,358 acres of land worth $1,000,000, and total liabilities of $619,098.70. The financial statement did not list the liability that the Shiplets had incurred as a result of buying land from the Shields River Bench on July 25, 1980. The liability created by that transaction had not been extinguished as of February 2, 1981. (ALJ FOF #5, Cx. 3, p. 1; Burgess, 230 Mont, at 388, 750 P.2d at 461). 12. On July 28, 1981, the Shiplets and their daughter purchased another tract of land on contract from the Shields River Bench. The purchase price was $110,000, with a down-payment of $10,000, and annual payments of $13,575. (ALJ FOF # 6; Burgess, 230 Mont, at 388, 750 P.2d at 461). 13. The Shiplets later defaulted on both of the foregoing land purchase obligations and the vendors sued. When the case came before the Montana Supreme Court in 1988, the Court ruled in favor of the vendors on all issues and observed: “Respondents [the Shiplets] lived on the property, farmed the land and kept all income from it since 1980 on one parcel and since 1981 on the other. They have continued to possess, enjoy and reap the benefits from the property without making any payments on it since June 1983 on the first contract, and May 1984 on the second contract.” (ALJ FOF # 7; Burgess v. Shiplet, 230 Mont. at 391, 750 P.2d at 462). 14. Numerous documents submitted by the Shiplets to FmHA, including financial statements, loan applications and farm and home plans, failed to disclose the purchase of these additional properties, totaling $220,000, down payments totaling approximately $36,000, and requiring annual payments of more than $26,000. (ALJ Tr. 2, pp. 39-41, 43^45, 50-58). D. Shiplet’s Loans 1. 1974 Guaranteed Emergency Livestock Loan 15. In September 1974, First Security Bank of Livingston applied to the FmHA office in Bozeman for a guarantee on a prospective loan to the Shiplets. (Ex. 101, 102; ALJ Tr. 1 at 15, 1. 9). FmHA approved the application and issued a contract of guarantee for $239,500 on January 3, 1975. (Ex. 104). Pursuant to requests by both the bank and the Shiplets, FmHA regularly renewed and increased the amount of, the guarantee on the loan over the next ten years. (Ex. 105-115; Gx. 1, pp. 28, 39, 46, & 47). 16. The terms of this loan permitted First Security to charge a variable interest rate based on changes in the prime lending rate. The interest rate that the bank charged the Shiplets rose to a high of 20.5 % in 1981 and then declined over subsequent years to 16.5 % in 1985. (ALJ Tr. 3 at 388). 2. 1981 Direct Loan Application 17. On or about September 14, 1981, Shiplet advised FmHA that the bank was requiring the Shiplets to pay off their guaranteed loan, and the Shiplets jointly applied for a direct loan from FmHA for that purpose. (ALJ Tr. 1 at 26; Cx. 4). On the Shiplets’ application, their off-farm income included a projected $20,715 from Shiplet’s employment as a teacher for the Livingston Public Schools, and a projected $16,346 from Robert Shiplet’s employment as a heavy equipment operator for Wick-ens Construction in Springdale. (Cx. 4 at 1). Robert Shiplet signed the application as the applicant, and Shiplet signed the application as the applicant’s spouse. (Cx. 4 at 2). 18. FmHA County Supervisor Richard Parker (Parker) determined that First Security Bank was not requiring that the guaranteed loan be paid. The bank was willing to again extend the loan, as it had regularly done in the past. Parker contacted the Shiplets on January 15, 1982, and advised them of that fact. (ALJ Tr. 2 at 224-225). He also contacted the bank, and advised that FmHA was willing to extend the guarantee on the loan. (Id.). 19. The September 1981 application to FmHA was not acted on further by either FmHA or the Shiplets after the guarantee was extended. A borrower is not eligible for direct loan assistance from USDA if the borrower qualifies for a commercial loan, with or without a FmHA guarantee. (Tr. at 570, 580; ALJ Tr. 2 at 226-227). Shiplet was aware of this restriction. (ALJ Tr. 2 at 61,11.10-11). 3. 1984 Loans a. Direct Economic Emergency Loan (EE) Application 20. On January 23, 1984, the Shiplets submitted an application dated December 7,1983 for a direct EE loan. As with their 1981 application, the stated purpose for the loan was “we have to pay off our guaranteed livestock loan.” (Cx. 8). Robert Shiplet signed the application as the applicant, and Shiplet signed as the applicant’s spouse. The Shiplets were advised that the agency did not know if it would have funds to loan. (Gx. 1, p. 57) 21. From February 3, 1984 through February 14, 1984, First Security Bank, FmHA, the Shiplets, and their attorney, Terry Schaplow, held discussions and meetings concerning the EE guarantee program. (Gx. 1, pp. 57, 64, and 65). 22. The Shiplets then came to the FmHA office in Bozeman on February 27, 1984 to submit an application for a guarantee on a new EE loan from First Security Bank of Livingston in the amount of $400,000. (Gx. 1, 65, 69-75). The proposed guaranteed loan included a payoff of the Shiplets’ existing guaranteed loan with the bank in the amount of $337,818.30, an additional $36,000.00 for operating, and land payments totaling $59,493.00. (Gx. 1, p. 69; ALJ Tr. 2, pp. 252-258). 23. After the bank submitted additional information to support the application, on April 2,1984, FmHA approved the guarantee, and issued a conditional commitment for a contract of guarantee on May 9,1984. (Gx. 1, pp. 94, 137-138, and 139). Attached to the conditional commitment was a list of 11 conditions that the Shiplets were required to meet, including a requirement that they sell sufficient land to reduce their debts by approximately $338,000. (Gx. 1, pp. 137-40; ALJ Tr. 3, pp. 29-32). The Shiplets did not sell land to reduce their debts. (ALJ Tr. 3, p. 34-35). 24. Nonetheless, the bank closed the loan on July 30, 1984. (Ex. 126) The interest rate on the note was to be variable based on the bank’s base rate, plus 1%. (Gx. 1, p. 140). When the loan was closed, the rate on the note was 15.65%. (Ex. 126; Gx. 1, p. 139). Shiplet’s expert witness Patrick O’Brien testified that the standard variable rate in 1983 and 1984 was 22%. (ALJ Tr. 2, p. 152). He also reported that the standard commercial rate was 16.5% in 1983. (Tr. 333). 25. The loan application dated December 7, 1983, and submitted on January 23, 1984, was never completed. (ALJ Tr. 3, pp. 191-192, 218-219). Neither FmHA nor the Shiplets took any further action on the January 23, 1984, application because the stated purpose for the loan was satisfied by the new guaranteed loan from First Security. (ALJ Tr. 2, pp. 257-258; Tr. 580-581). b. EM Loan Application 26. On November 26,1984, the Shiplets filed an application with FmHA for a crop disaster emergency (EM) direct loan. (Cx. 19; Gx. 1, pp. 171-172; ALJ Tr. 3, p. 36). The application was signed by Robert Shiplet as the applicant, and Shiplet as the applicant’s spouse. 27. The application was incomplete when submitted, and required additional information to be submitted by the Shiplets. (ALJ Tr. 3, p. 71). 28. To calculate crop losses for purposes of an EM loan, the agency was required to use proven crop yields, based on a five year history. (Tr. 755). In the absence of verifiable yields from the applicant, the agency either used data supplied by another agency (the Agricultural Stabilization and Conservation Service (ASCS)) relative to the applicant’s production history, or established county averages. (ALJ Tr. 3, pp. 63-66; Gx. 1, pp. 191-192). 29. The Shiplets did not provide the actual production records to calculate their crop losses. (ALJ Tr. 3, pp. 63-68). Consequently, the agency obtained production data from ASCS to complete their actual loss calculations. (ALJ Tr. 3, pp. 63-68). This increased the time required to complete the EM loan application, because it required FmHA to wait for another agency to provide the necessary information. (ALJ Tr. 3, p. 67). 30. After receiving the necessary crop yield data, FmHA calculated the Shiplets’ crop losses on April 19, 1985. (ALJ Tr. 3, pp. 59-66; Gx. 1, pp. 191-192). Parker also met with the Shiplets on April 19, 1985, and assisted them in completing their application, and in the preparation of a farm and home plan required for the application. (ALJ Tr. 3, p. 71). The Shiplets’ 1984 EM loan application was then certified as eligible by FmHA’s County Committee at its next meeting on May 14, 1985.(ALJ Tr. 3, pp. 71-72; Gx. 1, p. 193). The county supervisor approved the loan on June 21, 1985. (ALJ Tr. 3, pp. 75-76; Gx. 1, pp. 197-98). 31. Upon completion of the necessary property appraisal and title examination, the loan was closed on July 24, 1985, by a private attorney selected by FmHA, and the loan proceeds of $39,160 were disbursed by that attorney pursuant to the Shiplets’ instructions. (ALJ Tr. 3, pp. 77-78; Gx. 1, pp. 230-31). None of the proceeds of the EM loan went directly to the Shiplets. (Gx. 1, p. 231). The proceeds were primarily applied to decrease the Shiplets’ debt to First Security Bank. (Gx. 1, p. 231). 4. 1985 EM Loan Application 32. On September 16, 1985, the Shiplets submitted a second application for a crop disaster emergency direct loan (EM) to FmHA. (ALJ Tr. 3, pp. 79-80; Gx. 1, pp. 250-251). Robert Shiplet signed the application as the applicant, and Shiplet signed the application as the applicant’s spouse. (Gx. 1, p. 251). 33. On November 4, 1985, FmHA returned the application to the Shiplets by mail because it was incomplete, and the agency had been unable to contact them by telephone. (ALJ Tr. 3, pp. 83; Gx. 1, p. 263). Also, the application could not be processed further because it was not accompanied by the necessary farm and home plan. (Tr. 3, pp. 85-86). 34. At the time the Shiplets submitted their 1985 EM loan application, the Bozeman FmHA office had received an unprecedented number of similar loan applications, and was required to hire independent contractors to help process the applications. (ALJ Tr. 3, p. 81). In fact, in a survey of a sampling of FmHA files, there were approximately thirty-five loan applications submitted in 1985, the bulk of which were EM applications, compared to just eight in 1983. (Ex. 88, pp. 2-4). On January 11, 1986, one of the contractors hired by FmHA, Dean Davidson, visited the Shiplets at their ranch to assist in the completion of the required farm and home plan. (Gx. 1, p. 277; ALJ Tr. 3, 88-91). Davidson was the former chief of farmer programs for the agency’s state office. (ALJ Tr. 3, p. 87). 35. The Shiplets advised Davidson of their pending lawsuit with First Security Bank. They advised Davidson that they anticipated a settlement very soon, which they believed would be quite favorable, would “wipe out” their debt to the bank, and put them in a much better condition to continue the ranching operation. (Gx. 1, p. 277) ‘ 36. In his analysis, Davidson found that the soundness of the Shiplets’ ranching operation for 1986 and future years would, to a large extent, be dependent on receiving a favorable settlement with First Security Bank of Livingston. (Gx. 1, p. 299). He therefore recommended that any loan to the Shiplets not be closed until their lawsuit with the bank had been satisfactorily resolved. (Gx. 1, p. 300). 37. When the county supervisor reviewed the Shiplets’ application with the state office, he determined that the application did not meet the EM lending requirements. (Gx. 1, p. 308). A letter informing the Shiplets of that decision was sent to them on April 22, 1986. (Gx. 1, p. 310). 38. Following receipt of the letter, the Shiplets went to the county office on April 28, 1986, and met with the county supervisor to discuss the denial of their loan request. (ALJ Tr. 3, pp. 106-108). Following the meeting, the FmHA county supervisor reconsidered the denial and continued to process the loan. He received revised information relative to the Shiplets’ equity in their real estate on or about June 19, 1986, which determined the maximum amount of financing available. (Gx. 1, p. 308-309). He then received additional information pertaining to pay off amounts on another mortgage on the property on July 2, 1986. (Gx. 1, p. 309). Thereafter, the county supervisor officially notified the Shiplets on July 15, 1986 that their loan had been approved in the amount of $40,220. (Cx. 28). Closing on the loan was expressly conditioned upon the Shiplets’ litigation with First Security Bank being satisfactorily resolved. (Cx. 29). 39. Although the Shiplets’ suit against First Security was not resolved until 1988, the agency continued to process the loan. When the loan documents were transmitted to a private attorney chosen by the agency to close the loan, the Shiplets contacted the agency on July 23, 1986 and objected, because the attorney’s firm was representing the bank in the Shiplets’ lawsuit against the bank. (Gx. 1, p. 309). The Shiplets requested that a member of their attorney’s firm, Lyman H. Bennett, close their loan. 40. On July 24, 1986, U.S. Treasury check no. 47,247,85, for a loan in the amount of $40,220 was issued and made payable to Robert and Jacqueline Shiplet. (Gx. 3, p. 23). 41. On August 1, 1986, Bennett ordered a preliminary title commitment from American Land Title Company for the property to be taken as security for the loan. (Gx. 3, p. 12). On August 11, 1986, a commitment of title insurance was issued by Park County Title covering the Shiplets’ property which was to be mortgaged to FmHA as security for the EM loan. (Gx. 3, pp. 14-22). 42. Bennett closed the loan September 8, 1986. (ALJ Tr. 2, p. 180, Gx. 3, pp. 79-80). At that time, Bennett informed FmHA that he had closed the loan, and filed the papers of record, but had not disbursed the loan proceeds because consent and agreement forms had not been provided by the Shiplets for third-party holders of interest in the real property that formed the security for the loan. (ALJ Tr. 3, p. 13; Gx. 3, pp. 92-118). 43. Although the Shiplets and Schaplow were unable in the ensuring months to obtain two of the necessary consent and agreement forms, FmHA authorized disbursal of the funds. Disbursal occurred on December 31, 1986. (ALJ Tr. 2, pp. 181-83; ALJ Tr. 3, pp. 13-14; Gx. 3, pp. 105-10, 116-17). The Shiplet’s counsel, Terry Schaplow, signed the disbursement checks. (Gx. 3, pp. 119-121, 124, 125-127, 129; ALJ Tr. 2, 180). The EM loan proceeds were not intended to be used by the Shiplets for annual operating or living expenses, but instead were to be applied to decrease the Shiplet’s indebtedness to creditors. (Gx. 1, pp. 277, 281, 309). 5. 1994 Direct Loan Application 44. On August 22, 1994, approximately one month after the Shiplets received their discharge in bankruptcy, they filed a loan application with FmHA dated August 14, 1994. The application requested loans totaling $400,000 from the government, and was incomplete when submitted. (Cx. 43). 45. Parker notified the Shiplets on August 23, 1994, and September 28, 1994, that they needed to supply additional information to complete their 1994 loan application. (ALJ Tr. 3, pp. 116-119; Gx. 1, p. 1402). 46. Parker retired from FmHA on November 4, 1994. Shortly thereafter, Vern Tesch (Tesch) became the acting county supervisor for FmHA in Bozeman. (Tr. 3, pp. 119,148). 47. On November 18, 2004, the agency received a letter from the Shiplets, requesting a disaster set aside for their 1995 payments on their FmHA loans. (Ex. 142). The request was approved by the agency. (Ex. 142a). 48. Tesch met with the Shiplets on December 1, 1994, and requested that the Shiplets provide him with their actual production records, i.e. calf weights and calving percentages, copies of crop leases, and pasture cattle agreements. (Gx. 1, p. 1497; ALJ Tr. 3, pp. 156,159). 49. In all instances of crop and livestock production, FmHA used the state and county averages because the Shiplets did not provide records indicating that their actual production was above the state averages. (Tr. 500-05). 50. On January 6, 1995, Tesch also called the Shiplet’s attorney, Terry Schaplow, to request updated financial information. (Gx. 1, p. 1509; ALJ Tr. 3, p. 164). Schaplow did not provide an updated financial statement. (ALJ Tr. 3, p. 164). 51. Tesch analyzed the Shiplets’ loan application with the information available, and concluded that the Shiplets’ ranching operation had lost an average of $29,608 each year for the previous five years while under bankruptcy protection. Tesch concluded that the Shiplets would be unable to pay expenses and service their debts if the requested loans were made. At the time Tesch made this determination, the Shiplets still had not complied with the agency’s request to supply an updated financial statement. (ALJ Tr. 3, pp. 156-160, 164, 167,170; Gx. 1, pp. 1498-99). 52. Since Tesch did not have authority to rule on loan requests as large as $400,000, the application was forwarded to Roger Meredith (Meredith), the agency’s credit director for Montana, who had authority to determine loan requests of that magnitude. (ALJ Tr. 3, pp. 167-68, 274). 53. After the 1994 loan application was completed on January 5, 1995, Meredith informed the Shiplets by letter dated January 24, 1995, that their application had been denied. Meredith concluded (1) that the Shiplets could not reasonably be expected to have sufficient cash flow to service the.debt, even at the agency’s lowest “limited resource” rate, and (2) their credit needs exceeded the agency’s statutory lending limits of $200,000 for farm ownership (FO) loans and $200,000 for operating (OL) loans. (Cx. 50; Gx. 4, p. 17). 54. On February 21, 1995, Meredith met with the Shiplets and their attorney, Terry Schaplow, at the Shiplets’ home to discuss his decision to deny their 1994 loan application. The Shiplets thereafter submitted additional information that Meredith incorporated into his analysis of the application. However, the additional information did not alter Meredith’s conclusion that the requested loans were not feasible, and that the Shiplets were therefore financially unqualified for the loans they sought. He confirmed his conclusion in a letter to Schaplow dated March 10, 1995. (Cx. 57; Gx. 1, pp. 1576-84). 55. Meredith used the limited resource interest rate of 5% in his feasibility calculations. (Gx. 1, pp. 1580, 1584; ALJ Tr. 3, p. 307). 56. The Shiplets appealed Meredith’s denial of their 1994 loan application, and a hearing was held on April 25, 1995, before a hearing officer of the National Appeals Division of USDA (“NAD”), Byron Bennes. After the conclusion of the hearing, Bennes kept the record open so that the Shiplets could submit additional information, which they believed would show financial feasibility of their loan request. The Shiplets submitted a new farm and home plan based on information submitted at the appeal hearing. That plan showed a balance available of $35,947 and annual debt payments of $98,889. (Gx. 1, p. 1812). That is, it showed a projected shortfall of $62,942, almost twice as much as projected by Meredith’s analysis. 57. After considering the record with the additional information submitted by the Shiplets after the hearing, Bennes affirmed Meredith’s decision on June 2, 1995. (Gx. 1, pp. 1807-13). 58. The Shiplets appealed the decision of the NAD hearing officer to the director of NAD. On August 14, 1995, the director of NAD affirmed the hearing officer’s decision. (Gx. 1, pp. 1823-24). 6. 1995 Direct Loan Application 59. Two weeks after the director of NAD affirmed Meredith’s denial of the Shiplets’ 1994 loan application, the Shiplets prepared another application dated August 28, 1995, which they filed with the agency on September 5, 1995. (Gx. 1, p. 1833). In that application, the Shiplets again requested FO and OL direct loans totaling $400,000. (Gx. 1, p. 1834). After the application was completed on October 10, 1995, Meredith analyzed it, and concluded that the requested loans were not feasible. The application showed that the Shiplets’ financial condition had deteriorated from the previous year. He denied the application in a letter to the Shiplets dated November 13, 1995, which gave the Shiplets 15 days in which to request a meeting to discuss the decision. (Gx. 1, pp. 1979-81). 60. On December 6, 1995, 23 days after Meredith’s letter of November 13, 1995, the Shiplets came to the FmHA office and requested a meeting. (ALJ Tr. 3, p. 319). Despite the fact that the request was not timely, Meredith agreed to the meet with the Shiplets to discuss denial of their application. (ALJ Tr. 3, p. 319). Following a series of proposed, scheduled, cancelled, and aborted meetings, Meredith wrote a letter to the Shiplets attorney, Terry Schaplow, on January 18, 1996. Meredith advised Schaplow if a meeting could not be arranged on or before February 12, 1996, Meredith would render a decision based on the information he had on hand. (Gx. 1, p. 2022). Meredith ultimately issued a decision on February 23, 1996, confirming his earlier decision that the Shiplets’ loan application was not feasible because (1) the Shiplets’ operation could not generate adequate income to service the debt; (2) the statutory lending limits were not sufficient to meet their total financial needs; and (3) the Shiplets had failed to furnish accurate and essential information which-was requested on numerous occasions. (Gx. 1, pp. 1989, 2025-27). 61. In addition, in a letter dated April 8, 1996, Meredith further advised the Shiplets and their attorney, Terry Schaplow, that legislation effective April 4, 1996, precluded the agency from approving the Shiplets’ 1995 application for direct FO and OL loans. (The Federal Agriculture Improvement and Reform Act of 1996, Public Law 104-127 (“FAIR Act”)). The FAIR Act prohibited the agency from approving farm ownership or operating loan applications for the benefit of any applicant who had a farm loan debt forgiven or reduced through any form of debt settlement, bankruptcy, or guaranteed loan loss claim. Since the Shiplets had received debt forgiveness through bankruptcy on both direct EM loans and a guaranteed loan from First Security, they were no longer eligible for farm ownership or operating loan assistance from FmHA. Further, the legislation forbade the use of direct FO and OL loans to refinance debt, which was the stated purpose of the Shiplets’ 1995 application. Meredith also informed the Shiplets that his determination in this regard was not appealable. (Gx. 1, pp. 2102-03). 62. The Shiplets nevertheless appealed Meredith’s determination of April 8, 1996 to NAD. On May 17, 1996, NAD reversed Meredith’s ruling that his determination of April 8, 1996 was not appealable, and ordered that the case be assigned to a hearing officer. (Gx. 1, pp. 2160-62). 63. A hearing was held on August 27, 1996. On September 26, 1996, the hearing officer affirmed Meredith’s determination. (Gx. 1, pp. 2310-12). 64. The Shiplets then appealed the hearing officer’s determination to the director of NAD. On December 10, 1996, the director of NAD vacated both the NAD ruling of May 17, 1996, allowing the Shiplets to appeal Meredith’s determination of April 8, 1996, and the hearing officer’s affirmation of Meredith’s determination. (Gx. 1, pp. 2320-22). Consequently, Meredith’s letter of April 8, 1996, stands as the agency’s final determination regarding the SMplets’ 1995 loan application. E. Other Shiplet Litigation 1.Burgess v. Shiplet 65. The Shiplets defaulted on both land purchase contracts between themselves and Shields River Bench. Burgess v. Shiplet, 230 Mont. 387, 389, 750 P.2d 460, 461 (1988). The Montana Supreme Court found the Shiplets had defaulted on their contracts, awarded attorney fees to Shields River Bench, and remanded for assessment of damages for the Shiplets’ breach. Id. at 391-92, 750 P.2d at 462-63. 2.Shiplet v. First Security Bank 66. In October 1985 the Shiplets sued First Security Bank based on their guaranteed loan. They alleged breach of contract, breach of third-party beneficiary contract, bad faith, fraud, negligent infliction of emotional distress, breach of fiduciary duty, and economic duress. Three years later, the Montana Supreme Court affirmed the trial court’s summary judgment for the bank on all 13 counts of the Shiplets’ complaint. Shiplet v. First Security Bank of Livingston, Inc., 234 Mont. 166, 177, 762 P.2d 242, 249 (1988). 3.Shiplet Bankruptcy 67. The Shiplets filed for bankruptcy on June 9, 1988. (ALJ Tr. 1, pp. 50-51; ALJ Tr. 3, pp. 383-84; Cx. 34). They received a discharge in bankruptcy six years later on July 14,1994. (Gx. 4, p. 17). As a result of the bankruptcy, the Shiplets were relieved of their obligations to repay First Security $246,870.68 due on their guaranteed loan they received in 1984, as well as $29,907.14 due on their direct EM loans with FmHA. The government ultimately paid the bank’s claim on the guaranteed loan. (Gx. 4, p. 17) F. Other USDA Borrowers 68. In denying the loan applications in 1981, 1984, 1994, and 1995, Shiplet alleges that she was treated less favorably by FmHA than other male applicants. In support of this contention, Shiplet’s expert witness O’Brien selected five FmHA borrowers for comparison purposes whom he considers generally to be “similarly situated” to Shiplet. The borrowers in this category are Cheri and Wallace Bailey (Baileys), Patsy and Gene Bryan (Bryans), Albert and Martin Collins (Collins), Joan and Randall Kamps (Kamps), and Matthew Levers (Levers). (Collectively “principal selected borrowers.”) He also selected fourteen other borrowers who he believes are similarly situated for specific purposes. (Ex. 403). (Collectively “selected borrowers.”) Almost all of the borrowers in this category are either husband and wife family units, or closely held family corporations with a female principal. (Tr. 352-353). 69. O’Brien constructed a number of tables to illustrate that the values used on some of the selected borrowers’ farm home plans were more favorable, from a cash flow perspective, than the values used on the Shiplets’ farm and home plans. Testimony and exhibits were also received into evidence to show whether the principal selected borrowers were able to meet the projections used on their farm and home plans. O’Brien also offered testimony that the principal selected borrowers were provided loans in years in which they did not cash flow, contrary to FmHA regulation. 70. Cash flow evidence is relevant only to the Shiplets’ application in 1994. Prior to that time, the Shiplets were never denied financing on the basis that their farm and home plans did not cash flow. (Tr. 345-346). They were not provided financing on their 1981 and 1984 applications because they qualified for commercial credit and were not eligible for direct loans for the same purpose. (Tr. 570, 575). Cash flow did not become an issue until the denial of their 1994 and 1995 applications. Cash flow ultimately is moot as to the 1995 application also, because FmHA was statutorily prohibited from giving the Shiplets the loans they applied for because of their previous bankruptcy. 71. To illustrate the values used by the selected borrowers on their farm and home plans, as opposed to those used by the Shiplets, O’Brien constructed several tables to show comparisons of the values used for real estate, crop production, livestock production, and family living expenses. 1. Real Estate Values 72. O’Brien calculated the average land values used by the five principal borrowers in Exhibit 445, and compared them to the values used by the Shiplets in Exhibit 452. The Court finds the issue of the Shiplets’ land values to be of minimal relevance. The Shiplets were never denied financing based on the value of their real estate. (Tr. 403, 499). The values have no relevance to the cash flow analysis. (Tr. 617). 73. Real estate values are only relevant if the borrower is deemed eligible, the loan is determined to be feasible, and the land is to be used as collateral for the loan. (Tr. 499-500, 617-618). In that event, actual appraisals were required by FmHA to place a value on the real estate. (Tr. 499-500, 617-618). In situations where the agency is not using the real estate as collateral, it relies on the borrower to place a value on their property. (Tr. 500). For the Shiplets’ 1994 and 1995 applications, the real estate values were provided by the Shiplets themselves. (Tr. 498; Gx. 1, pgs. 1366,1434,1835 and 1907). 74. The Court also finds the evidence as to average value of the real estate for the principal selected borrowers in Exhibits 445 and 452 of limited relevance because of the inclusion of farm and ranch properties dissimilar to the Shiplets’ real estate. For example, three of the five principal selected borrowers — the Bryans, Kamps, and Collins — owned tracts in Gallatin County, where real estate values were, and are, higher than in Park County where Shiplet resides. (Tr. 132). Irrigated tracts are also included, which are substantially more valuable than dryland tracts, such as the Shiplets’. For example, the Bryans owned a relatively small tract of 530 acres of irrigated cropland, just outside of Bozeman near Four Corners. The property was also suitable for subdivision, and had an appraised value of $1,890 per ace. (Tr. 674, 376-378; Ex. 57, p. 243). 75. Because of the inclusion of farms and ranches in Gallatin County, as well as irrigated units, the Court finds that a disparity in real estate values is to be expected between the average of the principle selected borrowers and the Shiplets. 2. Crop Production 76. Shiplet also introduced a table to illustrate the disparity in the wheat and barley production values used on selected borrowers plans, compared to those used on the Shiplets plans. (Ex. 454). The exhibit does not identify who is included in the “similarly situated” borrowers for this comparison, but O’Brien testified it included the five principal selected borrowers. (Tr. 414-415). As a consequence, the average is again distorted by including producers who are not similarly situated to the Shiplets. Again, three of the principal selected borrowers farmed in Gallatin County. In their testimony, O’Brien and Baquet agreed that the crop production in Gallatin County is substantially higher than in Park County. (Tr. 64, 415-416, 549-550). Baquet characterized the two counties as “two very different places.” (Tr. 549). Therefore, the Court finds that disparities between borrowers farming in Gallatin County and Park County are to be expected. 77. In addition, Exhibit 454 includes multiple plans for years 1994 and 1995, some of which are undated, without identifying which plan may have been used by FmHA in its feasibility analysis. (Ex. 454). Some of those plans have the Shiplets’ production values higher than the selected borrowers, while other plans for the same year have their production values lower. (See Ex. 454, plan for 9/12/95) 78. Meredith testified that FmHA used the state and county averages for wheat and barley production as published in the state regulation price list for farm and home planning. (Tr. 500). Importantly, the Shiplets did not provide any historical data to show that their actual production was above the state averages used. (Tr. 500-501). O’Brien acknowledged that the Shiplets’ actual production for 1994 and 1995 was “well below” the projections used on their farm and home plans. (Tr. 431-433). 3. Livestock Production 79. Shiplet also introduced O’Brien’s exhibits . and testimony to illustrate the disparity between the livestock production values used on the Shiplets farm and home plan and those used by certain selected borrowers. O’Brien compares cow-calf ratios (Ex. 447, 456), projected receipts per foundation cow (Ex. 448, 457), and cull cow receipts (Ex. 449, 458). 80. The Court notes that the Shiplet’s tables use a different group of selected borrowers for different tables to maximize the disparity between the selected borrowers and the Shiplets. In other words, some tables use just the five principal selected borrowers, while others use those borrowers plus others. (See Ex. 445 and 448, compared to Ex. 446, 447, 449, 450, and 451). The Court also notes that O’Brien only uses a small percentage of the selected borrowers for comparison purposes in certain years. For example, for the years relevant to this analysis, 1994 and 1995, O’Brien only uses two borrowers to arrive at an average for receipts per foundation cow (Ex. 448), and for cull cows (Ex. 449). 81. The Shiplet’s comparison charts for livestock production again include multiple plans for several years, without identifying which of the plans were actually used by the agency for the Shiplets’ cash flow determination. (Ex. 456, Ex. 457, Ex. 458). In addition, the exhibits include plans submitted after 1996, which are outside the scope of this case. (Ex. 456, Ex. 457, Ex. 458). 82. With respect to cow-calf ratios, O’Brien acknowledged that there are many legitimate reasons why one producer may have a higher cow-calf ratio than another producer, including the quality of the foundation herd; the condition of the cow at the end of winter, and whether it has been properly fed; the facilities available to the producer, including the use of calving barns; and the management practices of the producer in monitoring the herd during calving season. (Tr. 418-419). 83. It appears that a 90% calf-cow ratio was used for the Shiplets in 1994, and 88% in 1995. (Ex. 456). Meredith testified that he used the state averages for those years, and that the Shiplets did not provide any historical production data that showed their actual production exceeded the state averages. (Tr. 505). Meredith explained that during this time the agency was required to use state and county averages, unless the producer could provide historical data which showed their production exceeded those averages. (Tr. 502). The Shiplets did not present any evidence to the agency, to the ALJ, or to this Court to establish that the Shiplets’ actual production exceeded that ratio. 84. Receipts per foundation cow are simply a product of the cow-calf ratio, the projected weight of the calves at market, and the projected price per pound. (Tr. 419^420). While the cow-calf ratio and the projected price per pound are established by state and county averages, there are variations in the weight of calves at market. This may be due, in part, to the variation in the weight of different breeds of cattle. A Hereford calf, for example, is significantly larger than an Angus calf. (Tr. 419-420). Also, the timing of calving impacts the weight of calves. Producers in lower elevations and river valleys are able to calve earlier in the year, and will have larger calves at market. (Tr. 420). 85. In the Shiplets’ case, the state and county averages were used to establish their projected receipts per foundation cow. (Tr. 505). Shiplet did not present any evidence to the agency, to the ALJ, or to this Court to establish that their receipts exceeded that projection. 86. The final livestock production value used for comparison was projected cull cow receipts. Again, O’Brien acknowledged that there are legitimate reasons for variation in cull cow receipts. Cull cow receipts are based on the weight of the cow when it is culled, which varies substantially between breeds. (Tr. 421). An Angus cow may weigh 950 pounds, while a Hereford or Charoláis may weigh 2000 pounds. (Tr. 502). It is also dependent upon the management practices of the producer. If the cow is culled when it is in relatively good shape, it will weigh substantially more, and bring more money at market, than if it is culled in a more dilapidated condition. (Tr. 421^422). 87. The values used for the Shiplets 1994 and 1995 cull cow receipts were esr tablished by the state and county averages. (Tr. 505). The Shiplets did not present any evidence to the agency, to the ALJ, or to this Court that their actual receipts exceeded that projection. 4. Family Living Expenses 88. O’Brien also makes a comparison of the estimated family living expenses for the Shiplets as opposed to certain other selected borrowers. (Ex. 446, 461). Again, O’Brien acknowledges that there can be legitimate differences in living expenses from producer to producer. Some simply live more frugally than others. (Tr. 413). In this case, the Shiplets’ family living expenses were actually provided by the Shiplets. In their 1994 application, the Shiplets reported their actual family living expenses were $25,631. (Cx. 43). The $24,000 amount ultimately used for living expenses was provided by the Shiplets’ accountant and financial advisor, Mikell Nelson. (See Cx. 45 (1994 plan), and Cx. 59 (1995 plan)). The Court finds the Shiplets were clearly in the best position to evaluate their annual living expenses. In addition, throughout the multiple appeals which followed both applications, the Shiplets did not object to the allocation for living expenses. 89. Moreover, contrary to O’Brien’s testimony that there were 2 to 2.5 people living on the ranch, Shiplet testified before the ALJ that there were generally three families living on the ranch. (ALJ Tr. 1, p. 172-173). No evidence was presented by Shiplet to establish how many of these individuals or families were included in the Shiplets’ family living expenses for the relevant years. 5. Other Farm Income 90. Shiplet also contends that some of the selected borrowers were given an allowance for other farm income, such as receipts for oil and gas leases, timber sales, and hunting and fishing revenues. She contends that the Shiplets similarly should have been given credit for such income on their farm and home plans. 91. As to receipts from timber sales, and oil and gas leases, there was evidence that the Shiplets may have had revenue from those sources in the late 1970’s. (Tr. 539). No evidence was presented that the Shiplets had any income from oil and gas leases or from timber sales during the relevant time frame. 92. O’Brien did not identify any evidence that the Shiplets had any receipts from oil, gas, or timber during 1994 or 1995. (Tr. 398-399). Baquet also reviewed the Shiplets’ income tax returns, and found no evidence of any income from those sources. (Tr. 539). 93. With respect to hunting revenues, the evidence indicates that the Shiplets leased the hunting rights on their property to their son, Robert Shiplet, Jr., for $1,000 per year. (ALJ Tr. 2, p. 163). There is no evidence that any of those revenues were infused back into the operation. (ALJ Tr. 2, p. 163; Tr. 398). The Shiplets’ own farm and home plans, prepared by their financial advisor and accountant, show projected receipts of $1,000 for a hunting lease in 1994 and 1995, and that projection was carried over onto the Shiplets’ farm and home plan with FmHA. (Cx. 45, 59; Tr. 397). 94. In addition, there was no evidence offered that the Shiplets ever requested, or were ever denied, the inclusion of revenues of this nature by FmHA. If the Shiplets did, in fact, have potential income from oil, gas, timber, or hunting, the responsibility of providing that information rests with the Shiplets. The Court finds that FmHA cannot be faulted for failing to include information that was not provided to them. 6. Loan History 95. Shiplet also introduced a number of tables focusing on the five principal selected borrowers. In general, the tables consist of a summary of portions of the borrowers’ farm and home plans; a summary of the loans and subordinations made to each borrower; a comparison of the planned and actual income for each borrower; and a summary of the assets, debts, and equity for each borrower. The defendant introduced corresponding tables prepared by FSA loan specialist, Marilyn McMullen (McMullen) containing the same summaries and comparisons, which highlight defendant’s disagreements with the figures and conclusions in the Shiplet’s summaries. 96. The Court finds that Shiplet’s tables do not accurately represent the status of the borrowers’ accounts in certain material respects. For example, the Shiplet’s loan and subordination summaries include all restructured loans, which did not involve the advancement of any new money to the borrower. (Tr. 640-647). Since the five principal selected borrowers were all distressed borrowers, their loans were restructured on multiple occasions under the agency’s loan servicing process. Counting these restructured loans as new loans misrepresents the amount of financing actually provided to the borrowers. For exam-pie, O’Brien’s tables show that from 1981, the Baileys received 45 new loans totaling four million dollars. (Tr. 184). In reality, they only received five new loans totaling $179,550 during that period. (Tr. 663; Ex. 47, p. 1). All remaining transactions with the Baileys involved restructures of existing loans, with no new money advanced to the Baileys. (Tr. 666). 97. O’Brien’s loan and subordination tables also include subordinations which were later replaced by a subsequent subordination; thus, the subordinations are double counted in the total. (Tr. 645-647). The defendant’s tables note where a subordination was replaced by a later subordination, and do not include the replaced subordination in the total for the year. {See e.g., Ex. 47-001; Tr. 646-647). 98. In addition, O’Brien’s farm and home summaries do not include some relevant entries, such as cash carry-over and capital expenditures. (Tr. 641) He also, at times, substitutes actual production numbers for projected numbers. The actual production numbers are not the projected information used by FmHA in rendering its loan making determination each year. (Tr. 659-662). 99. Shiplet contends that O’Brien’s farm and home plan summaries show that the principal selected borrowers were approved for loans in years in which their farm and home plans did not cash flow, contrary to agency regulations. In general, a plan cash flows if the farm and home plan shows sufficient on and off-farm income, after the USDA loan is made, to cover operating expenses, living expenses, and all principal and interest due on all outstanding loans. (Tr. 50-52; See e.g., Ex. 46, line 15 & 16). 100. Using this criteria, several of the principal selected borrowers did not cash flow in certain years. However, during this period FmHA operated under a “continuation policy.” (Tr. 626). This policy was first adopted in February 1982. (Ex. 91). It allowed FmHA offices to advance operating credit to existing borrowers if they could show a “reasonable chance to repay any new loan for 1982 production purposes plus interest accruing on that loan.” (Ex. 91). The continuation policy was extended in October 1982, 1983, and 1984, and was ultimately adopted by Congress in the Supplemental Appropriations Act of 1987, P.L. 100-71, and was in effect until 1996. (Ex. 92, 93, 94; Tr. 640). Under the continuation policy, operating loans could be advanced to existing borrowers if the balance available on line 16 of the farm and home plan was sufficient to pay the new operating loan, plus interest. (Tr. 640). 101. With the possible exception of a farm ownership loan to the Baileys in 1982, and another economic emergency loan to the Bailey’s in 1984, all of the remaining loans to the selected borrowers during this time period were authorized under this policy. 102. The Baileys also received operating loans in 1981 and 1982. (Ex. 47-001). They cash flowed for all purposes in 1981, and cash flowed for purposes of an operating loan in 1982. (Ex. 46, p. 1). The Baileys received no new loans from FmHA after 1984. (Tr. 663). 103. The Bryans received an economic emergency loan in 1981, which was to be used as operating credit. (Ex. 53, p. 1, Ex. 57, p. 4; Tr. 671-672). All of the remaining loans to the Bryans from 1982 through 1991 were also for operating loans. (Ex. 53, pp. 1-2; Tr. 673). The Bryans cash flowed for purposes of repayment of their operating loans in each of those years. (Ex. 52; Tr. 673). 104. The Collins received two farm ownership loans and a farm operating loan in 1981. (Ex. 59). Their plan cash flowed ■for all purposes that year. (Ex. 58; Tr. 676). The Collins also received an economic emergency loan in 1986, which was for operating credit. (Ex. 59; Ex. 63, p. 24; Tr. 677-679). The remaining loans to the Collins were also operating loans. (Ex. 59; Tr. 677). The Collins plans cash flowed for purposes of operating loan repayment in each year after 1981. (Ex 58; Tr. 681). 105. The Kamps received an operating loan and an economic emergency loan in 1981. (Ex. 65, p. 1). They cash flowed for all purposes in 1981. (Ex. 65, p. 1; Tr. 684). The Kamps also received an economic emergency loan in 1986, which was for operating purposes. (Ex. 65, p. 1; Ex. 69, p. 28; Tr. 685). All remaining loans after 1981 were also operating loans. (Ex. 65, p. 1, 2; Tr. 685). They cash flowed for purposes of repayment of the operating loans in every year after 1981. (Ex. 64, pp. 1-2; Tr. 685). 106. Matthew Levers assumed an existing loan with FmHA in 1982. (Ex. 71, p. 1; Tr. 689). Thereafter, he obtained an emergency loan in 1986, and an operating loan in 1988. He cash flowed for all purposes in both years. (Ex 70, 71; Tr. 692). 107. Shiplet also points out that the selected borrowers often did not meet their income projections used in their farm and home plans. This is only marginally relevant. The question is whether Shiplet was discriminated. against in calculating her farm and home plan. Also, there were drought disaster declarations in this area in 15 out of the 20 years between 1981 and 2001. (Tr. 357). Given these difficult years, the Court finds that it is not unreasonable to find crop receipts which were predominately below the averages projected. Indeed, O’Brien acknowledged that the Shiplet’s actual production in 1994 and 1995 was “well below” the projections used in their farm and home plans. (Tr. 431-433). 7. Limited Resource Rates 108. Shiplet also alleges that many of the selected borrowers received “limited resource” rates, while she was not given the same consideration. FmHA’s interest rates on