F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           JUL 3 2002

                                   TENTH CIRCUIT                    PATRICK FISHER
                                                                             Clerk


 STEPHEN JONES, Executor and
 Personal Representative for the Estate
 of Wilbur C. Lewis,

          Plaintiff - Appellant,

 v.

 DAN GLICKMAN, Secretary of the
                                                       No. 01-3057
 United States Department of
                                                 (D.C. No. 98-4154-SAC)
 Agriculture; KEITH KELLY, Deputy
                                                       (D. Kansas)
 Administrator for Farm Service
 Agency; ADRIAN POLANSKY,
 Director of the Kansas State FSA
 office; ERIC GUNTHER, all in their
 official capacity for Farm Service
 Agency,

          Defendant - Appellee.



                          ORDER AND JUDGMENT *


Before SEYMOUR and PORFILIO, Circuit Judges, and STAGG, ** District
Judge.



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

       The Honorable Tom Stagg, District Judge, United States District Court for
      **

the Western District of Louisiana, sitting by designation.
      The Estate of Wilbur Lewis appeals the district court’s grant of summary

judgment to defendant Secretary of Agriculture on Mr. Lewis’ age discrimination

claim, as well as the district court’s determination that two adverse decisions of

the Farm Services Agency (FSA) in connection with Mr. Lewis’ outstanding loans

were not arbitrary and capricious under the Administrative Procedures Act (APA).

We affirm.

      In 1978, Mr. Lewis, now deceased, received a loan in the amount of

$447,000 from the FSA’s emergency farm loan program to keep his Kansas farm

in operation. Pursuant to the terms of his note, Mr. Lewis was obligated to make

an annual payment of $37,490 for 39 years. He did not make a voluntary payment

on the debt after 1982.

      In 1988, Mr. Lewis applied to the FSA for a restructuring of his loan,

which was denied in 1989 due to the inability of his farm operation to maintain a

sufficient cashflow. Mr. Lewis appealed that decision, which was overturned in

April 1990. At that time, the hearing officer ordered that a new appraisal be

completed. Due to numerous delays by the Agency, most of which the district

court found inexcusable, the FSA did not notify Mr. Lewis until September 3,

1996, that it was denying his restructuring application due to his lack of good

faith and failure to provide information, and that it was accelerating his debt,

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which amounted by then to $509,793.19.

      Mr. Lewis appealed that decision and was accorded a full administrative

hearing on the lack of good faith issue. The hearing officer found that Mr. Lewis

had not acted in good faith and that the restructuring was properly denied. The

Director upheld the hearing officer’s decision in March 1997.

      On August 11, 1997, the FSA sent Mr. Lewis a notice of its intent to

exercise an administrative offset to government payments Mr. Lewis would have

otherwise received. The offset was upheld by the National Appeals Division

hearing officer on February 19, 1998, and by the Director in May 1998.

      On March 2, 1998, Mr. Lewis filed a complaint with the Department of

Agriculture’s Office of Civil Rights pursuant to the Equal Credit Opportunity Act,

15 U.S.C. § 1691(a), claiming the FSA discriminated against him on the basis of

age in the manner in which it processed or failed to process his loan application.

After an investigation, the Office held there was no evidence of age

discrimination.

      Mr. Lewis filed this action in district court raising the age discrimination

claim and appealing the administrative decisions regarding both the refusal to

restructure his loan and the offset. In an exceedingly thorough 46-page opinion,

the district court addressed each of these claims and found against Mr. Lewis.

      With respect to the age discrimination claims, the district court held they


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were barred by Mr. Lewis’ failure to file his administrative claims within 180

days from the date of the alleged discrimination as required by the relevant

regulation, 7 C.F.R. § 15.6. The court determined that Mr. Lewis’ age

discrimination claim accrued, at the latest, by September 3, 1996, with respect to

the FSA’s decisions to deny loan restructuring and to accelerate Mr. Lewis’ loan

payments, and by August 11, 1997, with respect to the administrative offset. On

each of these respective dates, Mr. Lewis was informed of the Agency’s intent to

proceed against him. Notwithstanding Mr. Lewis’ assertion on appeal that the

discrimination continued after these dates, we are convinced the district court

correctly held any discrimination claims accrued when Mr. Lewis was informed of

the intended adverse actions. Consequently, Mr. Lewis’ administrative complaint

was untimely when it was filed on March 2, 1998, more than 180 days after the

last relevant event.

      With respect to Mr. Lewis’ appeals of the administrative decisions, the

district court’s determination was controlled, as is ours, by the narrow standard of

review. We must review the agency’s decisions regarding offset and loan

restructuring under the very deferential standard of review set forth in the APA:

We may “hold unlawful and set aside agency action, findings, and conclusions

found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A). We may not overturn an agency


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decision if the agency “demonstrate[s] that it considered relevant factors and

alternatives after a full ventilation of issues and that the choice it made was

reasonable based on that consideration.” Mount Evans Co. v. Madigan, 

, 1453 (10th Cir. 1994). With respect to procedural errors, we may not

overturn the Agency’s substantive determinations unless the plaintiff was

prejudiced by the procedural errors.

      We have thoroughly reviewed the entire record in light of Mr. Lewis’

arguments and we are not persuaded the Agency’s substantive determinations

were arbitrary and capricious, nor that its procedural errors were prejudicial. The

district court carefully considered each of Mr. Lewis’ contentions, and we agree

with that court’s conclusions. The numerous delays and other procedural defaults

by the agency, detailed by the district court, are inexplicable and unfortunate.

Nevertheless, they do not make Mr. Lewis’ loan any less due or his failure to

make any voluntary payments since 1982 excusable. We agree with the district

court’s determinations both with respect to the lack of material prejudice resulting

from the Agency’s procedural defaults, and with respect to the agency’s

determination that Mr. Lewis lacked good faith in failing to meet his loan

obligations. Like the district court, we cannot say the agency’s determinations

were arbitrary and capricious.




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We AFFIRM the judgment of the district court.


                                     ENTERED FOR THE COURT

                                     Stephanie K. Seymour
                                     Circuit Judge




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