Case 1:11-cv-00541-RBW Document 1 Filed 03/15/11 Page 1 of 47
/ l.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DAVID CANTU

)

502 West 9th Street

)

San Juan, TX 78589

)

)

and

)

)

GUADALUPE GARCIA

)

9303 North Dona Ana Rd

)

Las Cruces, NM 88007

)

)

and

)

)

NOEOBREGON

)

1501 Haynes Avenue

)

Pearsall, TX 78061

)

)

and

)

)

RUPERTa & MODESTO RODRIGUEZ )

DBA Rodriguez Brothers, Inc.

) NOo _ _ _ __

11618 Pompano Lane

) CLASS ACTION COMPLAINT FOR

Houston, TX 77072

) DECLARATORY, INJlJNCTIVE, AND

) OTHER RELIEF

and

)

)

MODESTA SALAZAR

)

717 E. San Antonio Street

)

Pearsall, TX 78061

)

)

For Themselves and On Behalf of All Other )

Similarly Situated Persons

)

Plaintiffs,

)

v.

)

)

THE UNITED STATES OF AMERICA, )

THE UNITED STATES DEPARTMENT )

OF JUSTICE, THE UNITED STATES

).

DEPARTMENT OF AGRICULTURE,

)

ERIC HOLDER in his official and

)

individual capacities, and TOMVILSACK, )

his official and individual capacities

)

)

Defendants.

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1. Plaintiffs David Cantu, Guadalupe Garcia, Noe Obregon, Modesto Rodriguez, Ruperto Rodriguez, and Modesta Salazar, on behalf of themselves and other similarly situated persons (hereinafter "Plaintiffs"), through counsel, file the instant Complaint against Defendants to secure redress from Defendants' unconstitutional treatment in the proposed settlement of discrimination claims by these Hispanic Plaintiffs, on the one hand, as compared to the manner in which Defendants have settled identical discrimination claims by similarly situated African-American and Native American claimants, on the other hand, all of whom were undeniably discriminated against in like manner by the United States Department of Agriculture ("USDA") in the administration of its farm credit and non-credit farm benefit programs (collectively "farm benefit programs"), in violation of the Equal Credit Opportunity Act ("ECOA"), 15 U.S.c. §§ 1691 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq., respectively. In furtherance hereof, Plaintiffs complain and allege the following:
I. OVERVIEW 2. African-American, Native American, Hispanic and female farmers filed
four virtually identical class action lawsuits alleging that the USDA routinely discriminated in its farm benefit programs on the basis of race, ethnicity or gender, and failed to investigate the claims of farmers who filed discrimination complaints with the agency at its behest. See Defendant's Response To Plaintiffs' Petition for Permission to Take An Interlocutory Appeal Under Fed. R. Civ. P. 23(f), D.C. Cir. DIet. No. 04-8008 at 2-4 (October 2004) (Exhibit 1). Those lawsuits were filed after the USDA, in 1997, aclmowledged and admitted that it discriminates against minority farmers and/or ranchers
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(hereinafter collectively "fanners") in the administration of its fann benefit programs, and that "minority fanners have lost significant amounts of land and potential fann income as a result of discrimination by [the USDA]." A true and correct copy of excerpts of the Report containing this acknowledgment are attached hereto as Exhibit 2 (the quote is on page 30 of the Report).
3. Despite the publicly acknowledged like pattern and practice of discrimination, Defendants have not been fair and even handed in settling the claims of minority fanners, all of whom USDA similarly victimized, but have intentionally proceeded unfairly, unequally, and disproportionately, favoring African-American and Native American fanners in the settlement of their claims while disfavoring similarly situated Hispanic and female fanners in the terms and amounts offered to settle their identical claims.
4. More particularly, even though plaintiffs in all four identical class actions alleged the same substantive discrimination, even though the USDA admittedly committed the same unlawful discriminatory practices against the plaintiffs in all four cases, and even though Congress and the Obama Administration have both called for expeditiously and fairly settling all of these cases, Defendants have refused to offer the Hispanic and female fanners settlement terms that provide them with a meaningful chance at comprehensive settlement of their discrimination claims while agreeing to settle comprehensively the very same discrimination claims of African-American and Native American fanners without imposing on them the same onerous conditions.
5. To date, the govemment has paid African-American fanners approximately $1 billion in settlement benefits, and, in furtherance of a commitment by
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President Obama in May 2009 to settle all remaining African-American farmer claims, Congress passed and on December 8, 2010, President Obama signed legislation to provide an additional $1.25 billion to cover the claims of African-American farmers who missed the filing deadline for participation in the original settlement with AfricanAmerican farmers. On October 19,2010, the government reached a settlement with Native American farmers in the amount of $680 million in compensation plus $80 million in debt forgiveness benefits, resolving their claims on terms similar to the settlement terms granted to African-American farmers.
6. A key substantive component of all of the settlements involving AfricanAmerican and Native American farmers is the right of those farmers to pursue their damage claims in a low-cost, streamlined two-track dispute resolution process. Another key favorable component of the settlements offered to African-American and Native American farmers is that notice to the victims of their right to participate in the settlements - a critical component of any fair settlement - is subject to independent judicial review and oversight..
7. In contrast, the government initially announced a "program" to settle discrimination claims of Hispanic and female farmers on a class-wide basis that inexplicably provided for monetary payments far less than those offered to similarly situated African-American and Native American farmers, and intentionally imposed far more burdensome procedural requirements designed to limit severely, and in many instances effectively to deprive, Hispanic and female claimants' recovery opportunities. Moreover, there was and is no independent monitoring of the announced settlement process for Hispanic and female farmers, but, instead, it was and is to be administered
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and monitored by contractors hired by USDA, the very perpetrator of the discrimination that Hispanic farmers seek to remedy.
8. More particularly, while Hispanic and female farmers outnumber AfricanAmerican farmers by at least 12 to 1 and as much as 27 to 1, according to the 2007 Census of Agriculture, the most recent census and the government had paid or committed to pay to African-American farmers $2.25 billion, it proposed to provide only $1.33 billion to settle the combined claims of Hispanic and female farmers. Additionally, while the government provides an inexpensive two-track dispute resolution system for AfricanAmerican and Native American farmers, it proposed a much less favorable two-tier dispute resolution system for Hispanic and female farmers.
9. Specifically, the government provided an inexpensive two-track dispute resolution system for African-American farmers who timely filed their claims that permitted them to recover under Track A, subject to a substantial evidence burden of proof, $50,000, and under Track B, subject to a preponderance of the evidence burden of proof, such damages as the farmers were able to prove, without limitation. With respect to the African-American farmers who allegedly missed the filing deadline to participate in the initial settlement, the government also provided them an inexpensive two-track dispute resolution process that permits them to recover under Track A, subject to a substantial evidence burden of proof, up to $50,000, and under Track B, subject to a preponderance of the evidence burden of proof, up to $250,000. The government limited the Track A and Track B awards for the African-American farmers who missed the deadline to participate in the original uncapped damage awards, because Congress, in reviving their rights to recover damages, set a limit of $1.25 billion to cover their
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damages and any costs associated with processing their claims. Similarly, in its settlement with Native American farmers, the government provided a low-cost, two-track dispute resolution process that is essentially identical to the process provided to the latefiler African-American farmers, providing Native American farmers up to $50,000 and $250,000 under Track A and Track B respectively. For Hispanic and female farmers, however, the government initially proposed a single-track dispute resolution process in which claimants could recover up to $50,000. Subsequently, after approximately eight months during which it refused to negotiate with Hispanic farmers, the government revised its program to provide a two-tier dispute resolution process in which Hispanic and female claimants would be subject to a substantial evidence burden and a preponderance ofthe evidence of proof but, unlike the settlements offered to AfricanAmerican and Native American farmers, both tiers would be capped at $50,000. The government later revised the program to provide that both tiers would be subject to a substantial evidence burden of proof but again both tiers would be capped at $50,000.
10. There is no reasoned basis for USDA to offer substantially fewer benefits through a more burdensome settlement structure to Hispanic and female farmers than the settlement relief provided to similarly situated African-American and Native Americans, when USDA undeniably subjected all of them to the same substantive systemic discrimination.
11. Plaintiffs are Hispanic farmers who were subjected to, and continue to be subjected to, USDA discrimination in its farm benefit programs operated by its former agency, the Farm Home Administration ("FmHA"), and the FmHA's successor, the Farm Service Administration ("FSA"), in violation of the ECOA, and the APA, and who were
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further injured due to USDA's failure to process and investigate their discrimination complaints which had been filed by the Hispanic fanners with USDA at the agency's behest.
12. The USDA continues its pattern and practice of discriminating against Hispanic fanners by refusing, because of their Hispanic origins, to settle comprehensively the Hispanic fanners' discrimination claims on terms and in amounts materially similar to its agreed settlements of substantively identical claims brought by similarly situated African-American and Native American fanners.
13. When the federal government provides substantial benefits to members of one racial group to redress discrimination, while it knowingly refuses similar benefits to similarly situated members of another racial group who undeniably suffered the same discrimination by the government, the government's racial favoritism of certain minority fanners over other minority famers being intentionally disfavored in the administration of justice denies those deprived equal protection of the laws in violation of the Fifth Amendment of the United States Constitution.
14. The Constitution further forbids the government from intentionally affording a process for the recovery of settlement benefits that favors members of one racial group, while it denies a similar process to members of another racial group (and, indeed, imposes a noticeably different and far more burdensome process on the latter), where the government has undeniably discriminated against all members of the differently treated groups in the same manner and to the same extent and inflicted similar injury on the minority fanners in each group. Governmental officials have taken an oath to take care that the laws be faithfully executed and administered even handedly. When
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they engage in settlement negotiations calculated to saddle members of one racial group of similarly situated claimants with a recovery process that unduly burdens that group's members, while knowingly providing a far more favorable process to members of a different racial group in settlement of the same discrimination claims, the government uses race to deprive certain minority members the due process that it has elected to afford members of different minority groups in violation of the Fifth Amendment of the United States Constitution.
II. JURISDICTION 15. As this case is brought under the Fifth Amendment of the United States
Constitution,jurisdiction is founded upon 28 U.S.C. § 1331,28 U.S.C. § 1343,28 U.S.C. § 2201, and 28 U.S.C. § 2202.
III. VENUE 16. Venue lies in this judicial district pursuant to 28 U.S.C. § 1391(b) and (e).
IV. PARTIES 17. Plaintiffs are Hispanic farmers who are United States citizens. They are
all victims of USDA's discriminatory practices and have sustained serious damages as a result.
18. Plaintiff and proposed Class representative David Cantu, for example, is a graduate from the University of Texas Pan American with a degree in biology who has 25 years of experience farming and ranching. In approximately 1983 and 1985 he attempted to submit a disaster relief assistance loan. The FmHA agents refused to accept or process the loan application because they claimed that the USDA would not be able to
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disburse any funds for at least two years. In approximately 1992 the USDA advertised a young farmer's loan package to encourage younger farmers to continue farming. Mr. Cantu attempted to submit an application, but the FmHA informed him that he would not be permitted to apply because they were certain that he would be unable to make the loan repayments. Whenever he attempted to apply for a loan, the FmHAJFSA officers always discouraged him if not entirely prevented him from applying for the loan. Mr. Cantu eyewitnessed the discriminatory treatment of fellow Hispanic farmers when he visited the Hidalgo FmHAJFSA office and complained verbally about this treatment.
19. Plaintiff and proposed Class representative Guadalupe Garcia has been
i
farming since he was eight years old and has a Bachelors Degree of Science and Masters Degrees in Agronomy and Plant Physiology. He has been denied loan servicing and restructuring by the FmHA on several occasions, and the FmHA still refused to grant him services even after the denial was overturned on appeal. Because of the FmHA's delays and denials, Mr. Garcia lost his farm to foreclosure and sustained severe economic losses. In the 1980s, 1990s and in the year 2000, he filed several complaints to USDA protesting discriminatory treatment. He never received any response from USDA.
20. Plaintiff and proposed class representative Noe Obregon has devoted approximately 22 years of his life to farming. On seven different occasions from 198291, he applied for operating loans from FmHA in Pearsall, Texas. The FmHA denied the majority of the applications that he submitted offering him a series of what appeared to be unfounded excuses. On the rare occasion that his loan application was approved, it typically arrived over six months late and was for significantly less than the amount he requested. Mr. Obregon complained to the Pearsall office both orally and in writing on
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numerous occasions about the discriminatory treatment that he received. He feels that the USDA office did not want to help him succeed in his farming operation solely because he is Hispanic.
21. Plaintiffs and proposed class representatives Modesta Salazar and her brothers Modesto and Ruperto Rodriguez are each shareholders of Rodriguez Brothers, Inc. ("RBI"), a family-owned farm of 523 acres located outside of Pearsall, Texas. The Rodriguez family has owned the farm since 1952. From 1982 to 1997, Modesto Rodriguez was the principal operator of the farm. RBI borrowed funds from the FmHA office in Frio County, Texas. Many, if not most, of the loans made to RBI were required to be placed in supervised bank accounts despite the Rodriguez family's many years of farming experience. In 1989, RBI submitted a written complaint alleging that FmHA and its Frio County supervisor discriminated against RBI by, among other things, requiring RBI to place its funds in supervised bank accounts and refusing to release the funds to permit RBI to feed its livestock during a drought. USDA also improperly denied RBI loan servicing and despite a ruling in RBI's favor when it appealed the loan servicing denial, USDA has refused to this day to provide the required loan servicing.
22. The discriminatory treatment experienced by the above-named Plaintiffs is representative of, and substantively no different from, the discriminatory handling of applications to participate in farm benefit programs filed by countless other Hispanic farmers, all of whom are members of the purported class of unnamed Plaintiffs here. All Plaintiffs are currently seeking redress for their injuries in a lawsuit currently pending in the United States District Court for the District of Columbia, described in more detail
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later in this Complaint, or are members of the putative class whose claims are sought to be redressed by that lawsuit.
23. Defendant the United States of America acts by and through its departments, agencies, and officials.
24. Defendant United States Department of Justice ("DOJ") is a cabinet department in the United States government charged with enforcing the law and ensuring fair and impartial administration ofjustice for all Americans. The United States Attorney General administers the DOJ.
25. Defendant USDA is a United States cabinet department responsible for developing and executing federal policy on farming, agriculture, and food. It aims to meet the needs of farmers and ranchers, promote agricultural trade and production, work to assure food safety, protect natural resources, foster rural communities, and end hunger in the United States and abroad.
26. Defendant Eric Holder is the United States Attorney General. He was confIrmed as Attorney General on February 2,2009. Upon entering office, he took an oath to support the Constitution of the United States against all enemies, foreign and domestic, and to bear true faith and allegiance to the same. He purported to take the oath freely, without any mental reservation or purpose of evasion; and promised to faithfully discharge the duties his office. Upon information and belief, he is a resident of the District of Columbia, and his principal place of business is the District of Columbia. The Attorney General has plenary authority to settle lawsuits filed against the United States. See 28 U.S.C. § 2414. Mr. Holder was personally involved in and responsible for the settlement of two of the four similar class action litigations brought by the African-
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American and Native American fanners, captioned Pigford v. Gliclanan, Nos. 97-1978 & 98-1693 (D.D.C.), and Keepseagle v. Gliclanan No. 99-3119 (D.D.C.) respectively, which two class actions claimed the same racially discriminatory treatment in the USDA's administration of its fann benefits programs as claimed in the class action litigation brought by the Hispanic fanners, captioned Garcia v. Glickman, No. 00-02445 (D.D.C.) and the class action litigation brought by the female fanners, captioned Love v. Gliclanan, No. 00-2502 (D.D.C.). He is being sued in his official and individual capacities.
27. Defendant Tom Vilsack is the USDA Secretary. He was confirmed as USDA Secretary on January 20,2009. Upon entering office, he took an oath to support the Constitution of the United States against all enemies, foreign and domestic, and to bear true faith and allegiance to the same. He purported to take the oath freely, without any mental reservation or purpose of evasion; and promised to faithfully discharge the duties his office. Upon information and belief, he is a resident of Iowa and the District of Columbia, and his principal place of business is the District of Columbia. As USDA Secretary, Mr. Vilsack, upon information and belief, plays a substantial role in connection with the negotiation and approval of settlements involving claims made against the USDA and the United States. He also has the authority to settle specified claims made against the USDA. He is being sued in his official and individual capacities.
V. RAMPANT DISCRIMINATION AT THE USDA 28. Farming is an arduous living. Small fanners operate at the whim and
mercy of conditions completely beyond their control; weather conditions and fluctuating crop market prices to a large extent determine whether fanners will make a profit, barely
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break even or lose money. As a result, many farmers depend heavily on the USDA's farm benefit programs to survive from one year to the next.
29. For instance, if an early freeze kills three-quarters ofa farmer's crop one year, he may not have sufficient resources to buy seeds to plant the following season. Or if a farmer needs to modernize his operations and buy a new harvester in order to make his operations profitable, he often cannot afford to buy equipment without credit. Because ofthe seasonal nature of farming, USDA must quickly process farm benefit applications or the farmer may lose all or most of his anticipated income for an entire year. It does a farmer no good to receive a loan to buy seeds after the planting season has passed.
30. The USDA's credit and benefit programs are federally funded programs, but the decisions to approve or deny applications for credit or benefits are made locally at the county level pursuant to highly subjective, national regulations. In virtually all farming communities, local farmers and ranchers elect three-to-five member county committees. Historically, the county committee was responsible for determining a farmer's eligibility for farm credit and non-credit farm benefits, as well as for appointing a county executive who is supposed to provide farmers with help in completing their credit and benefit applications.
31. In the late 1990s, the USDA purported to reform the role of the county committees in the credit process by supposedly ending the committees' role in determining eligibility for farm credit, although the committee continues to perform its other responsibilities. According to the notice announcing the reform, the USDA stated that the county committee, while no longer determining the farmer's eligibility for credit,
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would still playa vital role in the process by providing unspecified "important information about the applicant." A true copy of the Announcement is attached as Exhibit 3. Thus, the supposed reform left the committees completely untethered to any ostensible criteria or standards.
32. The county committees do not represent the racial diversity of the communities they serve. Minority and female farmers, who have long been victims of discrimination in the administration of farm benefit programs, are grossly under represented on the white-male-dominated committees. The government and top officials at USDA have long been on notice of the discrimination against minority and female farmers in USDA's farm benefit programs.
33. Any farmer who believes that his application to participate in those programs has been denied on the basis of race or for other discriminatory reasons theoretically has had the option of filing a civil rights complaint depending on the time period between 1981 and the present with various offices of USDA, including the Office of the Secretary of Agriculture, or the Office of Civil Rights Enforcement and Adjudication ("OCREA"), or the USDA Office of Civil Rights ("OCR"). USDA regulations set forth a detailed process by which these complaints were and are to be investigated and conciliated, and ultimately a farmer who is unhappy with the outcome is entitled to sue in federal court under the ECOA for discrimination in the credit programs, or the APA for discrimination in the non-credit farm benefit programs.
34. USDA also has codified regulations, 7 C.F.R. Part 15 ''Nondiscrimination,'' which state USDA's policy of nondiscrimination in federally assisted and conducted programs in compliance with Title VI of the Civil Rights Act of
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1964. The regulations should have served as a basis for civil rights compliance and enforcement with respect to participants in FSA programs; however, USDA admitted that the regulations have long been outdated and never accurately reflected the programs and laws of the Department's agencies.
35. Sometime in 1983, USDA secretly dismantled its civil rights enforcement capability and consequently complaints of discrimination that were filed were never processed, investigated or forwarded to the appropriate agencies for conciliation. This development was not publicized, so minority farmers (including Plaintiffs) continued in good faith to file discrimination complaints not knowing that the investigative staffs had been disbanded and that their complaints were ignored.
36. USDA willfully failed to investigate complaints of discrimination in its farm benefit programs filed by Hispanic farmers and continues to fail to investigate such complaints of discrimination (including those of Plaintiffs) to this day. As a result, farmers who filed complaints of discrimination never received a response, or if they did receive a response, it was a cursory denial of relief. In some cases, OCREA staff simply threw discrimination complaints in the trash without ever responding to or investigating them. In other cases, even if there was a finding of discrimination, the farmer never received any relief.
37. Without redress, the discrimination against Hispanic farmers has continued unabated. Loans that are routinely given to white farmers are just as routinely either denied or unduly delayed to Hispanic farmers. Those who manage to stay in farming often are subject to humiliation and degradation at the hands of the county
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committees; and many are forced to stand by powerless as white farmers received preferential treatment.
38. USDA's blatant disregard of the requirements of ECOA and the APAparticularly the effective dismantling of its civil rights enforcement capability-prompted Congress to enact special legislation in 1998 (Section 741 of the Omnibus Consolidated Appropriation's Act for Fiscal Year 1999) which waived, inter alia, the statutes of limitations applicable to claims regarding farm credit and non-credit benefits arising between January 1, 1981 and December 31, 1996.
39. By the mid-1990s, when the USDA finally acknowledged its system for handling discrimination complaints was in shambles, untold numbers of complaints from minority farmers were backlogged, discarded and unresolved. The USDA had and still has thousands of discrimination complaints that have never been investigated.
VI. THE USDA ACKNOWLEDGES ITS DISCRIMINATORY PRACTICES 40. In December 1996, then-Secretary Dan Glickman appointed a Civil Rights
Action Team ("CRAT") to "take a hard look at the issues and make strong recommendations for change." In February 1997, CRAT concluded that "minority farmers have lost significant amounts of land and potential farm income as a result of discrimination by FSA [Farm Services Agency] programs and the programs of its predecessor agencies, ASCS [Agricultural Stabilization and Conservation Service] and FmHA [Farmers Home Administration].... The process for resolving complaints has failed. Minority and limited-resource customers believe USDA has not acted in good faith on the complaints. Appeals are too often delayed and for too long. Favorable decisions are too often reversed." See Exhibit 2 at 30-31.
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41. Also in February 1997, the USDA's Office of the Inspector General ("OIG") issued a report to then-Secretary Glickman stating that the USDA had a backlog of complaints of discrimination that had never been processed, investigated or resolved. The report found that immediate action was needed to clear the backlog of complaints, that the "program discrimination complaint process at [the Farm Services Agency] lacks integrity, direction, and accountability," and that staffmg problems, obsolete procedures, and "little guidance from management" have resulted in a "climate of disorder" within the civil rights staff at FSA." Report of the Office of Inspector General to Secretary Glickman at 5 (Feb. 27, 1997). (A true and correct copy of this report is attached hereto at Exhibit 4.)
42. The February 1997 OIG Report addressed complaints of discrimination within FSA as well as 10 other USDA agencies. OIG found, inter alia, that the FSA's discrimination complaint process lacked integrity and accountability, had no effective tracking system, had no process for reconciliation, was in disorder, failed to resolve discrimination complaints, and had a massive backlog. See id. at 6. OIG found that the FSA staff responsible for processing the discrimination complaints consisted of two untrained and unqualified people. See id. Hundreds of unresolved complaints were over a decade old. OIG found no management oversight within FSA for handling civil rights complaints. See id. at 9.
43. At the same time that OIG released its report, the USDA CRAT Report was released, condemning USDA's lack of civil rights enforcement and accountability as a cause of the drastic decline in the number of minority farmers. In the CRAT Report,
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the USDA described the pattern and practice of disparate treatment experienced by
minority and limited resource farmers applying to USDA for loans:
The minority or limited-resource farmer tries to apply for a farm-operating loan through the FSA county office well in advance of planting season. The FSA county office might claim to have no applications available and ask the farmer to return later. Upon returning the farmer might receive an application without any assistance in completing it, then be asked repeatedly to correct mistakes or complete oversight in the loan application. Often those requests for correcting the application could be stretched for months, since they would come only if the minority farmer contacted the office to check "on the loan processing." By the time processing is completed, even when the loan is approved, planting season has already passed and the farmer either has not been able to plant at all, or has obtained limited credit on the strength of an expected FSA loan to plant a small crop, usually without the fertilizer and other supplies necessary for the best yields. The farmer's profit is then reduced.
See Exhibit 2 at 15.
44. USDA admitted in the CRAT Report that it often ignored discrimination
complaints, and that
(a) a lack of diversity in FSA county offices combined with a lack of outreach to small and limited-resource farmers to directly and adversely affects that participation of Hispanics and other minorities in USDA programs, as well as program delivery to minorities and female;
(b) farmers reported that even when there was a finding of discrimination, USDA refused to pay damages;
(c) its record keeping on discrimination complaints was "nonexistent," that a backlog existed, and that the largest number of complaints against a single USDA sub-agency was against FSA.
See id at 18-20,22-23,24-25.
45. In sum, USDA admitted that it does not support or enforce civil rights:
USDA does not have the structure in place to support an effective civil rights program. The Assistant Secretary for Administration lacks authority and resources essential to ensure accountability among senior management ranlcs. There has been instability and lack of skilled leadership at the position of USDA Director of Civil Rights. Dividing up the Department's Civil Rights office between policy and complaints has
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further exacerbated the problem. The division of responsibility for civil rights among different USDA offices and agencies has left confusion over enforcement responsibilities. Finally, OGC is perceived as unsupportive of civil rights. See id at 56.
46. In testimony before Congress in 1997, then-Secretary Glickman candidly
admitted that the USDA has "a long history of ... discrimination," and that "[g]ood
people ... lost their family land not because of a bad crop, not because of a flood, but
because of the color of their skin." A true and correct copy of the relevant portion of
Secretary Glickman's testimony is attached hereto at Exhibit 5 (the quote is on page 94).
47. Even when the OCR ostensibly began to process complaints in the late
1990s, it became clear that the process remained fatally flawed and the results mirrored
those when USDA entirely ignored such complaints. Former OCR Director Lloyd
Wright described his efforts in the late 1990s to address the bac1dog of complaints as
follows:
[o]f ... 350 processes complaints, there were initially only two potential fmdings of discrimination. Originally, I started to sign some of the decisions because superficially the reports appeared to support the "no fmding of discrimination" decisions. However, after thoroughly examin[ing] the reports, I began to notice a pattern. The team reviewers based their "no finding on discrimination" decisions largely on the accused agency's initial preliminary inquiry. The problem was that 99 percent ofthe time, the agency accused ofdiscrimination investigated itselfand invariably found no discrimination had occurred These preliminary reports were self-serving. Based on my instructions, the team reviewers should have found that theJiles were incomplete since the only review ofthe complaint came from the accused agency. The file should have also contained an independent investigation by OCR. Because the files did not contain independent investigation reports prepared by OCR, I refused to sign the no finding decisions.
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A true copy of Mr. Wright's declaration is attached as Exhibit 6 (the quote is at 1, ~~ 7-8
with italics added). The files contained no such independent reports because USDA had
dismantled its civil rights investigatory capability.
48. In 2002, Rosalind Gray, a former director of USDA's Office of Civil
Rights, testified that
[blased upon my first-hand knowledge, I can attest that many complaints were destroyed or not accepted at all. After FSA complaint processing was transferred to the OCR, the FSA was initially responsible for preparing a preliminary investigatory report. . .. In preparing the preliminary report, FSA would send its non-civil rights investigators to interview and often intimidate the complainant.
After all the investigations and findings of discrimination, after all the findings that FSA was not in compliance with civil rights regulations, after the millions paid by FSA in settlement of administrative complaints and after the many more millions in debt that FSA has forgiven, there still has not been any change in the way programs are administered. There were many recommendations for change. Yet, systematic exclusion ofminority farmers remains the standard operating procedure for FSA.
A true and correct copy of the relevant portion of Ms. Gray's testimony is attached hereto
at Exhibit 7 (the quotes are at 5, ~ 20, 7 ~ 28) (emphasis added).
49. Reflecting on her tenure as OCR Director, Ms. Gray further testified:
Civil rights procedures were developed and published, but were not and are not followed. OCR dismissed hundreds of cases because they were not filed within 180 days of the "occurrence of the alleged discrimination." Yet many complainants did not receive a letter of acknowledgment after filing their complaint for more than a year and it frequently required another year for the complaint to be investigated and still another year before a proposed finding in the case was rendered. Consequently, there have been countless farmers who have lost their land or died waiting for USDA to process their complaints.
See id. at 8 ~ 31.
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50. Ms. Gray and Mr. Wright were not alone in their assessment of USDA's shameful handling of discrimination complaints even after the dismantling of its civil rights investigatory capability had come to light and lawsuits were filed. In two internal reports, USDA openly acknowledged its continued failure to account for and to investigate discrimination complaints. Indeed, the CRAT Report concluded that "[t]he process for resolving program complaints has failed." See Exhibit 2 at 31.
51. Notwithstanding the reported wrongdoing of USDA officials and notwithstanding the fact that, in connection with the first settlement of the African American farmers' lawsuit, more than 15,000 findings of discrimination were made resulting in the payment of $1 billion in settlement benefits, no official was ever fired or even reprimanded for improper racial discrimination in executing his or her duties. To the contrary, many officials who wrongfully denied USDA loans or services on the basis of race are still employed by the USDA today. Indeed, on information and belief, the only USDA official or employee in the entire history of the department ever to be fired for alleged discrimination was Shirley Sherrod, who, in July 2010, was wrongfully forced to resign by Defendant Vilsack, prior to the airing of the Glen Beck television show, following false allegations that Ms. Sherrod, an African-American, had discriminated against a white farmer.
52. USDA continues to refuse to investigate Hispanic farmers' complaints in disregard for the regulations prescribing the procedures for processing and investigating discrimination complaints. According to the undisputed declaration of a former OCR Equal Employment Opportunity Specialist, he and his colleagues were repeatedly told not
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/
\
to investigate Hispanic farmers' discrimination complaints. A true and correct copy of this declaration is attached hereto at Exhibit 8.
VII. CLASS ACTIONS ARE FILED 53. The first of four virtually identical class actions seeking redress for the
USDA's discrimination, styled Pigfordv. Glickman, was filed in the United States District Court for the District of Columbia on August 28, 1997, by three AfricanAmerican farmers.
54. The Pigford plaintiffs claimed that USDA had discriminated against African-American farmers for decades, denying their applications, delaying the processing of their applications, or approving them for insufficient amounts or with restrictive conditions. The Pigford plaintiffs alleged that USDA had secretly dismantled its capacity to investigate discrimination complaints and consequently never processed or investigated complaints filed with it by African-American farmers. The Pigford plaintiffs alleged that, as a result, African-American farmers who filed complaints of discrimination never received a response, or if they did receive a response, it was a cursory denial of relief. The Pigford plaintiffs alleged that in some cases, USDA simply threw discrimination complaints in the trash without ever responding to or investigating them. On October 9, 1998, the trial court initially certified the case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, based upon USDA's well-documented and admitted refusal to investigate discrimination complaints filed with it by African American farmers. Thereafter, on April 14, 1999, the trial court again certified the case as a class action, this time pursuant to Rule 23(b)(3).
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55. On November 24, 1999, Native American farmers brought a virtually identical suit against the USDA in the United States District Court for the District of Columbia, styled Keepseag/e v. Gliclanan, echoing the allegations set forth in the Pigford complaint described in paragraph 52 supra. On September 28, 2001, the trial court certified the case as a class action, based upon USDA's well-documented and admitted refusal to investigate discrimination complaints filed with it by Native American farmers.
56. On October 13,2000, Hispanic farmers filed a third virtually identical class action suit in the United States District Court for the District of Columbia, styled Garcia v. Gliclanan, alleging that the USDA, just as it did with African-American and Native American farmers, discriminated against Hispanic farmers by also denying them access to USDA's farm credit and non-credit farm benefit programs in violation ofthe ECOA and the APA, and that USDA refused, and still refuses, to investigate their complaints of discrimination in those programs. Unlike the two judges in the AfricanAmerican and Native American farmers' cases, the judge in the Hispanic farmers' case, who also presided over the female farmers' case, refused to certify the case as a class action on the basis of USDA's well-documented and admitted refusal to investigate complaints of discrimination filed with it by Hispanic farmers.
57. Finally, on October 19,2000, female farmers filed a fourth virtually identical class action suit in the United States District Court for the District of Columbia, styled Love v. Glickman, alleging the same substantive claims as did the AfricanAmerican, Native American, and Hispanic farmers. The same judge, who presided over the Hispanic farmers' lawsuit, refused to certify the case as class action on the basis of
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USDA's well-documented and admitted refusal to investigate discrimination complaints filed with it by female farmers.
58. According to the 2007 Census of Agriculture, the most recent, there are 30,599 farms which have blacks as their principal operators nationwide and 34,706 farms which have Native Americans as their principal operators nationwide. The same census places the number of farms nationwide with Hispanic principal operators at 55,570, and 306,209 farms nationwide with female principal operators. The same census lists under the category of "all operators" 39,697 African-Americans, 55,889 Native Americans, 82,462 Hispanics and 985,182 female. Thus, according to the Census of Agriculture, Hispanics and female farmers outnumber African-American farmers from 12 to 1 to 27 to 1. (USDA census data are set forth in Exhibit 9.)
VIII. THE PIGFORD SETTLEMENT 59. In contrast to its treatment of the suits brought by the Hispanic and female
farmers, which have now been pending for ten years, the government agreed to settle the African-American farmers' case within approximately two years after the filing of the case. See generally Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999) (approving consent decree).
60. The consent decree ("Pigford F') established a two-track dispute resolution system. Under Track A, African-American farmers who satisfied a specified burden of proof would be paid what the Court characterized as a "virtually automatic" $50,000, plus granted certain loan forgiveness and the government would pay the taxes due on the damage award. To satisfy the burden of proof, they had to show that they had applied to the USDA for farm credit or benefits, had made a complaint of discrimination
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before 1997, and that the USDA had treated them less favorably than the USDA had treated similarly situated white farmers. Alternatively, African-American farmers could follow a "Track B" process for damage claims greater than $50,000 and, by satisfying a higher burden of proof, recover unlimited damages. In addition, farmers who were the victims of discrimination in USDA's non-credit farm benefit programs could recover liquidated damages of$3,000 for such discrimination. As of June 2010, approximately $1 billion had been disbursed to approximately 15,000 African-American farmers.
61. Under the Pigford I consent decree, the government forgave all outstanding loans that were determined to be affected by discrimination proven by successful claimants. Because there was no limit on the total damages, any such debt relief did not reduce the amount payable to claimants for damages. The government paid damages and debt relief out of the federal Judgment Fund, a pool of money administered by DOJ to cover damage claims against the federal government.
IX. THE FOOD, CONSERVATION, AND ENERGY ACT OF 2008 62. On May 22 and June 18,2008, Congress enacted two statutes, together
known as the Food, Conservation, and Energy Act of2008, Pub. L. 110-234, 122 Stat. 923; Pub. L. 110-246, 122 Stat. 1651 ("2008 Farm Bill"). Section 14011 of the 2008 Farm Bill urged the USDA to settle pending discrimination lawsuits "in a just and expeditious manner." Specifically, Section 14011 reads:
SENSE OF CONGRESS RELATING TO CLAIMS BROUGHT BY SOCIALLY DISADVANTAGED FARMERS OR RANCHERS
It is the sense of Congress that all pending claims and class actions brought against the Department ofAgriculture by socially disadvantaged farmers or ranchers ... including Native American, Hispanic, and female farmers or ranchers based on racial, ethnic, or gender discrimination in farm program participation should be resolved in an expeditious andjust manner.
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Id (emphasis added). 63. Consistent with Section 14011, Secretary Vilsack, during his confirmation
and on multiple subsequent occasions, stated that the administration recognized that all of these cases should be settled. A true and correct copy of the relevant portions of Secretary Vilsack's confirmation testimony is attached at Exhibit 10.
64. Specifically, Secretary Vilsack noted that "the time has come for this department to be the department of and for and by all the people by working hard to resolve the outstanding civil rights claims in program and employment practices." See id at 2. He further stated "IfI'm confIrmed, the message will be clear: discrimination in any form will not be tolerated[.]" See id
65. In addition, Section 14012 of the 2008 Farm Bill provided reliefto the African-American farmers who unsuccessfully sought entry to the initial Pigford settlement under paragraph 5(g) ofthe Pigford Consent Decree, which permitted late filings only in the event of extraordinary circumstances beyond the farmer's control. Specifically, Section 14012(b) provided that "[a]ny Pigford claimant who has not previously obtained a determination on the merits of a Pigford claim may, in a civil action brought in the United States District Court for the District of Columbia, obtain that determination." Section 14012(a)(4) defined "Pigford claimant" to mean "an individual who previously submitted a late-filing request under [paragraph] 5(g) of the [Pigford Consent Decree]." Pursuant to Section 14012 of the 2008 Farm Bill, as of January 1, 2010, over 28,000 plaintiffs had filed individual claims in 17 complaints in the United States District Court for the District of Columbia. These cases collectively became lmown as Pigford 1. To date, no class has been certified in any of the 17 cases.
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x. THE GOVERNMENT INCREASES SETTLEMENT BENEFITS
FOR AFRICAN AMERICAN FARMERS 66. After President Obama took office, the federal government, while still declining to enter into any settlement with Hispanic, Native American or female farmers, chose to re-examine the benefits provided by Section 14012 of the 2008 Farm Bill to the African-American farmers who missed the filing deadline to participate in the original Pigford settlement. On May 6,2009, the Obama Administration and Defendant Vilsack announced that the government would provide an additional $1.25 billion dollars to cover the claims to the late-filed African-American farmers for past discriminatory treatment. This funding was to be a mandatory spending provision to be included in the 2010 Budget to compensate African-American farmers who missed the filing deadlines of the original Pigford I settlement. 67. In a statement, President Obama said the proposed settlement funds would "close this chapter" in the agency's history and allow it to move on. The President further stated that his "hope is that the farmers and their families who were denied access to USDA loans and programs will be made whole and will have the chance to rebuild their lives and their businesses." A true and correct copy of President Obama's remarks is attached at Exhibit 11. 68. Defendant Vilsack, in turn, issued a statement that he was "very pleased that President Obama is taking swift action on this matter as it is something that will help us chart a new course at USDA, one on which all USDA customers and employees are treated equally and fairly." See id 69. As a result of the proposed appropriations of $1.25 billion, approximately $2.25 billion have either been paid to or allocated to settle the claims of African-
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American fanners and "close the chapter" of discrimination against African-American fanners.
70. Because the congressional appropriation to fund the Pigford II settlement is capped at $1.25 billion, the settlement limits amounts paid under Track A and Track B to up to $50,000 and $250,000, respectively. Moreover, amounts paid to USDA for debt relief reduce the amount available to pay damages to victims in compensation for the discrimination they suffered. Furthermore, if the amount of money allocated to pay debt relief is insufficient to relieve individual fanners of the total outstanding balance on his or her affected loan, any unpaid balance remains a debt of the farmer and continues to accrue interest.
XI. THE KEEPSEAGLE SETTLEMENT 71. On October 19,2010, the government reached a settlement with the
Native American fanners. The announced settlement includes approximately $680 million in damages and $80 million in debt forgiveness to Native American fanners who sustained the same systematic discrimination as did the Hispanic fanners. The combined amount of $760 million equaled the amount of damages claimed by the Native American fanners in the report submitted by their damages expert. In addition, the government, as it had for African-American fanners, provided Native American fanners with a low-cost, two-track dispute resolution process to recover claims greater than $50,000.
72. The same day, President Obama said in a statement that he "applaud[s] Secretary Vilsack and Attorney General Holder for their hard work to reach this settlement - a settlement that helps strengthen the nation to nation relationship and underscores the federal government's commitment to treat all citizens fairly." The
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President further stated that his Administration continues to work towards a resolution of the claims made by female and Hispanic farmers against the USDA." A copy of the President's October 19,2010 statement is attached at Exhibit 12.
XII. THE mSPANIC FARMERS' CONTINUED ATTEMPTS AT SETTLEMENT 73. Defendants Holder and Vilsack and other government officials continue to
discriminate against Hispanic farmers in the administration ofjustice, refusing to provide for Hispanic farmers settlement procedures and substantive provisions enabling them to secure the same process as Defendants have provided to African-American and Native American farmers, despite the fact that Hispanic, female, African-American and Native American farmers all suffered identical discrimination by USDA and all filed virtually identical complaints. In fact, Defendants Holder and Vilsack and other government officials have persistently refused to provide equal benefit opportunities to rectify past discrimination for the Hispanic farmers, or even engage in good faith settlement negotiations with the Hispanic farmers.
XIII. THE GOVERNMENT DISCRIMINATORILY DENIES mSPANIC FARMERS COMPARABLE SETTLEMENT BENEFITS 74. Instead, on May 25,2010, Defendants announced that they would
establish a "program" ostensibly aimed at settling the claims of Hispanic and female farmers. Despite efforts by counsel for the Hispanic farmers to secure a settlement on terms similar to and as favorable as those offered by the government to the AfricanAmerican and Native American farmers, the announced "program" did not remotely reflect the negotiations of counsel for the Hispanic farmers, but, instead, intentionally offered terms far less beneficial, and, indeed, far more onerous, than those provided to the
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African-American and Native American fanners, notwithstanding that the fanners in all these groups sustained the same degree and kind of discrimination, and were regularly and consistently denied fann benefits in the same measure and to the same extent because of their race or gender, and as a result suffered like injury, as fann credits and assistance systematically went instead to Caucasian male fanners.
75. The originally announced "program" offered Hispanic fanners some undefined part of $1.33 billion (59% of the $2.25 billion paid to or allocated to AfricanAmerican farmers) to be shared with female fanners despite the fact that Hispanic and female fanners outnumber African-American fanners by from 12 to 1 to 27 to l. Hispanic fanners, alone, outnumber African-American fanners by nearly 2 to 1, and Hispanic fanners have substantially outnumbered African-American fanners consistently since 1992.
76. Moreover, by the terms of the originally announced "program," there would be a single track for Hispanic and female fanners with a cap of$50,000 per successful claimant. For Hispanic and female fanners with provable damages greater than $50,000, the program required them to either file a federal lawsuit to pursue their claims or forgo them for some undetermined amount up to $50,000. Thus, while Defendants provide a low-cost Track B dispute resolution option to African-American and Native American fanners to pursue damage claims greater than $50,000, they provided and still provide no such option to Hispanic fanners.
77. After nearly eight months during which Defendants refused to negotiate with Hispanic fanners, Defendants, on February 22, 2011, announced a new program which they described as an improvement upon the original program. Defendants' new
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program establishes a two-tier dispute resolution process and dropped the demand that Hispanic farmers not already parties to the Garcia lawsuit file complaints and then immediately move to dismiss those complaints. Under Tier 1, Hispanic and female farmers, subject to a substantial evidence burden of proof and depending upon the number of successful claimants, could recover up to $50,000 from a damage fund of $1.23-1.33 billion, depending upon the number of successful claimants in Tier 2. Under Tier 2, Hispanic and female farmers, subject to the higher preponderance of evidence burden of proof, could recover $50,000. Under the proposal, there would be no cap on the number of claimants who could recover $50,000 under the higher preponderance of the evidence burden of proof. Thus, in stark contrast to the settlements offered to African-American and Native American farmers, the government's settlement offer to Hispanic and female farmers was still capped at $50,000 with no low-cost dispute resolution alternative for claims greater than $50,000. Moreover, in order to be assured of receiving a $50,000 award, Hispanic and female farmers would have to satisfy the same burden of proof that entitled African-American farmers in Pigford I to recover, unlimited damages and entitled African-American farmers in Pigford II and Native American farmers in Keepseagle to recover up to $250,000. On information and belief, the highest Track B award in Pigford I was $13 million. Under the new program, Defendant would still require Hispanic and female farmers with provable damages greater than $50,000 to either file a federal lawsuit to pursue their claims or forego them for $50,000 despite the fact that they could satisfy the burden of proof that permitted African-American farmers in Pigford I to recover as much as $13 million through the low-cost Track B dispute resolution process.
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78. Under the announced "program," Hispanic or female farmers would not have the benefit of a claim notice independently verified and monitored, as the government has provided to the African-American and Native American claimants, but would be subject to a process and procedures administered by the very agency that continues to discriminate against Hispanic and female farmers, operating, on information and belief, through contractors selected and paid by USDA.
79. Given the government's imposition ofa $1.33 billion cap under its announced "program" that is to be shared by female and Hispanic farmers, and the greater burden of proof imposed upon Hispanic and female farmers to avoid participation in the capped fund, there is, depending upon the number of successful claimants, a very real likelihood that individual farmers will not only receive substantially less than the $50,000 maximum under this "program," but also nowhere near total debt relief. Under the "program," any debt that is not completely relieved remains a debt of the farmer and continues to accrue interest until completely paid.
80. Because USDA could apply any such outstanding debt as an offset to any damage recovery received under the announced "program," a large number of successful claimants could be left with no cash at all and still be in debt to USDA.
81. In addition although the government provided compensation for damages resulting from discrimination in the non-credit farm benefit programs in Pigford I and Pigford II, it has refused to afford Hispanic farmers such compensation despite the fact that Hispanic farmers have asserted such viable claims.
82. On March 7,2011, Defendants unilaterally announced a revised framework that essentially replaced the preponderance of evidence standard applicable to
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Tier 2 claims with the substantial evidence burden of proof. In making the changes to the settlement proposal, Defendants have steadfastly refused to negotiate with counsel for Hispanic farmers and in every instance categorically refuse to provide Hispanic farmers with the same type of settlement process as they have provided African-American and Native American farmers.
XIV. THE GOVERNMENT'S ANNOUNCED "PROGRAM" IS DISCRIMINATORY AND UNCONSTITUTIONAL 83. The government's unilateral attempt to impose the "program" as a
settlement of Hispanic farmers' claims in a manner substantially different from and substantially less favorable than the settlement provided to African-American and Native American farmers is wholly inconsistent with the rule of law and the equal protection guaranteed by the Constitution ofthe United States. For reasons that have no rational basis in law or fact, Defendants, because of the farmers' racial differences, continue to deny Hispanic farmers the same substantial benefits, and, indeed, impose on them significantly harsher burdens, than are found in the settlement terms Defendants have offered to African-American and Native American farmers, notwithstanding that the Hispanic, African-American and Native American farmers admittedly have long suffered the substantively identical discrimination pervading the USDA's farm benefit programs and are equally entitled to full redress for their like injuries.
84. Defendants' refusal to settle fully and comprehensively the Hispanic farmers' claims on materially the same terms that Defendants have agreed to settle the very same claims of African-American and Native American farmers is intentional and continues USDA's persistent discrimination against Hispanic farmers because of their
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Hispanic origin in violation of Plaintiffs' right to due process and equal treatment under law in the administration ofjustice.
85. Moreover, on information and belief, the individual Defendants alone had ultimate authority to approve the settlement ofthe Hispanic farmers' claims, and thus necessarily had a hand in the development of the government's announced "program" offered to the Hispanic farmers in lieu ofthe settlement fashioned for the AfricanAmerican and Native American farmers. The individual Defendants were thus, on information and belief, personally involved in the decisions to deny the settlement benefits to Hispanic farmers that were approved for and received by the AfricanAmerican and Native American farmers. Similarly, on information and belief, Defendants were personally involved in the decisions to impose on the Hispanic farmers onerous settlement conditions not imposed on the African-American and Native American farmers.
86. The government cannot as a matter of law and consistent with the equal protection guarantees ofthe Constitution simultaneously provide similarly situated African-American and Native American farmers a low-cost two-track settlement process designed to facilitate resolution of their claims, while insisting that Hispanic farmers, who like their Native American counterparts suffered identical discrimination, must undergo a substantially less favorable and more burdensome settlement process calculated to impede and discourage meaningful resolution of their claims. Such disparate and uneven treatment of equally meritorious discrimination claims based only on the racial differences of the respective claimants is contrary to the rule of law and violates the Constitution's equal protection guarantee.
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87. The denial of class certification in the Hispanic farmers' lawsuit does not provide a rational basis for such desperate and unequal treatment of Hispanic farmers on the one hand and African-American and Native American farmers on the other hand in the settlement process because the three groups are similarly situated victims of government discrimination as the government has expressly conceded.
88. In Pigford II, the defendants have agreed to pay African-American farmers who missed the filing deadline to participate in the Pigford I settlement $1.25 billion for a total of over $2.25 billion. In Pigford II, although none ofthe 17 consolidated cases has been certified as a class action, the Defendants have from the outset of those cases indicated their desire to deal with these cases as if a class had been certified and has executed what purports to be a class settlement that includes terms far more favorable than the terms offered to similarly situated Hispanic farmers.
89. Similarly, the Defendants have settled with the Native Americans as a class despite the fact that the Native American case (Keepseagle) was certified as a class action on exactly the basis that the court in the Hispanic andfemale farmers' cases held could not be the basis for certifying a class - a holding that has been affirmed by the D.C. Circuit. Significantly, in urging the D.C. Circuit to review the ruling upon which the question of class certification ultimately turned in the Native American, Hispanic and female farmers cases, the government, referring to the Garcia case, argued:
This is one of three related cases now pending in district court alleging virtually identical claims against the USDA on behalf of different minority groups attempting to proceed as class actions. Now that there is an actual conflict in the certification of class actions in virtually identical suits by Hispanic, female, and Native American farmers, review by tIns Court may well be appropriate to ensure that similarly-situated minority groups are treated consistently. However, one of the primary reasons for the varying
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class certification decisions in these cases is disagreement on the underlying legal issue: whether plaintiffs' claim concerning the USDA's alleged "failure to investigate discrimination complaints" is actionable under either the APA or the ECOA. Because the viability of such a common "complaint processing" claim among class members informs any assessment of the propriety of class certification in these cases, the Court's resolution ofthat threshold legal question is essential. Exhibit 1 at 19-20. The Defendants' disparate treatment ofNative American, Hispanic and women farmers in the administration ofjustice cannot be reconciled with the rule of law. Having refused to move to decertify the Native American farmers' case as a class action after winning the right to do so in the D.C. Circuit when it affirmed the district court's ruling on the complaint processing claims, the government must settle with all three groups on a class basis pursuant to Rule 23 or be found to have discriminated against Hispanic and female farmers in the settlement of their cases. 90. In addition, the manner in which the Defendants have chosen to settle the African-American and Native American farmers' cases renders the issue of class certification completely irrelevant and a pretext for racial and ethnic discrimination. At the core of all of the settlements proposed by the Defendants is a low-cost, two-track dispute resolution process. No claimant under any settlement can recover anything without first individually satisfying the requisite burden of proof for the applicable dispute resolution track. Under the Defendant's discriminatory processes, AfricanAmerican and Native American farmers can use the low-cost process to pursue claims greater than $50,000 while Hispanic farmers are prohibited from doing so. Instead, Hispanic farmers must either forgo such claims or file and prosecute expensive federal lawsuits in district court.
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XV. CLASS ACTION ALLEGATIONS 91. Plaintiffs bring this class action on behalf of Hispanics who farmed or .
ranched, or attempted to farm or ranch, during the period January 1, 1981 to the present and who complained to the USDA about its acts of discrimination against them on the basis of race and national origin when they sought to participate on equal terms in farm loan and disaster benefit programs, and are further being discriminated against because of race in the administration ofjustice by being intentionally denied the settlement opportunities the government has afforded to similarly situated African-American farmers and Native American farmers to redress the identical discrimination they suffered in USDA's lending programs that was suffered by these Hispanic farmers.
92. Although the USDA discriminated against Hispanic farmers in administering its farm loan and non-credit benefit programs, all class members here have suffered identical discrimination by reason of the government's refusal, solely because these plaintiffs are Hispanic and not African-American or Native American, to provide them the same settlement terms, of offer to them comparable compensation for their injuries, as the government has provided to similarly situated African-American farmers and similarly situated Native American farmers.
93. This action is brought and may be properly maintained as a class action pursuant to the provisions of Federal Rules of Civil Procedure 23(a)(l)-(4) and 23(b)(2). This action satisfies the numerosity, commonality, typicality, adequacy and predominance and superiority requirements of those provisions.
94. The class is so numerous that individual joinder of all the members is impractical and that compelling each plaintiff to institute and pursue a separate action to secure the remedial relief essential to the eradication of systemic, pervasive
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discrimination practiced against each, and/or to recover monetary damages as compensation for the economic halm caused by discrimination, is both impractical and a needless burden on the courts. The most recent Agricultural Census lists the number of Hispanic farmers at a minimum of 55,570, for all of whom securing remedial relief is essential. (Exhibit 9.)
95. Common questions oflaw and fact exist as to all members of the class, viewed as a Rule 23(b)(2) class, and such questions predominate over any questions affecting only individual members of the class. The common questions of law and fact presented in this action spring from a central undisputed and overriding reality that (1) for decades the USDA knowingly tolerated the existence of pervasive discrimination against minorities in the administration of its farm loan and disaster benefit programs, which was created by a highly decentralized, localized system of county committees who were free to act on a wholly subjective basis with no meaningful supervision from senior management of USDA, and (2) that the government has provided African-American and Native American farmers with settlement opportunities that offer more favorable monetary and procedural benefits than those proposed to Hispanic farmers, notwithstanding that all three minority groups admittedly sustained the same substantive and pervasive discrimination by USDA in like manner over the same period oftime. This core factual reality does not vary from class member to class member and may be established without reference to individual circumstances of any particular class member.
96. Additional common questions include: (a) Whether the USDA committed acts of discrimination against the Hispanic farmers substantively identical to those it committed against the African-American and Native American farmers in administering its farm loan and non-credit benefit programs?
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(b) Whether aforesaid unequal treatment of Hispanic farmers in the settlement of their identical discrimination claims is a denial of due process and equal protection under law in the administration of justice in violation of the Fifth Amendment of the United States Constitution? 97. Plaintiffs' claims are typical of the claims of the members of the class, all of whom, by virtue of the unfair, intentional, and racially discriminatory actions of the Defendants, have been denied benefits provided to similarly situated African-American and Native American farmers who sustained the same underlying discrimination as Hispanic farmers. 98. Plaintiffs are adequate representatives of the class because they are members of the class and their interests do not conflict with the interests of the members ofthe class they seek to represent. The named plaintiffs' claims are consistent with the claims of other class members. Plaintiffs' counsel are experienced class action lawyers who will adequately represent the class. 99. A class action is superior to other available methods for the fair and efficient adjudication of this litigation since individual litigation of class members' claims regarding Defendants' failure to provide equal benefits in the administration of justice as described in this Complaint is impracticable. Even if any class members could afford to litigate, it would be unduly burdensome to the courts to litigate each individual case. Individual litigation further presents a potential for inconsistent or contradictory judgments and increases the delay and expenses to all parties and the court system in resolving the legal and factual issues of the case. By contrast, the class action device presents far fewer management difficulties and provides the benefits of single adjudication of what essentially is one problem, economies of scale, and comprehensive supervision by a single court. Notice of the pendency of any resolution of this class
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action can be provided to class members by publication and broadcast; in addition, each class member's farm number, address, application date and payment results is readily available to defendants.
COUNT ONE VIOLATION OF THE FIFTH AMENDMENT -- EQUAL PROTECTION
(GOVERNMENTAL DEFENDANTS) 100. The foregoing allegations are re-alleged and incorporated herein by reference. 101. Equal protection of the laws demands that similarly situated citizens be treated equally in the administration ofjustice. The underlying discrimination experienced by the Hispanic farmers was substantively identical and their injuries were substantively identical to those sustained by the African-American and Native American farmers. Yet, based solely on differences of race, Defendants have provided the AfricanAmerican and Native American farmers with higher compensation allocations in settlement benefits, and with far more favorable procedural measures to realize those benefits, than they have offered to the Hispanic farmers. 102. There is no legitimate justification for treating similarly situated members of different racial groups differently. The disparity in treatment in the administration of justice cannot reasonably be explained except on account of differences of race. The government Defendants' actions regarding the differences in settlement treatment for resolution of identical claims knowingly deprive the Plaintiffs of the equal protection of the laws as guaranteed by the Fifth Amendment of the United States Constitution.
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COUNT TWO VIOLATION OF THE FIFTH AMENDMENT -- DUE PROCESS
(GOVERNMENTAL DEFENDANTS) 103. The foregoing allegations are re-alleged and incorporated herein by reference. 104. Due process guarantees Plaintiffs a fair, impartial, and even handed process to ensure that their claims of manifest discrimination are and will be resolved in meaningful fashion, and that they will receive full and adequate redress for their injuries.. The government's announced "program" provides no independent, fair and impartial oversight in the administration of settled claims. To the contrary, the government's announced "program" entrusts, yet again, to the USDA-the very agency that both perpetrated the widespread shameful discrimination that caused countless minority farmers to lose their livelihoods in the first instance, and then secretly dismantled its own investigatory process that it disingenuously claimed would search out and correct the racial injustice rampant in its farm lending programs-to administer the woefully inadequate settlement benefits now being offered to Hispanic claimants, and imposes unfair procedural burdens to impede and discourage participation by those claimants. In contrast, no such constraints and burdens have been imposed on the African-American and Native American farmers as a condition of settling their claims. 105. Due process also demands a meaningful post-deprivation remedy for damages sustained. Because the government's announced "program" provides two tiers both capped at $50,000, Defendants unlawfully deny to Hispanic farmers the low-cost dispute resolution process with respect to claims greater than $50,000 that they readily provided to African-American and Native American farmers. In addition, there is every
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likelihood that individual Hispanic farmers will receive substantially less than the $50,000 maximum. While the Defendants propose to allocate $160 million in debt relief to be shared by Hispanic and female farmers, under the second Pigford and Keepseag/e models, any debt that is not completely relieved remains a debt of the farmer and continues to accrue interest until completely paid. Moreover, USDA could, under its announced "program," apply any such outstanding debt as an offset to any damage recovery received in the so-called settlement. The likelihood of such a shortfall in debt relief is quite substantial because the $160 million is two times the $80 million debt relief amount provided in the Native American farmers' case despite the fact that, according to the 2007 Census, Hispanic and female farmers outnumber Native American farmers by at
least 9 to 1 ((55,570 + 306,209) to 34,706) and as much as 19 to 1 ((82,462 + 985,182) to
55,889). (Exhibit 9.) Thus, far from a meaningful post-deprivation remedy, for many there is the real prospect under the government's announced "program" that, while regarded by the USDA as a successful claimant, the deck has been stacked so that they in fact end up with nothing in cash and still be in debt to USDA.
106. There is no legitimate justification for treating similarly situated members of different racial groups differently. The disparity in treatment cannot reasonably be explained without reference to racial status. The Defendants' actions regarding the difference in treatment knowingly deprive the Plaintiffs of due process as guaranteed by the Fifth Amendment ofthe United States Constitution.
42

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COUNT THREE
VIOLATION OF THE FIFTH AMENDMENT -EQUAL PROTECTION (INDIVIDUAL DEFENDANTS)
107. The foregoing allegations are re-alleged and incorporated herein by reference.
108. Equal protection of the laws demands that similarly situated citizens be treated equally in the administration ofjustice. By continually refusing to discuss or settle the Hispanic farmers' claims, and by offering settlement benefits on far less favorable terms than given to African-American and Native American farmers, the individual Defendants intentionally engaged in conduct designed to disfavor members of one racial group, all of Hispanic origin, while favoring members of other racial groups, including either African-American or Native American farmers, all while acting under the color of federal law in violation of the Hispanic farmers' clearly established constitutional right. The discrimination experienced by the Hispanic farmers was substantively identical and their injuries were substantively identical to those sustained by the African-American and Native American farmers. Yet, Defendants have intentionally elected to compensate the African-American and Native American farmers with higher allocations in settlement benefits, and with more favorable procedural measures to claim those benefits, than they have been willing to offer or provide to the Hispanic fanners.
109. There is no legitimate justification for treating similarly situated members of different racial groups differently. The disparity in treatment cannot reasonably be explained without reference to racial status. The individual Defendant's actions regarding the differences in settlement treatment for resolution of identical claims
43

Case 1:11-cv-00541-RBW Document 1 Filed 03/15/11 Page 44 of 47
knowingly deprive the Plaintiffs of the equal protection of the laws as guaranteed by the Fifth Amendment of the United States Constitution.
COUNT FOUR
VIOLATION OF THE FIFTH AMENDMENT - DUE PROCESS (INDIVIDUAL DEFENDANTS)
110. The foregoing allegations are re-alleged and incorporated herein by reference.
111. Due process guarantees Plaintiffs a fair, impartial and even-handed process to ensure that their claims of manifest discrimination are and will be resolved in a meaningful fashion, and that they will receive full and adequate redress for their injuries.. The government's announced "program" does not provide for any independent, fair and impartial oversight in the administration of claims. To the contrary, the government's announced "program" entrusts, yet again, to the USDA-the very agency that perpetrated and continues to countenance the widespread shameful discrimination that caused countless minority farmers to lose their livelihoods in the first instance, and then secretly dismantled its own investigatory process that it disingenuously claimed would search out and correct the racial injustice rampant in its farm lending programs-to administer the woefully inadequate settlement benefits now being offered to Hispanic claimants, and imposes unfair procedural burdens to impede and discourage participation by those claimants. By intentionally failing to fairly and impartially settle claims of the Hispanic farmers for the admitted wrongdoing they suffered in the same manner and to similar extent as they have settled the claims of similarly situated African-American and Native American farmers, the individual Defendants engaged in conduct while acting under the
44

Case 1:11-cv-00541-RBW Document 1 Filed 03/15/11 Page 45 of 47
color of federal law that violates the Hispanic farmers' clearly established constitutional right.
112. Due process also demands a meaningful post-deprivation remedy for damages sustained. Because the Defendants' announced "program" is capped at $50,000 per claimant, Defendants deny Hispanic f81mers the low-cost dispute resolution process for resolving claims greater than $50,000 that Defendants readily provided to AfricanAmerican and Native American farmers. In addition, depending upon the number of successful claimants and because the fund allocated for debt relief is capped at $160 million, there is every likelihood that individual farmers will not only receive substantially less than the $50,000 maximum, and far less than total debt relief. Under the second Pigford and KeepseagZe models, any debt that is not completely relieved remains a debt of the farmer and continues to accrue interest until completely paid. Moreover, under the announced "program," USDA could apply any such outstanding debt as an offset to any damage recovery received in the so-called settlement. Far from a meaningful post-deprivation remedy, for many there is a real prospect under the government's announced "program that, while regarded by the USDA as a successful claimant, the deck has been stacked so that they in fact end up with nothing in cash and still be in debt to USDA.
45

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113. There is no legitimate justification for treating similarly situated members of different racial groups differently. The disparity in treatment cannot reasonably be explained without reference to racial status. The Defendants' actions regarding the difference in settlement treatment for resolution of identical claims knowingly deprive the Plaintiffs of due process as guaranteed by the Fifth Amendment of the United States Constitution.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request:
A. A declaration pursuant to 28 U.S.c. § 2201, that the practices, policies, patterns, and procedures described in this Complaint violate the constitutional rights of Plaintiffs;
B. A permanent injunction prohibiting Defendants, their officers, agents, employees and successors from engaging in racially discriminatory treatment of Hispanic farmers, and in particular from treating Hispanic farmers in the settlement of their claims against the USDA unequally from the manner in which they have treated African-American and Native American farmers in the settlement of their identical claims;
C. An award of reasonable attorneys' fees and costs, including expert fees, and interest;
D. Any such other and further relief, including but not limited to such specific remedies, as the Court deems just and proper.
46

Case 1:11-cv-00541-RBW Document 1 Filed 03/15/11 Page 47 of 47 Respectfully submitted,

Of Counsel: Robert L. Green, Jr. #935775 Kenneth C. Anderson, #243962 HowreyLLP 1299 Pennsylvania Ave., N.W. Washington, DC 20004-2401 Phone: 202.783.0800 Fax: 202.383.6610
Date: March 15,2011

Stephen S. Hill #927137 HOWREYLLP 1299 Pennsylvania Ave., NW Washington, DC 20004-2402 Phone: 202.783.0800 Fax: 202.383.6610 Attorneys for Plaintiffs

47

 </s> Case 1:11-cv-00541-RBW Document 27 Filed 12/21/11 Page 1 of 6

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

DAVID CANTU, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 11-541 (RBW)

)

THE UNITED STATES OF AMERICA, )

et al.,

)

)

Defendants.

)

____________________________________)

ORDER

The plaintiffs in this putative class action are Hispanic farmers who seek redress for the

defendants’ alleged “unconstitutional treatment in the proposed settlement of discrimination

claims by these Hispanic [p]laintiffs, on the one hand, as compared to the manner in which [the

d]efendants have settled identical discriminations claims by similarly situated African American

and Native American claimants, on the other hand,” all of whom were purportedly

“discriminated against in like manner by the United States Department of Agriculture [“USDA”]

. . . in the administration of its farm credit and non-credit farm benefit programs.” Class Action Complaint for Declaratory, Injunctive, and Other Relief (“Compl.”) ¶ 1.1 On May 5, 2011, the

defendants moved for dismissal of the complaint pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6). Upon review of the submissions made in connection with the defendants’

motion, the Court found that the parties failed to address several important issues and

1 The complaint names the following defendants: (1) the United States of America, (2) the United States Department of Justice, (3) the USDA, (4) United States Attorney General Eric Holder, in his official and individual capacities, and (5) Secretary of the United States Department of Agriculture Tom Vilsack, in his official and individual capacities. Compl. at 1.

Case 1:11-cv-00541-RBW Document 27 Filed 12/21/11 Page 2 of 6
accordingly directed them to file supplemental memoranda addressing those issues. See November 1, 2011 Order, Cantu v. United States, No. 11-541 (D.D.C.). Among other things, the Court instructed the parties to answer the following question: “Are the plaintiffs’ claims seeking declaratory and injunctive relief for the defendants’ alleged constitutional violations ‘ripe’ for judicial resolution?” Id. at 2. Having reviewed the parties’ supplemental briefs and all memoranda of law relating to the defendants’ motion to dismiss,2 the Court must answer this question in the negative.
“Ripeness is a justiciability doctrine ‘drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.’” In re Aiken Cnty., 645 F.3d 428, 433 (D.C. Cir. 2011) (quoting Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003)). Under this doctrine, federal courts can only entertain claims that are “‘constitutionally and prudentially ripe.’” Wyo. Outdoor Council v. United States Forest Serv., 165 F.3d 43, 49 (D.C. Cir. 1999) (quoting Louisiana Envtl. Action Network v. Browner, 87 F.3d 1379, 1381 (D.C. Cir. 1996)). “Prudentially, the basic rationale of the ripeness doctrine ‘is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’” In re Aiken Cnty., 645 F.3d at 433 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)). “Refusing to involve the courts in ongoing
2 In addition to the filings already identified, the Court considered the following submissions in rendering its decision: (1) the Memorandum in Support of Defendants’ Motion to Dismiss (“Defs.’ Mem.”); (2) the Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendants’ Motion to Dismiss; (3) the Reply in Support of Defendants’ Motion to Dismiss; (4) the Plaintiffs’ Memorandum in Response to the Court’s November 1, 2011 Order (“Pls.’ Suppl. Mem.”); (5) the Supplemental Memorandum in Support of Defendants’ Motion to Dismiss (“Defs.’ Suppl. Mem.”); and (6) the Plaintiffs’ Reply Memorandum to the Supplemental Brief in Support of Defendants’ Motion to Dismiss Filed in Response to the Court’s November 1, 2011 Order (“Pls.’ Suppl. Reply”).
2

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administrative matters both protects judicial resources and comports with the judiciary’s role as the governmental branch of last resort.” Id. at 434. “The ripeness doctrine, even in its prudential aspect, is a threshold inquiry that does not involve adjudication on the merits and which may be addressed prior to consideration of other Article III justiciability doctrines.”3 Id. (citing Toca Producers v. FERC, 411 F.3d 262, 265 n.* (D.C. Cir. 2005)).
Under the two-prong analysis for prudential ripeness established by the Supreme Court in Abbott Labs., the Court must evaluate “[1] the fitness of the issue for judicial decision and [2] the hardship to the parties of withholding court consideration.” 387 U.S. at 149. “‘Among other things, the fitness of an issue for judicial decision depends on whether it is purely legal, whether consideration of the issue would benefit from a more concrete setting, and whether the agency’s action is sufficiently final.’” Devia v. Nuclear Reg. Comm’n, 492 F.3d 421, 424 (D.C. Cir. 2007) (quoting Atlantic States Legal Found., Inc. v. EPA, 325 F.3d 281, 284 (D.C. Cir. 2003)). But even when a claim is “‘predominantly legal in character,’” if it “‘depends on future events that may never come to pass, or that may not occur in the form forecasted, then the claim is unripe.’” Id. at 425 (quoting McInnis-Misenor v. Maine Medical Ctr., 319 F.3d 63, 70 (1st Cir. 2003)). “Hence, a ‘claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Id. (quoting Texas v. United States, 523 U.S. 296, 300 (1998)).
Applying the first prong of the ripeness inquiry, the Court finds this case currently unfit for judicial review. The crux of this lawsuit is the plaintiffs’ claim that the defendants’ proposed alternative dispute resolution program (“ADR program”) aimed at settling the discrimination claims of Hispanic farmers is, as presently configured, inferior in several respects to the ADR
3 Mindful of this principle, the Court at this stage will not consider the defendants’ challenge to the plaintiffs’ Article III standing. See Defs.’ Mem. at 1-2.
3

Case 1:11-cv-00541-RBW Document 27 Filed 12/21/11 Page 4 of 6
programs established for similarly situated African American and Native American farmers. As it currently stands, however, the proposed ADR program being challenged by the plaintiffs is just that—a proposal. The ADR program has not yet been instituted, its terms have not been finalized, and, according to the defendants, it may be revised in light of ongoing negotiations with plaintiffs’ counsel in a related discrimination lawsuit brought by female farmers, Love v. Vilsack, No. 00-2502 (RBW) (D.D.C.).4 See Defs.’ Suppl. Mem. at 3. Based on these representations (the good faith of which the Court has no reason to doubt) and given that the ADR program has already been the subject of at least two substantial revisions since its announcement in May 2010, see, e.g., Compl. ¶¶ 76-77, 82, the Court is not confident that the version of the ADR program that the plaintiffs are now challenging will, in fact, be the version implemented by the defendants.
It is true that the issue presented in this case (i.e., whether certain terms of the ADR program are unconstitutional) is purely legal, and the defendants do appear likely to implement the ADR program in some form or another. Nevertheless, it would be both a waste of this Court’s resources and an improper exercise of judicial power to assess the constitutionality of a program that may be materially altered or never adopted at all. The Court’s consideration of this case thus “would benefit from a more concrete setting” because the defendants’ actions are not “sufficiently final,” and the plaintiffs’ claims are based on “‘contingent future events that may not occur as anticipated.’” Devia, 492 F.3d at 424 (quoting Texas, 523 U.S. at 300). Under these circumstances, prudential interests weigh heavily in favor of deferring judicial review.
4 The plaintiffs dispute the defendants’ claim that they may further modify the ADR program, asserting that the defendants have indicated on several instances that the current terms of the ADR program are final and nonnegotiable. See Pls.’ Suppl. Reply at 4-6. However, according to the plaintiffs’ own complaint, the defendants have taken this stance with plaintiffs’ counsel in this case since first announcing the ADR program in May 2010, and they nonetheless proceeded to “unilaterally announce[]” substantial modifications to the program’s terms in February and March of 2011. Compl. ¶¶ 74, 77, 82. The defendants may very well make another unilateral modification of the ADR program’s terms, including those terms being challenged as discriminatory in this case.
4

Case 1:11-cv-00541-RBW Document 27 Filed 12/21/11 Page 5 of 6
Turning to the “hardship” prong of the ripeness inquiry, the Court must consider the plaintiffs’ “‘interest in immediate review.’” City of Houston v. HUD, 24 F.3d 1421, 1431 (D.C. Cir. 1994) (quoting Better Gov’t Ass’n v. Department of State, 780 F.2d 86, 92 (D.C. Cir. 1986)). “In order to outweigh institutional interests in the deferral of review, the hardship to those affected by the agency’s action must be immediate and significant.” Action Alliance of Senior Citizens of Greater Philadelphia v. Heckler, 789 F.2d 931, 940 (D.C. Cir. 1986). The plaintiffs assert that prompt review of their claims is necessary because they have been harmed by the defendants’ alleged discriminatory ADR program, and they “confront the substantial hardship of having to choose between a program that is blatantly discriminatory . . . or incurring substantial costs” by pursuing litigation. Pls.’ Suppl. Mem. at 11. But these purported hardships are not “immediate and significant,” Heckler, 789 F.2d at 940, because the ADR program is not yet in place. Indeed, the plaintiffs cannot be presently harmed by a program that does not exist. Once the defendants’ ADR program is finalized, the plaintiffs may raise their constitutional challenges to that program before the Court and will be in no discernibly worse position than they are now. Hence, the significant institutional interests in deferring review of the plaintiffs’ claims outweigh the minimal interest of the plaintiffs in securing immediate judicial review.
For the foregoing reasons, the Court concludes that this case is not prudentially ripe. As noted above, however, it does appear from the parties’ representations that the defendants will eventually implement some form of the ADR program. So instead of dismissing this case on ripeness grounds, the Court will hold the case in abeyance pending an announcement of the final version of the defendants’ ADR program. See Devia, 492 F.3d at 426 (stating that courts have discretion to hold in abeyance, rather than dismiss, prudentially unripe cases).
Accordingly, it is hereby
5

Case 1:11-cv-00541-RBW Document 27 Filed 12/21/11 Page 6 of 6
ORDERED that all pending motions in this case are denied without prejudice. It is further
ORDERED that the parties shall notify the Court if and when the defendants finalize the ADR program for Hispanic farmers. At that time, the parties shall advise the Court whether they desire to have the pending motions in this case reinstated and taken under advisement by the Court. If such a request is made, the defendants shall submit for the Court’s review a copy of the final version of the defendants’ ADR program for Hispanic farmers. It is further
ORDERED that the defendants shall submit status reports to the Court and the plaintiffs every 30 days, starting from the date of entry of this order and until the ADR program is finalized, addressing the progress that has been made toward the finalization of the ADR program for Hispanic farmers. It is further
ORDERED that this case is administratively closed pending further order of the Court.5 SO ORDERED this 21st day of December, 2011.
REGGIE B. WALTON United States District Judge
5 This case will be administratively reopened and the motions that have been denied without prejudice will be reinstated (if requested by the parties) once the ADR program for Hispanic farmers is finalized.
6

 </s> Case 1:11-cv-00541-RBW Document 46 Filed 07/13/12 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DAVID CANTU

)

502 West 9th Street

)

San Juan, TX 78589

)

and

)

)

GUADALUPE GARCIA

)

9303 North Dona Ana Rd

)

Las Cruces, NM 88007

)

and

)

)

NOE OBREGÓN

)

P.O. Box 1173

)

Pearsall, TX 78061

)

and

)

)

RUPERTO & MODESTO RODRIGUEZ )

DBA Rodriguez Brothers, Inc.

)

11618 Pompano Lane

)

Houston, TX 77072

) NO. 1:11-CV-00541 (RBW)

and

)

) FIRST AMENDED CLASS ACTION

MODESTA SALAZAR

) COMPLAINT FOR DECLARATORY,

P.O. Box 547

) INJUNCTIVE, AND OTHER RELIEF

Pearsall, TX 78061

)

)

For Themselves and On Behalf of All Other )

Similarly Situated Persons

)

Plaintiffs,

)

)

v.

)

)

THE UNITED STATES OF AMERICA, )

THE UNITED STATES DEPARTMENT )

OF JUSTICE, THE UNITED STATES

)

DEPARTMENT OF AGRICULTURE,

)

ERIC HOLDER in his official

)

capacity, and TOM VILSACK in

)

his official capacity.

)

)

Defendants.

)

)

1261009.1

Case 1:11-cv-00541-RBW Document 46 Filed 07/13/12 Page 2 of 36
1. Plaintiffs David Cantu, Guadalupe Garcia, Noe Obregon, Modesto Rodriguez, Ruperto Rodriguez, and Modesta Salazar, on behalf of themselves and other similarly situated persons (“Plaintiffs”), through counsel, file the instant First Amended Complaint against Defendants to uphold their constitutional and other rights – rights that have been violated by Defendants’ unequal treatment of Plaintiffs, who are Hispanic, as compared to similarly situated African-American and Native American individuals.1
2. Defendants have admitted to a thirty-year history of discrimination against Plaintiffs, women and other minority groups by the United States Department of Agriculture (“USDA”) in the administration of its farm credit and non-credit farm benefit programs (collectively “farm benefit programs”). More than ten years ago, various groups of these victimized farmer and ranchers (collectively “farmers”), including African-American, Native American, female, and Hispanic farmers, filed class action complaints against USDA seeking redress for the discrimination they suffered.2 Defendants have already settled the cases brought by African-American and Native American farmers. Yet, despite these settlements with other groups, Defendants have refused to offer the same terms to settle the discrimination claims of Hispanic farmers who suffered the same discrimination, incurred the same injuries, and filed a similar lawsuit as the African-American and Native American farmers. Instead, Defendants have finalized a settlement for Plaintiffs that, in several important aspects, is substantially worse than the settlements given to the similarly situated African-American and Native American claimants.
1 Leave to file an amended complaint was granted by the Court on June 20, 2012. See Order (Doc. No. 37) at 2. 2 See Garcia v. Vilsack, No. 00-02445 (D.D.C.) (Hispanic farmers); Pigford v. Glickman, No. 97-1978 (D.D.C.) (Pigford I) and Pigford v. Vilsack, No. 08-0511 (D.D.C.) (Pigford II) (African American farmers); Keepseagle v. Vilsack, No. 99-03119 (D.D.C.) (Native American farmers); and Love v. Vilsack, No. 00-02502 (D.D.C.) (female farmers).
2
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Case 1:11-cv-00541-RBW Document 46 Filed 07/13/12 Page 3 of 36
Defendants’ failure to provide Plaintiffs with a settlement equal to that offered to the other racial groups violates, among other things, their rights to due process and equal protection guaranteed by the U.S. Constitution.
I. OVERVIEW 3. Between 1997 and 2000, African-American, Native American, Hispanic, and female farmers filed four virtually identical class action lawsuits alleging that USDA routinely engaged in the discrimination of individuals on the basis of race, ethnicity, or gender in the administration of its farm benefit programs, and failed to investigate the claims of farmers who filed complaints based on such conduct with USDA. The lawsuits were filed after USDA acknowledged and admitted such conduct and that “[m]inority farmers ha[d] lost significant amounts of land and potential farm income as a result of [such] discrimination by [the USDA].” See Exhibit 1 at 30. 4. Despite USDA’s public acknowledgement that all minority farmers were victimized by a like pattern and practice of discrimination, Defendants have not been fair and even handed in settling the claims of different groups of similarly situated minority farmers. Instead, Defendants have proceeded unfairly, unequally, and disproportionately, favoring African-American and Native American farmers in the settlement of their claims while disfavoring similarly situated Hispanic and female farmers in the terms and amounts offered to settle their identical claims. 5. Specifically, even though the plaintiffs in all four identical class actions alleged the same substantive discrimination; even though USDA has admitted that it has committed the same unlawful discriminatory practices against the plaintiffs in all four cases; and even though Congress and the Obama Administration have both called for the expeditious and fair settlement
3
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Case 1:11-cv-00541-RBW Document 46 Filed 07/13/12 Page 4 of 36
of all of these cases, Defendants have refused to resolve the discrimination claims of Hispanic farmers brought by and raised by the Garcia case, through settlement of that case on the basis of a Fed. R. Civ. P. Rule 23 class – as they agreed to do in the African-American farmers’ cases twice (Pigford I and Pigford II) and the Native American farmers’ case (Keepseagle). Instead, Defendants have created what they consider a clever subterfuge – a “shadow” class action settlement, with the very same class alleged in the Garcia case, but outside of the courts and civil procedure. The intent and purpose for this subterfuge is to deny the Hispanic class the representation and scrutiny of class counsel and the supervision of the federal courts, while enabling Defendants to discriminate, in both process and compensation, between the Hispanic and the other settlement classes. The hollow excuse repeated by Defendants is that a Rule 23 class of Hispanic farmers was not certified by the Court in Garcia, but Defendants’ true aim is to subvert the normal court process in order to treat the Hispanic class separately and unequally, depriving them of their constitutional rights to equal protection and due process and denying them representation of counsel. The “shadow class settlement,” which Defendants have characterized as a “settlement program” (hereinafter the “Framework”), imposes on Hispanic and female farmers terms that are more onerous and that contain far fewer safeguards than the terms that were included in the settlement programs offered to African-American and Native American farmers.
6. Some of the crucial differences between the Framework and the settlement programs offered to the African-American and Native American farmers stem from Defendants’ refusal to settle with the Hispanic farmers on a court supervised Rule 23 class basis as they did with the African-American and Native American farmers. In settling with the African-American and Native American farmers, the Defendants voluntarily agreed to treat both groups as classes
4
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Case 1:11-cv-00541-RBW Document 46 Filed 07/13/12 Page 5 of 36
under Rule 23 for settlement purposes rather than litigate the class certification issue to judgment. In contrast, although the Framework treats the Hispanic farmers as if they are a Rule 23 class for some purposes (i.e., it establishes a class definition and provides for a claims process and potential compensation on a class-wide basis), it fails to provide them with the basic rights, benefits, and safeguards Rule 23 class status confers on class members. Defendants have not, and cannot, offer any rational or legitimate purpose for using this “shadow class settlement” rather than the Rule 23 process afforded the other racial groups, and the failure to do so has significant negative impact on Plaintiffs’ substantive rights. For example, the Framework lacks the following important provisions, all of which are present in the African-American and Native American settlements:
(a) Judicial Supervision: the Framework provides no judicial supervision over the claims process, while the African-American and Native American settlement programs provide for the continued jurisdiction and supervision of the settlement process by the Federal Courts. Consequently, African-American and Native American farmers were (and continue to be) supported throughout the process by the availability of an unbiased forum and venue for determining the adequacy of the claims adjudication process, resolving disputes, and rectifying any problems, irregularities, and unfairness that might arise during the claims process – protections Defendants have denied Plaintiffs. A lack of judicial supervision leaves the Hispanic farmers vulnerable to the following problems, among others:
(i) Deficient Notice: the settlements offered to African-American and Native American farmers left the administration of notice to the victims of their right to participate in the settlements – a critical component of any fair settlement – in the
5
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Case 1:11-cv-00541-RBW Document 46 Filed 07/13/12 Page 6 of 36
hands of those groups’ respective class counsel, under the independent review and oversight of the Federal Courts. In contrast, there is no judicial monitoring of the Framework at all, let alone any supervision over the notice process, which, under the Framework, is to be administered and monitored by contractors hired by USDA, the very perpetrator of the discrimination that Hispanic farmers seek to remedy. After nearly 30 years of blatant discrimination, Defendants now want the Hispanic farmers to trust them to provide appropriate notice to the entire group without affording them the same procedural safeguards that were afforded to the African-American and Native American farmers in the management of their class notice processes. (ii) Defective Claims Process: as with the African-American and Native American settlements, the Framework provides for a third party, non-lawyer, contractor to manage the claims process. However, the administrator under each of the African-American and Native American settlements was hired by class counsel and approved by the Court, while the administrator under the Framework is hired by USDA. In addition, unlike those other settlements, under the Framework neither class counsel nor the Court are empowered to monitor the third-party contractor’s administration of the claims process. (b) Assistance of Class Counsel: the Framework does not provide for class counsel to assist the Hispanic farmers in navigating the claims process or in seeking redress from any inappropriate administration of the claims process. In contrast, both the AfricanAmerican and Native American farmers’ settlement programs explicitly detail the duties of class counsel (who are compensated through an award of fees by the Court), which
6
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Case 1:11-cv-00541-RBW Document 46 Filed 07/13/12 Page 7 of 36
include formulating and issuing class notice, assisting at no charge claimants seeking relief under the least onerous evidentiary avenue (i.e., “Track A”), being available to answer class member questions, and assisting the coordination and management of the claims process. Under the Framework, Hispanic and female claimants must find their own individual counsel, who they must compensate directly. The Framework offers no compensation for class counsel fees or for any attorneys’ fees. Moreover, the Framework affirmatively dissuades claimants from using counsel by placing limits on the amount of fees that an attorney can charge for assistance in filing a successful claim. Specifically, fees paid out of a claimant’s cash award cannot exceed $1,500 per claimant for successful claims under certain of the Framework’s less burdensome adjudicatory avenues for relief, or 8% of the cash award for claims under the Framework’s most burdensome avenue for relief – substantially lower than the standard fees an attorney would charge on a contingent basis in an individual case. In addition, assistance of counsel is critical for the Hispanic farmers because, among other reasons, the vast majority have little or no familiarity with or understanding of the legal phrases used in the claim form, such as the terms “substantial evidence,” “preponderance of the evidence,” and “independent evidence admissible under the Federal Rules of Evidence.” Comprehension of these terms is critical in order for a claimant to navigate the complex and lengthy claims form and to choose the “Tier” through which he or she will pursue relief, with different evidentiary standards and documentation requirements. Further, a claimant is likely to require assistance of counsel to understand the importance and meaning of the comprehensive and irrevocable settlement agreement that each claimant must sign and submit at the outset of the claims process.
7
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Case 1:11-cv-00541-RBW Document 46 Filed 07/13/12 Page 8 of 36
7. The safeguards in the preceding paragraph are especially important because once a claimant under the Framework selects a Tier and submits to the process, he or she forfeits any right to invoke the judicial process should he or she thereafter become dissatisfied with the Framework’s claims process. At the outset of the process, each claimant must submit a required settlement agreement and must release Defendants from any and all claims that could have been brought against the Defendants in any court or administrative proceeding regardless of whether the claimants are ultimately successful in obtaining relief through the claim process. Under the Framework, there is no review – judicial or otherwise – of a denied claim. Nor is there any judicial supervision of the claims process. Thus, if claims systematically are denied on discriminatory grounds, are denied because Defendants’ claims processing contractor lacks the resources to properly adjudicate all the claims, or are denied for any number of other improper reasons, there is nothing a claimant under the Framework can do about it, having waived the right to any other relief and there being no judicial supervision. African-American and Native American claimants, on the other hand, do have recourse in such situations because, among other things, the court has maintained jurisdiction over their cases and because they have class counsel looking out for their interests.
8. Other inequities in the Framework as compared to the other class settlements include:
(a) Disproportionate Monetary Relief: although Hispanic and female farmers outnumber African-American farmers by at least 12 to 1 and as much as 27 to 1, and outnumber Native Americans farmers by at least 9 to 1 and as much as 19 to 1, according to the 2007 Census of Agriculture, the government has paid or committed to pay $2.25 billion to African-American farmers and has paid or committed to pay $760 million to
8
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Native American farmers, while it has proposed to provide a disproportionately low $1.33 billion to settle the combined claims of Hispanic and female farmers. Further, African-American farmers who timely filed claims were offered the opportunity to receive – without limitation – their actual damages. The Framework offers a maximum of $250,000. In addition, under the Framework there is a $160 million cap on the debt relief USDA will provide to successful claimants, which is disproportionally low compared to the total debt relief offered in the other settlements – there was no cap in the settlements for African-American farmers and a larger per capita cap in the settlement for Native American farmers. (b) Proof of Additional Factual Elements is Required: unlike the settlement for African-American and Native American farmers, the Framework requires claimants to prove several additional facts, including specific evidence that the claimant was discriminated against on the basis of being Hispanic (or female). Specific evidence that the claimant was discriminated against on the basis of race will obviously be very difficult to collect. The principal discrimination at issue took place more than a decade ago. Documentary evidence of discrimination would have been in the possession of the USDA, but claimants are not entitled to any discovery and, in any event, much of that evidence may be lost. Obtaining witness testimony based on very old events will be extremely difficult. The African-American and Native American farmers did not have to amass such evidence to obtain an award; only the Hispanic and female farmers do. (c) Additional Documentary Evidence is Required for “Constructive Application” Claims: “constructive application” claims are those in which the claimant attempted to apply for loans but was discouraged from doing so by USDA. Constructive application
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claimants will have to provide: (a) a sworn, written eyewitness statement from a witness to the discriminatory incident many years ago; (b) a copy of a complaint filed within one year of the discriminatory incident; or (c) a letter or other document to or from a nonfamily member written within one year of the incident detailing what occurred. AfricanAmerican and Native American constructive application claimants do not need to provide these documents in order to receive awards under their settlements. (d) No Compensation for Non-Credit Farm Benefits: although the government provided compensation for damages resulting from discrimination in non-credit farm benefit programs in the Pigford I and Pigford II settlements, it has refused to afford Hispanic farmers such compensation in the Framework despite the fact that Hispanic farmers have asserted viable non-credit discrimination claims in the Garcia case. 9. There is no rational basis, let alone a compelling government purpose, for USDA to offer substantially fewer benefits and a less advantageous process to Hispanic and female farmers than the settlement relief provided to similarly situated African-American and Native Americans. II. JURISDICTION 10. Jurisdiction is founded upon 28 U.S.C. § 1331, 28 U.S.C. § 1343, 28 U.S.C. § 2201, 28 U.S.C. § 2202, and 5 U.S.C. § 702. III. VENUE 11. Venue lies in this judicial district pursuant to 28 U.S.C. § 1391(b) and (e). IV. PARTIES 12. Plaintiffs are Hispanic United States citizen farmers who were subjected to, and continue to be subjected to, USDA discrimination in its farm benefit programs operated by its
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former agency, the Farm Home Administration (“FmHA”), and the FmHA’s successor, the Farm Service Administration (“FSA”), and who were further injured due to USDA’s failure to process and investigate their discrimination complaints which they filed with USDA at the agency’s behest. As such, Plaintiffs are potential claimants under the Framework.
13. Plaintiff and proposed Class representative David Cantu, for example, is a graduate from the University of Texas Pan American with a degree in biology who has 25 years of experience farming and ranching. In approximately 1983 and 1985 he attempted to submit a disaster relief assistance loan application. The FmHA agents refused to accept or process the loan application because they claimed that USDA would not be able to disburse any funds for at least two years. In approximately 1992, USDA advertised a young farmer’s loan package to encourage younger farmers to continue farming. Mr. Cantu attempted to submit an application, but the FmHA informed him that he would not be permitted to apply because they were certain that he would be unable to make the loan repayments. Whenever he attempted to apply for a loan, the FmHA/FSA officers always discouraged him, if not entirely prevented him, from applying for the loan. Mr. Cantu eye witnessed the discriminatory treatment of fellow Hispanic farmers when he visited the Hidalgo, Texas FmHA/FSA office and complained verbally about this treatment.
14. Plaintiff and proposed Class representative Guadalupe Garcia has been farming since he was eight years old and has a Bachelors Degree of Science and Masters Degrees in Agronomy and Plant Physiology. He has been denied loan servicing and restructuring by the FmHA on several occasions, and the FmHA still refused to grant him services even after the denial was overturned on appeal. Because of the FmHA’s delays and denials, Mr. Garcia lost his farm to foreclosure and sustained severe economic losses. In the 1980s, 1990s and in the year
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2000, he filed several complaints to USDA protesting discriminatory treatment. He never received any response from USDA.
15. Plaintiff and proposed class representative Noe Obregon has devoted approximately 22 years of his life to farming. On seven different occasions from 1982-1991, he applied for operating loans from FmHA in Pearsall, Texas. The FmHA denied the majority of the applications that he submitted offering him a series of what appeared to be unfounded excuses. On the rare occasion that his loan application was approved, it typically arrived over six months late and was for significantly less than the amount he requested. Mr. Obregon complained to the Pearsall office both orally and in writing on numerous occasions about the discriminatory treatment that he received. He feels that the USDA office did not want to help him succeed in his farming operation because he is Hispanic.
16. Plaintiffs and proposed class representatives Modesta Salazar and her brothers, Modesto and Ruperto Rodriguez, are each shareholders of Rodriguez Brothers, Inc. (“RBI”), a family-owned farm of 523 acres located outside of Pearsall, Texas. The Rodriguez family has owned the farm since 1952. From 1982 to 1997, Modesto Rodriguez was the principal operator of the farm. RBI borrowed funds from the FmHA office in Frio County, Texas. Many, if not most, of the loans made to RBI were required to be placed in supervised bank accounts despite the Rodriguez family’s many years of farming experience. In 1989, RBI submitted a written complaint alleging that FmHA and its Frio County supervisor discriminated against RBI by, among other things, requiring RBI to place its funds in supervised bank accounts and refusing to release the funds to permit RBI to feed its livestock during a drought. USDA also improperly denied RBI loan servicing and despite a ruling in RBI’s favor when it appealed the loan servicing denial, USDA has refused to this day to provide the required loan servicing.
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17. The discriminatory treatment experienced by the above-named Plaintiffs is representative of, and substantively no different from, the discriminatory handling of applications to participate in farm benefit programs filed by countless other Hispanic farmers, all of whom are members of the purported class of unnamed Plaintiffs here. All Plaintiffs are currently seeking redress for their injuries in Garcia v. Vilsack, No. 00-02445 (D.D.C.), a lawsuit pending in this Court (and described in more detail below), or are members of the putative class whose claims are sought to be redressed by that lawsuit.
18. Defendant the United States of America acts by and through its departments, agencies, and officials.
19. Defendant United States Department of Justice (“DOJ”) is a cabinet department in the United States government charged with enforcing the law and ensuring fair and impartial administration of justice for all Americans. The United States Attorney General administers the DOJ.
20. Defendant USDA is a United States cabinet department responsible for developing and executing federal policy on farming, agriculture, and food. It aims to meet the needs of farmers and ranchers, promote agricultural trade and production, work to assure food safety, protect natural resources, foster rural communities, and end hunger in the United States and abroad.
21. Defendant Eric Holder is the United States Attorney General. 22. Defendant Tom Vilsack is the USDA Secretary. V. RAMPANT DISCRIMINATION AT USDA 23. USDA’s farm benefit programs are federally funded programs, but the decisions to approve or deny applications for credit or benefits are made locally at the county level
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pursuant to highly subjective, national regulations. 24. Historically, and to this day, the county committees have not and still do not
represent the racial diversity of the communities they serve. Minority and female farmers, who have long been victims of discrimination in the administration of farm benefit programs, are grossly underrepresented on the white-male-dominated committees. The government and top officials at USDA have long been on notice of the discrimination against minority and female farmers in USDA’s farm benefit programs.
25. Any farmer who believes that his application to participate in those programs has been denied on the basis of race or for other discriminatory reasons theoretically has had the option of filing a civil rights complaint depending on the time period between 1981 and the present with various offices of USDA, including the Office of the Secretary of Agriculture, or the Office of Civil Rights Enforcement and Adjudication (“OCREA”), or the USDA Office of Civil Rights (“OCR”). USDA regulations set forth a detailed process by which these complaints were and are to be investigated and conciliated, and ultimately a farmer who is unhappy with the outcome is entitled to sue in federal court under the ECOA for discrimination in the credit programs, or the APA for discrimination in the non-credit farm benefit programs.
26. Sometime in 1983, USDA dismantled its civil rights enforcement capability; consequently, complaints of discrimination that were filed were never processed, investigated or forwarded to the appropriate agencies for conciliation. This development was not publicized, so minority farmers (including Plaintiffs) continued in good faith to file discrimination complaints not knowing that the investigative staffs had been disbanded and that their complaints were being ignored.
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27. Because USDA willfully failed to investigate Hispanic farmers’ complaints of discrimination in its farm benefit programs, those Hispanic farmers who filed complaints of discrimination never received a response, or if they did receive a response, it was a cursory denial of relief. In some cases, OCREA staff simply threw discrimination complaints in the trash without ever responding to or investigating them. In other cases, even if there was a finding of discrimination, the farmer never received any relief.
28. USDA’s blatant disregard of the requirements of ECOA and the APA – particularly the effective dismantling of its civil rights enforcement capability – prompted Congress to enact special legislation in 1998 (Section 741 of the Omnibus Consolidated Appropriation’s Act for Fiscal Year 1999) which waived, inter alia, the statutes of limitations applicable to claims regarding farm credit and non-credit benefits arising between January 1, 1981 and December 31, 1996.
29. By the mid-1990s, when the USDA finally acknowledged its system for handling discrimination complaints was in shambles, untold numbers of complaints from minority farmers were backlogged, discarded, and unresolved. USDA had and still has thousands of discrimination complaints that have never been investigated.
VI. USDA ACKNOWLEDGES ITS DISCRIMINATORY PRACTICES 30. In December 1996, then-Secretary Dan Glickman appointed a Civil Rights Action Team (“CRAT”) to “take a hard look at the issues and make strong recommendations for change.” In February 1997, CRAT reported that “[m]inority farmers have lost significant amounts of land and potential farm income as a result of discrimination by FSA [Farm Services Agency] programs and the programs of its predecessor agencies . . . . The process for resolving complaints has failed. Minority and limited-resource customers believe USDA has not acted in
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good faith on the complaints. Appeals are too often delayed and for too long. Favorable decisions are too often reversed.” See Exhibit 1 at 30-31.
31. USDA admitted in the Report that it often ignored discrimination complaints, and that:
(a) a lack of diversity in FSA county offices combined with a lack of outreach to small and limited-resource farmers directly and adversely affects the participation of Hispanics and other minorities in USDA programs, as well as program delivery to minorities and female farmers; (b) even when there was a finding of discrimination, USDA refused to pay damages; and (c) its record keeping on discrimination complaints was “nonexistent,” backlogged, and that the largest number of complaints against a single USDA sub-agency was against FSA. See id. at 18-20, 22-23, 24-25. 32. Also in February 1997, the USDA’s Office of the Inspector General (“OIG”) issued a report to then-Secretary Glickman stating that the USDA had a backlog of complaints of discrimination that had never been processed, investigated or resolved. The February 1997 OIG Report addressed complaints of discrimination within FSA as well as ten other USDA agencies. OIG found, inter alia, that the FSA’s discrimination complaint process lacked integrity and accountability, had no effective tracking system, had no process for reconciliation, was in disorder, failed to resolve discrimination complaints, and had a massive backlog. See Exhibit 2 at 6-8. OIG found that the FSA staff responsible for processing the discrimination complaints consisted of two untrained and unqualified people. See id. at 5. Hundreds of unresolved
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complaints were over a decade old. OIG found no management oversight within FSA for handling civil rights complaints. See id. at 9.
33. Even when the OCR ostensibly began to process complaints in the late 1990s, it became clear that the process remained fatally flawed.
34. In 2002, Rosalind Gray, a former director of USDA’s Office of Civil Rights, testified that:
[b]ased upon my first-hand knowledge, I can attest that many complaints were destroyed or not accepted at all. . . . [T]he FSA was initially responsible for preparing a preliminary investigatory report. . . . In preparing the preliminary report, FSA would send its non-civil rights investigators to interview and often intimidate the complainant. . . . After all the investigations and findings of discrimination, . . . systematic exclusion of minority farmers remains the standard operating procedure for FSA. See Exhibit 3 at 5 ¶ 20, 7 ¶ 28 (emphasis added). 35. Notwithstanding the reported wrongdoing of USDA officials and notwithstanding the fact that, in connection with the first settlement of the African-American farmers’ lawsuit, more than 15,000 findings of discrimination were made resulting in the payment of $1 billion in settlement benefits, no official was ever fired or even reprimanded for improper racial discrimination in executing his or her duties. To the contrary, many officials who wrongfully denied USDA loans or services on the basis of race are still employed by the USDA today. VII. CLASS ACTIONS ARE FILED 36. The first of four virtually identical class actions seeking redress for the USDA’s discrimination, styled Pigford v. Glickman, was filed in the United States District Court for the District of Columbia on August 28, 1997, by three African-American farmers. On October 9, 1998, the trial court initially certified the case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure based upon USDA’s well-documented and admitted refusal to
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investigate discrimination complaints filed with it by African-American farmers. Thereafter, on April 14, 1999, the trial court again certified the case as a class action, this time pursuant to Rule 23(b)(3).
37. On November 24, 1999, Native American farmers brought a virtually identical suit against USDA in the United States District Court for the District of Columbia, styled Keepseagle v. Glickman, echoing the allegations set forth in the Pigford complaint. On September 28, 2001, the trial court certified Keepseagle as a class action, based upon USDA’s well-documented and admitted refusal to investigate discrimination complaints filed with it by Native American farmers.
38. On October 13, 2000, Hispanic farmers filed a third virtually identical class action suit in the United States District Court for the District of Columbia, styled Garcia v. Glickman, alleging that the USDA, just as it did with African-American and Native American farmers, discriminated against Hispanic farmers by denying them access to USDA’s farm credit and noncredit farm benefit programs in violation of the ECOA and the APA, and that USDA refused to investigate their complaints of discrimination in those programs. Unlike the two judges in the African-American and Native American farmers’ cases, the judge in the Hispanic farmers’ case, who also presided over the female farmers’ case, refused to certify Garcia as a class action.
39. Finally, on October 19, 2000, female farmers filed a fourth virtually identical class action suit in the United States District Court for the District of Columbia, styled Love v. Glickman, alleging the same substantive claims as did the African-American, Native American, and Hispanic farmers. The same judge who presided over the Hispanic farmers’ lawsuit refused to certify Love as class action.
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VIII. THE PIGFORD SETTLEMENT 40. In contrast to its treatment of the suits brought by the Hispanic and female farmers, which have now been pending for over ten years, the government agreed to settle the African-American farmers’ case within approximately two years after the filing of the case. See generally Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999) (approving consent decree). 41. The consent decree (“Pigford I”) established a two-track dispute resolution system. Under “Track A,” African-American farmers who satisfied a specified burden of proof would be paid what the Court characterized as a “virtually automatic” $50,000 award, plus taxes owed on the award, and would be granted certain loan forgiveness. To satisfy the burden of proof, the African-American farmers had to show that they had applied to USDA for farm credit or benefits, had made a complaint of discrimination before 1997, and that USDA had treated them less favorably than it had treated similarly situated white farmers. Claimants who chose Track A could be represented by class or lead counsel for free. Alternatively, African-American farmers could follow a “Track B” process for damage claims greater than $50,000 and, by satisfying a higher burden of proof, recover unlimited damages. In addition, farmers who were the victims of discrimination in USDA’s non-credit farm benefit programs could recover liquidated damages of $3,000 for such discrimination. As of January 31, 2011, approximately $1,058,577,198 had been disbursed to approximately 15,749 African-American farmers under the Pigford I consent decree. 42. Under the Pigford I consent decree, the government forgave all outstanding loans that were determined to be affected by discrimination proven by successful claimants (no specific documentary evidence was required). Because there was no limit on the total damages, any such debt relief did not reduce the amount payable to claimants for damages. The
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government paid damages and debt relief out of the Federal Judgment Fund, a pool of money administered by DOJ to cover damage claims against the federal government.
IX. THE FOOD, CONSERVATION, AND ENERGY ACT OF 2008 43. On May 22 and June 18, 2008, Congress enacted two statutes, together known as the Food, Conservation, and Energy Act of 2008, Pub. L. 110-234, 122 Stat. 923; Pub. L. 110246, 122 Stat. 1651 (“2008 Farm Bill”). Section 14011 of the 2008 Farm Bill urged USDA to settle pending discrimination lawsuits “in a just and expeditious manner.” Specifically, Section 14011 reads: SENSE OF CONGRESS RELATING TO CLAIMS BROUGHT BY SOCIALLY
DISADVANTAGED FARMERS OR RANCHERS It is the sense of Congress that all pending claims and class actions brought against the Department of Agriculture by socially disadvantaged farmers or ranchers . . . including Native American, Hispanic, and female farmers or ranchers based on racial, ethnic, or gender discrimination in farm program participation should be resolved in an expeditious and just manner. Id. (emphasis added). 44. In addition, Section 14012 of the 2008 Farm Bill provided relief to the AfricanAmerican farmers who unsuccessfully sought entry to the initial Pigford I settlement under paragraph 5(g) of the Pigford I Consent Decree, which permitted late filings only in the event of extraordinary circumstances beyond the farmer’s control. Specifically, Section 14012(b) provided that “[a]ny Pigford claimant who has not previously obtained a determination on the merits of a Pigford claim may, in a civil action brought in the United States District Court for the District of Columbia, obtain that determination.” Pursuant to Section 14012, as of January 1, 2010, over 28,000 plaintiffs had filed individual claims in 17 complaints in the United States District Court for the District of Columbia. These cases collectively became known as Pigford II.
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X. THE GOVERNMENT INCREASES SETTLEMENT BENEFITS FOR AFRICAN AMERICAN FARMERS
45. After President Obama took office, the federal government, while still declining to enter into any settlement with Hispanic, Native American or female farmers, chose to reexamine the benefits provided by Section 14012 of the 2008 Farm Bill to the African-American farmers who missed the filing deadline to participate in the original Pigford I settlement. On May 6, 2009, the Obama Administration and Secretary Vilsack announced that the government would provide an additional $1.25 billion dollars to cover the claims of late-filed AfricanAmerican farmers for past discriminatory treatment. This funding was to be a mandatory spending provision to be included in the 2010 Budget to compensate African-American farmers who missed the filing deadlines of the original Pigford I settlement.
46. In a statement, President Obama said the proposed settlement funds would “close this chapter” in the agency’s history and allow it to move on. The President further stated that his “hope is that the farmers and their families who were denied access to USDA loans and programs will be made whole and will have the chance to rebuild their lives and their businesses.” See Exhibit 4.
47. Because the congressional appropriation to fund what is known as the Pigford II settlement is limited to $1.25 billion, the settlement caps payments under Track A and Track B at $50,000 and $250,000, respectively. Moreover, amounts paid to USDA for debt relief reduce the amount available to pay damages to victims in compensation for the discrimination they suffered. Furthermore, if the amount of money allocated to pay debt relief is insufficient to relieve individual farmers of the total outstanding balance on his or her affected loan, any unpaid balance remains a debt of the farmer and continues to accrue interest.
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48. As a result of the appropriation of $1.25 billion, approximately $2.25 billion has either been paid to or allocated to settle the claims of African-American farmers and “close the chapter” of discrimination against African-American farmers.
XI. THE KEEPSEAGLE SETTLEMENT 49. On October 19, 2010, the government reached a settlement with the Native American farmers (the “Keepseagle settlement”). The announced settlement included approximately $680 million in damages and $80 million in debt forgiveness to Native American farmers who sustained the same systematic discrimination as did the African-American, Hispanic, and female farmers. The combined amount of $760 million equaled the amount of damages claimed by the Native American farmers in the report submitted by their damages expert. In addition, the government, as it had for African-American farmers, provided Native American farmers with a low-cost, two-track dispute resolution process through which to pursue relief for their claims of discrimination. In fact, the Keepseagle settlement program was nearly identical to the program established for the Pigford II claimants. 50. The same day, President Obama said in an October 19, 2010 statement that he “applaud[s] Secretary Vilsack and Attorney General Holder for their hard work to reach this settlement – a settlement that helps strengthen the nation to nation relationship and underscores the federal government’s commitment to treat all citizens fairly.” The President further stated that his “Administration also continues to work towards a resolution of the claims made by women and Hispanic farmers against the USDA.” See Exhibit 5. XII. THE HISPANIC FARMERS’ SETTLEMENT 51. Defendants announced the latest, and final, iteration of their settlement program for Hispanic and female farmers – i.e., the Framework – on January 13, 2012, and filed it with
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the Court in the Garcia case and in this case (Doc. No. 30-1) on January 20, 2012. On April 2, 2012, Defendants filed with the Court in Garcia the “Claim Form” that claimants are required to fill out to obtain relief through the program. The Claim Form is attached hereto as Exhibit 6. USDA has already retained a claims administrator, and has represented repeatedly that the program is final and will commence imminently. The government has represented that the program for Hispanic farmers may provide a remedy for successful claimants for discrimination suffered during the period January 1, 1981, to December 31, 1996 and/or October 13, 1998, to October 13, 2000.
52. Under the Framework, Defendants established a confusing three-tier dispute resolution process:
 Tier 1(a) is the least onerous avenue for relief for claimants and offers the lowest award amounts. Claimants who lack certain documentation of their discrimination – including those making “constructive application” claims in which the claimant attempted to apply for loans but was discouraged by USDA – may seek up to $50,000, subject to proving numerous factual elements under a “substantial evidence” standard, plus tax relief on that award and debt relief from USDA on eligible farm loans. Total payments of cash awards and tax relief under Tier 1(a) are subject to a cap of $1.13 billion, plus certain remaining amounts from a $100 million set-aside for the other tiers. The cash award for each successful claimant will be the same dollar amount, but due to the total cap, the dollar amount may be reduced from $50,000 on a pro rata basis, depending on the number of successful claimants.
 Tier 2 is the intermediate Tier through which claimants may seek a flat $50,000 award, also subject to a “substantial evidence” burden of proof, plus tax relief on that award and
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debt relief from USDA on eligible farm loans. Tier 2 requires the submission of more documentation than Tier 1(a). Claimants who fail to prove their Tier 2 claims will automatically be reviewed for a Tier 1(a) award. There is no limit to the number of claimants who may qualify for Tier 2 awards, and no cap on the aggregate dollar amount of awards that may be paid to prevailing claimants under Tier 2.  Tier 1(b) is the only way of obtaining an award in excess of $50,000, but it imposes the most onerous evidentiary standard. Under Tier 1(b), claimants may seek up to $250,000, if their claims are proven by a preponderance of the evidence and through independent documentary evidence admissible under the Federal Rules of Evidence, plus debt relief from USDA on eligible farm loans, but no tax relief. Total payments under Tier 1(b) are subject to a $100 million cap; therefore, the award amounts may be reduced from $250,000 on a pro rata basis depending on the number of successful claimants. XIII. THE FRAMEWORK IS DISCRIMINATORY AND
UNCONSTITUTIONAL 53. The government’s settlement of Hispanic farmers’ claims in a manner substantially different from and substantially less favorable than the settlements provided to African-American and Native American farmers (as detailed above in Paragraphs 6 through 8) is wholly inconsistent with the rule of law and the equal protection and due process guaranteed by the Constitution of the United States and constitutes arbitrary and capricious and unlawful agency action under the APA, 5 U.S.C. § 706(2)(A). For reasons that can only be explained on a racially discriminatory basis, not a rational basis, Defendants continue to deny Hispanic farmers the same substantial benefits, and, indeed, impose on them significantly harsher burdens than are found in the settlement terms Defendants have offered to African-American and Native American farmers, notwithstanding that USDA has admitted that Hispanic, African-American
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and Native American farmers have long suffered the substantively identical discrimination and are equally entitled to full redress for their like injuries.
54. Hispanic, African-American, and Native American farmers are similarly situated victims of government discrimination, as the government has expressly conceded.
55. The government’s only rational for treating Hispanic farmers differently from African-American and Native American farmers is that Hispanic farmers were denied class certification in the Garcia case, while class status was obtained in the cases brought by the other two groups.
56. However, that fact does not and cannot provide a rational basis, or a compelling government purpose, for the disparate and unequal treatment of Hispanic farmers on the one hand and African-American and Native American farmers on the other hand in the settlement process.
57. First, the government never litigated the class certification issues to final judgment in the Pigford or Keepseagle cases. Instead, Defendants voluntarily settled those cases on a class basis despite having no obligation to do so.
58. In Pigford II, Defendants agreed to pay African-American farmers who missed the Pigford I filing deadline an additional $1.25 billion. Although the plaintiffs in those cases never moved for class certification, Defendants have from the outset of those cases indicated their desire to deal with the late filers as if a class had been certified and, in fact, settled the cases on a class basis.
59. Similarly, Defendants have settled with the Native Americans as a class despite the fact that the Native American case (Keepseagle) was certified as a class action on exactly the basis that the court in the Hispanic and female farmers’ cases held could not be the basis for
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certifying a class – a holding that was affirmed by the D.C. Circuit. In other words, after the D.C. Circuit affirmed the denial of class certification in Garcia on grounds that would be equally applicable in Keepseagle, Defendants agreed to settle Keepseagle on class basis. Defendants never moved to decertify Keepseagle as a class action.
60. Accordingly, Defendants voluntarily treated the African-American and Native American farmers as Rule 23 classes. Therefore, the government must settle with the Hispanic farmers on a class basis pursuant to Rule 23 or be found to have discriminated against them.
61. Second, under the law, any difference in Rule 23 class status cannot be used as a justification for denying Hispanic farmers substantive rights, including but not limited to the right to be treated equally with other similarly situated victims of USDA discrimination. Such treatment, justified solely by reference to Rule 23 status, collides with well-settled principle that “Rule 23[] . . . must be interpreted in keeping . . . with the Rules Enabling Act, which instructs that rules of procedure ‘shall not abridge . . . any substantive right.’” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997) (quoting 28 U.S.C. § 2702); see also Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011).
XIV. CLASS ACTION ALLEGATIONS 62. Plaintiffs bring this class action on behalf of Hispanics who farmed or ranched, or attempted to farm or ranch, between January 1, 1981, and December 31, 1996, or between October 13, 1998, and October 13, 2000, and who complained to USDA about its acts of discrimination against them on the basis of race and national origin when they sought to participate on equal terms in farm loan and disaster benefit programs, and who are now being discriminated against because of race in the administration of justice by being denied the equivalent settlement opportunities the government has afforded to similarly situated African-
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American farmers and Native American farmers. 63. Because Plaintiffs are not African-American or Native American, all class
members here have suffered identical discrimination by reason of the government’s Framework, which is inferior to the settlements Defendants provided to similarly situated African-American and Native American farmers.
64. This action is brought and may be properly maintained as a class action pursuant to the provisions of Federal Rules of Civil Procedure 23(a)(1)-(4) and 23(b)(2). This action satisfies the numerosity, commonality, typicality, adequacy and predominance and superiority requirements of those provisions.
65. The class, numbering in the tens of thousands, is so numerous that individual joinder of all the members is impractical. Moreover, it would also be impractical and a needless burden on the courts to compel each plaintiff to institute and pursue a separate action to secure the remedial relief essential to the eradication of systemic, pervasive discrimination at USDA and/or to recover monetary damages as compensation for the economic harm caused by that discrimination. The most recent Agricultural Census lists the number of Hispanic farmers at a minimum of 55,570, for all of whom securing remedial relief is essential. See Exhibit 7.
66. Common questions of law and fact exist as to all members of the class, viewed as a Rule 23(b)(2) class, and such questions predominate over any questions affecting only individual members of the class. The common questions of law and fact presented in this action spring from a central undisputed and overriding reality that (1) for decades USDA knowingly tolerated the existence of pervasive discrimination against minorities in the administration of its farm loan and disaster benefit programs, and (2) that the government has compounded its former and still ongoing mistakes by effectively providing African-American and Native American
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farmers with settlement opportunities that offer more favorable monetary and procedural benefits than those proposed to Hispanic farmers, notwithstanding that Defendants have admitted that USDA has discriminated against all three minority groups in like manner over the same period of time. This core factual reality does not vary from class member to class member and may be established without reference to individual circumstances of any particular class member.
67. Additional common questions include: (a) Whether the aforesaid unequal treatment of Hispanic farmers in the settlement of their identical discrimination claims is a denial of due process and equal protection under the law in the administration of justice in violation of the Fifth Amendment of the United States Constitution. (b) Whether USDA’s announced settlement program for Hispanic and female farmers constitutes arbitrary and capricious and/or unlawful final agency action in light of the disparity between the settlement program terms offered to African-American and Native American farmers and those offered to Hispanic and female farmers as part of the Framework. (c) Whether Defendants have violated the doctrine of unconstitutional conditions by conditioning a valuable governmental benefit on a basis that infringes the Hispanic farmers’ constitutionally protected rights to due process and equal protection. 68. Plaintiffs’ claims are typical of the claims of the members of the class, all of whom, by virtue of the unfair, intentional, and racially discriminatory actions of the Defendants, have been denied benefits provided to similarly situated African-American and Native American farmers who sustained the same underlying discrimination as Hispanic farmers.
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69. Plaintiffs are adequate representatives of the class because they are members of the class and their interests do not conflict with the interests of the members of the class they seek to represent. The named Plaintiffs’ claims are consistent with the claims of other class members. Plaintiffs’ counsel are experienced class action lawyers who will adequately represent the class.
70. A class action is superior to other available methods for the fair and efficient adjudication of this litigation since individual litigation of class members’ claims regarding Defendants’ failure to provide equal benefits in the administration of justice as described in this First Amended Complaint is impracticable. Even if any class members could afford to litigate, the class action device provides the benefits of single adjudication of what essentially is one problem for a massive group of similarly situated individuals as well as the truly critical element of comprehensive supervision by a single court over a dispute whose glacial pace (as compared with the speed of the resolution of the Pigford and Keepseagle matters) is almost entirely a direct result of the lack of court supervision over the Plaintiff class. Notice of the pendency of any resolution of this class action can be provided to class members by publication and broadcast; in addition, each class member’s farm number, address, application date and payment results is readily available to Defendants.
COUNT ONE VIOLATION OF THE FIFTH AMENDMENT – EQUAL PROTECTION 71. The foregoing allegations are re-alleged and incorporated herein by reference. 72. Equal protection of the laws demands that similarly situated citizens be treated equally in the administration of justice. The underlying discrimination experienced by the Hispanic farmers and the injuries sustained by them were substantively identical to those
29
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Case 1:11-cv-00541-RBW Document 46 Filed 07/13/12 Page 30 of 36
sustained by the African-American and Native American farmers. Yet, based on differences of race, Defendants have provided the African-American and Native American farmers with higher compensation allocations in settlement benefits, and with far more favorable procedural measures to realize those benefits, than they have offered to the Hispanic farmers. Once Defendants chose to execute settlements with the African-American and Native-American classes, which they have done, they obligated themselves to provide the very same rights, benefits, privileges, and safeguards, contained in and encompassed by those prior settlements, to the Hispanic class on an equal and non-discriminatory basis.
73. The government has no legitimate purpose, let alone a compelling government purpose, for treating similarly situated members of different racial groups differently. Nor can the government show that its offer of an inferior settlement program for the Hispanic farmers is rationally related to any legitimate governmental purpose, let alone the least discriminatory alternative to the programs it offered to the African-American and Native American farmers. Defendants’ differential treatment of Hispanic farmers can only be driven by race-based animus. Defendants’ actions regarding the differences in settlement treatment for resolution of identical claims deprive Plaintiffs of the equal protection of the laws as guaranteed by the Fifth Amendment of the Constitution.
COUNT TWO VIOLATION OF THE FIFTH AMENDMENT – DUE PROCESS 74. The foregoing allegations are re-alleged and incorporated herein by reference. 75. Due process guarantees Plaintiffs a fair, impartial, and even handed process to ensure that their claims of manifest discrimination are and will be resolved in meaningful fashion, and that they will receive full and adequate redress for their injuries. The Framework
30
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Case 1:11-cv-00541-RBW Document 46 Filed 07/13/12 Page 31 of 36
violates Plaintiffs’ rights to due process because it provides no independent, fair, and impartial oversight in the administration of the claims process. To the contrary, the Framework entrusts to USDA – the very agency that both perpetrated the widespread shameful discrimination that caused countless minority farmers to lose their livelihoods in the first instance – the administration of the inadequate settlement benefits now being offered to Hispanic claimants, and imposes unfair procedural burdens to impede and discourage participation by those claimants. In contrast, no such constraints and burdens have been imposed on the AfricanAmerican and Native American farmers as a condition of settling their claims.
76. Due process also demands a meaningful post-deprivation remedy for damages sustained. Yet, there is a high likelihood that individual Hispanic farmers will receive substantially less than a $50,000 award, which was characterized as “virtually automatic” for African-American farmers. While the Defendants propose to allocate $160 million in debt relief to be shared by Hispanic and female farmers (which is less generous than the debt relief offered under the African-American and Native American settlements), any debt that is not completely relieved remains a debt of the farmer and continues to accrue interest until completely paid. The likelihood of such a shortfall in debt relief is quite substantial because the $160 million is only two times the $80 million debt relief amount provided in the Native American farmers’ case despite the fact that, according to the 2007 Census, Hispanic and female farmers outnumber Native American farmers by at least 9 to 1 and as much as 19 to 1. See Exhibit 7. Thus, far from a meaningful post-deprivation remedy, the deck has been stacked against the Hispanic farmers such that for many there is the real prospect that under the government’s Framework even those who may ultimately be regarded by USDA as successful claimants, may in fact end up with nothing in cash and still be in debt to USDA.
31
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77. The government has no legitimate purpose, let alone a compelling government purpose, for treating similarly situated members of different racial groups differently. Nor can the government show that its announced settlement program for the Hispanic and female farmers is rationally related to any legitimate governmental purpose, let alone the least discriminatory alternative to the program it offered to the African-American and Native American farmers. Defendants’ actions regarding the differences in settlement treatment for resolution of identical claims knowingly deprive Plaintiffs of due process as guaranteed by the Fifth Amendment of the Constitution.
COUNT THREE VIOLATION OF THE UNCONSTITUTIONAL
CONDITIONS DOCTRINE 78. The foregoing allegations are re-alleged and incorporated herein by reference. 79. The doctrine of unconstitutional conditions states that the government may not condition the receipt of a government benefit on waiver of a constitutionally protected right. The fact that the government is not required to provide a benefit does not mean that it is permitted to condition the receipt of that benefit in an unconstitutional manner. That is precisely what Defendants are seeking to accomplish via their shadow class settlement Framework. Through the Framework Defendants have offered a potential benefit. But Defendants have explicitly conditioned that potential benefit on Plaintiffs’ agreement to accept a lesser benefit and surrender their constitutional rights to equal protection and due process. Furthermore, regardless of the differences between the Framework and the settlement programs offered to other minority groups, the provisions of the Framework, standing alone, violate the unconstitutional conditions doctrine by conditioning compensation on (1) Plaintiffs’ waiver and release of all of their claims, (2) in a manner that offers no possibility of judicial supervision of the claims process, and (3)
32
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Case 1:11-cv-00541-RBW Document 46 Filed 07/13/12 Page 33 of 36
without realistic access to counsel due to the Framework’s denial of class counsel and severe limits on the ability to employ private counsel. Such conditions, as prerequisites to receiving the compensation offered by Defendants, are unconstitutional.
COUNT FOUR ARBITRARY AND CAPRICIOUS AND UNLAWFUL AGENCY ACTION 80. The foregoing allegations are re-alleged and incorporated herein by reference. 81. The APA makes it unlawful for an agency to take action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 82. The Constitution forbids the government from intentionally affording a process for the recovery of settlement benefits that favors members of one racial group, while it denies a similar process to members of another racial group (and, indeed, imposes a noticeably different and far more burdensome process on the latter), where the government has undeniably discriminated against all members of the differently treated groups in the same manner and to the same extent and inflicted similar injury on the minority farmers in each group. Agency action that violates the U.S. Constitution is inherently arbitrary and capricious and not in accordance with the law.
COUNT FIVE UNREASONABLE AGENCY DELAY 83. The foregoing allegations are re-alleged and incorporated herein by reference. 84. The APA obligates an agency “to conclude a matter presented to it . . . within a reasonable time.” 5 U.S.C. § 555(b). If an agency fails to do so, the APA authorizes courts to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1).
33
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85. As described above, once Defendants voluntarily offered a settlement of other similarly situated racial groups who were victims of USDA discrimination, they had an absolute and non-discretionary obligation under the Constitution to provide an equivalent settlement to Hispanic farmers.
86. In failing to offer such a program to Hispanic farmers, Defendants have unlawfully withheld and unreasonably delayed action that they are required to take, in violation of the APA, 5 U.S.C. § 702(1).
87. It has been ten years since the government first settled with the African-American farmers and nearly two years since it settled with the Native American farmers on substantially equivalent terms. The government has no legitimate explanation for why it continues to refuse to afford the Hispanic farmers with an equivalent settlement program.
88. Defendants’ delays in providing Plaintiffs with a settlement program substantially equivalent to that which they provided to the African-American and Native American farmers, as set forth above, amount to the unlawful withholding and unreasonable delay of agency action under the APA, 5 U.S.C. § 706(1).
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request: A. A declaration pursuant to 28 U.S.C. § 2201, that the practices, policies, patterns, and procedures described in this Complaint violate the constitutional rights of Plaintiffs and constitute arbitrary and capricious and unlawful agency action under the APA, 5 U.S.C. § 706(2)(A); B. A permanent injunction, pursuant to the Court’s inherent equitable powers and its power under the APA, 5 U.S.C. § 706, prohibiting Defendants, their officers, agents, employees
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and successors from engaging in racially discriminatory treatment of Hispanic farmers – in
particular from treating Hispanic farmers in the settlement of their claims against USDA
unequally from the manner in which Defendants have treated African-American and Native
American farmers in the settlement of their identical claims – and compelling Defendants to
provide Plaintiffs with a class settlement which includes a class for settlement purposes under
Rule 23 of the Federal Rules of Civil Procedure in the Garcia case that is equivalent to that
which Defendants provided in the settlements with the African-American and Native American
farmers;
C. An award of reasonable attorneys’ fees and costs, including expert fees, and
interest;
D. Any such other and further relief, including but not limited to such specific
remedies, as the Court deems just and proper.
Respectfully submitted,
Date: July 13, 2012
/s/ Adam P. Feinberg Richard A. Hibey #74823 Adam P. Feinberg #447668 Miller & Chevalier Chartered 655 Fifteenth Street N.W., Suite 900 Washington D.C. 20005-5701 Phone: (202) 626-5888 Fax: (202) 626-5801
Robert F. Ruyak # 233304 Winston & Strawn LLP 1700 K Street N.W. Washington, DC 20006-3817 Phone: (202) 282-5625 Fax: (202) 282-5100
Attorneys for Plaintiffs
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Case 1:11-cv-00541-RBW Document 46 Filed 07/13/12 Page 36 of 36 CERTIFICATE OF SERVICE
I hereby certify that, on July 13, 2012, I e-mailed the foregoing document to the Clerk of Court for filing via the court’s ECF e-mail system, which will send an electronic copy to all counsel of record.
/s/ Adam P. Feinberg Adam P. Feinberg
36
1261009.1

 </s> UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

DAVID CANTU, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 11-541 (RBW)

)

THE UNITED STATES OF AMERICA, )

et al.,

)

)

Defendants.

)

____________________________________)

MEMORANDUM OPINION

The plaintiffs in this putative class action are Hispanic farmers who allege that the

defendants—the United States, the United States Department of Justice, the United States

Department of Agriculture (“USDA”), and the heads of those agencies—have violated their

constitutional rights to due process and equal protection by offering to settle the plaintiffs’

discrimination claims on terms less favorable to the settlements provided to similarly-situated

African-American and Native American farmers. See First Amended Class Action Complaint

for Declaratory, Injunctive, and Other Relief (“Am. Compl.”) ¶¶ 1-2. Currently before the Court is the defendants’ motion to dismiss. Upon careful consideration of the parties’ submissions,1 the Court concludes for the following reasons that the defendants’ motion must be granted.2

1 In addition to the filings already identified, the Court considered the following submissions in rendering its decision: the Memorandum in Support of Defendants’ Motion to Dismiss First Amended Class Action Complaint (“Defs.’ Mem.”); the Plaintiffs’ Opposition to Defendants’ Motion to Dismiss First Amended Class Action Complaint (“Pls.’ Opp’n”); and the Reply in Support of Defendants’ Motion to Dismiss First Amended Class Action Complaint (“Defs.’ Reply”).
2 The Court is contemporaneously issuing on this date a Memorandum Opinion in Love v. Vilsack, No. 00-2502 (D.D.C.), which addresses claims of female farmers similar to those asserted in this case.

I. BACKGROUND Between 1997 and 2000, African-American, Native American, Hispanic, and female farmers filed four similar class action lawsuits alleging that the USDA “routinely engaged in the discrimination of individuals on the basis of race, ethnicity, or gender in the administration of its farm benefit programs, and failed to investigate the claims of farmers who filed complaints based on such conduct with [the] USDA.” Am. Compl. ¶ 3; see Pigford v. Glickman, Nos. 97-1978, 98-1693 (D.D.C.) (“Pigford I”) (African-American farmers); Keepseagle v. Vilsack, No. 9903119 (D.D.C.) (Native American farmers); Garcia v. Vilsack, No. 00-2445 (D.D.C.) (Hispanic farmers); Love v. Vilsack, No. 00-2502 (D.D.C.) (female farmers). A brief overview of those cases is necessary to understand the plaintiffs’ claims in this action. On October 9, 1998, Judge Paul L. Friedman of this Court certified Pigford I as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) for purposes of liability.3 Pigford v. Glickman, 182 F.R.D. 341, 352 (D.D.C. 1998). Judge Friedman later vacated his original class certification order on January 5, 1999, and certified a new class pursuant to Rule 23(b)(3).4 Pigford v. Glickman, 185 F.R.D. 82, 92 (D.D.C. 1999). Following the Court’s class certification rulings, the parties in Pigford I negotiated a class-wide settlement, which Judge Friedman approved in a consent decree issued on April 14, 1999. Id. at 113. The Pigford I consent decree “did not provide for the automatic payment of damages to any plaintiff”; rather, “it established a non-judicial mechanism,” i.e., an administrative claims process, “by which each class member
3 Rule 23(b)(2) permits class certification where, among other things, “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). 4 Rule 23(b)(3) permits class certification where, among other things, “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
2

would have an opportunity to demonstrate that he or she had been the victim of past discrimination by the USDA and therefore was entitled to compensatory damages.” In re Black Farmers Discrim. Litig., 856 F. Supp. 2d 1, 9 (D.D.C. 2011).
The Pigford I consent decree imposed a deadline for African-American farmers to submit their claims for administrative adjudication, id. at 10, and many farmers tried, unsuccessfully, to file claim packages after the deadline expired, id. at 11. To address this problem, “Congress resurrected the claims of those who had unsuccessfully petitioned the Arbitrator for permission to submit late claim packages” by enacting “the Food, Conservation, and Energy Act of 2008.” Id. This Act provides that “[a]ny Pigford claimant who has not previously obtained a determination on the merits of a Pigford claim may, in a civil action brought in the United States District Court for the District of Columbia, obtain that determination.” Pub. L. 110–234, § 14012(b), 122 Stat. 923, 1448 (2008). After the Act became effective, thousands of AfricanAmerican farmers filed suit in this Court. In re Black Farmers, 856 F. Supp. 2d at 13. Those cases are collectively known as Pigford II. Id. The parties in Pigford II reached a class-wide settlement agreement on February 18, 2010, id., which Judge Friedman approved, id. at 42. The settlement agreement largely maintained the administrative claims process utilized in Pigford I, with some modifications. Id. at 22.
Keepseagle proceeded much like Pigford I, albeit at a different pace. Judge Emmet G. Sullivan of this Court certified that case as a class action pursuant to Rule 23(b)(2). See Keepseagle v. Veneman, No. 99-03119, 2001 WL 34676944, at *1 (D.D.C. Dec. 12, 2001). Nine years later, in 2010, the parties reached a class-wide settlement agreement, which Judge Sullivan approved. See Keepseagle v. Veneman, No. 99-03119, ECF No. 577 (D.D.C. Nov. 1, 2010) (order granting preliminary approval of settlement). The settlement agreement in
3

Keepseagle established an administrative claims process for Native American farmers that was similar, though not identical, to the process established in Pigford I. See Am. Compl. ¶ 49; Defs.’ Mem. at 4-5.
Garcia and Love followed a different path. Judge James Robertson, a former member of this Court, denied the plaintiffs’ motions for class certification in both actions.5 See Am. Compl. ¶¶ 38-39; Garcia v. Veneman, 224 F.R.D. 8 (D.D.C. 2004), aff’d and remanded sub nom. Garcia v. Johanns, 444 F.3d 625 (D.C. Cir. 2006); Love v. Veneman, 224 F.R.D. 240 (D.D.C. 2004), aff’d in part, remanded in part sub nom. Love v. Johanns, 439 F.3d 723 (D.C. Cir. 2006). And the defendants have not offered to settle the cases on a class basis pursuant to Rule 23, as they had in the Pigford and Keepseagle cases. See Am. Compl. ¶¶ 59-60. The defendants have, however, developed a different administrative claims process for Hispanic and female farmers. See id. ¶ 51; Love v. Vilsack, No. 00-2502, ECF No. 160 ¶ 88 (D.D.C.). This administrative claims process is the subject of the instant lawsuit.
The plaintiffs instituted this putative class action on March 25, 2011. They are Hispanic farmers, some of whom are plaintiffs in Garcia, who allegedly “were subjected to, and continue to be subjected to, USDA discrimination in its farm benefit programs” and who “are potential claimants” under the defendants’ administrative claims process for Hispanic farmers. Am. Compl. ¶ 12. The plaintiffs assert that the defendants’ administrative claim process is “substantially different from and substantially less favorable than the settlements provided to African-American and Native American farmers” in the Pigford and Keepseagle cases. Id. ¶ 53. Claiming that this disparity “can only be explained on a racially discriminatory basis,” the plaintiffs allege that the administrative claims process violates “the equal protection and due
5 Upon Judge Robertson’s retirement from this Court, Garcia and Love were reassigned to the undersigned member of the Court.
4

process guaranteed by the Constitution of the United States and constitutes arbitrary and capricious and unlawful agency action under the [Administrative Procedure Act (“APA”)], 5 U.S.C. § 706(2)(A).” Id.
By Order dated December 21, 2011, the Court stayed all proceedings in this case, finding it unripe for judicial review based on the interlocutory nature of the defendants’ administrative claims process at that time. ECF No. 27. Once the defendants finalized the administrative claims process, the plaintiffs, with leave of the Court, submitted an amended complaint. The defendants have now moved to dismiss that complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).6
II. STANDARD OF REVIEW Rule 12(b)(1) allows a party to move to dismiss “for lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). When a defendant moves to dismiss under Rule 12(b)(1), “the plaintiff[] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction.” Biton v. Palestinian Interim Self-Gov’t Auth., 310 F. Supp. 2d 172, 176 (D.D.C. 2004); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A court considering a Rule 12(b)(1) motion must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting [a] plaintiff the benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). However, “the district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm., Inc. v. FDA, 402
6 Because the Court grants the defendants’ motion on jurisdictional grounds under Rule 12(b)(1), it does not consider the defendants’ arguments urging dismissal pursuant to Rule 12(b)(6).
5

F.3d 1249, 1253 (D.C. Cir. 2005) (citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)).
III. ANALYSIS In moving to dismiss for lack of subject-matter jurisdiction, the defendants argue, among other things, that the plaintiffs lack standing to challenge the defendants’ administrative claims process. Defs.’ Mem. at 10. For the reasons that follow, the Court agrees. “Because Article III limits the constitutional role of the federal judiciary to resolving cases and controversies, a showing of standing ‘is an essential and unchanging’ predicate to any exercise of [federal] jurisdiction.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “‘The irreducible constitutional minimum of standing contains three elements: (1) injury-in-fact, (2) causation, and (3) redressability.’” Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C. Cir. 2011) (citation omitted). “‘Thus, to establish standing, a litigant must demonstrate a personal injury fairly traceable to the [opposing party’s] allegedly unlawful conduct [that is] likely to be redressed by the requested relief.’” Id. (citation omitted). “The absence of any one of these three elements defeats standing.” Newdow v. Roberts, 603 F.3d 1002, 1010 (D.C. Cir. 2010). The injury asserted by the plaintiffs is that the defendants’ administrative claims process “subjects them to unequal treatment as compared to other racial groups,” insofar as it “requires Hispanic claimants to prove additional factual elements and, in some cases, provide additional documentary evidence to obtain relief,” which “African[-]American and Native American farmers need not [provide].” Pls.’ Opp’n at 13. As redress for this alleged injury, the plaintiffs request two forms of judicial relief: (1) a declaratory judgment that the defendants’ actions
6

“violate the constitutional rights of [the p]laintiffs and constitute arbitrary and capricious and unlawful agency action under the APA,” and (2) a “permanent injunction” prohibiting the defendants from discriminating against Hispanic farmers in the settlement of their claims against the USDA and compelling the defendants “to provide [the p]laintiffs with a class settlement which includes a class for settlement purposes under Rule 23 of the Federal Rules of Civil Procedure in the Garcia case that is equivalent to that which [the d]efendants provided in the settlements with the African-American and Native American farmers.” Am. Compl. at 34-35.
The parties’ standing arguments focus on whether the plaintiffs have satisfied the first element of Article III standing—injury-in-fact. According to the defendants, the plaintiffs “have suffered no harm whatsoever as a result of” the administrative claims process “because their participation in it is strictly optional, not mandatory.” Defs.’ Mem. at 11 (emphasis omitted). The plaintiffs respond that the defendants “cite[] no authority for the extraordinary proposition that civil rights plaintiffs lack standing to challenge discriminatory government programs unless those programs are mandatory,” and that this position is irreconcilable with “established equal protection jurisprudence.” Pls.’ Opp’n at 13.
The Court need not address these arguments because, even assuming the plaintiffs have established a sufficient injury-in-fact, they have failed on the final element of the standing test— redressability.7 To satisfy this element, a plaintiff must show in the first instance that the court is capable of granting the relief sought. See Newdow, 603 F.3d at 1010-11 (plaintiffs could not establish redressability because “[i]t [was] impossible for th[e] court to grant [their requested] relief”); Swan v. Clinton, 100 F.3d 973, 976 (D.C. Cir. 1996) (indicating that the
7 Because “[t]he federal courts are under an independent obligation to examine their own jurisdiction,” and because “standing ‘is perhaps the most important of [the jurisdictional] doctrines,’” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)), the Court is not limited to the arguments raised in the parties’ briefs in evaluating whether the plaintiffs have Article III standing.
7

“‘redressability’ element of standing” entails the question of “whether a federal court has the power to grant [the plaintiff’s requested] relief”); Lozansky v. Obama, 841 F. Supp. 2d 124, 132 (D.D.C. 2012) (“Plaintiffs . . . lack standing because the Court cannot issue the requested writ of mandamus, and thus cannot redress the [claimed] injury.”). Here, the primary relief sought by the plaintiffs is an injunction compelling the defendants to settle with the plaintiffs on terms equivalent to the settlements in the Pigford and Keepseagle cases. See Am. Compl. at 35. But it is settled law that “[a] judge may not coerce a party into settling.” Gevas v. Ghosh, 566 F.3d 717, 719 (7th Cir. 2009); accord In re NLO, Inc., 5 F.3d 154, 157 (6th Cir. 1993); Newton v. A.C. & S., Inc., 918 F.2d 1121, 1128 (3d Cir. 1990); G. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989) (en banc); In re Ashcroft, 888 F.2d 546, 547 (8th Cir. 1989) (per curiam); Kothe v. Smith, 771 F.2d 667, 669 (2d Cir. 1985); Del Rio v. Northern Blower Co., 574 F.2d 23, 26 (1st Cir. 1978); see also MacLeod v. D.C. Transit Sys., Inc., 283 F.2d 194, 195 n.1 (D.C. Cir. 1960) (indicating that a trial judge may “convey[] his views about [a] settlement [offer] to the litigants’ counsel . . . who [are] free to accept or reject the [j]udge’s views,” so long as the judge does not “in any way [bring] ‘pressure’ on the parties” to settle). Coercing parties to settle is not only beyond a federal court’s authority, but also is prohibited by the ethical rules that govern the conduct of federal judges. See Code of Conduct for United States Judges Cannon 3A(4) (Commentary) (“A judge may encourage and seek to facilitate settlement but should not act in a manner that coerces any party into surrendering the right to have the controversy resolved by the courts.”). And in cases, such as this one, “in which the United States is interested,” only designated government officials and agencies are “authorized to settle litigation.” United States v. LaCroix, 166 F.3d 921, 923 (7th Cir. 1999). Issuing the plaintiffs’ requested injunction compelling the government to make a specific settlement offer to
8

the plaintiffs would improperly “transfer the litigant’s authority to th[is] judge,” in violation of the Court’s duty to “respect th[e] decision[s] . . . made by those in the Executive Branch of government entitled to manage litigation.” Id. Because this Court is powerless to compel the defendants to settle with the plaintiffs in any particular manner or on any particular terms, it cannot grant the injunctive relief requested by the plaintiffs.
The plaintiffs also seek a declaratory judgment that the defendants’ administrative claims process is unconstitutional and violative of the APA. See Am. Compl. at 34-35. While the Court has authority to grant such relief, see Declaratory Judgment Act, 28 U.S.C. § 2201 (2006); APA, 5 U.S.C. § 706(2), a question remains as to whether granting this relief would actually redress the plaintiffs’ alleged injury, see Newdow, 603 F.3d at 1011 (the plaintiffs’ “second redressability problem is that declaratory and injunctive relief against the defendants . . . would not prevent the claimed injury”). As previously noted, the plaintiffs’ claimed injury is the defendants’ denial of equal treatment to them in settling their discrimination claims, as compared to the settlement offers the defendants provided to similarly-situated African-American and Native American farmers. Pls.’ Opp’n at 13. The District of Columbia Circuit has recognized that there are “two remedial alternatives” to redress an equal protection injury such as the one asserted in this case: (1) wholesale invalidation of the government action, or (2) extension of the government benefit to those aggrieved by the exclusion. See Jacobs v. Barr, 959 F.2d 313, 317 (D.C. Cir. 1992) (quoting Heckler v. Matthews, 465 U.S. 728, 738-39 (1984)). Neither type of relief would be afforded to the plaintiffs by a ruling holding the defendants’ administrative claims process in this case unlawful and setting it aside. Indeed, such a ruling would not (and could not) invalidate the settlement offers provided by the defendants to African-American and Native American farmers, nor would it (or could it) compel the defendants, for the reasons set
9

forth above, to make an equivalent settlement offer to the plaintiffs. In other words, it would not provide either of the two forms of relief that would redress the plaintiffs’ alleged equal protection injury. See id. The ruling would merely place the plaintiffs in the position they were in prior to the settlement offer made by the defendants. Thus, the plaintiffs’ requested declaratory relief would not redress the injury they claim.
IV. CONCLUSION For the foregoing reasons, the Court concludes that the plaintiffs have failed to satisfy the redressability element of Article III standing. Accordingly, the defendants’ motion to dismiss for lack of subject-matter jurisdiction is granted. SO ORDERED this 11th day of December, 2012.8
REGGIE B. WALTON United States District Judge
8 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
10

 </s> Case 1:11-cv-00541-RBW Document 75 Filed 06/08/15 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

DAVID CANTU, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

THE UNITED STATES OF AMERICA, )

et al.,

)

)

Defendants.

)

)

Case No. 1:11CV00541 (RBW/JMF)

DEFENDANTS' STATUS REPORT

Defendants submit this status report regarding the voluntary alternative dispute resolution

(ADR) program established for farmers who allege discrimination in making or servicing farm

loans based on being Hispanic or female.

As of May 22, 2015, the Claims Administrator received a total of 53,803 claims in the ADR program.1 After completing its review of these claims, the Administrator determined that

22,163 claims were timely and complete, and forwarded these claims to the Claims Adjudicator

for consideration under the Framework’s eligibility terms for a potential cash award and debt and

tax relief. The Administrator has notified each claimant in writing as to whether his or her claim

was rejected as untimely or incomplete, or was determined to be timely and complete, including

each plaintiff in the present case who elected to participate in the ADR program, and each such

plaintiff in Love v. Vilsack, No. 1:00-cv-2502 (RBW/JMF) (D.D.C.), and Garcia v. Vilsack, C.A.

No. 00-2445 (RBW) (D.D.C.).

1 Some of these claims were submitted after the May 1, 2013 deadline, and a small number of late claims continue to be submitted.

Case 1:11-cv-00541-RBW Document 75 Filed 06/08/15 Page 2 of 3
For each timely and complete claim, under the terms of the Framework, the Adjudicator has made a final determination as to whether the claimant prevailed on the merits. The Administrator has notified each claimant in writing whether his or her claim was approved or denied, including each participating plaintiff in the present case and in Love and Garcia.
The Adjudicator approved 3,210 of the timely and complete claims (including claims filed by 2,504 female farmers and 706 Hispanic farmers), resulting in a total of more than $200 million in cash awards, forgiveness by USDA of eligible farm loan debt, and tax relief. Attached hereto as Exhibit A is a chart that summarizes the number of successful claims and the total dollar amounts of cash awards and debt and tax relief.
The Adjudicator denied a total of 18,953 timely and complete claims, including 10,361 claims that were denied due to fraud concerns, see Framework § X(A)(1), and 691 claims that were denied because they were filed by individuals who asserted claims in other administrative or civil proceedings alleging lending discrimination by USDA during the Relevant Period, id. § XII(B). The remaining 7,901 claims were denied on the merits.
The Government has commenced the process of submitting prevailing claims to the Department of Treasury for review and payment by the Judgment Fund of cash awards and tax relief. USDA expects that, by mid-June 2015, payments from the Judgment Fund will have been issued for several hundred prevailing claimants, including most participating plaintiffs in the present case and in Love and Garcia. The Government continues to submit all additional prevailing claims to Treasury on a rolling basis.
As previously noted, pursuant to the Framework for the ADR program, the USDA Office of the Inspector General is conducting a performance audit of the ADR process. See Framework § X(A)(2).
2

Case 1:11-cv-00541-RBW Document 75 Filed 06/08/15 Page 3 of 3

Dated: June 8, 2015

Respectfully submitted,
BENJAMIN C. MIZER Principal Deputy Assistant Attorney General
VINCENT H. COHEN Acting United States Attorney
LESLEY FARBY Assistant Director
/s/ Lisa A. Olson LISA A. OLSON U.S. Department of Justice Civil Division Federal Programs Branch 20 Mass. Ave., N.W., Room 7300 Washington, D.C. 20530 Telephone: (202) 514-5633 Telefacsimile: (202) 616-8470 E-mail: lisa.olson@usdoj.gov Counsel for Defendant

3

 </s> Case 1:11-cv-00541-RBW Document 76 Filed 10/26/15 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

DAVID CANTU, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

THE UNITED STATES OF AMERICA, )

et al.,

)

)

Defendants.

)

)

Case No. 1:11CV00541 (RBW/JMF)

DEFENDANTS' ELEVENTH STATUS REPORT Defendants submit this status report regarding the voluntary alternative dispute resolution (ADR) program established for farmers who allege discrimination in making or servicing farm loans based on being Hispanic or female. The Claims Adjudicator approved a total of 3,210 claims in the ADR program. Under the Framework for the ADR program, cash awards and tax relief on approved claims are paid from the Judgment Fund, while USDA provides any debt relief to such claimants by administratively cancelling or reducing eligible USDA farm loans. See Framework (ECF No. 30-1), § I(E). The Government has submitted approved claims to the U.S. Department of Treasury (“Treasury”) on a rolling basis for review and payment by the Judgment Fund of cash awards and tax relief. With the exception of claimants who are identified by Treasury as being subject to the Treasury Offset Program (“TOP”), id., § IX(D), the Claims Administrator receives the funds for cash awards and tax relief from Treasury and remits them to claimants. For TOP claimants, offsets must be taken, and cash awards issued, directly by Treasury. USDA has implemented debt relief on the accepted claims.

Case 1:11-cv-00541-RBW Document 76 Filed 10/26/15 Page 2 of 2

As of October 23, 2015, USDA reports as follows: A total of 2,847 of the approved

claims have been paid by the Judgment Fund, and another 126 claims are in process. In addition,

there are 237 claims for which the Administrator has requested but not yet received additional

documentation (generally, proof of legal representative status for claims involving a deceased or incapacitated claimant1). The Administrator has established a deadline of May 21, 2016, to

submit such documentation. Once such documentation is received for any such claim, the

Government will submit that claim to Treasury for review and payment.

As previously noted, the USDA Office of the Inspector General is also conducting a

performance audit of the ADR process. See id., § X(A)(2). The Inspector General has not yet

issued a report on that audit.

Dated: Oct. 26, 2015

Respectfully submitted,

BENJAMIN C. MIZER Principal Deputy Assistant Attorney General

CHANNING D. PHILLIPS United States Attorney

LESLEY FARBY Assistant Director

/s/ Lisa A. Olson LISA A. OLSON U.S. Department of Justice Civil Division Federal Programs Branch 20 Mass. Ave., N.W., Room 7300 Washington, D.C. 20530 Telephone: (202) 514-5633 Telefacsimile: (202) 616-8470 E-mail: lisa.olson@usdoj.gov Counsel for Defendant

1 See Claim Form (ECF No. 47-1) at 2. 2

 </s> General Docket United States Court of Appeals for District of Columbia Circuit

Court of Appeals Docket #: 13-5044 Nature of Suit: 2440 Other Civil Rights David Cantu, et al v. USA, et al Appeal From: United States District Court for the District of Columbia Fee Status: Fee Paid

Docketed: 02/08/2013 Termed: 05/27/2014

Case Type Information: 1) Civil US 2) United States 3)

Originating Court Information:

District: 0090-1 : 1:11-cv-00541-RBW

Lead: 1:11-cv-00541-RBW

Court Reporter: Bowles Reporting Services, Court Reporter

Trial Judge: Reggie B. Walton, U.S. Senior District Judge

Date Filed: 03/15/2011

Date Order/Judgment:

Date NOA Filed:

12/11/2012

02/05/2013

Prior Cases: None

Current Cases: None

Panel Assignment: Panel: DST TBG CTLP Date of Hearing: 05/07/2014

Date of Decision: 05/27/2014

Date Completed: 05/27/2014

David Cantu

Plaintiff - Appellant

Laura G. Ferguson Direct: 202-626-5567 Email: lferguson@milchev.com Fax: 202-626-5801 [COR LD NTC Retained] Miller & Chevalier Chartered Firm: 202-626-5800 900 16th Street, NW Washington, DC 20006

Richard Anthony Hibey Direct: 202-626-5888 Email: rhibey@milchev.com

Guadalupe Garcia Noe Obregon

Fax: 202-626-5801 [COR NTC Retained] Miller & Chevalier Chartered Firm: 202-626-5800 900 16th Street, NW Washington, DC 20006
Robert F. Ruyak, Esquire Email: robertr@ruyakcherian.com [COR NTC Trial Counsel] Winston & Strawn LLP Firm: 202-282-5000 1700 K Street, NW Washington, DC 20006-3817

Plaintiff - Appellant

Laura G. Ferguson Direct: 202-626-5567 [COR LD NTC Retained] (see above)

Richard Anthony Hibey Direct: 202-626-5888 [COR NTC Retained] (see above)

Robert F. Ruyak, Esquire [COR Trial Counsel] (see above)

Plaintiff - Appellant

Laura G. Ferguson Direct: 202-626-5567 [COR LD NTC Retained] (see above)

Richard Anthony Hibey Direct: 202-626-5888 [COR NTC Retained] (see above)

Robert F. Ruyak, Esquire [COR NTC Trial Counsel] (see above)

Ruperto Rodriguez, doing business as Rodriguez Brothers, Inc.
Plaintiff - Appellant

Laura G. Ferguson Direct: 202-626-5567 [COR LD NTC Retained] (see above)

Richard Anthony Hibey Direct: 202-626-5888 [COR NTC Retained] (see above)

Robert F. Ruyak, Esquire [COR NTC Trial Counsel] (see above)

Modesto Rodriguez, doing business as Rodriguez Brothers, Inc.
Plaintiff - Appellant

Laura G. Ferguson Direct: 202-626-5567 [COR LD NTC Retained] (see above)

Richard Anthony Hibey Direct: 202-626-5888 [COR NTC Retained] (see above)

Robert F. Ruyak, Esquire [COR NTC Trial Counsel] (see above)

Modesta Salazar, For themselves and on behalf of all other similarly situated persons
Plaintiff - Appellant

Laura G. Ferguson Direct: 202-626-5567 [COR LD NTC Retained] (see above)

Richard Anthony Hibey Direct: 202-626-5888 [COR NTC Retained] (see above)

Robert F. Ruyak, Esquire [COR NTC Trial Counsel] (see above)
v.

United States of America

Charles Wylie Scarborough

Defendant - Appellee Email: charles.scarborough@usdoj.gov

[COR LD NTC Gvt US DOJ]

U.S. Department of Justice

(DOJ) Office of the Attorney General

950 Pennsylvania Avenue, NW

Washington, DC 20530

DOJ Appellate Counsel Email: civil.appellate@usdoj.gov [NTC Gvt US DOJ] U.S. Department of Justice (DOJ) Civil Division, Appellate Staff Firm: 202-514-2000 950 Pennsylvania Avenue, NW Washington, DC 20530
Stuart F. Delery Email: sdelery@gibsondunn.com [NTC Gvt US DOJ] U.S. Department of Justice (DOJ) Civil Division 950 Pennsylvania Avenue, NW Washington, DC 20530
Marleigh D. Dover, Assistant Director Email: marleigh.dover@usdoj.gov [COR NTC Gvt US DOJ] U.S. Department of Justice (DOJ) Civil Division, Appellate Staff Firm: 202-514-2000 950 Pennsylvania Avenue, NW Washington, DC 20530

Ronald C. Machen, Jr., Esquire, U.S. Attorney [NTC Gvt US Attorney] U.S. Attorney's Office (USA) Appellate Division Firm: 202-252-6829 555 4th Street, NW Washington, DC 20530

United States Department of Justice

Charles Wylie Scarborough

Defendant - Appellee [COR LD NTC Gvt US DOJ]

(see above)
DOJ Appellate Counsel [NTC Gvt US DOJ] (see above)
Stuart F. Delery [NTC Gvt US DOJ] (see above)
Marleigh D. Dover, Assistant Director [COR NTC Gvt US DOJ] (see above)

Ronald C. Machen, Jr., Esquire, U.S. Attorney [NTC Gvt US Attorney] (see above)

United States Department of Agriculture

Charles Wylie Scarborough

Defendant - Appellee [COR LD NTC Gvt US DOJ]

(see above)

DOJ Appellate Counsel [NTC Gvt US DOJ] (see above)

Stuart F. Delery [NTC Gvt US DOJ] (see above)

Marleigh D. Dover, Assistant Director [COR NTC Gvt US DOJ] (see above)

Ronald C. Machen, Jr., Esquire, U.S. Attorney [NTC Gvt US Attorney] (see above)

Eric H. Holder, Jr., in his official and

Charles Wylie Scarborough

individual capacities

[COR LD NTC Gvt US DOJ]

Defendant - Appellee (see above)

DOJ Appellate Counsel

[NTC Gvt US DOJ] (see above)

Stuart F. Delery [NTC Gvt US DOJ] (see above)
Marleigh D. Dover, Assistant Director [COR NTC Gvt US DOJ] (see above)
Ronald C. Machen, Jr., Esquire, U.S. Attorney [NTC Gvt US Attorney] (see above)

Thomas J. Vilsack, his official and individual Charles Wylie Scarborough

capacities

[COR LD NTC Gvt US DOJ]

Defendant - Appellee (see above)

DOJ Appellate Counsel [Gvt US DOJ] (see above)

Stuart F. Delery [NTC Gvt US DOJ] (see above)

Marleigh D. Dover, Assistant Director [COR NTC Gvt US DOJ] (see above)

Ronald C. Machen, Jr., Esquire, U.S. Attorney [NTC Gvt US Attorney] (see above)

David Cantu; Guadalupe Garcia; Noe Obregon; Ruperto Rodriguez, doing business as Rodriguez Brothers, Inc.; Modesto Rodriguez, doing business as Rodriguez Brothers, Inc.; Modesta Salazar, For themselves and on behalf of all other similarly situated persons,
Plaintiffs - Appellants
v.
United States of America; United States Department of Justice; United States Department of Agriculture; Eric H. Holder, Jr., in his official and individual capacities; Thomas J. Vilsack, his official

and individual capacities, Defendants - Appellees

02/08/2013

US CIVIL CASE docketed. [13-5044] [Entered: 02/08/2013 01:16 PM]

02/08/2013

25 pg, 280.29 KB

NOTICE OF APPEAL filed [1419590] by David Cantu, Guadalupe Garcia, Noe Obregon, Modesto Rodriguez, Ruperto Rodriguez and Modesta Salazar seeking review of a decision by the U.S. District Court in 1:11-cv-00541-RBW. Assigned USCA Case Number [13-5044] [Entered: 02/08/2013 01:20 PM]

02/11/2013
2 pg, 46.12 KB

CLERK'S ORDER filed [1419707] directing party to file initial submissions: APPELLANT docketing statement due 03/13/2013. APPELLANT certificate as to parties, etc. due 03/13/2013. APPELLANT statement of issues due 03/13/2013. APPELLANT underlying decision due 03/13/2013. APPELLANT deferred appendix statement due 03/13/2013. APPELLANT notice of appearance due 03/13/2013. APPELLANT transcript status report due 03/13/2013. APPELLANT procedural motions due 03/13/2013. APPELLANT dispositive motions due 03/28/2013; directing party to file initial submissions: APPELLEE certificate as to parties, etc. due 03/13/2013. APPELLEE entry of appearance due 03/13/2013. APPELLEE procedural motions due 03/13/2013. APPELLEE dispositive motions due 03/28/2013 [13-5044] [Entered: 02/11/2013 10:00 AM]

02/11/2013
1 pg, 388.96 KB

ENTRY OF APPEARANCE filed [1419846] by Charles W. Scarborough and co-counsel Marleigh D. Dover on behalf of Appellees Eric H. Holder, Jr., AGRI, DOJ, USA and Thomas J. Vilsack. [13-5044] (Scarborough, Charles) [Entered: 02/11/2013 02:47 PM]

03/12/2013
3 pg, 118.92 KB

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES FILED [1424913] by Eric H. Holder, Jr., AGRI, DOJ, USA and Thomas J. Vilsack [Service Date: 03/12/2013 ] [135044] (Scarborough, Charles) [Entered: 03/12/2013 05:35 PM]

03/13/2013
2 pg, 140.24 KB

ENTRY OF APPEARANCE filed [1425052] by Laura G. Ferguson and co-counsel Richard A. Hibey and Adam P. Feinberg on behalf of Appellants David Cantu, Guadalupe Garcia, Noe Obregon, Modesto Rodriguez, Ruperto Rodriguez and Modesta Salazar. [13-5044] (Ferguson, Laura) [Entered: 03/13/2013 12:19 PM]

03/13/2013

DOCKETING STATEMENT FILED [1425054] by David Cantu,

2 pg, 160.13 KB Guadalupe Garcia, Noe Obregon, Modesto Rodriguez, Ruperto

Rodriguez and Modesta Salazar [Service Date: 03/13/2013 ] [135044] (Ferguson, Laura) [Entered: 03/13/2013 12:20 PM]

03/13/2013
4 pg, 140.86 KB

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES FILED [1425055] by David Cantu, Guadalupe Garcia, Noe Obregon, Modesto Rodriguez, Ruperto Rodriguez and Modesta Salazar [Service Date: 03/13/2013 ] [13-5044] (Ferguson, Laura) [Entered: 03/13/2013 12:21 PM]

03/13/2013
2 pg, 125.13 KB

TRANSCRIPT STATUS REPORT [1425057] by David Cantu, Guadalupe Garcia, Noe Obregon, Modesto Rodriguez, Ruperto Rodriguez and Modesta Salazar [Service Date: 03/13/2013 ]. Status of Transcripts: Final - No transcripts are needed for the appeal. [13-5044] (Ferguson, Laura) [Entered: 03/13/2013 12:23 PM]

03/13/2013
3 pg, 106.82 KB

STATEMENT OF ISSUES FILED [1425060] by David Cantu, Guadalupe Garcia, Noe Obregon, Modesto Rodriguez, Ruperto Rodriguez and Modesta Salazar [Service Date: 03/13/2013 ] [135044] (Ferguson, Laura) [Entered: 03/13/2013 12:24 PM]

03/13/2013
3 pg, 108.1 KB

STATEMENT OF INTENT REGARDING APPENDIX DEFERRAL FILED [1425062] by David Cantu, Guadalupe Garcia, Noe Obregon, Modesto Rodriguez, Ruperto Rodriguez and Modesta Salazar [Service Date: 03/13/2013 ] Intent: AppxNotDeferred [13-5044] (Ferguson, Laura) [Entered: 03/13/2013 12:24 PM]

03/13/2013

16 pg, 227.31 KB

UNDERLYING DECISION IN CASE submitted [1425063] by David Cantu, Guadalupe Garcia, Noe Obregon, Modesto Rodriguez, Ruperto Rodriguez and Modesta Salazar [Service Date: 03/13/2013 ] [13-5044] (Ferguson, Laura) [Entered: 03/13/2013 12:26 PM]

05/10/2013
1 pg, 40.49 KB

CLERK'S ORDER filed [1435575] setting briefing schedule: APPELLANT Brief due 07/09/2013. Appendix due 07/09/2013. APPELLEE Brief due on 08/08/2013. APPELLANT Reply Brief due 08/22/2013 [13-5044] [Entered: 05/10/2013 12:22 PM]

07/09/2013

68 pg, 287.54 KB

APPELLANT BRIEF [1445786] filed by David Cantu, Guadalupe Garcia, Noe Obregon, Modesto Rodriguez, Ruperto Rodriguez and Modesta Salazar [Service Date: 07/09/2013 ] Length of Brief: 10,323 words. [13-5044] (Ferguson, Laura) [Entered: 07/09/2013 08:25 PM]

07/09/2013

JOINT APPENDIX [1445787] filed [Volumes: 1] [Service Date:

245 pg, 12.44 MB 07/09/2013 ] [13-5044] (Ferguson, Laura) [Entered: 07/09/2013

08:27 PM]

07/22/2013
5 pg, 125.94 KB

UNOPPOSED MOTION filed [1447754] by Eric H. Holder, Jr., AGRI, DOJ, USA and Thomas J. Vilsack to extend time to file brief to 08/22/2013. [Service Date: 07/22/2013 ] Pages: 1-10. [135044] (Scarborough, Charles) [Entered: 07/22/2013 11:36 AM]

07/23/2013
1 pg, 39.03 KB

CLERK'S ORDER filed [1448156] granting appellees' unopposed motion to extend time to file its brief [1447754-2], The following revised briefing schedule will now apply: APPELLEE Brief due on 08/22/2013. APPELLANT Reply Brief due 09/19/2013 [135044] [Entered: 07/23/2013 05:32 PM]

08/21/2013

44 pg, 378.39 KB

APPELLEE BRIEF [1452737] filed by Eric H. Holder, Jr., AGRI, DOJ, USA and Thomas J. Vilsack [Service Date: 08/21/2013 ] Length of Brief: 8775 words. [13-5044] (Scarborough, Charles) [Entered: 08/21/2013 02:18 PM]

09/19/2013
38 pg, 92.95 KB

APPELLANT REPLY BRIEF [1457500] filed by David Cantu, Guadalupe Garcia, Noe Obregon, Modesto Rodriguez, Ruperto Rodriguez and Modesta Salazar [Service Date: 09/19/2013 ] Length of Brief: 6,967 words. [13-5044] (Ferguson, Laura) [Entered: 09/19/2013 06:14 PM]

01/24/2014
1 pg, 40.93 KB

CLERK'S ORDER filed [1476553] scheduling oral argument before Judges GRIFFITH, EDWARDS, RANDOLPH Tuesday, 03/25/2014 AM [13-5044] [Entered: 01/24/2014 11:09 AM]

01/31/2014
4 pg, 116.54 KB

CONSENT UNOPPOSED MOTION filed [1477830] by David Cantu, Guadalupe Garcia, Noe Obregon, Modesto Rodriguez, Ruperto Rodriguez and Modesta Salazar to reschedule oral argument [Service Date: 01/31/2014 ] Pages: 1-10. [13-5044] (Ferguson, Laura) [Entered: 01/31/2014 03:36 PM]

02/04/2014
1 pg, 38.43 KB

PER CURIAM ORDER filed [1478166] granting appellant's consent motion to reschedule oral argument [1477830-2]. The Clerk is directed to reschedule this case for oral argument as soon as the business of the court permits. Before Judges: Griffith, Edwards and Randolph. [13-5044] [Entered: 02/04/2014 11:51 AM]

03/18/2014
1 pg, 40.78 KB

CLERK'S ORDER filed [1484269] scheduling oral argument before Judges TATEL, GRIFFITH, PILLARD on Wednesday, 05/07/2014 [13-5044] [Entered: 03/18/2014 03:22 PM]

04/25/2014
1 pg, 41.33 KB

PER CURIAM ORDER filed [1489965] allocating oral argument time as follows: Appellants -- 10 Minutes, Appellees -- 10 Minutes. One counsel per side to argue; directing party to file Form 72 notice of arguing attorney - due 04/30/2014 [13-5044] [Entered: 04/25/2014 10:22 AM]

04/25/2014

FORM 72 submitted by arguing attorney, Charles W. Scarborough, on behalf of Appellees Eric H. Holder, Jr., AGRI, DOJ, USA and Thomas J. Vilsack. [13-5044] (Scarborough, Charles) [Entered: 04/25/2014 04:31 PM]

04/28/2014

FORM 72 submitted by arguing attorney, Laura G. Ferguson, on behalf of Appellants David Cantu, Guadalupe Garcia, Noe Obregon, Modesto Rodriguez, Ruperto Rodriguez and Modesta Salazar. [13-5044] (Ferguson, Laura) [Entered: 04/28/2014 01:17 PM]

05/07/2014

ORAL ARGUMENT HELD before Judges Tatel, Griffith and

1 pg, 40.24 KB Pillard. [13-5044] [Entered: 05/07/2014 11:50 AM]

05/27/2014
3 pg, 28.01 KB

PER CURIAM JUDGMENT filed [1494454] (without memorandum) that the judgment of dismissal be reversed and the case remanded to the district court. (SEE JUDGMENT FOR DETAILS) withholding issuance of the mandate. Before Judges: Tatel, Griffith and Pillard. [13-5044] [Entered: 05/27/2014 09:35 AM]

05/30/2014
6 pg, 129.79 KB

UNOPPOSED MOTION filed [1495310] by Eric H. Holder, Jr., AGRI, DOJ, USA and Thomas J. Vilsack to extend time to file petition to 07/25/2014. [Service Date: 05/30/2014 ] Pages: 1-10. [13-5044] (Scarborough, Charles) [Entered: 05/30/2014 11:59 AM]

06/04/2014
1 pg, 38.26 KB

PER CURIAM ORDER filed [1496108] Upon consideration of appellees’ consent motion for a 14-day extension of time to file a petition for rehearing or rehearing en banc, it is ORDERED that the motion be granted. Any petition is now due on or before July 25, 2014. [1495310-2] Before Judges: Tatel, Griffith and Pillard. [13-5044] [Entered: 06/04/2014 04:47 PM]

08/06/2014

MANDATE ISSUED to Clerk, District Court [13-5044] [Entered: 08/06/2014 02:46 PM]

 </s> USCA Case #13-5044 Document #1494454

Filed: 05/27/2014 Page 1 of 3

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 13-5044
DAVID CANTU, ET AL., APPELLANTS
v.
UNITED STATES OF AMERICA, ET AL., APPELLEES

September Term, 2013
FILED ON: MAY 27, 2014

Appeal from the United States District Court for the District of Columbia (No. 1:11-cv-00541)

Before: TATEL, GRIFFITH and PILLARD, Circuit Judges
J U D G M E N T
This appeal was considered on the record and on the briefs and oral argument of the parties. The court has afforded the issues full consideration and has determined that they do not warrant a published opinion. See D.C. CIR. R. 36(d). For the reasons stated below, it is
ORDERED and ADJUDGED that the judgment of dismissal be reversed and the case remanded to the district court.
Between 1997 and 2000, African-American, Native American, Hispanic, and female farmers filed four virtually identical class action lawsuits alleging that the U.S. Department of Agriculture (USDA) routinely discriminated on the basis of race, ethnicity, and gender in the administration of farm benefit programs and failed to investigate the claims of farmers who filed complaints with the USDA based on such conduct. The lawsuits followed an internal investigation by USDA that concluded that the agency had engaged in decades of discrimination and had failed to handle complaints of such discrimination appropriately. The agency’s misconduct, the investigation found, caused minority and female farmers to lose “significant amounts of land and potential farm income.”
Three African-American farmers filed the first class action, Pigford v. Glickman (Pigford I), in August 1997. After the plaintiffs obtained class certification over the government’s opposition, see Pigford v. Glickman, 182 F.R.D. 341, 342 (D.D.C. 1998), the government agreed

USCA Case #13-5044 Document #1494454

Filed: 05/27/2014 Page 2 of 3

to settle Pigford I by consent decree, see Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999), aff’d, 206 F.3d 1212 (D.C. Cir. 2000). The decree established a two-track dispute resolution system. A less demanding track, known as “Track A,” provided a “virtually automatic” payment of $50,000, plus taxes owed on the award and loan forgiveness, for farmers who provided “substantial evidence” of discrimination. Pigford, 185 F.R.D. at 95-96. A more demanding track, “Track B,” offered claimants uncapped damages if they could demonstrate discrimination by a preponderance of the evidence. Id. at 97. Track B claimants could be represented by class counsel for free. Id. As of January 31, 2011, approximately $1 billion had been disbursed to nearly 16,000 African-American farmers under the Pigford I consent decree. The government has also provided $1.25 billion to settle claims of African-American farmers who missed the Pigford I filing deadline. Those claims, collectively known as Pigford II, are also subject to a two-tier resolution process, with settlement payments capped under Track A and Track B at $50,000 and $250,000, respectively.
Native American farmers filed a lawsuit virtually identically to Pigford I in 1999, and they too obtained class certification over the government’s opposition. See Keepseagle v. Veneman, No. 99-03119, 2001 WL 34676944, at *1 (D.D.C. Dec. 12, 2001). The government settled Keepseagle in 2010, establishing a claims resolution process nearly identical to that in Pigford II to distribute approximately $680 million in damages and $80 million in debt forgiveness. See Statement by the President on Settlement Agreement in the Native American Farmers Lawsuit Against USDA (Oct. 19, 2010), http://www.whitehouse.gov/the-press-office/ 2010/10/19/statement-president-settlement-agreement-native-american-farmers-lawsuit.
In 2000, Hispanic and female farmers filed the last two of the four lawsuits. They too sought class certification but were unsuccessful. See Garcia v. Johanns, 444 F.3d 625 (D.C. Cir. 2006) (Hispanic farmers); Love v. Johanns, 439 F.3d 723 (D.C. Cir. 2006) (female farmers). Nevertheless, in January 2012 the government unveiled an administrative claims resolution process titled the “Framework for Hispanic or Female Farmers’ Claims Process” (the Framework). Despite resembling the Pigford and Keepseagle processes in broad strokes, the Framework differed in several respects, including the absence of judicial supervision or class counsel, less monetary relief, a more onerous burden of proof, and relief for a more limited category of claims.
Appellants are Hispanic farmers who, on behalf of a putative class, allege that the government’s provision of a claims resolution process inferior to those in Pigford and Keepseagle is unconstitutionally discriminatory. Appellants seek a declaration that the Framework violates both the Fifth Amendment and the Administrative Procedure Act, 5 U.S.C. § 706, and an injunction prohibiting the government from engaging in racial discrimination against them and ordering the government to provide them with a class settlement equivalent to those that African-American and Native American farmers received.
The district court dismissed appellants’ complaint for lack of subject matter jurisdiction, concluding that appellants had failed to establish standing because the sought-after relief would not redress their injuries. See Cantu v. United States, 908 F. Supp. 2d 146 (D.D.C. 2012). The court explained that it lacked authority to grant injunctive relief because it could not require the government to settle the claims in Garcia. See id. at 151-52. It also held that declaratory relief
2

USCA Case #13-5044 Document #1494454

Filed: 05/27/2014 Page 3 of 3

would not provide redress because it could not ultimately serve as a basis for invalidating the Pigford or Keepseagle settlements or for extending the terms of those settlements to appellants. See id. at 152.
Appellants appeal the dismissal of their suit. We have jurisdiction under 28 U.S.C. § 1291 and review the district court’s dismissal for lack of subject matter jurisdiction de novo. See Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024, 1029 (D.C. Cir. 2003). In determining whether appellants have standing, we assume that their legal claims are valid and accept the factual allegations in their complaint as true. See id.
As an initial matter, we agree with the district court that appellants’ prayer for relief overreaches. It is well established that a court cannot order a party to settle, see Gevas v. Ghosh, 566 F.3d 717, 719 (7th Cir. 2009) (“A judge may not coerce a party into settling.”); In re NLO, Inc., 5 F.3d 154, 157 (6th Cir. 1993); Kothe v. Smith, 771 F.2d 667, 669 (2d Cir. 1985) (citing MacLeod v. D.C. Transit Sys., Inc., 283 F.2d 194, 195 n.1 (D.C. Cir. 1960)), particularly where the party is an Executive Branch agency, see United States v. LaCroix, 166 F.3d 921, 923 (7th Cir. 1999). The district court was therefore correct in holding that it lacked authority to enjoin the government to provide appellants with a class settlement identical to those in Pigford II and Keepseagle.
Were appellants seeking only such an injunction, dismissal of their suit might well have been proper. But they are not. At bottom, they seek a declaration and injunction prohibiting the government from offering them a claims process tainted by racial considerations. If the government has indeed done that—and, for purposes of this appeal, we must assume it has—the district court could have granted relief by ordering the government not to act toward appellants based on unlawful racial grounds. Such an order would not, in practice, require the government to settle or dictate settlement terms. Rather, it would simply require the government to make litigation decisions based only on permissible factors, i.e., not race. Such relief, which is surely within the judicial power, would redress appellants’ alleged injuries. See Swan v. Clinton, 100 F.3d 973, 976 (D.C. Cir. 1996) (suggesting that the redressability prong of standing turns on “whether a federal court has the power to grant” the relief a party seeks); cf. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971) (“Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”).
Because we conclude that appellants’ claims were redressable, we reverse the judgment of the district court. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.
FOR THE COURT: Mark J. Langer, Clerk BY: /s/ Jennifer M. Clark Deputy Clerk
3

 </s> CLOSED,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:11−cv−00541−RBW

CANTU et al v. UNITED STATES OF AMERICA et al Assigned to: Judge Reggie B. Walton Case: 1:00−cv−02445−RBW
Case in other court: 13−05044 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 03/15/2011 Date Terminated: 12/22/2011 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

DAVID CANTU

represented by Adam P. Feinberg MILLER & CHEVALIER, CHARTERED 900 Sixteenth Street, NW Washington, DC 20006 (202) 626−5800 Ext 6087 Fax: (202) 626−5801 Email: afeinberg@milchev.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Dewald Herman MILLER & CHEVALIER, CHARTERED 900 Sixteenth Street, NW Washington, DC 20006 (202) 626−5800 Fax: (202) 626−5801 Email: aherman@milchev.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan D. Kossak U.S. DEPARTMENT OF JUSTICE Federal Programs Branch 1100 L Street, NW Washington, DC 20005 (202) 305−0612 Email: jonathan.kossak@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura G. Ferguson MILLER & CHEVALIER, CHARTERED 900 Sixteenth Street, NW Washington, DC 20006 (202) 626−5567 Fax: (202) 626−5801 Email: lferguson@milchev.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard A. Hibey MILLER & CHEVALIER, CHARTERED 900 Sixteenth Street, NW Washington, DC 20006 (202) 626−5888 Fax: (202) 626−5801 Email: rhibey@milchev.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert F. Ruyak

Plaintiff GUADALUPE GARCIA
Plaintiff NOE OBREGON

RUYAKCHERIAN LLP 1700 K Street, NW Suite 810 Washington, DC (202) 838−1561 Fax: (202) 478−1715 Email: robertr@ruyakcherian.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen S Hill LAW OFFICE OF STEPHEN S. HILL 5121 33rd Street, NW Washington, DC 20008 (202) 363−7018 Fax: (202) 363−0844 Email: sshill2@verizon.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Dewald Herman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan D. Kossak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura G. Ferguson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard A. Hibey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert F. Ruyak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen S Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Dewald Herman (See above for address)

Plaintiff RUPERTO RODRIGUEZ doing business as RODRIGUEZ BROTHERS, INC.
Plaintiff MODESTO RODRIGUEZ doing business as RODRIGUEZ BROTHERS, INC.

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan D. Kossak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura G. Ferguson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard A. Hibey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert F. Ruyak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen S Hill (See above for address) TERMINATED: 07/03/2012
represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Dewald Herman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan D. Kossak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura G. Ferguson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen S Hill (See above for address) TERMINATED: 07/03/2012
represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Dewald Herman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan D. Kossak

Plaintiff MODESTA SALAZAR For themselves and on behalf of all other similarly situated persons
V. Defendant UNITED STATES OF AMERICA

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura G. Ferguson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen S Hill (See above for address) TERMINATED: 07/03/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Dewald Herman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan D. Kossak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura G. Ferguson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard A. Hibey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert F. Ruyak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen S Hill (See above for address) TERMINATED: 07/03/2012
represented by Lisa Ann Olson U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Room 11012 Washington, DC 20005 (202) 514−5633 Fax: (202) 616−8470 Email: lisa.olson@usdoj.gov LEAD ATTORNEY

Defendant UNITED STATES DEPARTMENT OF JUSTICE
Defendant UNITED STATES DEPARTMENT OF AGRICULTURE
Defendant ERIC H. HOLDER, JR. in his official and individual capacities
Defendant THOMAS J. VILSACK his official and individual capacities

ATTORNEY TO BE NOTICED
represented by Lisa Ann Olson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lisa Ann Olson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lisa Ann Olson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lisa Ann Olson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/15/2011
03/15/2011 03/15/2011 03/21/2011 03/22/2011 03/31/2011 03/31/2011 03/31/2011

# Docket Text
1 COMPLAINT against ERIC HOLDER, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM VILSACK ( Filing fee $ 350, receipt number 4616037209) filed by MODESTA SALAZAR, NOE OBREGON, GUADALUPE GARCIA, DAVID CANTU, RUPERTO RODRIGUEZ, MODESTO RODRIGUEZ. (Attachments: # 1 Exhibit s 1−11, # 2 Civil Cover Sheet)(jf, ) (Entered: 03/15/2011)
SUMMONS (8) Issued as to ERIC HOLDER, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM VILSACK and U.S. Attorney.(jf, ) (Entered: 03/15/2011)
2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by MODESTO RODRIGUEZ, RUPERTO RODRIGUEZ (jf, ) (Entered: 03/15/2011)
3 NOTICE OF RELATED CASE by UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA. Case related to Case No. 1:00cv02445. (Olson, Lisa) (Entered: 03/21/2011)
4 Case reassigned to Judge Reggie B. Walton. Judge Richard W. Roberts no longer assigned to the case. (ds) (Entered: 03/22/2011)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. TOM VILSACK served on 3/16/2011 (Hill, Stephen) Modified served date to 3/16/11 on 4/1/2011 (td, ). (Entered: 03/31/2011)
6 ENTERED IN ERROR. . . . . DUPLICATE OF NO. 5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. (Hill, Stephen) Modified on 4/1/2011 (td, ). (Entered: 03/31/2011)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF AGRICULTURE served on 3/15/2011 (Hill, Stephen) (Entered: 03/31/2011)

03/31/2011 03/31/2011 03/31/2011 03/31/2011 05/11/2011 05/25/2011 05/31/2011 06/06/2011
06/06/2011 06/10/2011 06/14/2011
06/17/2011
06/24/2011

8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF JUSTICE served on 3/16/2011 (Hill, Stephen) Modified date served to 3/16/11 on 4/1/2011 (td, ). (Entered: 03/31/2011)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/16/2011. Answer due for ALL FEDERAL DEFENDANTS by 5/15/2011. (Hill, Stephen) (Entered: 03/31/2011)
10 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 03/16/2011. (Hill, Stephen) (Entered: 03/31/2011)
11 ENTERED IN ERROR. . . . .DUPLICATE OF NO. 10 . . . . .RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 03/16/2011. (Hill, Stephen) Modified on 4/1/2011 (td, ). (Entered: 03/31/2011)
12 MOTION to Dismiss by ERIC HOLDER, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM VILSACK (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Olson, Lisa) (Entered: 05/11/2011)
13 Memorandum in opposition to re 12 MOTION to Dismiss filed by DAVID CANTU. (Attachments: # 1 Text of Proposed Order Proposed Order to Dismiss)(Hill, Stephen) (Entered: 05/25/2011)
14 Unopposed MOTION for Extension of Time to File Response/Reply as to 12 MOTION to Dismiss by ERIC HOLDER, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM VILSACK (Attachments: # 1 Text of Proposed Order)(Olson, Lisa) (Entered: 05/31/2011)
MINUTE ORDER granting 14 Motion for Extension of Time. The Court having considered the Defendants' Unopposed Motion for Extension of Time, and it appearing to the Court that there is good cause to grant the relief requested therein based upon the consent of the plaintiffs as represented to the Court by the defendants, it is ORDERED that the motion is GRANTED. It is further ORDERED that with regard to the defendants' motion to dismiss, the defendants shall file their brief in reply to the plaintiffs' opposition memorandum on or before June 6, 2011. Signed by Judge Reggie B. Walton on 6/6/2011 (lcrbw1). (Entered: 06/06/2011)
15 REPLY to opposition to motion re 12 MOTION to Dismiss filed by ERIC HOLDER, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM VILSACK. (Olson, Lisa) (Entered: 06/06/2011)
16 MOTION to Certify Class by DAVID CANTU (Attachments: # 1 Exhibit Exhibits 1 through 6, # 2 Exhibit Exhibits 7 through 16, # 3 Text of Proposed Order Proposed Order)(Hill, Stephen) (Entered: 06/10/2011)
17 MOTION to Stay re 16 MOTION to Certify Class or Alternatively,, MOTION to Strike 16 MOTION to Certify Class by ERIC HOLDER, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM VILSACK (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Olson, Lisa) (Entered: 06/14/2011)
18 Memorandum in opposition to re 17 MOTION to Stay re 16 MOTION to Certify Class or Alternatively, MOTION to Strike 16 MOTION to Certify Class MOTION to Stay re 16 MOTION to Certify Class or Alternatively, MOTION to Strike 16 MOTION to Certify Class filed by DAVID CANTU. (Attachments: # 1 Exhibit Supreme Court Decision, # 2 Text of Proposed Order Proposed Order To Deny Defendants' Motion)(Hill, Stephen) (Entered: 06/17/2011)
19 REPLY to opposition to motion re 17 MOTION to Stay re 16 MOTION to Certify Class or Alternatively, MOTION to Strike 16 MOTION to Certify Class MOTION to Stay re 16 MOTION to Certify Class or Alternatively, MOTION to Strike 16

09/02/2011 11/01/2011
11/02/2011 11/15/2011 11/22/2011 11/28/2011
11/29/2011 12/05/2011 12/05/2011 12/05/2011 12/12/2011 12/21/2011

MOTION to Certify Class filed by ERIC HOLDER, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM VILSACK. (Olson, Lisa) (Entered: 06/24/2011)
20 NOTICE of Change of Address by Stephen S Hill (Hill, Stephen) (Entered: 09/02/2011)
21 ORDER. The plaintiffs shall file a supplemental memorandum on or before November 15, 2011, addressing the questions identified by the Court in the attached Order. The defendants shall file their response to the plaintiffs' supplemental memorandum, if any, on or before November 29, 2011. The plaintiffs shall file their brief in reply to the defendants' response, if any, on or before December 6, 2011. The parties' supplemental briefing shall discuss any new developments concerning the defendants' proposed alternative dispute resolution program that have arisen since the completion of briefing on the defendants' motion to dismiss in June 2011 that may affect the plaintiffs' claims in this case. Signed by Judge Reggie B. Walton on 11−1−11 (lcrbw3). Modified on 11/1/2011 (lcrbw3, ). (Main Document 21 replaced on 11/1/2011) (td, ). (Entered: 11/01/2011)
Set/Reset Deadlines: Supplemental Memorandum due by 11/15/2011. Response due by 11/29/2011 Reply due by 12/6/2011. (mpt) (Entered: 11/02/2011)
22 MEMORANDUM by DAVID CANTU. (Attachments: # 1 Exhibit Cantu Exhibits 1−8)(Hill, Stephen) (Entered: 11/15/2011)
23 MOTION for Extension of Time to File, Unopposed MOTION for Extension of Time to File Response/Reply by UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM VILSACK (Attachments: # 1 Text of Proposed Order)(Olson, Lisa) (Entered: 11/22/2011)
MINUTE ORDER granting 23 Motion for Extension of Time to File; granting 23 Motion for Extension of Time to File Response/Reply. The Court having considered the Defendants' Unopposed Motion for Extension of Time, and it appearing that there is good cause to grant the relief requested therein based upon the plaintiffs' consent to the motion, it is ORDERED that the motion is GRANTED. It is further ORDERED that the defendants shall file their supplemental brief in response to the Plaintiffs' Memorandum in Response to the Court's November 1, 2011 Order on or before December 5, 2011. It is further ORDERED that the plaintiffs shall file their reply to the defendants' supplemental brief on or before December 12, 2011. Signed by Judge Reggie B. Walton on 11−28−11 (lcrbw3). (Entered: 11/28/2011)
Set/Reset Deadlines: Supplemental Memorandum Brief due by 12/5/2011; Reply to Supplemental Brief 12/12/11. (mpt) (Entered: 11/29/2011)
24 ENTERED IN ERROR. . . . .MOTION to Dismiss Supplemental Brief in Support by UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM VILSACK (Olson, Lisa) Modified on 12/6/2011 (td, ). (Entered: 12/05/2011)
25 SUPPLEMENTAL MEMORANDUM to re 12 MOTION to Dismiss filed by ERIC HOLDER, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM VILSACK. (td, ) (Entered: 12/06/2011)
NOTICE OF CORRECTED DOCKET ENTRY: 24 was entered in error and refiled as docket entry no. 25 using the correct event. (td, ) (Entered: 12/06/2011)
26 Memorandum in opposition to re 25 MOTION to Dismiss Supplemental Brief in Support filed by DAVID CANTU. (Attachments: # 1 Exhibit)(Hill, Stephen) Modified on 12/13/2011 to correct linkage (td, ). (Entered: 12/12/2011)
27 ORDER denying 12 Motion to Dismiss; denying 16 Motion to Certify Class; denying 17 Motion to Stay; denying 17 Motion to Strike. For the reasons set forth in the attached order, it is ORDERED that all pending motions in this case are denied without prejudice. It is further ORDERED that the parties shall notify the Court if and when the defendants finalize the ADR program for Hispanic farmers. At that time, the

12/30/2011 12/30/2011 01/06/2012
01/20/2012 01/26/2012 02/21/2012 03/23/2012 04/23/2012 05/23/2012 05/23/2012 05/24/2012 06/20/2012

parties shall advise the Court whether they desire to have the pending motions in this case reinstated and taken under advisement by the Court. If such a request is made, the defendants shall submit for the Court's review a copy of the final version of the defendants' ADR program for Hispanic farmers. It is further ORDERED that the defendants shall submit status reports to the Court and the plaintiffs every 30 days, starting from the date of entry of this order and until the ADR program is finalized, addressing the progress that has been made toward the finalization of the ADR program for Hispanic farmers. It is further ORDERED that this case is ADMINISTRATIVELY CLOSED pending further order of the Court. Signed by Judge Reggie B. Walton on 12−21−11 (lcrbw3). (Entered: 12/21/2011)
28 Unopposed MOTION to Withdraw as Attorney by DAVID CANTU (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Murray, Christopher) (Entered: 12/30/2011)
29 NOTICE of Change of Address by Stephen S Hill (Hill, Stephen) (Entered: 12/30/2011)
MINUTE ORDER granting 28 Motion to Withdraw as Attorney. In accordance with the oral rulings issued by the Court at the hearing held on this same date, it is ORDERED that the Motion to Withdraw Howrey, LLP, and Christopher Murray as Counsel Submitted by the Chapter 11 Bankruptcy Trustee of Howrey, LLP is GRANTED. Signed by Judge Reggie B. Walton on 1−6−11 (lcrbw3). (Entered: 01/06/2012)
30 STATUS REPORT First by ERIC HOLDER, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM VILSACK. (Attachments: # 1 Exhibit Framework)(Olson, Lisa) (Entered: 01/20/2012)
31 NOTICE of Charging Lien of Howrey LLP by DAVID CANTU (Murray, Christopher) (Entered: 01/26/2012)
32 STATUS REPORT Second by UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM VILSACK. (Olson, Lisa) (Entered: 02/21/2012)
33 STATUS REPORT Third by ERIC HIMPTON HOLDER, JR, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM VILSACK. (Olson, Lisa) (Entered: 03/23/2012)
34 STATUS REPORT Fourth by UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM VILSACK. (Olson, Lisa) (Entered: 04/23/2012)
35 ENTERED IN ERROR.....STATUS REPORT Fifth by UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM VILSACK. (Olson, Lisa) Modified on 5/24/2012 (znmw, ). (Entered: 05/23/2012)
36 STATUS REPORT Fifth by UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM VILSACK. (Olson, Lisa) (Entered: 05/23/2012)
NOTICE OF CORRECTED DOCKET ENTRY: Docket Entry 35 Status Report was entered in error and was refiled by counsel as Docket Entry 36 Status Report. (znmw, ) (Entered: 05/24/2012)
37 ORDER. Per the attached Order, the plaintiffs shall amend their complaint on or before July 13, 2012. The deadline for the defendants' response to the plaintiffs' forthcoming amended complaint is stayed pending further Order of the Court. Consistent with the government's request at the hearing held on June 19, 2012, the government shall submit to the Court and the plaintiffs on or before August 3, 2012, a final version of the claims form that it plans to use in connection with its forthcoming administrative claims process. This case shall be referred to a Magistrate Judge for a period beginning on July 13, 2012, and continuing until August 24, 2012, for the purpose of formulating a schedule governing the litigation of this case. The Magistrate Judge shall issue a report and recommendation to the undersigned setting forth his or

06/21/2012 06/22/2012 06/22/2012 06/25/2012 06/26/2012 06/26/2012 07/03/2012 07/13/2012 07/13/2012
07/16/2012 07/16/2012 07/24/2012 07/25/2012 08/17/2012 08/24/2012

her proposal on or before August 24, 2012. The parties shall appear before the Court for a status conference at 10:00 a.m. on August 28, 2012. Signed by Judge Reggie B. Walton on 6−20−12. (lcrbw3) (Entered: 06/20/2012)
Set/Reset Deadlines/Hearings: Amended Complaint due by 7/13/2012. Final Version of Administrative Claim due by 8/3/2012. Status Conference set for 8/28/2012 10:00 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt) (Entered: 06/21/2012)
38 STATUS REPORT Sixth by UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM VILSACK. (Olson, Lisa) (Entered: 06/22/2012)
39 Unopposed MOTION to Withdraw as Attorney Unopposed Motion of Stephen S. Hill to Withdraw as Counsel of Record filed on behalf of all plaintiffs by NOE OBREGON, MODESTO RODRIGUEZ, RUPERTO RODRIGUEZ, MODESTA SALAZAR (Attachments: # 1 Text of Proposed Order)(Hill, Stephen) (Entered: 06/22/2012)
40 NOTICE of Appearance by Richard A. Hibey on behalf of DAVID CANTU, GUADALUPE GARCIA, NOE OBREGON, MODESTA SALAZAR (Hibey, Richard) (Entered: 06/25/2012)
41 NOTICE of Appearance by Robert F. Ruyak on behalf of DAVID CANTU, GUADALUPE GARCIA, NOE OBREGON, MODESTA SALAZAR (Ruyak, Robert) (Entered: 06/26/2012)
42 NOTICE of Appearance by Adam P. Feinberg on behalf of DAVID CANTU, GUADALUPE GARCIA, NOE OBREGON, MODESTA SALAZAR (Feinberg, Adam) (Entered: 06/26/2012)
43 ORDERED that the 39 Motion to Withdraw as Attorney for NOE OBREGON, MODESTO RODRIGUEZ, RUPERTO RODRIGUEZ, MODESTA SALAZAR is GRANTED. Attorney Stephen S Hill terminated. Signed by Judge Reggie B. Walton on 6/27/12. (mpt) (Entered: 07/03/2012)
44 ENTERED IN ERROR.....CASE REFERRED to Magistrate Judge Alan Kay for Report and Recommendation. (sth, ) Modified on 7/16/2012 (jeb, ). (Entered: 07/13/2012)
46 FIRST AMENDED COMPLAINT against ERIC HIMPTON HOLDER, JR, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM J. VILSACK filed by MODESTA SALAZAR, NOE OBREGON, GUADALUPE GARCIA, DAVID CANTU, RUPERTO RODRIGUEZ, MODESTO RODRIGUEZ. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(znmw, ) (Entered: 07/16/2012)
45 CASE REFERRED to Magistrate Judge John M. Facciola for a report and recommendation. (jeb, ) (Entered: 07/16/2012)
NOTICE OF CORRECTED DOCKET ENTRY: re 44 Case Referred to Magistrate Judge was entered in error. This case was inadvertently assigned to Magistrate Judge Alan Kay. The case is correctly assigned to Magistrate Judge John M. Facciola.(jeb, ) (Entered: 07/16/2012)
47 STATUS REPORT Seventh by UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM J. VILSACK. (Attachments: # 1 Exhibit Claim Form)(Olson, Lisa) (Entered: 07/24/2012)
48 ORDER re referral to Judge Facciola for a Report and Recommendation. Signed by Magistrate Judge John M. Facciola on 7/25/12. (SP, ) (Entered: 07/25/2012)
Set/Reset Hearings: Status Conference set for 8/24/2012 10:00 AM in Courtroom 6 before Magistrate Judge John M. Facciola. (lcjmf1, ) (Entered: 08/17/2012)
49 Report and Recommendation re 37 Order. Signed by Magistrate Judge John M. Facciola on 8/24/12. (lcjmf1, ) (Entered: 08/24/2012)

08/24/2012
08/24/2012 08/30/2012 09/24/2012 09/24/2012 09/28/2012 10/01/2012 10/03/2012 10/15/2012 10/15/2012

MINUTE ORDER. Having considered the Magistrate Judge's Report and Recommendation 49 , the Court agrees with the recommendations made therein, and it is accordingly ORDERED that the Report and Recommendation is ADOPTED in its entirety. It is further ORDERED that this case shall proceed as follows: (1) the stay on litigation proceedings is lifted, but not the stay as to the statute of limitations for bringing new claims and adding new plaintiffs to the respective cases; (2) the defendants shall file a partial motion to dismiss addressing the four new claims in the amended complaints by September 24, 2012; (3) the plaintiffs shall file their responses to the motion to dismiss, and if they deem necessary, an affirmative motion for summary judgment by October 15, 2012; (4) the defendants shall file their reply to the opposition to the motion to dismiss, and if necessary, a response to the motion for summary judgment by November 15, 2012; (5) the plaintiffs shall file their reply to the defendant's opposition to the motion for summary judgment by November 29, 2012. It is further ORDERED that the status conference originally set for 10:00 a.m. on August 28, 2012, is CANCELED, it being unnecessary in light of the foregoing schedule. Signed by Judge Reggie B. Walton on 8−24−12 (lcrbw3). (Entered: 08/24/2012)
Minute Entry for proceedings held before Magistrate Judge John M. Facciola: Status Conference held on 8/24/2012. (Court Reporter Bowles Reporting.) (lm, ) (Entered: 08/28/2012)
Set/Reset Deadlines: Partial Motion to Dismiss due by 9/24/2012; Summary Judgment motion due by 10/15/2012. Response to Motion for Summary Judgment due by 11/15/2012. Reply to Motion for Summary Judgment due by 11/29/2012. (mpt) (Entered: 08/30/2012)
50 MOTION for Protective Order Regarding Defendants' Solicitation of Settlements with Putative Class Members by DAVID CANTU, GUADALUPE GARCIA, NOE OBREGON, MODESTO RODRIGUEZ, RUPERTO RODRIGUEZ, MODESTA SALAZAR (Attachments: # 1 Exhibit A − Flyer/Poster, # 2 Exhibit B − Fact Sheet, # 3 Text of Proposed Order)(Feinberg, Adam) (Entered: 09/24/2012)
51 MOTION to Dismiss First Amended Class Action Complaint by ERIC HIMPTON HOLDER, JR, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM J. VILSACK (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Olson, Lisa) (Entered: 09/24/2012)
52 MOTION to Stay re 50 MOTION for Protective Order Regarding Defendants' Solicitation of Settlements with Putative Class Members by ERIC HIMPTON HOLDER, JR, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM J. VILSACK (Attachments: # 1 Text of Proposed Order)(Olson, Lisa) (Entered: 09/28/2012)
53 RESPONSE re 52 MOTION to Stay re 50 MOTION for Protective Order Regarding Defendants' Solicitation of Settlements with Putative Class Members filed by DAVID CANTU, GUADALUPE GARCIA, NOE OBREGON, MODESTO RODRIGUEZ, RUPERTO RODRIGUEZ, MODESTA SALAZAR. (Attachments: # 1 Text of Proposed Order)(Feinberg, Adam) (Entered: 10/01/2012)
54 REPLY to opposition to motion re 52 MOTION to Stay re 50 MOTION for Protective Order Regarding Defendants' Solicitation of Settlements with Putative Class Members filed by ERIC HIMPTON HOLDER, JR, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM J. VILSACK. (Olson, Lisa) (Entered: 10/03/2012)
55 ORDER denying 52 Motion to Stay. For the reasons set forth in the attached Order, it is ORDERED that the Defendants' Motion to Stay Consideration of Plaintiffs' Motion for Protective Order is DENIED. It is further ORDERED that the defendants shall file their memorandum in opposition to the plaintiffs' motion on or before October 22, 2012. Signed by Judge Reggie B. Walton on 10−15−12. (lcrbw3) (Entered: 10/15/2012)
56 Memorandum in opposition to re 51 MOTION to Dismiss First Amended Class Action Complaint filed by DAVID CANTU, GUADALUPE GARCIA, NOE OBREGON, MODESTO RODRIGUEZ, RUPERTO RODRIGUEZ, MODESTA SALAZAR.

10/16/2012 10/22/2012
10/31/2012
11/15/2012
12/11/2012
12/11/2012 02/05/2013
02/06/2013 02/08/2013 04/05/2013

(Attachments: # 1 Text of Proposed Order)(Feinberg, Adam) (Entered: 10/15/2012)
Set/Reset Deadlines: Opposition due by 10/22/2012 (mpt) (Entered: 10/16/2012)
57 Memorandum in opposition to re 50 MOTION for Protective Order Regarding Defendants' Solicitation of Settlements with Putative Class Members filed by ERIC HIMPTON HOLDER, JR, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM J. VILSACK. (Olson, Lisa) (Entered: 10/22/2012)
58 REPLY to opposition to motion re 50 MOTION for Protective Order Regarding Defendants' Solicitation of Settlements with Putative Class Members filed by DAVID CANTU, GUADALUPE GARCIA, NOE OBREGON, MODESTO RODRIGUEZ, RUPERTO RODRIGUEZ, MODESTA SALAZAR. (Feinberg, Adam) (Entered: 10/31/2012)
59 REPLY to opposition to motion re 51 MOTION to Dismiss First Amended Class Action Complaint filed by ERIC HIMPTON HOLDER, JR, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, TOM J. VILSACK. (Olson, Lisa) (Entered: 11/15/2012)
60 ORDER denying 50 Motion for Protective Order; granting 51 Motion to Dismiss. In accordance with the Memorandum Opinion issued this same date, it is ORDERED that the defendants' motion to dismiss is GRANTED. It is further ORDERED that this case is CLOSED, and all pending motions are DENIED as moot. Signed by Judge Reggie B. Walton on 12−11−12. (lcrbw3) (Entered: 12/11/2012)
61 MEMORANDUM OPINION. Signed by Judge Reggie B. Walton on 12−11−12. (lcrbw3) (Entered: 12/11/2012)
62 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 60 Order on Motion for Protective Order, Order on Motion to Dismiss,, 61 Memorandum & Opinion by DAVID CANTU, GUADALUPE GARCIA, NOE OBREGON, MODESTO RODRIGUEZ, RUPERTO RODRIGUEZ, MODESTA SALAZAR. Filing fee $ 455, receipt number 0090−3208723. Fee Status: Fee Paid. Parties have been notified. (Feinberg, Adam) (Entered: 02/05/2013)
63 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date 2/5/13 re 62 Notice of Appeal to DC Circuit Court,. (td, ) (Entered: 02/06/2013)
USCA Case Number 13−5044 for 62 Notice of Appeal to DC Circuit Court, filed by MODESTA SALAZAR, MODESTO RODRIGUEZ, DAVID CANTU, RUPERTO RODRIGUEZ, GUADALUPE GARCIA, NOE OBREGON. (td, ) (Entered: 02/08/2013)
64 TRANSCRIPT OF PROCEEDINGS before Magistrate Judge John M. Facciola. Status Conference held on 8/24/2012; Page Numbers: 1−47. Court Reporter/Transcriber Bowles Reporting Service, Court Reporter Email Address : brs−ct@sbcglobal.net.
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.
Redaction Request due 4/26/2013. Redacted Transcript Deadline set for 5/6/2013. Release of Transcript Restriction set for 7/4/2013.(znmw, ) (Entered: 04/08/2013)

08/13/2014
10/09/2014 10/09/2014 11/07/2014 11/25/2014 12/18/2014 01/09/2015 01/28/2015
01/29/2015
01/30/2015 02/11/2015
02/16/2015
02/18/2015 02/27/2015

65 MANDATE of USCA (certified copy) as to 62 Notice of Appeal to DC Circuit Court, filed by MODESTA SALAZAR, MODESTO RODRIGUEZ, DAVID CANTU, RUPERTO RODRIGUEZ, GUADALUPE GARCIA, NOE OBREGON ; USCA Case Number 13−5044. ORDERED and ADJUDGED that the judgment of dismissal be reversed and the case remanded to the district court. (kb) (Entered: 08/13/2014)
66 NOTICE of Appearance by Laura G. Ferguson on behalf of DAVID CANTU, GUADALUPE GARCIA, NOE OBREGON, MODESTO RODRIGUEZ, RUPERTO RODRIGUEZ, MODESTA SALAZAR (Ferguson, Laura) (Entered: 10/09/2014)
67 NOTICE of Appearance by Andrew Dewald Herman on behalf of All Plaintiffs (Herman, Andrew) (Entered: 10/09/2014)
68 Consent MOTION for Briefing Schedule Regarding Defendants' Motion to Dismiss by DAVID CANTU, GUADALUPE GARCIA, NOE OBREGON, MODESTO RODRIGUEZ, RUPERTO RODRIGUEZ, MODESTA SALAZAR (Attachments: # 1 Text of Proposed Order)(Feinberg, Adam) (Entered: 11/07/2014)
69 MOTION to Dismiss by ERIC H. HOLDER, JR, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, THOMAS J. VILSACK (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Olson, Lisa) (Entered: 11/25/2014)
70 NOTICE of Appearance by Jonathan D. Kossak on behalf of DAVID CANTU, GUADALUPE GARCIA, NOE OBREGON, MODESTO RODRIGUEZ, RUPERTO RODRIGUEZ, MODESTA SALAZAR (Kossak, Jonathan) (Entered: 12/18/2014)
71 Memorandum in opposition to re 69 MOTION to Dismiss First Amended Class Action Complaint filed by DAVID CANTU, GUADALUPE GARCIA, NOE OBREGON, MODESTO RODRIGUEZ, RUPERTO RODRIGUEZ, MODESTA SALAZAR. (Attachments: # 1 Text of Proposed Order)(Feinberg, Adam) (Entered: 01/09/2015)
72 Unopposed MOTION for Extension of Time to File Response/Reply as to 69 MOTION to Dismiss by ERIC H. HOLDER, JR, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, THOMAS J. VILSACK (Attachments: # 1 Text of Proposed Order)(Olson, Lisa) (Entered: 01/28/2015)
MINUTE ORDER granting 72 Defendants' Unopposed Motion for Extension of Time. For good cause shown, and in light of the parties' consent, it is hereby ORDERED that the Defendants' Unopposed Motion for Extension of Time is GRANTED, and their reply in support of their motion to dismiss shall be filed on or before February 13, 2015. Signed by Judge Reggie B. Walton on 1/29/2015. (lcrbw3, ) (Entered: 01/29/2015)
Set/Reset Deadlines: Reply due by 2/13/2015. (mpt, ) (Entered: 01/30/2015)
73 Unopposed MOTION for Extension of Time to File Response/Reply as to 69 MOTION to Dismiss by ERIC H. HOLDER, JR, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, THOMAS J. VILSACK (Attachments: # 1 Text of Proposed Order)(Olson, Lisa) (Entered: 02/11/2015)
MINUTE ORDER granting 73 Motion for Extension of Time to File Response/Reply. Upon consideration of the Defendants' Second Unopposed Motion for Extension of Time, and in light of the parties' consent, it is hereby ordered that the motion is GRANTED nunc pro tunc to February 13, 2015. It is further ORDERED that the defendants shall file their reply in support of their motion to dismiss on or before February 27, 2015. Signed by Judge Reggie B. Walton on February 16, 2015. (lcrbw2) (Entered: 02/16/2015)
Set/Reset Deadlines: Reply due by 2/27/2015. (mpt, ) (Entered: 02/18/2015)
74 REPLY to opposition to motion re 69 MOTION to Dismiss filed by ERIC H. HOLDER, JR, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, THOMAS J. VILSACK. (Olson, Lisa) (Entered: 02/27/2015)

05/14/2015 06/08/2015 09/21/2015
10/26/2015 03/01/2016
03/21/2016

MINUTE ORDER. In light of the pending motions before the Court, it is hereby ORDERED that the case is ADMINISTRATIVELY REOPENED. Signed by Judge Reggie B. Walton on May 14, 2015. (lcrbw1) (Entered: 05/14/2015)
75 STATUS REPORT by ERIC H. HOLDER, JR, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OF AMERICA, THOMAS J. VILSACK. (Attachments: # 1 Exhibit Exhibit A)(Olson, Lisa) (Entered: 06/08/2015)
MINUTE ORDER denying 68 Motion for Briefing Schedule. As the parties have already completed briefing for the defendants' pending motion to dismiss, it is hereby ORDERED that the plaintiffs' Consent Motion to Establish a Briefing Schedule for Defendants' Motion to Dismiss is DENIED AS MOOT. Signed by Judge Reggie B. Walton on September 21, 2015. (lcrbw1) (Entered: 09/21/2015)
76 STATUS REPORT Eleventh by ERIC H. HOLDER, JR, UNITED STATES DEPARTMENT OF AGRICULTURE. (Olson, Lisa) (Entered: 10/26/2015)
77 ORDER granting 69 Motion to Dismiss. For the reasons set forth in the attached Order, it is hereby ORDERED that the Defendants' Motion to Dismiss is GRANTED. It is further ORDERED that the plaintiffs' claims are DISMISSED. It is further ORDERED that this case is CLOSED. Signed by Judge Reggie B. Walton on March 1, 2016. (lcrbw1) (Entered: 03/01/2016)
78 NOTICE of Change of Address by Adam P. Feinberg (Feinberg, Adam) (Entered: 03/21/2016)


[CONTENT] March 15, 2011 | Hispanic | the United States | the U.S. Department of Agriculture | the U.S. District Court ||| Garcia v. Vilsack</i></a | Hispanic | USDA | USDA | Hispanics | the 1990s ||| Fifth Amendment ||| American</a | USDA ||| only $1.33 billion | $2.23 billion | African American | Hispanic | African American | 12 ||| the Declaratory Judgment Act | the Administrative Procedures Act ||| Hispanic | African American | Native American ||| March 25, 2011 | USDA | Hispanic ||| May 11, 2011 | US ||| June 11, 2011 | June 14 ||| November 11, 2011 | Reggie B. Walton ||| December 21, 2011 | Walton | Defendants | ADR ||| January 20, 2012 ||| first | April 13, 2012 | Walton | August 24, 2012 ||| September 24, 2012 ||| December 11, 2012 | Walton ||| 908 ||| 2d 146 ||| February 15, 2013 | the U.S. Court of Appeals for the District of Columbia Circuit | 13 ||| Circuit | more than a year later | May 7, 2014 ||| Executive Branch |||  ||| May 27, 2014 | Hispanic ||| November 25, 2014 ||| May 14, 2015 ||| October 26, 2015 | ADR | Hispanic ||| The Claims Adjudicator | 3,210 | ADR ||| October 23, 2015 | USDA | 2,847 | the Judgment Fund | another 126 ||| Months later | Walton ||| November 2014 | Walton ||| Walton | ADR ||| hispanic ||| Walton | March 2016 [SUMMARY] On March 15, 2011, a group of Hispanic farmers and ranchers brought suit against the United States and the U.S. Department of Agriculture (USDA) in the U.S. District Court for the District of Columbia. The plaintiffs, represented by private counsel, were potential claimants in <a href="http://www.clearinghouse.net/detail.php?id=12757">the proposed settlement agreement in <i>Garcia v. Vilsack</i></a>, an earlier case in which a group of Hispanic farmers and ranchers filed suit against the USDA, claiming that the USDA had systematically denied Hispanics farmers and ranchers loans and loan servicing in the 1990s.  In this case, the plaintiffs claimed that the defendants had violated their Fifth Amendment equal protection and due process rights by offering a settlement agreement unequal to the settlement agreement offered to <a href="http://www.clearinghouse.net/detail.php?id=12515">African American</a>, <a href="http://www.clearinghouse.net/detail.php?id=12657">Native American</a>, and women farmers and ranchers who had previously sued the USDA over similar discrimination. Specifically, the plaintiffs alleged that the proposed settlement agreement was unequal in comparison to the other discrimination settlements because it did not provide judicial supervision (leading to deficient notice and defective claims processes); did not provide assistance of class counsel; provided disproportionate monetary relief (only $1.33 billion, compared to the $2.23 billion in the African American discrimination case, despite Hispanic farmers outnumbering African American farmers 12 to 1); required additional proof elements in the claims process; and did not propose compensation for non-credit farm benefits. The plaintiff filed under the Declaratory Judgment Act and the Administrative Procedures Act. They sought a declaration that this settlement proposal violated the plaintiff's constitutional rights and a permanent injunction prohibiting the defendants from engaging in racially discriminatory treatment of Hispanic farmers by treating them differently in comparison to African American, Native American, and women farmers with similar complaints.

On March 25, 2011, the plaintiffs filed papers for a putative class of plaintiffs in the <i>Garcia</i> case, who allegedly "were subjected to, and continue to be subject to, USDA discrimination in its farm benefit programs" and who "are potential claimants" under the defendants' administrative claim process for Hispanic farmers.

On May 11, 2011, the US moved to dismiss the case, denying any unlawful conduct and stating that the plaintiffs lacked standing, were attempting improper claim splitting, and were time barred. The plaintiffs moved to certify the class on June 11, 2011, and the defendant moved on June 14 to stay the certification motion pending adjudication of the motion to dismiss.  On November 11, 2011, Judge Reggie B. Walton entered an order asking parties to clarify whether the plaintiffs' claims were ripe, given that the settlement agreement in <i>Garcia</i> had not been formally proposed.  On December 21, 2011, Judge Walton entered an order denying all extant motions without prejudice, and holding the case in abeyance pending an announcement of the final version of Defendants' ADR program, because this suit would be unripe until the settlement agreement was formally proposed.

On January 20, 2012, the defendants in the <i>Garcia</i> case submitted the proposed framework for the settlement agreement. Based on the proposal, the plaintiffs in this case submitted a first amended complaint on April 13, 2012, and Judge Walton lifted the stay on the case on August 24, 2012. The defendant then moved to dismiss the amended complaint on September 24, 2012. On December 11, 2012, Judge Walton granted the defendants' motion to dismiss, ruling that there was no injury because participation in the administrative claims process was optional, and that the suit lacked redressability because the court had no way of compelling the government to propose a specific settlement agreement. 908 F. Supp. 2d 146.

On February 15, 2013, the plaintiffs entered a notice of appeal with the U.S. Court of Appeals for the District of Columbia Circuit (docket no. 13-05044). The Circuit court heard oral arguments from the parties more than a year later on May 7, 2014. In its opinion, the appellate court agreed that the plaintiffs' prayer for relief overreached because the court could not coerce a party, especially an Executive Branch agency, to settle in a case. Therefore, the district court correctly held that it lacked authority to enjoin the government to offer class settlement such as in previous cases. However, the appeals court reversed the lower court's decision and remanded the case on May 27, 2014 because the district court could have granted relief in the form of an injunction ordering the government not to act on unlawful racial grounds toward Hispanic and female farmers. 

While the parties litigated the case in district court on remand, the defendant filed a new motion on November 25, 2014 to dismiss on the grounds that the court lacked subject matter jurisdiction and that the complaint failed to state a valid claim. In response to the defendant's motion, the district court officially reopened the case on May 14, 2015.

On October 26, 2015, the defendant filed a status report regarding the voluntary alternative dispute resolution (ADR) program established for farmers alleging discrimination against Hispanic and female individuals in making or servicing farm loans. The Claims Adjudicator approved a total of 3,210 claims in the ADR program. On October 23, 2015, USDA reported as a total of 2,847 of the approved claims had been paid by the Judgment Fund, and another 126 claims were in process.

Months later, Judge Walton granted the defendant's renewed motion to dismiss the case. When the defendant moved to dismiss in November 2014, Judge Walton found that in light of the appeals court's agreement that a court cannot order a party to settle, only the plaintiffs' equal protection claim remained. Judge Walton reasoned that the plaintiffs' other claims related to specific terms of the ADR and therefore the court did not have the authority to adjudicate those issues.

In relation to plaintiffs' equal protection claim, the defendant contended that the plaintiffs failed to state a claim because the complaint did not allege facts showing that the defendant had a discriminatory purpose in settling claims brought by hispanic or female farmers. Judge Walton agreed with the defendant and dismissed the case in March 2016, closing the case.