On October 13, 2000, a group of Hispanic farmers and ranchers filed this suit against the U.S. Department of Agriculture ("USDA") in the U.S. District Court for the District of Columbia. Plaintiffs, represented by private counsel, alleged that the "USDA ha[d] maintained, and continue[d] to maintain, a system of administering its farm credit and non-credit benefit programs that gives virtually unfettered discretion to local officials to enforce highly subjective eligibility criteria that, in turn, give vent to hostility to minority farmers which deprives them of an equal fair opportunity to participate in such programs." Some of the discriminatory practices that Plaintiffs complained of included: discouraging Hispanics from applying for loans, long delays in processing applications, high denial rates, prejudicial delays in providing loans and providing less amount than was requested, and failing to provide loan servicing assistance. Additionally, Plaintiffs claimed it was virtually impossible for them to secure redress through the USDA appeals process, because its Civil Rights Office was so severely limited by lack of funding and interest that there it was incapable of investigating discrimination claims. The statute of limitations for such claims had run, but Plaintiffs cited the Omnibus Consolidated Appropriations Act of 1999, 7 U.S.C. §2279, which waived the statute of limitations for such claims.
Plaintiffs filed under the Equal Credit Opportunity Act (ECOA), 15 U.S.C. §1691, the Declaratory Judgment Act, 28 U.S.C. §2201, and the Administrative Procedures Act (APA), 5 U.S.C. §§ 551 et seq., requesting the following relief: (1) declaratory judgment that the practices, policies, patterns and procedures described above were unlawful, (2) a permanent injunction requiring USDA to adopt lending practice in conformity with ECOA and the APA, (3) a permanent injunction prohibiting USDA from engaging in discrimination in the administration of their loan programs and services, (4) an order mandating USDA to remedy its discriminatory practices by taking affirmative action to advertise to Hispanics, adopt a receipt system for all contacts with potential lendees, provide full and equal assistance to all farmers, provide Spanish versions of all application and explanation paperwork, employ fluent Spanish speakers, provide expedited review via independent mediators, and provide semi-annual reports to the Department Secretary, (5) redesign the computerized data collection system in order to ensure that full transparency is achieved, and (6) compensatory damages to deserving plaintiffs.
On December 22, 2000, the U.S. moved to dismiss all claims in Plaintiffs' complaint. On March 20, 2002, District Court Judge James Robertson granted in part and denied in part the motion to dismiss, dismissing the failure to investigate counts because, he found, they did not state a claim under ECOA or the APA. 2002 WL 33004124 (D.D.C. 2002).
December 22, 2000, Plaintiffs moved to certify the class. This class was described as: "Hispanics who farmed or ranched, or attempted to farm or ranch, during the period January 1, 1981, to the present and who were discriminated against by the USDA on the basis of national origin when they sought to participate on equal terms in farm loan and disaster benefit programs and who complained to the USDA about such discrimination." Subclasses were also proposed, defined by the phase of lending process in which the discrimination took place. Judge Robertson denied this motion on December 2, 2002, citing inadequate predominant of common question of law or fact to sustain the class certification. 211 F.R.D. 15 (D.D.C. 2002). Plaintiffs entered a renewed motion for class certification, attempting to remedy the commonality issue. However, Judge Robertson denied the renewed motion on September 10, 2004, stating that claims still lacked sufficient commonality. 224 F.R.D. 8 (D.D.C. 2004). Plaintiffs appealed this decision and the March 20, 2002 dismissal order to the U.S. Court of Appeals for the District of Columbia Circuit.
Plaintiffs had sought a temporary restraining order on March 23, 2001, but on March 27, 2001, District Court Judge Louis F. Oberdorfer denied the motion. During the appeal, Plaintiffs entered an emergency motion for preliminary injunction to the District Court on November 1, 2004, asking the court to order Defendant to adhere to the USDA policy that prohibits adverse actions against farmers who have filed civil rights complaints. However, Judge Robertson denied this motion on November 18, 2004, ruling that foreclosures were not necessarily prohibited by the policy.
On March 31, 2006, the U.S. Court of Appeals (Judge Karen L. Henderson) affirmed the District Court's denial of class certification and dismissal of the ECOA failure-to-investigate claim. 444 F.3d 625 (D.C. Cir. 2006). However, the Court of Appeals dismissed the appeal regarding the APA failure-to-investigate claim, remanding to the District Court to investigate the claim further.
Plaintiffs filed their third amended complain on June 30, 2006.
On November 30, 2007, Judge Robertson, after reconsidering the APA failure-to-investigate claim, dismissed the claim, citing his reasoning a similar opinion in Love v. Vilsack
(see 525 F. Supp. 2d 155). Plaintiff appealed this decision again to the Court of Appeals. On April 24, 2009, the Court of Appeals (Judge Judith W. Rogers) affirmed the District Court dismissal of the APA claim. 563 F.3d 519 (D.C. Cir. 2009). Plaintiffs petitioned the U.S. Supreme Court for a writ of certiorari, but it was denied on January 19, 2010. 558 U.S. 1158 (2010).
On October 6, 2010, Plaintiffs, in response to a proposed settlement submitted by Defendant, moved the District Court to certify the settlement class before reviewing the proposed settlement agreement, citing several fairness issues. On October 20, 2010, District Court Judge Reggie B. Walton denied this motion.
On January 20, 2012, Defendant submitted its eighth status report, which included the latest proposed settlement agreement framework, which creates three tracks of payment claims: Tier 2 ($50,000 reward, requires "substantial evidence" of discrimination), Tier 1(a) ($50,000 reward and debt relief, requires substantial evidence of discrimination), and Tier 1(b) (up to $250,000 reward, required a preponderance of the evidence of discrimination). Plaintiffs complain, however, that this framework lacks the "procedural safeguards" that have existed in similar settlements such as Pigford v. Glickman
and Keepseagle v. Vilsack
On April 4, 2013, the Black Farmers and Agriculturalists Association, Inc., which had been removed as a party by the District Court in In re Black Farmers Discrimination Litigation
, moved to intervene in this matter. Both parties oppose this motion.
This case is still ongoing.Dan Osher - 06/29/2013