Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 1 of 59

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GUADALUPE L. GARCIA, JR., FOR HIMSELF AND ON BEHALF OF G.A. GARCIA AND SONS FARM 9303 North Dona Ana Rd Las Cruces, New Mexico 88007
and
TONY AND PATRICIA JIMENEZ 3671 Old Toll Road Cathey's Valley, California 95306
And EDWARD AND NORMA FLORES PO Box 963 Chimayo, New Mexico 87522
and
GLORIA MORALEZ 153 North Effie Fresno, California 93721
and
BEATRICE AND RODOLFO GARZA 109 North Avenue C Crystal City, Texas 78839
and
LARRY CHAVARRIA AND ROBERT CHAVARRIA FOR THEMSELVES AND ON BEHALF OF CRAVARRIA FARMING CO. PO Box 386 Lemoore, California 93245
and

) ) ) ) Civil Action No. 1:00CV02445 ) )
) ) Judge: James R. Robertson ) ) ) ) THIRD AMENDED CLASS ACTION ) COMPLAINT ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

1

Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 2 of 59

MR. RIGOBERTO BANUELOS

)

6412 S. Walnut

)

Fresno, CA 93706

)

)

and

)

)

MR. MODESTO RODRIQUEZ

)

MR. RUPERTO R. RODRIGUEZ

)

MR. MODESTA SALAZAR

)

RODRIGUEZ BROTHERS, INC.

)

11618 Pompano Lane

)

Houston, TX 77072

)

)

and

)

)

ON BEHALF OF THEMSELVES AND )

ALL OTHERS SIMILARLY SITUATED, )

INCLUDING BUT NOT LIMITED TO )

THE FOLLOWING INDIVIDUAL

)

PLAINTIFFS:

)

)

Mr. Esrael Mendoza

)

PO Box 944

)

Willcox, AZ 85644

)

)

and

)

)

Mr. Ysidoro F. Mendoza

)

PO Box 494

)

Willcox, AZ 85644

)

)

and

)

)

Mr. Ruben Alvarez

)

7336 S. Alta Avenue

)

Fresno, CA 93654

)

)

and

)

)

Mr. Salvador Amezquita

)

24795 EI Rosario St

)

Salinas, CA 93906

)

)

and

)

)

2

Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 3 of 59

Mr. Gustovo Arevalo

)

228 Tapadero St

)

Salinas, CA 93906

)

)

and

)

)

Mr. Ricardo Arevalo

)

228 Tapadero St

)

Salinas, CA 93906

)

)

and

)

)

Mr. Juan Atayde

)

12919 Kennedy Circle

)

Salinas, CA 93906

)

)

and

)

)

Mr. Efrain E. Bernal

)

490 Pini Rd

)

Watsonville, CA 95076

)

)

and

)

)

Mr. Alejandro Camargo

)

1478 E. El Dorado

)

Reddley, CA 93654

)

)

and

)

)

Mr. Jose Camargo

)

946 E. Carob Avenue

)

Reedley, CA 93654

)

)

and

)

)

Mr. & Mrs. Jose Chaidez

)

PO Box 3467

)

Clovis, CA 93613

)

)

and

)

)

Mr. Valentin Cornejo

)

153 Live Oak Rd

)

Watsonville, CA 95076

)

)

and

)

)

3

Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 4 of 59

Mr. Antonio Espindola

)

41650 Road 68

)

Diniba, CA 93618

)

)

and

)

)

Mr. Joe Flores

)

PO Box 2771

)

Fresno, CA 93745

)

)

and

)

)

Mr. Jaime Fuentes

)

13665 E. Gettysburg

)

Sanger, CA 93657

)

)

and

)

)

Mr. Ramon L. Garcilazo

)

583 Mariposa Street

)

Salinas, CA 93906

)

)

and

)

)

Ms. Joanne Garza

)

PO Box 36

)

Parlier, CA 93648

)

)

and

)

)

Mr. Norbero Iriarte

)

2035 S Whitney

)

Fresno, CA 93702

)

)

and

)

)

Mr. Alberto Jauregui

)

6 Newlyn Street

)

Salinas, CA 93906

)

)

and

)

)

Mr. Javier Ledesma

)

PO Box 941

)

Hollister, CA 95024

)

)

and

)

4

Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 5 of 59

Ms. Dora Linares

)

4822 S. Temperance

)

Fresno, CA 93625

)

)

and

)

)

Mr. Reyes Mancillas

)

7299 S. East Avenue

)

Fresno, CA 93725

)

)

and

)

)

Mr. Albert Mendina

)

10845 S. Walnut

)

Fresno, CA 93706

)

)

and

)

)

Mr. Angel Medina

)

86 Hidden Valley Road

)

Royal Oaks, CA 95076

)

)

and

)

)

)

Ms. Rita M. Moreno

)

86 Hidden Valley Road

)

Royal Oaks, CA 95076

)

)

and

)

)

Ms. Florencio R. Orozco

)

2073 Santa Rita St. #15

)

Salinas, CA 93906

)

)

and

)

)

Mr. Espirion Puentes

)

6134 W. Belmont Avenue

)

Fresno, CA 93722

)

)

and

)

)

Mr. Mateo Ruiz

)

1023 W. Clayton

)

Fresno, CA 93706

)

)

5

Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 6 of 59

and

)

)

Ms. Stella Ruiz

)

5782 S. Elm Street

)

Fresno, CA 93706

)

)

and

)

)

Mr. Ignacio Ruiz, Jr.

)

7135 S. Orange

)

Fresno, CA 93725

)

)

and

)

)

Mr. Jose Tellez

)

11 51 M Street

)

Reedley, CA 93654

)

)

and

)

)

Mr. Enrique Vasquez

)

7671 S. Orange

)

Fresno, CA 93725

)

)

and

)

)

Mr. Jess Vasquez

)

1626 E. Floral Avenue

)

Fresno, CA 93725

)

)

and

)

)

Mr. Tommy Vasquez

)

4636 w. American

)

Fresno, CA 93706

)

)

and

)

)

Mr. Frank Velarde

)

1505 E. Main

)

Trinidad, CO 81082

)

)

and

)

)

Mr. Alberto A. Acosta

)

PO Box 333

)

Animas, NM 88020

)

6

Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 7 of 59

and

)

)

Mr. & Mrs. Jimmy & Elizabeth

)

Alvarez

)

Star Route, Box 18

)

Salem, NM 87941

)

)

and

)

)

Mr. Juan Cisneros

)

PO Box 704

)

Questa, NM 87556

)

)

and

)

)

David Flores

)

173 Chickasaw Road

)

Hagerman, NM 88232

)

)

and

)

)

Mr. Oracio Encinias

)

3638 Quay Road 63.8

)

Tucumcari, NM 88401

)

)

and

)

)

Mr. Patrick R. Flores

)

PO Box 158

)

Pecos, NM 87552

)

)

and

)

)

Mr. Gilbert L. Garcia

)

9300 N. Highway 185

)

Las Cruces, NM 88007

)

)

and

)

)

Mr. Homer Garza

)

PO Box 34

)

Mesquite, NM 88048

)

)

and

)

)

7

Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 8 of 59

Mr. & Mrs. F. Richard &

)

Mary Helen Llanez

)

1620 W. OHara Rd

)

Anthony, NM 88021

)

)

and

)

)

Mr. Edwardo R. Lopez

)

10306 St. Hwy 104

)

Tucumcari, NM 88401

)

)

and

)

)

Ms. Sonja M. Myers

)

1356 County Road S

)

Clovis, NM 88101

)

)

and

)

)

Mr. Roberto Ortega

)

1802 W. Washington

)

Anthony, NM 88021

)

)

and

)

)

Mr. Robert Ortega, Jr.

)

855 Royce Road

)

La Mesa, NM 88044

)

)

and

)

)

Mr. Edward W. Provencio

)

PO Box 38

)

Chamberino, NM 88027

)

)

and

)

)

Mr. George L. Provencio

)

2208 W. Washington

)

Anthony, NM 88021

)

)

and

)

)

Mr. Alfredo Alvarez

)

9747 Southside Road

)

El Paso, TX 79927

)

)

8

Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 9 of 59

and

)

)

Mr. Manuel Cantu

)

PO Box 973

)

San Juan, IX 78589

)

)

and

)

Mr. Alex Contreras

)

390 Duhon Drive

)

Sour Lake, IX 77659

)

)

and

)

)

Mr. Joe Contreras

)

PO Box 912

)

Childress, IX 79201

)

)

and

)

)

Mr. Luis Contreras

)

PO Box 912

)

Childress, IX 79201

)

)

and

)

)

Mr. Iyn Davis

)

PO Box 751

)

Ft. Hancock, IX 79839

)

)

and

)

)

Mr. Hector I. Flores

)

7535 Adobe Rd.

)

El Paso, IX 79915

)

)

and

)

)

Mr. Juan 1. Flores

)

7535 Adobe Rd.

)

E1 Paso, IX 79915

)

)

and

)

)

Mr. Salvador T. Flores

)

PO Box 510

)

Fabens, IX 79838

)

)

9

Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 10 of 59

and

)

)

Mr. Jose Luis Galvan

)

PO Box l30

)

Ft. Hancock, IX 79839

)

)

and

)

)

)

Mr. Albert Garcia

)

470 CR 44

)

Muleshoe, IX 79347

)

)

)

and

)

)

Mr. Jose Gutierrez

)

PO Box 21

)

Maple, IX 79344

)

)

and

)

)

Mr. Alberto M. Ortega

)

Rt. 3 Box 111

)

Mercedes, IX 78570

)

)

and

)

)

Mr. Rene Ortega

)

Rt. 3 Box 108-M

)

Mercedes, IX 78570

)

)

and

)

)

Mr. Greg Ramon

)

220 South East 6th Street

)

Morton, IX 79346

)

)

and

)

)

Mr. Guadelupe Rejino

)

Route 3 Box 285

)

Muleshoe, IX 79347

)

)

and

)

)

10

Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 11 of 59

Mr. Roberto Salinas

)

PO Box 176

)

Smyer, IX 79367

)

)

and

)

)

Mr. Romeo Salinas

)

PO Box 176

)

Smyer, IX 79367

)

)

and

)

)

Mr. Erasmo Valdez

)

RR 3 Box 226-A

)

Mercedes, IX 78570

)

)

and

)

)

Mr. Dionicio Valdez II

)

1201 Lantana Lane

)

Weslaco, IX 78596

)

)

and

)

)

Mr. Arturo Vasquez

)

PO Box 485

)

Fabens, IX 79838

)

)

and

)

)

Mr. & Mrs. Rodolfo (deceased) & Delia )

Vasquez

)

PO Box 595

)

Fabens, IX 79838

)

)

and

)

)

Mr. David L. Hinojosa, Sr.

)

1215 Boyer Ave.

)

Walla Walla, WA 99362

)

)

Plaintiffs,

)

)

v.

)

)

11

Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 12 of 59

MICHAEL JOHANNS, Secretary

)

THE UNITED STATES DEPARTMENT )

OF AGRICULTURE

)

14th and Independence Avenue, S.W.

)

Washington, D.C. 20250

)

)

Defendant.

)

-------------)

THIRD AMENDED CLASS ACTION COMPLAINT (FOR DECLARATION JUDGMENT, REVIEW OF AGENCY ACTION, VIOLATIONS OF EQUAL CREDIT OPPORTUNITY ACT, AND OTHER RELIEF)

I.

OVERVIEW

The Congress has created, and heavily funded with taxpayer dollars, loan programs specifically targeted to provide assistance to those family farmers unable to secure needed capital elsewhere. The United States Department of Agriculture ("USDA"), acting through the Farm Service Agency ("FSA") and formerly through the Farmers Home Administration ("FmHA") (until 1994), is required to administer this loan program in a fair, equitable and nondiscriminatory manner. In addition, USDA administers taxpayer funded benefit and disaster relief programs which significantly impact family farmers and which USDA is likewise legally obliged to administer free of discrimination.

This lawsuit arises because, unfortunately, for decades USDA has systematically discriminated against Hispanic farmers and ranchers ("Hispanic farmers"); indeed, against nonwhite male farmers generally. Black farmers, Native American farmers and female farmers have separately initiated litigation attacking the problem. At the core of each lawsuit is the same problem. Despite repeated warnings of the consequences of doing so, USDA has maintained, and continues 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
12

Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 13 of 59
eligibility criteria that, in tum, give vent to hostility toward minority farmers which deprives them of an equal, fair opportunity to participate in such programs.
The hostility toward Hispanic farmers and the resulting discrimination are hallmarks of the decentralized system through which USDA distributes and administers its loan and benefit programs. More particularly, this discrimination manifests itself, among other ways, by seeking to discourage those Hispanic farmers who would dare attempt to avail themselves of USDA farm credit and non-credit benefit programs. This discouragement took various forms: first, Hispanics were consistently discouraged from even applying for loans or benefits; second, those Hispanics who nevertheless persisted in filing an application for loans or benefits experienced long delays in processing their applications; third, they experienced a high denial rate based upon highly subjective eligibility criteria; fourth, those Hispanics to whom loans were granted either experienced prejudicial delays in receiving the needed loans, received less than the requested loan amount or were subject to burdensome supervised bank accounts ("SBAs"), and fifth, when those farmers eventually needed loan servicing assistance, they received delayed or no such assistance. The difficulty confronting Hispanic farmers is compounded because the USDA mechanism for handling their discrimination complaints-which USDA encouraged aggrieved minority farmers to file-was useless. USDA failed to investigate the complaints, willfully avoided processing or resolving the complaints, stretched the review process out over many years, conducted meaningless or "ghost" investigations, or simply failed to do anything. And, USDA has to date failed to take meaningful remedial action to address the situation.
This situation is all the more egregious both because there is no real dispute about the facts and because it has persisted for so long. Beginning in 1965, the United States Commission on Civil Rights ("Civil Rights Commission") has published a series of studies documenting the
13

Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 14 of 59
nature and extent of USDA's discrimination against minority farmers in the delivery of loan and benefit programs. Congressional committees, the General Accounting Office ("GAO") and others outside USDA have recognized the pervasiveness of the problem and urged USDA to reform. Indeed, USDA conducted its own internal investigations of the problems, conceded that the critics were correct, and yet has failed effectively to address, much less to remedy, the problem. Consequently, notwithstanding all the publicity about this discrimination that infects USDA's farm credit and non-credit benefit programs and not withstanding all of USDA's lip service to reform, little has changed for Hispanic farmers.
USDA partially addressed essentially identical complaints by black farmers in the Pigford et. Ai. v. Glickman, Civil Action No. 97-1978 and 185 F.R.D. 82 (D.D.C. 1999) (approving Consent Decree) ("Pigford"), but has steadfastly refused to accommodate the concerns of Hispanic farmers. While the Pigford decree refers to certain remedial relief that relief has proven to be largely illusory in implementation and, for all practical purposes, the black farmer class received only monetary damages (some $850M to date). This left the USDA farm and loan benefit system untouched and has become a source of consternation and discontent to black farmers who received liquidated damages only to be confronted by the same discrimination the next time they applied for USDA farm credit. In addition, USDA has proven unable or unwilling to reform itself. Congress has likewise been unable or unwilling to rectify the situation. Out of desperation Hispanic farmers have chosen the only avenue open to them in their search for fair and equal treatment. Given the growing numbers of Hispanics who wish to farm in a effort to improve their economic lot, and given the existence of USDA loan and benefit programs enacted by Congress for the express purpose of assisting beginning farmers and
ranchers and enabling existing family farms to continue to operate, it is imperative that the Court
ensure that the necessary reforms are finally undertaken. In so doing, the Court will not only fix 14

Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 15 of 59
the system for Hispanic farmers but for all farmers -- minority and majority farmers. Secondarily, the Court should address the damages that are the natural consequence of the discrimination described herein. In that connection, the use of computer modeling to calculate any such damages will facilitate the class-wide treatment of such claims. As the experience of the Pigford class members makes abundantly clear, to award money damages without taking the necessary remedial action to eradiate the systemic discrimination that pervades USDA's credit and benefit programs is, in the final analysis, a prescription for continued discrimination. This case presents an opportunity to complete the unfinished business left in the wake of the Pigford decree and to eradicate once and for all the discrimination that infects the USDA's farm credit and benefit programs.
II. JURISDICTION
1. Jurisdiction is founded upon 15 U.S.C. § 1691e(a), 28 U.S.c. § 1331,28 U.S.c. § 1343,28 U.S.C. § 2201,42 U.S.C. § 2000d, 5 U.S.C. § 706 and 7 U.S.C. § 2279.
III. VENUE
2. Venue lies in this judicial district pursuant to 28 U .S.C. § 1391 (b) and (e).
IV. PARTIES
3. Plaintiff and proposed Class representative Guadalupe L. Garcia, Jr., is an Hispanic American farmer and resident of Dona Ana County, New Mexico. He and his father and brother, also Hispanic American farmers, farmed together as G.A. Garcia and Sons Farm.
15

Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 16 of 59
They produced cotton, peas, alfalfa, and hay on their farm. They owned two farms in Dona Ana County, one with 550 acres of arable land and the other with 78 acres of arable land. They also leased land occasionally for their farm operation.
4. In 1986, plaintiff Garcia worked with the assistance of the FmHA personnel to develop a farm and home plan and an application for direct loans, but FmHA rejected the application. In 1988, plaintiff applied for primary loan servicing but was denied this servicing after a two-year delay. Again, in 1994, FSA refused to work with plaintiff on a farm debt restructuring with guaranteed loans. Finally in 1998, when plaintiff needed to sell part of the land to service delinquent debt and had found a buyer, FSA refused to provide financing to allow the sale to take place. In each instance, plaintiff timely filed for the FSA financial assistance programs or loans and was qualified for the assistance and loans, but, due to willful and continuous racial/ethnic discrimination by the local and state FSA offices, was denied the assistance and loans. In each instance, similarly situated white farmers received more favorable treatment. As a result, plaintiff suffered severe economic losses, including a farmer's ultimate penalty-their farms were sold at a foreclosure sale in 1999.
5. Plaintiff filed several complaints with USDA about this treatment. Guadalupe L. Garcia, Jr., registered a complaint regarding the discrimination with the FSA official that assisted plaintiff prepare the farm and home plan/loan application in 1986. Again, in the early 1990s, he filed a complaint with the office of Senator Dominici and USDA. In 1998 and 2000, he filed additional complaints with USDA's Office of Civil Rights. USDA never acted on these complaints thereby causing plaintiff further damages.
* * *
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Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 17 of 59
6. Plaintiffs and proposed Class representatives Tony and Patricia Jimenez are Hispanic farmers and residents of Mariposa County, California. They operate a 299 acre cattle ranch. Tony Jimenez has lived on a cattle ranch since he was 9 years old, and has life-long experience operating dairy and beef cattle ranches.
7. They received a $200,000 farm ownership loan from FmHA to acquire the ranch in 1989 and had sought an operating loan at the same time. The operating loan was absolutely essential to enable them to operate the ranch at full and efficient capacity, which was necessary so that they could service the large ownership debt. They were denied the operating loan without explanation. They reapplied for the operating credit in 1990 but were denied. In 1992, they applied for an emergency loan, but were turned down. In 1992, they also requested a 60-day extension on their loan because cattle prices were at a 20-year low and they needed to sell cattle to make their loan installment to FmHA. This too was denied. In December 1995, the Jimenezes paid FSA (formerly FmHA) more than $52,000 to bring the mortgage on the ranch up to date, and at the same time they asked for a loan deferral and an adjustment in the interest rate on the remainder due on the mortgage loan to reflect substantial reduction in interest rates since 1990. FSA did not provide them the application for this servicing for four months. Then, after holding the application for two years, FSA denied it in October 1998.
8. This extended pattern of denial ofloans and services-treatment different than that received by similarly situated white farmers-was a series of acts of willful and continuous racial/ethnic discrimination, and as a result of the discrimination, the ranch operation has suffered severe economic losses and the Jimenezes are on the verge of losing their farm to foreclosure. They filed civil rights complaints with USDA and members of Congress in a timely fashion, but these complaints have never been acted on, causing them further damages.
17

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* * *
9. Plaintiffs and proposed Class representatives Mr. Edward and Mrs. Norma Flores come from a long tradition of farming. They began farming in 1972. For 16 years, Mr. and Mrs. Flores farmed over 300 acres. Their crops included chili peppers, cotton and cabbage.
10. Between 1985 and 1988, USDA discriminated against Mr. and Mrs. Flores on at least four separate occasions. Their experience is typical of other Hispanic farmers in their area.
11. In January 1985, Mr. and Mrs. Flores applied at their local FmHA office for an operating loan of approximately $100,000. They needed the loan to prepare for planting their crops by March, but funding was delayed until late May, well after planting season.
12. A similar incident occurred a year later in 1986. They again applied for an operating loan in January, which they did not receive until late May. In addition, FmHA demanded excessive collateral for the loan. Mr. and Mrs. Flores were required to put up their land (valued at $413,000) and equipment (valued at $60,000) for a loan in the amount of $80,000.
13. In 1987, Mr. and Mrs. Flores sought assistance from FmHA to refinance their farm, because they were facing foreclosure by the Federal Land Ban1e Mr. and Mrs. Flores needed to take advantage of the lower interest rate offered by FmHA, as opposed to the high 14% interest they were paying. When they asked the local FmHA agent about refinancing, he replied "You're in a real mess," and refused them an opportunity to apply.
14. Mr. and Mrs. Flores were discriminated against because they are Hispanic
farmers. Similarly situated white farmers did not receive such treatment. In 1987, Mr. Flores
complained regarding this discriminatory treatment. 18

Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 19 of 59
15. In 1988, Mr. Flores returned to the local FmHA office to attempt again to refinance his farm. Contrary to FmHA regulations, the local FmHA office agent refused to discuss refinancing with Mr. Flores until Mr. Flores father had cleared a separate unrelated debt with FmHA.
16. 1988 was the last year the Flores family farmed. As a result of FmHA discrimination, they lost everything, including 8 farm leases-all of which were taken over by white farn1ers.
* * *
17. Plaintiff and proposed Class representative Gloria Palacios Moralez is an Hispanic farmer and resident of Fresno County, California. Her parents were sharecroppers for 25 years, including when she was growing up; and she learned farming from them. She also took college courses in agricultural economics, and was selected to be a Kellogg fellow. She owned and operated an 80-acre farm from 1980 to 1998. Up until 1994, she grew various field crops and grapes. In 1998, after repeatedly being denied loans and services from FSA, her land was sold by court order and she lost it.
18. Ms. Moralez acquired her farm land in 1980 with a $200,000 limited resource farm ownership loan from FmHA. However, even in this instance, FmHA engaged in discriminatory conduct against her by working hard to discourage her from getting the loan; she got it only through her own dogged persistence and hard work. Originally, FmHA would not even let her apply for the loan although she clearly had the background and training to qualify for FmHA farm financing. However, after she refused to take no for an answer, she was allowed to apply-but then only after she was forced to write a special essay and make special
19

Case 1:00-cv-02445-RBW Document 144 Filed 06/30/06 Page 20 of 59
presentations to the Fresno County FmHA staff and county committee. These unusual requirements were never applied to white farmers who sought to apply to FmHA for farm ownership loans. Further, the chairman of the county committee told her to her face that farming was "not a proper business for a woman, much less a Mexican woman with two kids." Once she filed her loan application, it was improperly rejected two times before it finally was accepted. One rejection was based on the premise that the property she was trying to acquire did not have sufficient water to farm it correctly. However, this same property was being farmed at that time by two white farmers whose farming operations were financed with FmHA operating loans. Another reason her application was initially rejected was that the FmHA county office asserted that she was proposing to pay too much for the land. However, at the same time, the county office was making farm ownership loans to white farmers to buy similar land in the area her farm was located at even higher prices than she proposed to pay.
19. In 1981, Gloria Moralez applied to the Fresno County FmHA for an equipment loan of $50,000. She was approved for only $26,300. As a result, she could only acquire used equipment in poor condition that caused her severe problems in growing her crops and reduced her production. She also received an operating loan of $31 ,200 to plant cotton. Her loan funds were put in a supervised bank account. To her information and belief, no similarly situated white farmers in her area were subject to this sort of treatment regarding reduced funding for equipment loans and the supervised account. Further, the Fresno County FmHA staff told her at that time that she should never apply for another FmHA loan, because they would make sure she never got one. In fact, she never did get another FmHA loan.
20. She continued throughout the years up to 1998 to seek FmHA and FSA loans, services, and benefits, but was always unfairly discouraged and ultimately denied. Her
20

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applications included ones for restructuring her debt, so-called "1951-S" servicing, and disaster payments. The 1951-S servicing is an example of the unfair discouragement she received. FmHA valued her farm low for 1951-S purposes so she could not benefit from 1951-S restructuring; but just six months later when she was in bankruptcy, FmHA insisted that the farm had a much greater value for purposes of the bankruptcy action.
21. In 1993, she applied for disaster payments for losses to her grape crop in 1993 caused by a grape disease known as phomophis. This disease reduced her yield by 69 percent. The Fresno county office told her that thee was no such disease. However, this disease in fact has become epidemic in California in recent years and a threat to the grape industry statewide, with the state and Federal governments spending millions on its eradication. Also, the county office accused her of fraudulently sUbmitting two claims for payments on the loss. In fact, what happened was that she had submitted her disaster application in September 1993, then in December 1993 checked with the Fresno County FmHA to see where it stood. At that time, she was told that they could not locate the September application, and that she must fill out a second application, which she did. Further, when she appealed the denial of disaster benefits to the county committee, she attempted to have a court reporter transcribe the meeting. However, the county committee refused to allow the reporter to attend the meeting, stating that she had to give notice 7 days in advance. The problem was that they had scheduled the meeting one day in advance.
22. As a result of FmHAlFSA's unfair discouragement and denials, Gloria Moralez could never obtain the financing or program payments she needed to adequately farm her land, and thus her farming enterprise foundered. When she became seriously ill and her mother died in January of 1992, Gloria Moralez was forced to file Chapter 12 bankruptcy. During the five
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years she was in bankruptcy, FmHA/FSA continued to harass her. The agency made several attempts to foreclose on her land even though the bankruptcy court had issued a stay on foreclosure proceedings. The agency had gone so far as to order its Kansas City financial office to cut a check for $220,000 so it could buy the land back at foreclosure, even though there was a freeze against foreclosure.
23. She filed discrimination complaints with USDA in 1984,1985,1986,1987,1988, 1989, 1990, 1992, 1993, and 1994 regarding the denials and problems she was having with FmHA/FSA, but only on one occasion received a response to her complaint-that regarding the denial of disaster payments in 1993 described above. However, even that action to respond to her complaints was tainted. First of all, she did not get a response to her complaint until 1998. At that time, she received a letter in response to her complaint purportedly signed by an official working for defendant by the name of Wardell Townsend. The letter stated that USDA found no discrimination. The problem with the letter was that Townsend, who supposedly made this conclusion, had left USDA about one year prior to the date he supposedly signed the letter.
24. The long and persistent pattern of denial ofloans and services by FmHA/FSA during the period from 1981 on-treatment different than that the agency gave to similarly situated white farmers-was a series of willful and continuous racial/ethic discrimination; and as a result of the discrimination, More1ez's farm operation suffered severe economic losses and she ultimately lost her 80-acre farm. The absolute refusal by defendant to respond to her repeated complaints of discrimination caused her further damage as the complaints were never investigated and the wrongs committed against her thus have remained un-remedied.
* * *
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25. Plaintiff and proposed Class representatives Rodolfo and Beatrice Garza are Hispanic Americans residents of Zapala County, Texas, who farmed in the 1980s. Rodo1fo Garza had been trained in agriculture at the local junior college, and, in 1983, he and Beatrice Garza acquired 39 acres of farm land in Zapala County from Beatrice's parents for the purpose of starting a vegetable production operation. This land is located in the Wintergarden area of Texas, which is renown for its production of fruits and vegetables. Their hometown, Crystal City, is known as the Spinach Capital of the World. Unable to get FSA financing to operate their farm, they farmed to the extent they could using their personal funds. They successfully put in several crops of spinach, onions, and grain sorghum.
26. In 1984 and 1986, the local newspaper ran articles about the availability, at the local FSA office, of loan funds for farming. In 1984, the Garzas sought a loan to irrigate and put in crops on all 39 acres. They submitted an application to the local FSA office, and waited for a response. FSA never responded, so Beatrice Garza contacted the office and was told that no money was available for loans. However, when she reminded the office of the article in the local newspaper, they simply told her that she and her husband did not qualify. Again in 1986, having read another article about the availability of funds, the Garzas applied for an operating loan again. They were turned down again. The Garzas knew that a number of white farmers who were friends of theirs and similarly situated farmers were able to obtain operating loans from FSA without any trouble. These included Charles Carr, Lake Smith, and Dorothy Hodges. In fact, these farmers advised the Garzas to apply to FSA for financing.
27. Concerned about these repeated denials, Beatrice Garza timely complained by letter to the Secretary of Agriculture in 1986, but never received even a response to the letter. Having been frustrated at obtaining financing from FSA and unable to finance the farm through
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local cooperative or commercial banks, the Garzas had to abandon their farm operation and sell the land. As a result of the discriminatory acts, the Garzas have suffered substantial economic losses and as a result ofthe Secretary of Agriculture ignoring their complaint about the loan denials, the Garzas suffered further damages.
* * *
28. Plaintiff and proposed Class representatives Larry and Robert Chavarria are thirdgeneration Hispanic American farmers in Kings County, California. They have been farming for 17 years. They primarily grow crops on the family farm owned by their mother. It is a 640-acre tract with irrigation that is ideally suited for cotton and other row crops, as well as fruits and vegetables. Their grandfather cleared the land in 1944, and their family over the course of years has installed irrigation equipment on the land. They farm together as a general partnership, the Chavarria Farm Co. Neither Larry, Robert, nor the partnership had any dealings with FSA prior to 1997.
29. In 1995, the partnership suffered severe losses to their cotton crop, as did many other farmers in that area of California. The area was declared a disaster area and the Chavarrias sought to obtain a disaster loan from FSA to cover losses from the 1995 crop. Larry began his inquiries in September 1996, and filed the application in January 1997. Although the application was complete and demonstrated that the Chavarrias and the partnership fully qualified for assistance, the Kings County FSA improperly rejected the application on grounds that were later determined by the National Appeal Division ("NAD") to be without merit. In doing so, the FSA office gave excess credence to the assertions of a white landowner from whom the Chavarrias were leasing farm land and with whom the Chavarrias had a dispute regarding the white landowner's efforts to revoke the lease.
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30. Larry Chavarria appealed the county office decision to the NAD and won the appeal. The hearing officer's decision substantially discounted the credibility of the white land owner and questioned the county office's giving weight to that person's assertions and the county office's abortive efforts to set Mr. Chavarria in a "sting" regarding the crops grown on the disputed lease land.
31. Even though Larry Chavarria won the appeal, the Kings and Tulane County FSA office continued to subject him and the partnership to unfair treatment. That office has denied them Production Flexibility Contract payments for the 1997 crops; it has been uncooperative and unwilling to work with him on servicing the emergency loan following a second disaster in the area in 1998.
32. FSA's initial loan denial and inadequate loan servicing were treatment different than that the agency gave to similarly situated white farmers, and amounted to willful and continuous racial/ethnic discrimination. As a result of the discrimination, the Chavarria farm operation suffered substantial economic losses.
33. Larry Chavarria filed a complaint with the Office of Civil Rights ("OCR") regarding this discrimination in 1999. Incredibly, the OCR responded that FSA's denial of the loan and related unfair acts did not raise an issue of discriminatory conduct by a USDA employee, so it was refusing to investigate the complaint. Further, the response letter was dated April 28, 2000, but was not postmarked until September 12,2000. The refusal by defendant's agency to respond to the complaint of discrimination caused Larry and Robert Chavarria and the partnership further damage as the complaint was never investigated and the wrongs committed
against them thus have remained un-remedied.
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* * *
34. Plaintiff and proposed Class representative Rigoberto Banuelos has been farming in the Fresno, California vicinity since 1988. He acquired a 10-acre parcel in January 1986 and another 20-acre parcel in May 1988. Mr. Banuelos grows seedless grapes that are used to make raisIns.
35. In 1988, 1991, and 1992, he went to the Fresno, California FmHA office to inquire into applying for loan assistance. On each visit Mr. Banuelos was told that there was no money available and that no one in the Fresno office spoke Spanish so they could not talk to him. Although Mr. Banuelos informed the FmHA officials that his wife, who accompanied him on each visit, spoke English well, he was ignored. He never received an application and was told to try private banks because FmHA could not help him.
36. Although Mr. Banuelos repeatedly complained that FmHA did not treat him as fairly as they treated white farmers, he was not able to secure a loan from FmHA. Consequently, he was unable to install a new irrigation system on his farm that would have doubled his productivity.
* * *
37. Plaintiffs and proposed Class representatives Modesto Rodriguez, Ruperto Rodriguez and Modesta Salazar are shareholders of Rodriguez Brothers Inc ("RBI"). RBI is a family owned farm of 523 acres located outside of Pearsall, TX. The Rodriguez family has owned the farm since 1952. From 1982 to 1997, Modesto Rodriguez was the principal operator of the farm.
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38. During the time period covered by the complaint, RBI borrowed funds from the Frio County FmHA office. Many, if not most, of the loans made to RBI were required to be placed in SBAs despite many years of farming experience. In 1989, RBI submitted a written complaint alleging that FmHA and its Frio County supervisor discriminating against RBI by, among other things, imposing SBAs on RBI and USDA's failure to release SBA funds to permit RBI to feed its livestock during a drought.
39. In that same year, RBI also sought primary loan servicing. Nine months later its application was denied. RBI appealed the adverse decision and the NAD hearing officer ruled that the county supervisor had acted improperly in denying the loan application and that RBI was entitled to a loan and loan servicing. The hearing officer also found that the continued use of SBAs was not appropriate and reversed FmHA's decision to impose a SBA. Despite the favorable ruling by the NAD hearing officer on behalf of RBI, USDA, more than a decade later, has yet to provide the required loan servicing to RBI to which it was declared to be entitled.
* * *
40. Defendant, Michael Johanns, is Secretary of the United States Department of Agriculture, and is the federal official responsible for the administration of the statutes, regulations and programs that are the focus of this action.
v.
GENERAL BACKGROUND: THE USDA FARM LOAN AND BENEFIT PROGRAMS AND HOW THEY ARE ADMINISTERED
A. BRIEF DESCRIPTION OF THE PROGRAMS AND HOW USDA IMPLEMENTED THEM 41. The federal agricultural programs at issue in this litigation have their genesis in
the New Deal agriculture reform legislation aimed at controlling farm production, stabilizing 27

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fann income and generally helping fanners remain operational to the extent possible. In enacting this legislation, Congress recognized that the maintenance of a diverse domestic base of producers of food and fiber-particularly family farms and ranches-was a matter of national security.
42. Congress provided for the creation of the Agricultural Stabilization and Conservation Service ("ASCS") as the division of USDA charged with the responsibility for administering these programs. The basic approach to stabilizing farm income and commodity prices was to allow farmers to borrow against their crops and, if prices remained low, the crops would be forfeited to USDA with fanners receiving a high enough support price to permit them to payoff their crop loans and to keep enough money to remain economically viable. The ASCS was responsible for managing the commodities forfeited to USDA, to purchase other commodities as part of an effort to raise prices and to inspect the warehouses in which the commodities were stored. The amount of funds available to farmers in these programs and the manner in which the programs are to be administered are periodically modified by Congress with each new farm bill.
43. Because Congress wanted to maximize the input oflocal farmer interests in order to ensure that the administration of the ASCS programs truly reflected local needs, it established a decentralized network of county committees ("COC") each composed of three county farmers elected by the fanners from each county. Each COC hired both the county supervisor who actually ran the county office as well as the local staff who administered the distribution of such payments in each county. The legislation also provided for a state level committee and a state
executive director. Each cae detennined which fanners were eligible for support and benefit
payments and worked with the state committee and its director to calculate the amount each
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farmer was entitled to. Although the Secretary of Agriculture, with presidential approval, technically appoints the state executive director and the state ASCS committee members, the tradition is that the senior member of each state's congressional delegation who is of the same political party as the President actually controls the selection process. The county committee, the county supervisor and the county staff are state or county employees whose salaries and benefits are paid from Federal funds appropriated as part of the USDA budget. Despite this fact, the Secretary of Agriculture and the Washington headquarters staff have never effectively managed the state and county offices.
44. In addition to ASCS, the New Deal reforms enacted by Congress created three additional farm agencies. The FmHA which loaned money to farmers who could not obtain credit elsewhere for land purchases, operating expenses and construction of homes on their farms, and also provided technical assistance and (unlike traditional lenders) worked closely with farmers in an effort to help them survive. These loans include "farm ownership," "operating," and "continuing assistance" loans, as well as loans that restructure existing loans and "emergency disaster" loans. Congress specifically designed such programs to provide assistance to those family farms, particularly small, minority and otherwise disadvantaged farmers who typically cannot secure loans from private lenders. FmHA thus became the lender of last resort.
45. In creating FmHA, Congress established a separate, stand-alone FmHA county committee system which in most important respects paralleled the above-described ASCS county committee network. In each state, there was a politically appointed FmHA director, and he (unlike ASCS) appointed local county FmHA committees whose functions were to initially determine eligibility for loans and then to review recommendations by the county FmHA offices
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regarding which loan applications should be approved. The county FmHA offices, unlike ASCS, were staffed by federal employees of USDA.
46. The Soil Conservation Service ("SCS") was created to assist farmers in improving and maintaining the productivity of their land. Finally, Congress established the Federal Crop Insurance Corporation ("FCIC") to manage the federally subsidized crop insurance programs.
47. As a consequence of the way Congress structured the mechanisms for administering these farm programs, USDA became a decentralized institution that placed broad, largely unfettered discretion in local officials to apply highly subjective eligibility criteria to farmers seeking to participate in USDA credit and benefit programs. Historically, USDA has permitted each of the core farm loan and benefit agencies within USDA to function essentially as uncoordinated and independent agencies, each with its own distinct policies, procedures and record keeping requirements and its own separate network of county committees. Given the vast sums of taxpayer dollars channeled into farm loan and benefits programs via the USDA-until recently it ranked second only to the Department of Defense in the total amount of federal dollars appropriated to it-the virtual lack of true transparency and meaningful accountability which has long characterized USDA stewardship of such monies is unprecedented.
48. Numerous congressional oversight efforts, GAO studies and other reports-all uniformly critical of the manner in which USDA administered the farm loan and benefit programs-prompted Congress in 1994 to fundamentally reorganize USDA. In the fall of 1994 ASCS and FCIC were merged to form a new FSA, and the FmHA was split in two with its farm loan division folded into FSA and its home and business loan division absorbed by a newly created Rural Development Agency ("RDA").
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49. The attempt to merge FmHA's farm loan division with the myriad ASCS farm programs has proven to be extraordinarily difficult because the policies, procedures and particularly the "culture" of each agency were so distinct. The overriding problem is that FmHA employees were direct employees of the federal government operating within policies, procedures and record keeping systems promulgated by USDA headquarters to a much greater extent than ASCS, whereas the members and staff of the ASCS county committees were employees operating outside the federal employee structure in a decentralized manner notwithstanding that federal funding underwrote their salaries. Additionally, the orientation of
each agency and its distinct cae network was markedly different, ~.g., ASCS distributed
subsidies and disaster payments which generally do not have to be repaid, whereas FmHA made loans which had to be repaid.
50. Because the parallel decentralized county committee networks which traditionally played a substantial role in the administration of both ASCS benefit programs and FmHA loan programs was obviously unworkable in the revamped system, it was incumbent upon the Secretary to blend the two networks. It wasn't until the late 1990s that the Secretary decided to
make the ASCS cae network preeminent, causing the FmHA network to atrophy. Although
progress has been made in merging these disparate entities, in many areas the intramural tensions and resulting dysfunction remain problematic because of resistance of FmHA employees to accept county employees as coequal colleagues and because the ASCS county employees feared federalization.
51. The current structure is that in each state the Secretary appoints a state FSA director who is a political appointee anointed by state political apparatus. Thus, in point of fact the state FSA director is often more beholden to his political benefactors within the state than to
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the Secretary. Furthermore, the surviving county committee system, along with state director and state committee, created by Congress, continues to exist and function notwithstanding the absorption of ASCS by FSA, thereby perpetuating the conflicts and confusion which plagues the administration of these farm programs.
B. AN OVERVIEW OF THE PROCESS BY WHICH FSA ADMINISTERS FARM LOAN AND BENEFIT PROGRAMS. 52. Generally speaking, the process begins when the Congress annually appropriates
specific amounts of taxpayer dollars to fund the various farm loan programs. The Secretary of USDA then allocates a specific portion of those funds to each local FSA office for distribution to eligible farmers and ranchers. Should a particular local office not commit all the funds allocated to it for a particular program, those funds are transmitted back to the Secretary for reallocation to those county offices which need them.
53. Virtually every farmer has to borrow the money needed to finance the next season's crops-the cost of seed, fertilizer, additional equipment or land. Crop and equipment loans are very time sensitive-the application needs to be approved and the loan made in advance of the upcoming planting season.
54. Many farmers are able to secure the necessary financing from private lenders. For new farmers and those whose financial condition fails to meet the standards set by private lenders, the lender of last resort is USDA which offers both direct loans and guaranteed loans (the loan is made via a commercial bank on the USDA approved list and USDA guarantees it).
55. The first step in the process of securing a USDA farm loan is for the farmer to visit the county FSA office to obtain a copy of the loan application form.
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56. The next step is for the farmer to fill out the loan application and to prepare a Farm and Home Plan which essentially is a financial (cash flow) plan for his farming operation. As noted, the regulations created by USDA (7 C.F.R § 1901 et seq.) to govern the loan program are enormously detailed and complex. As a consequence, most farmers need considerable assistance to fully and appropriately complete the complex application paperwork, particularly the Farm and Home Plan, which is central to the application. In recognition of this, USDA regulations direct local FSA loan officers and their staff to provide assistance-particularly to family farmers-in their efforts to secure the financing necessary to remain operational. Increasingly, those farmers who can afford to do so hire third party "loan packagers" to guide them through the application process. In sum, in order for the USDA loan program to accomplish its goal of helping those farmers most in need, it is obviously imperative that a spirit of cooperation and understanding exist between the farmer and the local FSA personnel.
57. Once all the necessary paperwork is completed to the satisfaction of the local county FSA loan officer, the application is formally deemed submitted and the review approval process technically begins to run. The FSA loan officer reviews the file and makes a recommendation which he transmits to the COC for approval. Once approved, the file is sent back to the FSA loan officer who executes the formal loan documents and arranges for the transmittal of funds to the farmer.
58. Prior to the 1994 reorganization the farm loan application/approval process was all handled within the FmHA, with the county committee making the threshold determination regarding eligibility and then, ifthe applicant is deemed eligible, with the county director deciding both whether the paperwork was properly completed and ultimately whether to approve
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the application. Then the county committee staff would administer the loan and provide any necessary servIcmg.
59. Should an applicant be unhappy with the decision, he has the right to appeal the decision to the state FmHA committee and, if still unsatisfied, can seek administrative review via the National Appeals Division ("NAD") which is headquartered at USDA headquarters in Washington and maintains a network of regional and state offices.
60. Additionally, the Equal Credit Opportunity Act ("ECOA") prohibits discrimination in credit based on sex, marital status, race, color, age, national origin, or religion. 15 U.S.C. § 1691(a). Ifan FSA loan or loan service is denied on discriminatory grounds, the farmer can file a discrimination complaint with the defendant and the FSA Civil Rights Office (for FmHA, formerly the Equal Opportunity ("EO") office) or with the Office of Civil Rights ("OCR") (formerly known as the Office of Civil Rights Enforcement and Adjudication ("OCREA" or "CREA")).
61. As regards benefit payments, Congress must first appropriate funds earmarked for disaster (freeze; flood; drought; hurricane etc.) relief. Then the funds are allocated to the affected states for distribution to eligible farmers. Prior to the 1994 reorganization a farmer had to visit the local ASCS county office to ascertain whether such funds had been allocated to that county, how many funds remained available and whether the farmer qualified for such payments. The process is administered pursuant to ASCS regulations (7 C.F.R. part 700, et seq. and Commodity Credit Corporation ("CCC") regulations (7 C.F.R. part 1400 et §.ffi.:.). The ASCS county staff was the initial point of contact and aided the county supervisor in making recommendations to the ASCS county committee as regards eligibility and the amount of benefits to be paid to each farmer. Approval by the county committee was the key. Those not
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receiving a favorable response had the right to appeal to the state committee. Post reorganization, farmers denied benefits continue to have a right of appeal but such appeals are rechanneled via FSA's NAD. Additionally, the Constitution and Title VI of the Civil Rights Act of 1964 prohibit exclusion from participation in federal programs based on race, color or national origin. With respect to ASCS-type applications, if a farm program application is denied on discriminatory grounds, the farmer can file a complaint of discrimination with the defendant or OCR.
62. Post reorganization the functions of the ASCS county office have been consolidated with the local FSA office, although many of the county staffers still work there. The allocation of disaster funds available to the affected counties is made at the federal and state levels, but the determinations regarding eligibility (including inspections of the damage) and the distribution of the funds is carried out at the local FSA level after the county committee formally approves recommendations by the local FSA office regarding eligibility and distribution amounts.
VI. SYSTEMIC DISCRIMINATION AGAINST HISPANIC FARMERS HAS PERVADED THE ADMINISTRATION OF FARM LOAN AND BENEFIT PROGRAMS BY USDA FROM 1981
TO DATE A. THE VARIOUS WAYS IN WHICH HISPANIC FARMERS AND RANCHERS
EXPERIENCED DISCRIMINATION WHEN THEY SOUGHT FARM LOANS AND BENEFITS 63. At the outset it must be emphasized that historically those areas of the United States where there was a substantial Hispanic population, Hispanics experienced systemic de jure and de facto discrimination not unlike that experienced by blacks in other parts of the country. And, USDA's decentralized administration of credit and benefit programs gave full vent to those regional and local prejudices.
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64. In addition, for those Hispanic farmers who are not conversant with the finer points of written English the application forms and the extensive directions explaining how to fill them out, which until recently were available only in English, were daunting obstacles. These obstacles were made all the more daunting to some Hispanic farmers because most local FSA offices, and virtually all of the county committees and county offices, lacked personnel sufficiently conversation in Spanish to provide the desperately needed guidance. Even more fundamentally, the putative class has encountered a wall of hostility, manifested in variety of ways, from the staff of such offices. Thus, the Congressional mandate that the local FSA and county offices work closely and helpfully with all applicants has consistently fallen on deaf ears in both those decentralized USDA outposts serving areas with heavy Hispanic farm constituencies and USDA headquarters which is primarily charged with carrying out that mandate.
65. Such local offices are dominated by white males who mirrored the anti-Hispanic prejudices which permeated those areas of the country and, to a large extent, continue to do so. There was and continues to be hostility toward Hispanics in many of these county and state offices. That hostility manifests itself in a variety of ways, including attempting to discourage Hispanic farmers from availing themselves of farm credit and non-credit benefit programs.
66. Hostility and discouragement pervade every stage of the credit or benefit process. Starting with obtaining an application, the Hispanic farmers are often discouraged from even obtaining an application. Indeed, it is common for Hispanic farmers to be told that they are too late because all the loan and/or benefit monies are gone, hence it was pointless to provide an application to them. Consequently, a number of Hispanic farmers simply gave up and went home without an application when so informed. Those Hispanic farmers who nevertheless
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pressed for a copy of an application form were often refused a form because office personnel told the farmers that they either were too late or the office did not have applications, only to discover that white farmers not only still received applications but succeeded in obtaining loan or benefits notwithstanding that the funds allegedly had already been spent or the supply of applications already exhausted.
67. None of the county offices or FSA offices employed any type of "receipt for service" system which recorded the fact that Hispanic (or any other) farmers visited the office to inquire about programs availability. Thus, there is no transparency as regards conduct in this crucial aspect of program administration.
68. Similarly, many Hispanic farmers were advised during their initial visit that they did not qualify for either loans or benefits-this without any application having even been filled out. Such tactics repeatedly occurred notwithstanding that the regulations promulgated pursuant to the ECOA and USDA's own regulations proscribe efforts to discourage minority farmers from applying for loans. 7 C.F.R. § 1910.
69. Those Hispanics who succeeded in obtaining the application forms were often denied the assistance needed to both comprehend and properly complete the application. They would be told that the applications was self-explanatory, and should be completed by the farmer at home. Hispanic farmers who nevertheless requested help in completing the application were often made to feel stupid for requesting assistance and told that the office personnel did not have time to assist them. In some instances, they were urged to retain the services of expensive loan packagers, which few could afford to do.
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70. Those Hispanic fanners who persisted and completed the application then had to successfully navigate a two-step process. First, the applicant had to demonstrate that he or she was eligible to receive either a loan or whatever fonn of benefits (usually disaster benefits) he or she sought. The second step is securing approval of the application itself. For most of the period covered by this complaint, the county committee made this critically important eligibility detennination -- the FmHA county committee for loans and the ASCS county committee for benefits and, post the 1994 reorganization, the FSA county committee for both loans and benefits. This localized decision making structure was, from the perspective of Hispanics, fatally flawed in two crucial respects.
71. First, the county committees were dominated by local white male fanners in what can best be described as a closed system. The Civil Rights Action Team ("eRAT"), a group of senior USDA officials appointed in 1996 by then Secretary Glickman to conduct a comprehensive investigation of alleged systemic discriminatory conduct by USDA, reported that:
In 1994, 94 percent of all county committees had no female or minority representation. Minority producers were 4.7 percent of eligible voters, but held only 2.9 percent of county committee seats. ... GAO found that in 1995, only 36 of the 101 counties with the largest concentration of minority fanners had at least 1 minority county committee member. CRAT Report at p.3. 72. Thus, in those counties with the largest concentration of Hispanic fanners, the county committees are populated virtually exclusively by non-Hispanics who invariably reflect regional and local anti-Hispanic prejudices. Compounding the problem is the obvious conflict of interest which lies at the core of this localized administrative process-e.g. the dominant group offam1ers (white non-Hispanic males) controls the distribution of monies for which they themselves also compete. The playing field is clearly not level.
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73. The second major defect in the USDA system is the unfettered discretion vested in the county committees in applying the highly subjective criteria governing the USDA credit and benefit programs. This combination of anti-Hispanic bias and unfettered discretion invites and facilitates discrimination.
74. For example, in administering USDA loan programs, the county committee was, for most of the period covered by the complaint, required to consider seven criteria: (1) United States citizenship; (2) the legal capacity to incur loan obligations; (3) education and/or farming experience in managing and operating a farm or ranch; (4) character and industry to carry out the proposed operation; (5) a commitment to carry out undertakings and obligations; (6) inability to obtain sufficient credit elsewhere; and (7) farm size (the farm to be no larger than a family farm). Once eligibility was determined, the county executive director or loan officer had to approve the loan by determining, inter alia, whether the farmer had a viable farm and home plan. All the criteria except citizenship and age are highly subjective and thus easily subverted by persons practicing discrimination.
75. Similarly, in administering the disaster benefit and other benefit programs, the county committees are vested with broad discretion in determining which farmers are eligible to receive benefits. The criteria used are also highly subjective. For example, the farmer applicant must establish that his disaster related loss isn't related to "the neglect or malfeasance of the producer "...or..." the failure of the producer to follow good farming practices for the commodity and practice." 7 C.F.R. § 1437.9 (b) (1) and (3). Terms such as "neglect" and "good farming practices" can easily be applied in a subjective, discriminatory and arbitrary manner and given the generalized language in which such decisions are phrased, adverse decisions are difficult to reverse on appeal. The county committees readily understand all this.
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76. The regulations promulgated by USDA to govern the administration of its farm loan and benefit programs have not only failed to prevent the discrimination experienced by Hispanic farmers, but have in fact contributed to and facilitated that discrimination by vesting in local official unfettered discretion to apply highly subjective eligibility criteria. Despite repeated warnings that the combination of unfettered discretion and highly subjective eligibility criteria invites and facilitates discrimination, USDA has done nothing to curtail the delegated discretion or to reduce the subjectivity in the eligibility criteria.
77. The record keeping procedures maintained by the county committees and the local and state USDA offices are grossly inadequate to reveal the true nature and extent of antiHispanic discrimination, which has long pervaded the administration of its farm loan and benefit programs. Despite the fact that this historic inadequacy has been well documented throughout the entire period covered by this complaint and indeed from at least the mid 1960s, USDA has done nothing to improve its record keeping in a way that would bring transparency to its lending practices. Thus the farm loan and benefit programs suffer from a total lack of transparency regarding the actions at the county and state levels where the discrimination has taken root. Without transparency there obviously is no accountability, hence the intractability of the discrimination which has long infected USDA.
78. As early as 1982 the Civil Rights Commission reported its findings regarding USDA's discrimination against minorities, noting that as the lender oflast resort, the USDA applied primarily subjective criteria. The report noted that: "[the] regulations intended to implement these goals leave room for a wide range of subjective implementation. . .. The
problem of subjectivity permeates much of the FmHA loan decision process.... Lack of
specific criteria for loan determinations potentially enhances FmHA's flexibility and ability to
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serve clients. It also creates loopholes which allow for discriminatory treatment." United States
Commission on Civil Rights, The Decline of Black Farming In America, pp. 80-81 (1982).
79. The various consequences of the decades of discrimination practiced by USDA
against Hispanic farmers in the administration of its farm loan and benefit programs are:
(a) many Hispanics abandoned their intention to apply for a loan because USDA erroneously asserted that all the loan funds had already been allocated or because the USDA officials refused to provide loan application materials;
(b) information about availability of disaster payments or other benefit programs was either not communicated effectively to Hispanics at all or too late for them to apply;
(c) as regards both loan and benefit programs, Hispanics typically experienced hostility, lack of civility, no cooperation or an unwillingness to provide assistance or information at all stages of the application process;
(d) USDA personnel exercised unfettered discretion discriminatorily to declare Hispanics ineligible to obtain loans or to receive benefits;
(e) USDA personnel exercised unfettered discretion discriminatorily to deny approval of loans or payments of benefits to Hispanics deemed eligible to apply for loans or benefit payments;
(t) in those instances in which defendant approved loans or benefit payments to Hispanics, approvals were often untimely (well after the planting season began) and/or for amounts much less than requested;
(g) defendant often demanded that Hispanics provide a greater amount of collateral for loans than would otherwise be required thereby exposing Hispanics to far greater risk;
(h) defendant often conditioned its approval of a loan to Hispanics upon a willingness to accept a supervised loan account which required Hispanics to periodically submit to a monitoring of their farming operations by the local FSA office as a condition to receiving each incremental release of previously approved loan funds, which is both burdensome and insulting;
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(i) should Hispanics experience difficulty in making loan payments (as all farmers and rancher periodically do given the inherent vicissitudes of nature and commodity markets), defendant failed to provide loan servicing and to otherwise work closely and cooperatively as required by law and regulation in an effort to avoid foreclosure; and G) defendant invariably accelerated the foreclosure process when Hispanics experienced repayment difficulties. 80. Non-Hispanics, particularly white males, experienced the above described problems to a much lesser extent, if at all, than did Hispanics because they did not experience similarly discriminatory policies, procedures and attitudes by defendant.
B. THE ANTI-HISPANIC DISCRIMINATION WHICH PERVADES USDA MAKES IT VIRTUALLY IMPOSSIBLE FOR PLAINTIFFS TO SECURE REDRESS THROUGH THE USDA APPEALS PROCESSES 81. Applicants denied loans or benefits can pursue administrative appeals. Prior to
the 1994 consolidation, FmHA and the ASCS each operated parallel but separate administrative appeals processes. Thereafter the NAD was created to handle all such appeals, but NAD had no authority to consider discrimination complaints.
82. When a Hispanic farmer appealed an adverse decision to the NAD and prevailed, often the loan supervisor and county committee would simply refuse to implement the NAD decision and purport to undertake a complete review of the application, often requiring the submission of new information because the application was by then more than 90 days old. Notwithstanding the favorable decision by the NAD with respect to the appeal, the local officials frequently rejected the revised or reviewed application, thereby forcing the farmer to either undertake yet another appeal or give up.
83. Because there has long been a recognition that discrimination pervades the
administration of USDA farm loan and benefit programs, USDA permits applicants to file a
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complaint of discrimination either with FSA Civil Rights Office (formerly the FmHA Equal Opportunity Office) or with Departmental Office of Civil Rights ("OCR") (formerly designated as the Office of Civil Rights Enforcement and Adjudication) ("OCREA").
84. In 1983, the enforcement capability of EO and OCREA was so severely curtailed through lack of funding and lack of interest that USDA essentially had no capability to investigate civil rights complaints. This development was not publicized, so plaintiffs, putative class members and other minorities continued in good faith to file discrimination complaints not knowing that the investigative staffs had been disbanded and that the complaints were ignored. This constituted a willful failure by USDA to investigate discrimination in violation of the 1964 Civil Rights Act and the ECOA that continued at least until the mid-1990s.
85. USDA's refusal to eliminate discrimination from the administration of its programs and its unwillingness to recognize and endorse the civil rights of Hispanic and other minority farmers have been widely known, discussed and condemned at least since the mid1960s. Detailed findings demonstrating the pervasiveness of the abuses and the immediate need for meaningful reform are contained in internal reports by USDA's CRAT and a series of subsequent progress reports by USDA's Office oflnspector General to then Secretary Glickman and issued in 1997, and reports by GAO, the Civil Rights Commission and various congressional oversight committees.
86. USDA's blatant disregard of the requirements of ECOA and the 1964 Civil Rights Act-particularly the effective dismantling of the OCR-prompted Congress to enact special legislation in 1998 (§ 741 of the Omnibus Consolidated Appropriation's Act for Fiscal Year 1999) which waived, inter alia, the ECOA's statute oflimitations applicable to claims regarding farm credit arising between January 1,1981 and December 31, 1996.
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87. USDA has codified regulations, 7 C.F.R. Part 15 - "Nondiscrimination," which state USDA's ostensible policy of nondiscrimination in federally assisted and conducted programs in compliance with Title VI of the Civil Rights Act of 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 Department's agencies, programs and laws. See OIG Report at 5.
88. The February 27, 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. OIG found that the FSA staff responsible for processing the discrimination complaints consisted of two untrained and unqualified people. Hundreds ofumesolved complaints were over a decade old. OIG found no management oversight within FSA with respect to the handling of civil rights complaints.
89. 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.
90. In the CRAT Report, 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 farmoperating 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 44

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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. CRAT Report at 15 (emphasis added).
91. USDA admitted in the CRAT Report that (a) discrimination complaints at USDA
were often ignored, and
(a) that farmers reported that even when there was a finding of discrimination, USDA refused to pay damages. CRAT Report at 22-23;
(b) its record keeping on discrimination complaints was "non-existent," that a backlog existed, and that the largest number of complaints against a single USDA sub-agency was against FSA. CRAT Report at 24-25; and
(c) 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 (CRAT Report at 26-27), as well as program delivery to minorities and women. CRAT Report at 45.
92. USDA admitted that cultural insensitivity interferes with Hispanic participation:
Customers at the recent listening sessions reiterated the special needs of different minority and socially disadvantaged communities. All communities agreed that they are overlooked when information is released about available USDA programs. USDA agencies do not make use of minority community organizational and media outlets to be sure all eligible participants know about their programs. Cultural barriers prevent the communication necessary for good service by USDA programs.
Young men and women who want to follow in the family footsteps, either by taking over the family farm or by buying their own, oftentimes find it difficult to obtain financing for their ventures. According to several speakers at the listening sessions, FSA has denied loans to new or beginning farmers despite years of
working on their family farm or receiving advanced degrees in
agriculture. CRAT Report at 27.
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93. In sum, USDA admitted that USDA 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 ranks. 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 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. CRAT Report at 56.
94. On September 29, 1997, USDA's Office ofInspector General ("OIG") issued
Phase II of the OIG Report on Civil Rights Issues, entitled "Minority Participation In Farm
Service Agency's Farm Loan Programs - Phase II" ("OIG Report II"), which found, inter alia,
that (a) USDA had resolved only 32 of the 241 outstanding discrimination complaints reported in
the OIG Report (back in February 1997) and (b) the backlog of discrimination complaints had
increased from 241 to 474 for FSA and from 530 to 984 for all of USDA.
95. On September 30, 1998, the USDA's Office ofInspector General released its
"Report to the Secretary on Civil Rights Issues - Phase V" ("OIG Report V") which found that
significant problems within OCR persisted. It found, inter alia:
a. The Department through [OCR], has not made significant progress in reducing the complaints backlog. Whereas the backlog stood at 1,088 complaints on November 1, 1997, it still remains at 616 complaints as of September 11, 1998. OIG Report V, cover letter to Secretary.
b. The backlog is not being resolved at a faster rate because [OCR] itself has not attained the efficiency it needs to systematically reduce the caseload. Few of the deficiencies we noted in our previous reviews have been corrected. The office is still in disarray, providing no decisive leadership and making
little attempt to correct the mistakes ofthe past. We note with
considerable concern that after 20 months [OCR] has made
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virtually no progress in implementing the corrective actions we thought essential to the viability of its operations. OIG Report V at i (emphasis added).
c. Most conspicuous among the uncorrected problems is the continuing disorder within [OCR]. The database [OCR] uses to report the status of cases is unreliable andfull oferrors, and the files it keeps to store needed documentation are slovenly and unmanaged. Forty complaintfiles could not befound, and another 130 complaints that were listed in USDA agency files were not recorded in [OCR]'s database. Management controls were so poor that we could not render an opinion on the quality of CR's investigations and adjudications. OIG Report V at iii (emphasis added).
d. Of equal significance is the absence of written policy and procedures. OIG Report V at iii.
e. The absence of formal procedures and accurate recording raises questions about due care within the complaints resolution process. We found critical quality control steps missing at every stage ofthe process. Staff members with little training and less experience were put to judging matters that carry serious legal and moral implications. Many of[OCR]'s a4iudicators, who must determine whether discrimination occurred, were student interns. Legal staff members with the Office of General Council ("OGC"), who review [OCR]'s decisions for legal sufficiency, have had to return over half of them because they were based on incomplete data or faulty analysis. We noted that a disproportionately large percent of the 616 cases of unresolved backlog had bottlenecked in the adjudication unit. OIG Report V at iii (emphasis added).
96. Upon information and belief, this systemic pattern of ineffectiveness has
continued. As reported on March 10, 2000, OIG Report VII stated:
a. This is our seventh attempt to provide CR with constructive ways to overcome its inefficiencies. Based on the results of our review and on the operating environment we observed at [OCR], we cannot report encouraging news. OIG Report VII. Viadero cover letter at I (emphasis is original).
b. Based on the findings of our current review on [OCR]'s poor record of responding to our past recommendations, it is difficult to recognize any significant level of progress. Unless [OCR] implements a management plan that addresses effective leadership, changing organizational culture, customer focus, and process re-engineering, we question whether future complaints of
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discrimination in the distribution of program benefits will receive due care. OIG Report VII, Viadero cover letter at 1-2.
c. Many other critical issues remain umesolved. Most notably, [OCR] did not re-engineer its complaints resolution process. Although, [OCR] officials had previously agreed that the system they used to process complaints was neither effective nor efficient and although we recommended a major transformation of this system, no significant changes in how complaints are processed have been made. As a result, we cannot conclude that all complaints are processed with due care. OIG Report VII at i (emphasis in original).
d. Since February 1997, we have issued six reports on civil rights issues relating to the program complaints process administered by CR. Those six reports contained 67 recommendations, 54 of which were directed at CR (the remaining 13 were directed at the Farm Service Agency). During the current review, we found that 41 recommendations (all directed at [OCR]) have not been adequately addressed by [OCR], based on the actions taken as of December 1, 1999. As a result, we still have concerns that [OCR] may not be providing due care when processing complaints alleging discrimination in USDA programs. OIG Report VII at 14.
97. Upon information and belief, the systematic pattern of ineffectiveness is still
affecting USDA today. Among other things, in its February 2003 report, the EEOC found that:
a. sub-components to USDA's OCR '''what they want to do' because they have no accountability to [OCR]", EEOC Report at 9;
b. OCR does not investigate complaints of discrimination within the regulatory time period. Data supplied by USDA indicates that it takes OCR on average 594 days to complete an EEO investigation. The EEOC regulations require such an investigation to be completed within 180 days, unless the complainant agrees to an extension of time in writing, for a maximum of270 days. Id. at 16-17;
c. OCR does not have an effective EEO complaint tracking system and process. Id. at 18;
d. data entered into the system is unverified and umeliable. Id. at 20; and
OCR's current interpretation of what is a complaint and when it is officially received undercounts the actual number of
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complaints being made to OCR and provides a distorted picture of complaint activity. Id. 98. In sum, USDA's willful disregard of, and failure to properly investigate, discrimination complaints from Hispanics farmers began with the disbanding of civil rights enforcement functions in 1983. Furthermore, even after February 1997, when the enforcement staff of the OCR was formally reestablished, USDA has failed to afford meaningful investigation and review of discrimination complaints. Finally, USDA continues to tum a blind eye toward the discrimination against Hispanic farmers in the administration of USDA farm loan and benefit programs which still persists in many local areas which contain large numbers of Hispanics.
VII. STATUTE OF LIMITATIONS IS WAIVED 99. On October 21,1998, President Clinton signed into law the Omnibus Consolidated Appropriations Act for Fiscal Year 1999, P.L. 105-277, Div. A, § 10l(a) [§ 741], 112 Stat. 2681 (codified at 7 U.S.c. § 2279, Note). Said legislation waives the statute of limitations for plaintiffs in this case. In connection with claims arising from acts of discrimination by USDA in its administration of the farm loan and disaster assistance programs which occurred between January 1,1981 and December 31,1996.
100. In addition, other ostensible applicable statutes of limitations applicable to various putative class members are tolled because the failure of such plaintiffs to file timely complaints was caused by actions or inactions caused by USDA of which plaintiffs were unaware owing to defendant's conduct.
101. Finally, as to acts of discrimination suffered by plaintiffs from October 13, 1998 and beyond the date of the filing of this complaint, there is no statute oflimitations issue.
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VIII. CLASS ACTION ALLEGATIONS 102. Plaintiffs generally bring this class action on behalf of Hispanics who farmed or ranched, or attempted to farm or ranch, during the period January I, 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 USDA about such descrimination. The predominant purpose in doing so is to achieve definitive and lasting reform of the USDA policies, procedures and practices which permitted this discrimination to occur and endure for so many years, to the end that the transparency and resulting accountability essential to such reform be achieved. A secondary, but important, purpose is to establish a fair and equitable method of permitting recovery of monetary damages suffered as a consequence of such discrimination to the maximum extent feasible.
103. The discrimination practiced against plaintiffs occurred at various stages in the process by which USDA administered its farm loan and non-credit benefit programs. Consequently, there are several distinct groups of plaintiffs differentiated by the particular stage of the process where they experienced discrimination, to wit:
a. Subclass A - those Hispanics whom defendant sought to discourage from availing themselves of USDA farm loan or non-credit benefit programs by refusing to provide either an application form or assistance in completing the application and pursuing the application process;
b. Subclass B - those Hispanics whom defendant sought to discourage from availing themselves of USDA farm loan or non-credit benefit programs by protracted delays in the processing of their applications and the funding of approvalloans.
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c. Subclass C - those Hispanics whom defendant sought to discourage from availing themselves ofthe USDA farm loan and non-credit benefit programs by the use of highly subjective criteria to reject their applications.

d. Subclass D - those Hispanics whom defendant sought to discourage from availing themselves of the USDA farm loan or non-credit benefit programs by subjecting Hispanic farmers to supervised bank accounts

e.

Subclass E - those Hispanic farmers whom defendant sought to

discourage from availing themselves of farm credit or non-credit benefit programs by delaying or

denying loan servicing.

104. 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, as appropriate, 23(b)(1), (b)(2) and, or (b)(3). This action satisfies the numerosity, commonality, typicality, adequacy and predominance and superiority requirements of those provisions.

105. 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 discrimination practiced against each, and/or to recover monetary damages as compensation for the economic harm caused by discrimination, is both impractical and a needless burden on the courts. The number of Hispanic farmers in the United States in 2002, the date of the last published Agricultural Census, is approximately 50,592, for all of whom securing remedial relief is essential.

106. Common questions of law and fact exist as to all members of the class, whether viewed as a Rule 23(b)(2) or (b)(3) class, and predominate over any questions affecting only
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individual members of the class. These common legal and factual questions spring from a central undisputed and overriding reality that for decades the USDA knowingly tolerated the existence of pervasive discrimination in the administration of its farm loan and disaster benefit programs 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. 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. Consequently, the general combination of wholly subjective decision making by local officials reflecting the prevailing prejudices of each locale, and the lack of oversight by USDA produced a pattern and practice of discrimination in areas which Hispanic farmers were concentrated, and this pattern and practice were perpetuated for years in violation oflaw.
107. Additional common questions include:
(a) Did USDA attempt to deny Hispanics farm credit and loan servicing in violation of the ECOA? (b) Did USDA seek to deny Hispanic farmers access to noncredit farm benefit programs? (c) Did USDA attempt to discourage Hispanics from availing themselves of farm credit and loan servicing in violation of the ECOA, Regulation B promulgated pursuant thereto, and USDA's own regulations with respect to farm credit? (d) Did defendant attempt to discourage Hispanic farmers from availing themselves of farm credit by denying them applications and assistance in completing applications? (e) Did defendant's attempts to discourage Hispanic farmers from availing themselves of farm credit by denying them applications and assistance in completing applications violate the ECOA, Regulation B promulgated pursuant thereto and USDA's own regulations?
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(f) Did defendant attempt to discourage Hispanic farmers from availing themselves of farm credit by delaying the processing of their loan applications?
(g) Did defendant's attempts to discourage Hispanic farmers from availing themselves of farm credit by delaying the processing of their loan applications violate the ECOA, Regulation B promulgated pursuant thereto and USDA's own regulations?
(h) Did defendant attempt to discourage Hispanic farmers from availing themselves of farm credit by using highly subjective criteria to reject their loan applications?
(i) Did defendant attempt to discourage Hispanic farmers from availing themselves of farm credit by using highly subjective criteria to reject their loan applications violate the ECOA, Regulation B promulgated pursuant thereto and USDA's own regulations?
(j) Did defendant attempt to discourage Hispanic farmers from availing themselves of farm credit by subjecting them to supervised bank accounts?
(k) Did defendant attempt to discourage Hispanic farmers from availing themselves of farm credit by subjecting them to supervised bank accounts violate the ECOA, Regulation B promulgated pursuant thereto and USDA's own regulations?
(1) Did defendant attempt to discourage Hispanic farmers from availing themselves of farm credit by delaying or denying loan servicing?
(m) Did defendant attempt to discourage Hispanic farmers from availing themselves of farm credit by delaying or denying loan servicing violate the ECOA, Regulation B promulgated pursuant thereto and USDA's own regulations?
(n) Did defendant fail to investigate or to process discrimination complaints made by Hispanic farmers?
(0) Did defendant's failure to investigate or to process Hispanic farmers' civil rights complaints violate the ECOA?
108. Plaintiffs' claims are typical of the claims of the members of the class, all of
whom, by virtue of USDA's arbitrary and unlawful actions, have been denied equal access to
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loans or loan servicing, and to non-credit benefit programs, and were denied due process in the enforcement of their discrimination complaints, and have been subject to USDA's institutional and systematic failure to enforce the civil rights laws intended to benefit plaintiffs and members of the class.
109. 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.
110. 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 USDA's institutional and systematic deprivation of their civil rights 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 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.
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COUNT I (Declaratory Judgment) Ill. Plaintiffs, on behalf of themselves and all others similarly situated, re-allege all paragraphs above as if fully set forth herein.
112. An actual controversy exists between plaintiffs and class members and defendant as to their rights with respect to defendant's farm loan and non-credit benefit programs.
113. Plaintiffs and the class members pray that this Court declare and determine, pursuant to 28 U.S.c. § 2201, the rights of plaintiffs and class members under defendant's farm programs including their right to equal credit, and to equal participation in farm loans and disaster benefit programs, and their right to full and timely enforcement of national origin discrimination complaints.
COUNT II (Violation of Equal Credit Opportunity Act) 114. Plaintiffs, on behalf of themselves and all others similarly situated, re-allege all paragraphs above as if fully set forth herein.
115. USDA's acts of denying plaintiffs and class members applications for loans and requests for loan servicing, delaying the processing of their applications, rejecting applications on highly subjective eligible criteria, subjecting them to SBAs, denying or delaying loan servicing, and systematically failing to properly process or to investigate their discrimination complaints was discrimination on the basis of national origin and, was contrary to the requirement of the Equal Credit Opportunity Act, 15 U.S.C. § 1691(a).
COUNT III
(Violation of Administrative Procedure Act)
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116. Plaintiffs, on behalf of themselves and all others similarly situated, re-allege all paragraphs above as if fully set forth herein.
117. USDA's acts of denying plaintiffs and class members equal access to non-credit benefit programs and of systematically failing to properly investigate and/or process their discrimination complaints were contrary to the requirements of the Administrative Procedure Act, 5 U.S.C. § 701, et seq.
Prayer for Relief Wherefore plaintiffs respectfully request this Court to: 1. declare that the practices, policies, patterns, and procedures described in this Complaint exist at the USDA and that they are unlawful; 2. issue a permanent injunction prohibiting the defendant, the USDA, its officers, agents, employees and successors from engaging in discrimination in the administration of USDA farm loan and non-credit benefit programs as alleged herein, including but not limited to:
(a) refusing to provide applications to, deterring, or otherwise attempting to deter or discourage Hispanic farmers from applying for farm loans and non-credit benefits;
(b) applying more stringent underwriting standards or otherwise discriminatorily denying loans to Hispanic farmers who otherwise were qualified;
(c) providing inadequate or less assistance to Hispanic farmers in completing farm loan applications and/or farm and home plans and in applying for non-credit benefits;
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(d) granting loans to Hispanic farmers and ranchers on differential and less advantageous terms than similarly situated white male farmers; and
(e) discriminatorily denying Hispanic farmers and ranchers servicing on their loans, or providing less advantageous servicing to Hispanic farmers than that offered to similarly situated white male farmers.
3. issue a permanent injunction requiring that the USDA adopt lending practices in conformity with the requirements of the Equal Credit Opportunity Act and the Administrative Procedure Act;
4. issue an order mandating that USDA remedy its discriminatory patterns and practices by:
(a) taking affirmative action to advertise in appropriate media outlets designed to reach Hispanic farmers that USDA encourages and welcomes Hispanic farmers to avail themselves of all of the services offered by USDA and that any action taken by any USDA employee or representative that in any way makes Hispanic farmers feel unwelcome or seeks to deter them from availing themselves of all services provided by USDA shall be reported to the Secretary via a toll free 800 number and fully investigated;
(b) adopting a system of providing a receipt for service to all farmers and ranchers who visit local FSA offices to inquire about, or to apply for, USDA farm loans or noncredit benefits;
(c) requiring FSA personnel to provide full and equal assistance to all farmers who request it without regard to sex, race, national origin, marital status or any other discriminatory basis proscribed by the ECOA;
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(d) providing applications and explanations regarding both the farm loan and disaster benefit programs in Spanish;
(e) providing that those local FSA offices serving areas with large numbers of Hispanic farmers and ranchers employ persons both fluent in Spanish and familiar with Hispanic culture to assist Hispanic farmers and ranchers in applying for farm loan and non-credit benefit programs and in securing appropriate levels of servicing and other forms of assistance as necessary;
(f) providing, for a period sufficient to ensure that long standing discriminatory practices finally end, a system by which Hispanic farmers and ranchers who are or have been aggrieved by conduct at local FSA offices have an opportunity for an expedited review via independent mediators; and
(g) providing that those state and local FSA offices servicing Hispanic farmers and ranchers provide semi-annual reports to the Secretary detailing the particulars of each application for farm loans and disaster benefits by Hispanics and the disposition thereof;
5. to require that USDA, under supervision of the Court, promptly redesign its computerized data collection system as regards its administration of farm loans and non-credit benefit programs in order to ensure that full transparency is achieved and to permanently enjoin defendant and her successors from modifying the data collection system in any manner that has the effect of reducing or in any way hindering the transparency of the data collection system;
6. once the modernization ofthe data collection system as described in ,-[5 supra is accomplished, to require the Secretary to issue public annual reports detailing the extent of Hispanic participation in such programs;
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7. to devise a method, consistent with avoiding undue burden upon the Court and defendant and mindful of the public interest in ensuring that fraud be avoided to the maximum extent practicable, by which to award compensatory damages to deserving plaintiffs;

8. and

award reasonable attorneys' fees and costs, including expert fees, and interest;

9. order such other and further relief, including but not limited to such specific remedies, as the Court deems just and proper.

Respectfully submitted,

Of Counsel: Kenneth C. Anderson #243962 Robert L. Green, Jr. #935775 HOWREYLLP 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800 (202) 383-6610
Date: June 28, 2006

Alan . Wiseman #187971 Stephen S. Hill #927137 HOWREYLLP 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800 (202) 383-6610 - Fax
Alexander J. Pires, Jr. #185009 CONLON, FRANTZ, PHELAN & PIRES, LLP 1818 N Street, N.W. Suite 700 Washington, D.C. 20036 (202) 331-7050 (202) 331-9306 - Fax
Philip Fraas #211219 3050 K Street, N.W. Suite 400 Washington, D.C. 20007 (202) 342-8864
(202) 342-8451 - Fax
Attorneys for Plaintiffs
GUADALUPE L. GARCIA, JR., et al.
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 Case 1:00-cv-02445-RBW Document 151 Filed 09/27/06 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

GUADALUPE L. GARCIA, JR., et al., )

)

Plaintiffs,

)

)

v.

)

)

MICHAEL JOHANNS, Secretary of

)

Agriculture,

)

)

Defendant.

)

)

Case No. 1:00CV02445 Judge: James Robertson

DEFENDANT’S OPPOSITION TO PLAINTIFFS’ REQUEST FOR ADMINISTRATIVE PROCEDURE ACT REVIEW

INTRODUCTION

This case was remanded for a single and narrow purpose -- to further explore whether

plaintiffs’ claim that USDA failed to investigate their civil rights complaints is reviewable under

the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (“APA”). Garcia v. Johanns, 444 F.3d

625, 637 (D.C. Cir. 2006). On appeal, plaintiffs apparently decided not to press this issue or

present a full-fledged argument on it. See id. However, the matter was thoroughly developed before this Court,1 which properly determined that “the allegation of failure to investigate

plaintiffs’ civil rights complaints fails to state a claim upon which relief can be granted under the

APA.” Love v. Veneman, No. 00-2502 (D.D.C. Dec. 13, 2001), Memorandum at 13; Garcia v.

Veneman, No. 00-2445, 2002 WL 33004124, at *1 (D.D.C. March 20, 2002). Plaintiffs have

provided no basis for altering that conclusion, nor has the Court of Appeals ever suggested it was

1 See, e.g., Dec. 22, 2000 Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss and to Strike Class Action Allegations at 30-42.
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incorrect. As this Court found, APA review of plaintiffs’ claim that USDA failed to investigate
their administrative complaints of credit discrimination is precluded because the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691 et seq. (“ECOA”), provides an adequate remedy for plaintiffs’ underlying claims of discrimination. Love v. Veneman, No. 00-2502 (D.D.C. Dec. 13, 2001), Memorandum at 14. Furthermore, there are no standards under applicable law for the processing of civil rights complaints, a matter which is left entirely to USDA’s discretion and is therefore unreviewable under the APA. Finally, plaintiffs lack standing to seek equitable relief under the APA to enjoin future injury where the alleged failure to investigate occurred years ago, is not alleged to be an ongoing problem, and is unlikely ever to recur with respect to these plaintiffs. For these reasons, as explained further below, plaintiffs’ request for APA review of their failure-to-investigate claim should be denied.
BACKGROUND A. The USDA Process for Handling Civil Rights Complaints USDA has long-standing, internal management guidelines proscribing discrimination based on “race, color, religion, sex, age, national origin, marital status, familial status, sexual orientation, disability, or because all or part of an individual's income is derived from any public assistance program,” in the administration of any of its direct programs and activities. See 7 C.F.R. Part 15d. USDA’s Farm Service Agency (“FSA”) also has its own, corresponding nondiscrimination policy. See 7 C.F.R. § 1901.202(b). Since their promulgation in 1966, these internal guidelines have included an administrative mechanism under which persons who believe they have been the victims of discrimination in any USDA program could file a written
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complaint with USDA. 7 C.F.R. § 15.52 (31 Fed. Reg. 2645 (2/11/66), amended 31 Fed. Reg. 8175 (6/10/66)).
Under 7 C.F.R. Part 15d, participants in FSA programs who believe that they have been discriminated against may file, within 180 days of the alleged discrimination, a written complaint with USDA's Office of Civil Rights (“OCR”).2 7 C.F.R. § 15d.4. OCR may then investigate the complaint and determine what corrective actions, if any, are required to resolve it. See 7 C.F.R. § 15d.4. The predecessor regulations to Part 15d make similar provisions for the filing of discrimination complaints with USDA and their investigation. See, e.g., 7 C.F.R. § 15.52 (196699). As stated upon adoption of its most recent version, Part 15d is an internal mechanism for USDA to police itself and correct any prohibited discriminatory conduct, see 64 Fed. Reg. 66709 (November 30, 1999). Prior versions of Part 15d also described it as an “internal agency management” rule. See, e.g., 54 Fed. Reg. 31,163 (July 27, 1989); 50 Fed. Reg. 25,687 (June 21, 1985).
B. Equal Credit Opportunity Act In 1974, Congress enacted ECOA to prevent discrimination in the field of consumer credit. ECOA makes it “unlawful for a creditor to discriminate against any applicant with respect to any aspect of a credit transaction . . . on the basis of race, color, religion, national origin, sex or marital status, or age[.]” 15 U.S.C. § 1691(a). Section 1691e creates a private right of action against creditors who violate ECOA's anti-discrimination provisions. Under subsection (a), “[a]ny creditor who fails to comply with any requirement imposed under [ECOA] shall be liable
2 Formerly, the handling of complaints rested with the Office of Advocacy and Enterprise, as denominated in earlier versions of the regulation, and then, the Office of Civil Rights Enforcement.
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to the aggrieved applicant for any actual damages sustained by such applicant acting either in an individual capacity or as a member of a class.” 15 U.S.C. § 1691e(a).
Originally, no private district court action could be brought later than two years after the occurrence of the alleged ECOA violation. See 15 U.S.C. § 1691e(f). However, on October 21, 1998, Congress amended ECOA’s limitations provision, so as not to bar a civil action seeking relief with respect to discrimination alleged in an “eligible complaint” against USDA, if the action was commenced not later than two years after the enactment of the amendment. See Omnibus Consolidated and Emergency Supplemental Appropriation Act, 1999, Pub. L. No. 105277, § 741, 112 Stat. 2681 (codified at 7 U.S.C. § 2279 note) (hereinafter “section 741"). Congress passed section 741 “specifically because the USDA ‘failed to make timely and adequate response to discrimination complaints and the statute of limitations has expired through no fault of the complainant.’” Love v. Veneman, No. 00-2502 (D.D.C. Dec. 13, 2001), Memorandum at 8 n.7 (quoting H.R. Rep. No. 105-593 at 2 (1998)).
An “eligible complaint” is defined as: a non-employment related complaint that was filed with the Department of Agriculture before July 1, 1997 and alleges discrimination at any time during the period beginning on January 1, 1981 and ending on December 31, 1996 — (1) in violation of the Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.) in administering — (A) a farm ownership, farm operating, or emergency loan funded from the Agricultural Credit Insurance Program Account; or (B) a housing program established under title V of the Housing Act of 1949; or (2) in the administration of a commodity program or a disaster assistance program. 7 U.S.C. § 2279 note. Thus, ECOA actions pursuant to section 741 may be filed if before July 1, 1997, the complainant had “filed with the Department of Agriculture” a “nonemployment related
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complaint” alleging discrimination under ECOA that occurred between January 1, 1981, and December 31, 1996.
ARGUMENT I. Plaintiffs’ Denial-of-Disaster-Benefits Claims Is Not Properly Before the Court
As an initial matter, plaintiffs’ claim that defendant discriminatorily denied them disaster benefits is not properly before the Court at this time. Plaintiffs have alleged two types of APA claims, the failure-to-investigate claim and the denial-of-disaster-benefits claim. The Court of Appeals expressly limited its remand to “the APA failure-to-investigate claim.” Garcia, 444 F.3d at 637. Moreover, in its June 28, 2006 Order, this Court directed plaintiffs to file a brief “addressing the Administrative Procedure Act issues remanded by the United States Court of Appeals”. Therefore, there is no basis for the Court to consider the denial-of-disaster-benefits claim on remand, nor is there any reason for it to revisit the issue. Despite plaintiffs’ suggestion to the contrary,3 the only claim subject to “further development” which can be properly considered by the Court at this time is plaintiffs’ APA failure-to-investigate claim. Id.
Moreover, the Court has already ruled that plaintiffs’ denial-of-disaster-benefits claim is viable, see Garcia, 2002 WL 33004124, at *1 (“A final agency action denying a disaster benefit is . . . reviewable under the Administrative Procedure Act, 5 U.S.C. §§ 702, 704.”), and noted that one individual, Gloria Moralez, has raised such a claim.4 Id. Because Ms. Moralez is the
3 Plaintiffs’ Brief in Support of Claims that Defendant’s Unlawful Failure to Investigate Plaintiffs’ Discrimination Complaints and the Discriminatory Denial of Benefits Are Reviewable Under the Administrative Procedure Act (“Pl. Brief”) at 6.
4 Plaintiffs have admitted that their non-credit claims comprise only about 1% of their total claims. Feb. 5, 2001 Plaintiffs’ Opposition to Defendant’s Motion to Dismiss and to Strike Class Action Allegations at 17.
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only named plaintiff to raise a disaster benefit claim, see Third Amended Class Action Complaint, and because class certification has been denied, Garcia v. Johanns, 444 F.3d 625 (D.C. Cir. 2006), her allegation exists as an individual claim which should be litigated when the Court addresses the merits of all the individual plaintiffs’ claims. Since this Court already has held that Ms. Moralez’s denial-of-disaster-benefits claim is reviewable under the APA, plaintiffs’ arguments concerning that claim should not have been included in their brief and should be disregarded.5 II. The APA’s Waiver of Sovereign Immunity Does Not Apply to Plaintiffs’ Failure-to-
Investigate Claim The APA, 5 U.S.C. §§ 701-06, waives the government's immunity from certain suits challenging administrative agency action and seeking relief other than money damages. 5 U.S.C. § 702. It provides that a reviewing court may “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .” 5 U.S.C. § 706(2)(A). On this basis, plaintiffs argue that their failure-to-investigate claim is reviewable under the APA. As we now explain, the APA’s waiver of sovereign immunity does not apply to that claim. A. The APA’s Waiver of Sovereign Immunity Does Not Apply Because “Other
Adequate Remedies” Are Available Section 704 of the APA limits judicial review to "final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704; see Bowen v. Massachusetts, 487 U.S. 879, 903 (1988) ("Congress did not intend the general grant of review in the APA to duplicate
5 Even if the disaster benefits claim were properly before the Court, it would not be eligible for APA review because the APA’s waiver of sovereign immunity does not apply to it for the same reasons it does not apply to the failure-to-investigate claim, as described below.
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existing procedures for review of agency action"). Plaintiffs have an adequate, alternative judicial remedy for defendant’s claimed failure to investigate their civil rights complaints. Thus, the APA’s waiver of sovereign immunity does not extend that claim.
Nothing in plaintiffs’ most recent submission can mask the fact that this suit is focused on alleged discrimination in USDA credit programs. As noted earlier, only one plaintiff raises a claim that she was denied disaster benefits. The remainder of the complaint is devoted to claims regarding alleged discrimination toward Hispanic farmers in USDA’s lending practices. Thus, to the extent plaintiffs complain about USDA’s failure to investigate administrative complaints of discrimination they allegedly filed under 7 C.F.R. § 15.52, those complaints all arose out of precisely the same credit transactions on which plaintiffs’ ECOA claims are based. See Third Amended Complaint (“Complaint”) ¶¶ 5, 8, 24, 27, 33. Moreover, aside from a requested declaration that defendant’s actions are generally unlawful, Complaint, Prayer for Relief ¶ 1, none of the relief requested in the complaint pertains at all to the alleged failure to investigate. See Prayer for Relief. Rather, plaintiffs seek injunctive or other relief relating exclusively to the provision of farm loans or non-credit benefits. Id. ¶¶ 2-7.
Congress expressly preserved the remedy provided by ECOA for defendant’s alleged failure-to-investigate claims when, by enacting section 741, it extended ECOA’s statute of limitations with respect to the underlying claims of credit discrimination on which plaintiffs’ failure-to-investigate claims are based. In fact, Congress extended the statute of limitations “precisely because of USDA’s failures to investigate.” Love v. Veneman, No. 00-2502 (D.D.C. Dec. 13, 2001), Memorandum at 14; see also H.R. Rep. No. 105-593 at 2. Given that Congress has provided an adequate remedy under ECOA, plaintiffs simply cannot maintain their APA
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claims. National Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 945-48 (D.C. Cir. 2004) (holding that section 704 precluded APA review of Education’s Title IX enforcement policy based on adequate legal remedies available to plaintiffs); Washington Legal Found. v. Alexander, 984 F.2d 483, 486 (D.C. Cir. 1993) (ruling that because plaintiffs had an implied right of action under Title VI against federally-funded educational institution, section 704 precluded APA review); Women’s Equity Action League v. Cavazos, 906 F.2d 742, 750-51 (D.C. Cir. 1990) (same); Council of and for the Blind, 709 F.2d at 1531-33 (finding APA review precluded where statutory remedy against state and local governments was adequate).
Plaintiffs’ attempt to distinguish this line of cases is unavailing. Pl. Brief at 15. The lynchpin of these holdings was the existence of an adequate remedy at law for the plaintiffs, regardless of whether that remedy lay against private parties rather than a federal agency. On this basis, the courts held that review was unavailable under the APA, 5 U.S.C. § 704. Women’s Equity Action League, 906 F.2d at 751; Alexander, 984 F.2d at 486; see also Coker v. Sullivan, 902 F.2d 84, 90 n.5 (D.C. Cir. 1990) (holding that APA bars suit where a plaintiff’s injury may be remedied in another action, even if that remedy would have no effect upon the challenged agency action).
Plaintiffs misconstrue Bowen v. Massachusetts, 487 U.S. 879 (1988), as standing for the proposition that the APA does not preclude additional judicial remedies as long as they are different from the remedies previously established by Congress. Pl. Brief at 14. That is not what the Court held. The issue in Bowen was whether a federal district court action was barred under the APA, 5 U.S.C. § 704, where the government alleged that the Claims Court was the exclusive forum for judicial review of the type of agency action in question. 487 U.S. at 992-83. The
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Court ruled that “the doubtful and limited relief available in the Claims Court is not an adequate substitute for review in the District Court.” Id. at 901. Its holding is therefore perfectly consistent with the view that where Congress has provided for “‘adequate review procedures’” to remedy particular injuries, see id. at 904 n.39, as it has here for plaintiffs under ECOA, review under the APA would duplicate existing procedures and is therefore not available, see id. at 903.6
Nor do plaintiffs have a right to maintain an action under the APA even if they believe they could obtain a more effective remedy under that statute than under ECOA. See Council of and for the Blind, 709 F.2d at 1532 (observing that the other available remedy was adequate even if less effective than the APA remedy). This principle reflects Congress's intent that the APA not create an additional remedy for particular agency action for which Congress has established a specific review process. Bowen v. Massachusetts, 487 U.S. at 903; Women's Equity Action League, 906 F.2d at 750-51 (holding that APA review is precluded where another statutory remedy exists for the specific form of discrimination alleged) (citing Council of and for the Blind, 709 F.2d at 1531-33). The principle adheres notwithstanding the fact that plaintiffs may not prevail on their ECOA claims. Pl. Brief at 16. See Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001) (noting that in FDIC v. Meyer, 510 U.S. 471 (1994), the Court "found sufficient" a remedy against the individual officer "which respondent did not timely pursue"); see
6 Plaintiffs’ reliance on McKenna v. Weinberger, 729 F.2d 783 (D.C. Cir. 1984), for the argument that their ECOA claims do not preclude a companion claim under the APA, Pl. Brief at 16, is also wrong. The plaintiff’s APA claim in McKenna was not one of discrimination, and since Title VII is the exclusive remedy only for employment discrimination claims, the Court held that the plaintiff was not precluded from bringing her APA claim independently. Here, by contrast, plaintiffs’ purported APA claim involves an allegedly discriminatory failure to investigate precisely the same claims of discriminatory conduct on which their ECOA claims are based. Their APA claim is therefore based on the same cause of action as the ECOA claim and is inextricably linked to it. Thus, the proper remedy is under ECOA.
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also Mitchell v. United States, 930 F.2d 893, 897 (Fed. Cir. 1991) (holding that available remedy in Claims Court was adequate even though the plaintiff's claim in that court may have been time-barred); McGregor v. Greer, 748 F. Supp. 881, 884 (D.D.C. 1990) (holding that Civil Service Reform Act provided an adequate remedy for employee to challenge discharge even though the Act specifically exempted her, as a Schedule C excepted service employee, from its remedial provisions). Finally, to hold that Section 704 permits review of plaintiffs’ administrative complaints of credit discrimination would cause exactly the sort of problem that provision was intended to address, viz., defendant could be found liable under the APA for not investigating a claim of credit discrimination that was found to be meritless under ECOA after trial. Cf. Bowen, 487 U.S. at 903 (“Congress did not intend the general grant of review in the APA to duplicate existing procedures for review of agency action.”). Therefore, the APA does not apply to provide a waiver of sovereign immunity for plaintiffs’ failure-to-investigate claims.
B. The Challenged Actions Are Excepted from the APA Waiver Provision Because They Are Committed to Agency Discretion by Law
The APA’s waiver of sovereign immunity would be unavailable to plaintiffs even without regard to section 704 because the processing of civil rights complaints has been left entirely to the agency’s discretion. The APA does not permit judicial review of “agency action [that] is committed to agency discretion by law,” id. § 701(a)(2). In Heckler v. Chaney, 470 U.S. 821 (1985), the Supreme Court held that, although agency action is subject to a presumption of reviewability,
review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a case, the statute . . . can be taken to have “committed” the decision-making to the agency's judgment absolutely.
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Id. at 830; accord Lincoln v. Vigil, 508 U.S. 182, 191 (1993). Similarly, where a regulation directs an agency to act but provides no meaningful
standard by which to assess the manner in which the agency takes the action called for, the regulation provides no basis for review under the APA. See Perales v. Casillas, 903 F.2d 1043, 1047 (5th Cir. 1990); Slyper v. Attorney General, 827 F.2d 821, 824 (D.C. Cir. 1987), cert. denied, 485 U.S. 941 (1988). Thus, judicial review is not available where there are no “judicially manageable standards” by which to measure an agency’s exercise of its discretion, for in that situation “it is impossible to evaluate agency action for 'abuse of discretion.’” Heckler, 470 U.S. at 830; accord Vigil, 508 U.S. at 191.
Plaintiffs point to no statute, see Pl. Brief at 18-23, for there is none, that sets forth the standards by which the Court could measure USDA’s processing of civil rights complaints. See Love v. Veneman, No. 00-2502 (D.D.C. Dec. 13, 2001), Memorandum at 5 (“There are no administrative review procedures in ECOA itself, 15 U.S.C. §§ 1691 et seq.”). In fact, no statute even requires USDA to create a mechanism to administratively review complaints alleging civil rights violations in FSA’s or its predecessors’ programs, much less sets forth any standards by which the Court could determine whether defendant has abused its discretion. Cf. 42 U.S.C. § 2000e-16(b) (Title VII); 29 U.S.C. §§ 791(a), 794(a), 794a (Rehabilitation Act); 28 U.S.C. § 2672 (Federal Torts Claim Act).
Nor do USDA’s regulations provide any standards for processing civil rights complaints such that judicial review is possible. From 1981-89, 7 C.F.R. § 15.52 (the predecessor to 7 C.F.R. Part 15d) required USDA to handle complaints of discrimination “in accordance with the procedures established by law or regulation of the Department or any of its agencies for the
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handling of complaints or appeals under such program or activity which are not based on grounds of discrimination[.]” In the event a complaint of discrimination was filed involving an agency lacking a complaint or appeal procedure established by law or regulation, the complaint could be filed with the Secretary. Id. Until 1989 the regulations stated that the investigative function would be discharged “in the manner determined by [USDA].” 7 C.F.R. § 15.52 (1981-1989). After 1989, 7 C.F.R. § 15.52 was entirely silent about what defendant was to do in response to claims of discrimination, other than to “make determinations as to the merits of complaints under [section 15.52] and as to corrective actions required to resolve the complaint.” See also 7 C.F.R. § 15d.4 (from Nov. 30, 1999, to the present).
These are hardly “judicially manageable standards,” as plaintiffs characterize them. Pl. Brief at 18. Quite to the contrary, they do not specify the scope of any investigation of a complaint, or the time frame within which any such investigation was to be completed or any determination made. Nor did the regulation establish the criteria to be considered by USDA in determining what corrective action, if any, was required. In fact, the regulation did not even require that USDA advise a complainant of the status of the complaint or what corrective action, if any, had been taken in response to a complaint.
Section 15.52 and its successors present a situation indistinguishable from the one considered in Slyper v. Attorney General, 827 F.2d 821 (D.C. Cir. 1987). In that case, plaintiff challenged the refusal by the Director of the United States Information Agency to waive the requirement that the non-citizen plaintiffs first return to their country of origin before seeking permanent resident status. The Director had acted pursuant to 8 U.S.C. § 1182(e) and 22 C.F.R. § 514.32, the latter of which provided that “the Director will review the policy, program, and
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foreign relations aspects of [a request for waiver of a visa requirement] and will transmit a recommendation to the Attorney General for decision.” Slyper, 827 F.2d at 823-24.
The D.C. Circuit concluded that judicial review of the Director’s decisions was precluded under the APA because the statute and regulation at issue “contain[] no standard or criterion upon which the Director is to base a decision to make or withhold a favorable recommendation.” Id. at 823. In contrast with 8 U.S.C. § 1182(a), which listed thirty-three distinctly delineated categories to guide the State Department’s discretion in denying visas to certain foreigners, the Court found the governing statute before it “devoid of guidance.” Also, because the regulation required only that the Director review waiver applications in light of unspecified “policy, program, and foreign relations aspects of the case,” the Court concluded that the regulation was equally devoid of meaningful direction, thus precluding judicial review. Id. at 824.
7 C.F.R. § 15.52 and its progeny have provided no greater guidance than that provided by the statute and regulations at issue in Slyper. For these reasons, the Court should conclude that the manner in which USDA handled any alleged administrative civil rights complaints is committed to agency discretion and not subject to judicial review under the APA. III. The Court Lacks Jurisdiction to Consider Plaintiffs’ Allegations About Defendant’s
Alleged Failure To resolve Their Administrative Complaints of Discrimination Even if plaintiffs’ APA claims were not otherwise barred, this Court would lack jurisdiction to consider them because they do not do not satisfy the threshold “case or controversy” requirement imposed by Article III of the Constitution. City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). Plaintiffs must show that they have sustained or are “immediately in danger of sustaining some direct injury as a result of the challenged official
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conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical.” Id. at 101-02 (internal quotation marks omitted). Plaintiffs cannot do so.
Plaintiffs’ alleged administrative complaints were filed between 1984 and 2000, Complaint ¶¶ 5, 8, 24, 27, 33. Therefore, defendant’s supposed failures to investigate plaintiffs’ administrative claims of discrimination occurred years ago, and the complaint does not allege that the harm plaintiffs suffered is ongoing or likely to recur. Indeed, it appears that all but one of the plaintiffs (Mr. Chavarria, see Complaint ¶¶ 28-33) alleging a discriminatory failure to investigate have abandoned farming altogether. See, e.g., Complaint ¶ 5 (the Garcia “farms were sold at a foreclosure sale in 1999"); id. ¶ 8 (“the Jimenezes are on the verge of losing their farm to foreclosure”); id. ¶ 24 (Ms. Moralez “ultimately lost her 80-acre farm”); id. ¶ 27 (the Garzas “abandon[ed] their farm operation”). They are therefore unlikely to suffer harm in the future due to the alleged deficiencies in USDA’s processing of administrative complaints of discrimination with respect to farm loan practices. Lyons, 461 U.S. at 102 (“‘[P]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.”) (internal quotation marks omitted). Moreover, the complaint fails to allege any continuing, systematic failure on the part of USDA to investigate civil rights complaints such as would be necessary to establish an actual controversy. See id. at 105-06.7
Accordingly, plaintiffs have not made the necessary showing of particularized harm that is a prerequisite to obtaining the declaratory and injunctive relief that they seek (see Complaint,
7 In any event, plaintiffs have abandoned the administrative process by bringing their underlying discrimination claims to this Court for adjudication.
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Prayer for Relief) and that is available under the APA, see 5 U.S.C. § 702, regarding future

administrative complaints of national origin discrimination. See Lyons, 461 U.S. at 1670 (“The

speculative nature of Lyons’ claim of future injury requires a finding that this prerequisite of

equitable relief has not been fulfilled.”). To the extent plaintiffs have suffered injury for the

alleged past failure to investigate their civil rights complaints, Congress has specifically provided

them with a remedy under ECOA. See, e.g., Lyons, 461 U.S. at 112-13 (noting that while

injunctive relief would be withheld where there was no prospect of future injury, the petitioner

had a statutory remedy for damages).

CONCLUSION

For the foregoing reasons, plaintiffs’ request for APA review should be denied.

Respectfully submitted,

PETER D. KEISLER Assistant Attorney General

ROSCOE C. HOWARD, JR. United States Attorney

Dated: Sept. 27, 2006

/s/ Lisa A. Olson MICHAEL SITCOV LISA A. OLSON RUPA BHATTACHARYYA ELIZABETH GOITEIN 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

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 Case 1:00-cv-02445-RBW Document 162-1 Filed 12/05/07 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

GUADALUPE L. GARCIA, JR., et al., )

)

Plaintiffs,

)

)

v.

)

)

MICHAEL JOHANNS, Secretary of

)

Agriculture,

)

)

Defendant.

)

)

Case No. 1:00CV02445 Judge: James Robertson

DEFENDANT’S PARTIAL OPPOSITION TO PLAINTIFFS’ EMERGENCY MOTION TO CONTINUE ORDER STAYING PROCEEDING OR, IN THE ALTERNATIVE, TO ISSUE A NEW STAY OF PROCEEDINGS NUNC PRO TUNC TO NOVEMBER 30, 2007
UNTIL FURTHER ORDER OF THE COURT

Unwilling to accept the Court’s ruling, for the second time, that they cannot pursue their

failure-to-investigate and non-credit discrimination claims under the Administrative Procedure

Act (APA), 5 U.S.C. § 701 et seq., plaintiffs have persisted in their efforts to prolong this

litigation unnecessarily by filing an emergency motion to continue the order staying proceedings

or, in the alternative, to issue a new stay nunc pro tunc to November 30, 2007. Plaintiffs’ motion

seeks an indefinite stay. For the reasons set forth below, such an indefinite stay is inappropriate

in this case.

As this Court recognized in its November 30, 2007 decision, the Equal Credit

Opportunity Act (ECOA), 15 U.S.C. § 1691 et seq., not the APA, provides the basis for

plaintiffs’ discrimination claims. Congress extended the limitations period for filing claims

under ECOA precisely to address the problems plaintiffs continue to insist give rise to an APA

claim. Nearly a decade after Congress authorized farmers to pursue ECOA claims that would

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otherwise have been barred by the statute of limitations, the time has come for plaintiffs to litigate those claims rather than continuing their efforts to manufacture an APA claim in a futile effort to create a common issue that they believe could provide a predicate for class certification. Indeed, unspecified further delays in this litigation would materially prejudice the named plaintiffs’ ability (and rights) to pursue their individual claims of discrimination under ECOA.
Plaintiffs contended that an indefinite further stay of proceedings in this case is warranted primarily because, if the statute of limitations is permitted to run before appellate review of the Court’s recent dismissal order, “the valid claims of untold thousands of Hispanic farmers will be extinguished without their ever having received notice of the pending lawsuit or an opportunity to protect their rights.” Memorandum of Points and Authorities in Support of Plaintiffs’ Emergency Motion to Stay Proceedings Nunc Pro Tunc to November 30, 2007 Pending Resolution of Plaintiffs’ Appeal of the Court’s November 30, 2007 Order (“Pls.’ Memo.”) at 4. Plaintiffs, however, have been on notice ever since the Court of Appeals affirmed the denial of class certification in this case, see Garcia v. Johanns, 444 F.3d 625 (D.C. Cir. 2006), that any unnamed plaintiffs would have to file their own claims or risk dismissal on statute of limitations grounds. The government consented to an extension of the limitations period pending this Court’s consideration of the APA issue remanded by the Court of Appeals, but an indefinite further extension of the already-extended ECOA limitations period is no longer warranted. Nonetheless, recognizing the unique posture of this case, the government proposes that the tolling period be extended for 60 days from the Court’s November 30, 2007 decision to give potential plaintiffs sufficient time to file suit. Such an extension will provide ample opportunity for any additional farmers to file individual claims of discrimination without unduly prejudicing
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the claims of the plaintiffs already in this case. An indefinite stay as requested by plaintiffs is not necessary to allow them time to
consider whether to appeal this Court’s dismissal of their putative APA claim, Pls.’ Memo at 5. That ruling is not a final decision appealable as of right, and no basis exists for allowing yet another interlocutory appeal in this case.
Although plaintiffs have not yet asked this Court to certify its ruling for interlocutory appeal, we note that the Court’s ruling does not satisfy the stringent criteria for appeal pursuant to 28 U.S.C. 1292(b). See Walsh v. Ford Motor Co., 807 F.2d 1000, 1002 n.2 (D.C. Cir. 1986). (noting that interlocutory appeal may be warranted where (1) the order to be appealed from involves a controlling issue of law; (2) the order provides a substantial basis for a difference of opinion; and (3) an immediate appeal would materially advance an ultimate conclusion to the litigation). Because plaintiffs remain free to litigate their individual claims of discrimination under ECOA – claims that this Court has recognized subsume the injury alleged under their putative failure-to-investigate claim under the APA – this Court’s dismissal of the APA claim does not involve a controlling question of law. APCC Serv., Inc. v. AT&T Corp., 297 F. Sup. 2d 101, 105 (D.D.C. 2003). Even more importantly, because the APA claim attempts to redress the same injuries that Congress sought to remedy with its extension of the ECOA limitations period, allowing an interlocutory appeal from the most recent dismissal of the APA claim would not “materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). To the contrary, such an appeal would plainly delay (yet again) the adjudication of plaintiffs’ individual ECOA claims on the merits.
In less than a month some potential plaintiffs’ claims could be 27 years old and none has
-3-

Case 1:00-cv-02445-RBW Document 162-1 Filed 12/05/07 Page 4 of 4

been the subject of any merits discovery. Continuing to delay the litigation of these claims

indefinitely will only enhance the extraordinary discovery and proof problems cases this old

pose for the parties and the Court. And it raises the question whether plaintiffs actually are interested in litigating their claims.1

Conclusion

For the foregoing reasons, plaintiffs’ emergency motion for an indefinite stay should be

denied, and the Court should enter a stay of no more than 60 days to allow potential plaintiffs to

initiate their lawsuits.

Dated: December 5, 2007

Respectfully submitted,

JEFFREY S. BUCHOLTZ Acting Assistant Attorney General

JEFFREY A. TAYLOR United States Attorney

/s/ Lisa A. Olson MICHAEL SITCOV 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 Plaintiffs assert that the Court “summarily dismissed plaintiffs’ non-credit benefit claims.” Pls.’ Memo. at 6. In fact, however, the Court’s November 30, 2007 Order only dismissed plaintiffs’ APA cause of action with respect to “claims for failure to investigate discrimination,” and therefore did not encompass plaintiff Gloria Moralez’s claim for the alleged denial of disaster benefit payments, see March 20, 2002 Memorandum Order at 4.
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 Case 1:00-cv-02445-RBW Document 168 Filed 01/16/08 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GUADALUPE L. GARCIA, et al.,

:

:

Plaintiffs,

:

:

v.

: Civil Action No. 00-2445 (JR)

:

ANN V. VENEMAN, Secretary,

:

United States Department of

:

Agriculture,

:

:

Defendant.

:

________________________________ :

ROSEMARY LOVE, et al.,

:

:

Plaintiffs,

:

:

v.

: Civil Action No. 00-2502 (JR)

:

ANN V. VENEMAN, Secretary,

:

United States Department of

:

Agriculture,

:

:

Defendant.

ORDER

The motions of plaintiffs in these two cases (00-2445

Garcia [#165]; 00-2502 Love [#99]) to certify for interlocutory

appeal the nearly identical orders of this court dated

November 30, 2007 (00-2445 Garcia [#159]; 00-2502 Love [#94]) are

granted. The Court finds that such orders involve a controlling

question of law as to which there is substantial ground for

difference of opinion and that an immediate appeal from the

order(s) may materially advance the ultimate termination of the

litigation(s). All District Court proceedings in these two cases

are stayed while plaintiffs' appeals are pending. Previously

Case 1:00-cv-02445-RBW Document 168 Filed 01/16/08 Page 2 of 2 entered orders staying the operation of the statute of limitations (00-2445 Garcia [#163]; 00-2502 Love [#96]) remain in effect. It is SO ORDERED.
JAMES ROBERTSON United States District Judge
- 2 -

 
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 6, 2006

Decided March 31, 2006

Nos. 04-5448 and 05-5002

GUADALUPE L. GARCIA FOR HIMSELF AND ON BEHALF OF G.A. GARCIA AND SONS FARM ET AL.,

APPELLANTS

v.

MICHAEL JOHANNS, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE,

APPELLEE

Appeals from the United States District Court for the District of Columbia (No. 00cv02445)

Stephen S. Hill argued the cause for the appellants. Alan M. Wiseman, Robert L. Green and Kenneth C. Anderson were on brief.
Charles W. Scarborough, Attorney, United States Department of Justice, argued the cause for the appellee. Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, United States Attorney, and Robert M. Loeb, Attorney, United States Department of Justice, were on brief.

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Glen D. Nager, Shay Dvoretzky, Jason J. Jarvis and Robin S. Conrad were on brief for amicus curiae Chamber of Commerce of the United States of America.
Before: SENTELLE and HENDERSON, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: This appeal arises from one of several actions brought against the United States Department of Agriculture (Department or USDA) alleging discrimination in the administration of various federally-funded loan and benefit programs for American farmers.1 The appellants, individual Hispanic farmers, seek to represent a class of similarly situated Hispanic farmers throughout the nation who claim that the Department discriminated against them in denying them farm loans and other benefits because of their ethnicity and that it failed to investigate the discrimination complaints they subsequently filed with the Department. In the district court, the appellants sought class certification and the USDA moved to dismiss, inter alia, the failure-to-investigate claim. The district court granted the Department’s motion to dismiss and denied class certification, concluding that the appellants had failed to meet the requirements of Federal Rule of Civil Procedure 23(a) and 23(b). For the reasons that follow, we affirm in part and remand in part.
1See, e.g., Pigford v. Johanns, 416 F.3d 12, 14 (D.C. Cir. 2005) (black farmers); Keepseagle v. Glickman, 194 F.R.D. 1 (D.D.C. 2000) (Native American farmers). A related appeal challenging the district court’s denial of class certification to women farmers was heard the same day as this appeal. See Love v. Johanns, No. 04-5449, slip op. (D.C. Cir. March 3, 2006).

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I.
The Farm Service Administration (FSA)2 administers the Department’s various loan programs for American farmers through county committees, the members of which are selected locally and are located in over 2,700 counties nationwide. A farmer seeking a loan must first obtain an application from his county committee. 7 C.F.R. § 1910.4(b). He then submits the completed application to the committee which determines whether the farmer meets specific USDA loan criteria, including, inter alia, citizenship, legal capacity to incur debt, education and farming experience, farm size, inability to obtain sufficient credit elsewhere and character. Id. §§ 1941.12 (2006), 1943.12(a) (2006), 1943.12 (1988), 764.4 (2006). If an unsuccessful applicant believes the committee discriminated against him in denying his application, he may lodge a complaint with either the USDA Secretary or the USDA Office of Civil Rights. Id. § 15.6. USDA regulations provide that complaints “shall be investigated in the manner determined by the Assistant Secretary for Civil Rights and such further action taken by the Agency or the Secretary as may be warranted.” Id.
On October 13, 2000, ten Hispanic farmers filed this action in the district court. The complaint set forth three counts.3 Count I sought a declaratory judgment to determine “the rights of plaintiffs and the Class members under the defendant’s farm programs including their right to equal credit, and equal participation in farm program, and their right to full and timely
2In 1994, the Farmers Home Administration (FmHA) was combined with other Department entities to form the FSA. See United States v. Lewis County, 175 F.3d 671, 673 n.2 (9th Cir. 1999) (citing 7 U.S.C. § 6932 (Supp. 1998)). All references are to the FSA.
3Although they subsequently amended their original complaint twice, see infra, n.5, the substantive counts did not change.

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enforcement of racial discrimination complaints.” 2d Am. Compl. at 56, reprinted in Joint Appendix (JA) 83. The second count alleged a violation of the Equal Credit Opportunity Act (ECOA), 15 U.S.C. §§ 1691 et seq.4 JA 84. Specifically, the appellants alleged that the “[d]efendant’s acts of denying plaintiffs and Class members credit and other benefits and systematically failing to properly process their discrimination complaints was racially discriminatory and contrary to the [ECOA].” JA 84. Finally, the appellants alleged a violation of the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. JA 84. The appellants sought declaratory relief as well as $20 billion in damages. JA 85. Their complaint also proposed a class of
all Hispanic participants in FSA farm programs who petitioned or would have petitioned had they not been
4ECOA creates a private right of action against a creditor, including the United States, 15 U.S.C. § 1691e(a), who “discriminate[s] against any applicant, with respect to any aspect of a credit transaction” “on the basis of race, color, religion, national origin, sex or marital status, or age” or “because the applicant has in good faith exercised any right under this chapter.” Id. § 1691(a). The regulations governing ECOA define a “credit transaction” as “every aspect of an applicant’s dealings with a creditor regarding an application for credit or an existing extension of credit (including, but not limited to, information requirements; investigation procedures; standards of creditworthiness; terms of credit; furnishing of credit information; revocation, alteration, or termination of credit; and collection procedures).” 12 C.F.R. § 202.2(m). Although ECOA claims are subject to a two-year statute of limitations, see 15 U.S.C. § 1691e(f), the Congress retroactively extended the limitations period for individuals who had filed administrative complaints with the USDA between January 1, 1981, and July 1, 1997 for alleged acts of discrimination occurring between January 1, 1981 and December 31, 1996. See Pub. L. No. 105-277, § 741, 112 Stat. 2681 (reprinted in 7 U.S.C.A. § 2279 notes).

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. . . prevented from timely filing a complaint [against] USDA at any time between January 1, 1981, and the present for relief from . . . racial discrimination . . . and who, because of the failings in the USDA civil rights complaint processing system . . . were denied equal protection . . . and due process in the handling of their . . . complaints. JA 78 (emphasis in original).5
On December 22, 2000, the Department moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), contending that the court lacked jurisdiction over the ECOA claim because the appellants had not exhausted their administrative remedies and that, in any event, their claims were time-barred. In addition, the Department moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that the appellants had failed to state a claim under ECOA, the APA or the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq. On March 20, 2002, the district denied the motion in part and granted it in part, relying on its earlier—and similar—order in Love v. Johanns, No. 00-2502 (D.D.C. Dec. 13, 2001). Garcia v. Veneman, No. 00-2445 (D.D.C. Mar. 20, 2002), reprinted in JA 95-99. Of relevance here, the court dismissed the failure-toinvestigate claim, concluding that the appellants failed to state a claim under ECOA because the investigation of a discrimination complaint is not a “credit transaction” within the meaning of ECOA. JA 97-98. It further held that the claim was not cognizable under the APA because ECOA provides “an adequate remedy.” JA 97-98.
5All references are to the appellants’ Second Amended Complaint. The appellants eventually moved to file a Third Amended Complaint, which the district court denied. See Garcia v. Veneman, 224 F.R.D. 8, 16 (D.D.C. 2004); see also infra n.13.

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6
On December 2, 2002, the district court denied class certification. Garcia v. Veneman, 211 F.R.D. 15 (D.D.C. 2002) (Garcia I). It concluded that the appellants failed to show the required “commonality” under Federal Rule of Civil Procedure 23(a)(2) and did not represent a certifiable class under Rule 23(b). They did not show commonality, the court concluded, because they did not demonstrate that the Department operated under a general policy of discrimination nor did they identify a common USDA policy or practice that disparately affected them. Id. at 19-22. The court then considered whether the requested class could be certified under Rule 23(b) and concluded that Rule 23(b)(2) certification was inappropriate because the $20 billion in damages they sought predominated over their request for equitable relief. Id. at 22-23. The court also found Rule 23(b)(3) certification inappropriate because they had not shown that common questions predominated. Id. at 2324.
After additional discovery, the appellants submitted a supplemental brief on the issue of commonality, which the district court treated as a renewed motion for class certification. Garcia v. Veneman, 224 F.R.D. 8 (D.D.C. 2004) (Garcia II). They had obtained in discovery 37 USDA loan and disaster benefit files as well as two USDA databases which, they alleged, showed the requisite commonality for both their disparate impact and their disparate treatment allegations of discrimination. Id. at 10. They argued that the files revealed that the USDA had denied Hispanic farmers’ applications based on the subjective, rather than the objective, eligibility criteria set forth in 7 C.F.R. § 15.6 and that, as a result, the use of subjective criteria had a disparate impact on them. Id. at 13-15. They also claimed that the USDA as a “single actor” had treated them discriminatorily through a pattern and practice of discrimination. Id. at 10. They listed five sub-patterns of discrimination, including (i) refusal to provide Hispanic farmers with loan applications or assistance in completing applications; (ii)

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subjecting Hispanic farmers to protracted delays in processing and funding their loans; (iii) using subjective criteria to reject the applications of Hispanic farmers; (iv) unnecessarily subjecting Hispanic farmers to the inconvenience of supervised bank accounts; and (v) delaying or denying loan servicing for Hispanic farmers. Id. at 10. The court nevertheless concluded that, even with their supplementation, they failed to demonstrate commonality.
On September 24, 2004, the appellants moved the district court to certify the order dismissing their failure-to-investigate claim for interlocutory appeal under 28 U.S.C. § 1292(b), which motion the court granted. Garcia v. Veneman, No. 00-2445 (D.D.C. Sept. 27, 2004). In accordance with Federal Rule of Civil Procedure 23(f), the appellants petitioned this court on September 22, 2004 for leave to file an interlocutory appeal of the class certification denial, which petition we granted. In re Garcia, No. 04-8008 (D.C. Cir. Dec. 16, 2004). Before us for review, then, are three orders, namely Garcia, No. 00-2445 (D.D.C. Mar. 20, 2002) (granting motion to dismiss), Garcia I, 211 F.R.D. 15 (D.D.C. 2004) (denying class certification), and Garcia II, 224 F.R.D. 8 (D.D.C. 2004) (denying class certification again).
II.
As we have recognized, the district court is “uniquely well situated” to rule on class certification matters. Wagner v. Taylor, 836 F.2d 578, 586 (D.C. Cir. 1987). Accordingly, we review a certification ruling “conservatively only to ensure against abuse of discretion or erroneous application of legal criteria,” id., and we will affirm the district court even if we would have ruled differently in the first instance. See McCarthy v. Kleindienst, 741 F.2d 1406, 1410 (D.C. Cir. 1984).
Under Federal Rule of Civil Procedure 23(a), a plaintiff seeking class certification must show that:

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8
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Failure to adequately demonstrate any of the four is fatal to class certification. See In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 106 (D.C. Cir. 2002). The district court found that the appellants failed to show “questions of law or fact common to the class” or “commonality” under Rule 23(a)(2). We affirm that ruling.6
To establish commonality under Rule 23(a)(2), a plaintiff must identify at least one question common to all members of the class. See In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 528 (3d Cir. 2004). Not every common question, however, suffices under subsection (a)(2). As the United States Supreme Court declared of an alleged disparate treatment class in a Title VII action,
there is a wide gap between (a) an individual’s claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the
6If a plaintiff meets the requirements of Rule 23(a), he must then establish that class certification is appropriate under one of the three alternatives of Rule 23(b). See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613-16 (1997). Although the district court found that certification was also inappropriate under subsections (b)(2) and (3), we do not reach that holding because of our affirmance of its subsection (a)(2) holding. See Love v. Johanns, No. 04-5449, slip op. at 13 n.3 (D.C. Cir. March 3, 2006).

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same injury as that individual, such that the individual’s claim and the class claims will share common questions of law or fact and that the individual’s claim will be typical of the class claims.
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982).7 Following Falcon, we have required a plaintiff seeking to certify a disparate treatment class under Title VII to “make a significant showing to permit the court to infer that members of the class suffered from a common policy of discrimination that pervaded all of the employer’s challenged employment decisions.” Hartman v. Duffey, 19 F.3d 1459, 1470 (D.C. Cir. 1994). And in Love v. Veneman, we held that a showing of commonality for a disparate treatment class under ECOA requires the plaintiff to show “(i) discrimination (ii) against a particular group (iii) of which the plaintiff is a member, plus (iv) some additional factor that ‘permit[s] the court to infer that members of the class suffered from a common policy of discrimination.’ ” No. 045449, slip op. at 9. (emphasis in original) (citation omitted) (alteration in original).
Regarding the appellants’ challenge to Department action with an allegedly class-wide discriminatory impact, they must make a showing sufficient to permit the court to infer that
7Other courts have used Title VII precedent in cases involving ECOA. See, e.g., Mays v. Buckeye Rural Elec. Co-op., Inc., 277 F.3d 873, 876 (6th Cir. 2002) (“Given the similar purposes of the ECOA and Title VII, the burden-allocation system of federal employment discrimination law provides an analytical framework for claims of credit discrimination.”); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215 (1st Cir. 2000) (“In interpreting the ECOA, this court looks to Title VII case law . . . .”); Bhandari v. First Nat’l Bank of Commerce, 808 F.2d 1082, 1100 (5th Cir. 1987) (“The language [of ECOA] is closely related to that of Title VII of the Equal Employment Opportunity Act (“EEOA”), 42 U.S.C. § 2000e-2, and was intended to be interpreted similarly.”).

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members of the class experienced discrimination as a result of the disparate effect of a facially neutral policy. See Cooper v. S. Co., 390 F.3d 695, 716 (11th Cir. 2004). That is, similar to our formulation of the commonality showing necessary for a disparate treatment class set out in Love v. Johanns, the appellants must show for their disparate impact class (i) a discriminatory impact, (ii) affecting a particular group, (iii) of which the plaintiffs are members, (iv) resulting from a common facially neutral policy or practice.
A.
First, the appellants contend that the district court erred in denying class certification of their discriminatory treatment claim based on the geographic spread of the local decisionmakers, labeling it a “pattern and practice” claim, see Appellants’ Br. at 40. But see Garcia I, 211 F.R.D. at 22 (“Commonality is defeated . . . by the large numbers and geographic dispersion of the decision-makers . . . .”). As with a Title VII claim, to establish a charge of pattern and practice discrimination under ECOA, a putative class must prove that “discrimination was the company’s standard operating procedure—the regular rather than the unusual practice.” Bazemore v. Friday, 478 U.S. 385, 398 (1986) (quoting Teamsters v. United States, 431 U.S. 324, 336 (1977)). Similarly, to show commonality under Federal Rule of Civil Procedure 23(a)(2), the plaintiff must “make a significant showing to permit the court to infer that members of the class suffered from a common policy of discrimination that pervaded all of the [defendant’s] challenged . . . decisions.” Hartman, 19 F.3d at 1472.
“As is now well recognized, the class action commonality criteria are, in general, more easily met when a disparate impact rather than a disparate treatment theory underlies a class claim.” Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267, 274 n.10 (4th Cir. 1980). Establishing commonality

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for a disparate treatment class is particularly difficult where, as here, multiple decisionmakers with significant local autonomy exist. Id at 278-80 (reversing class certification because of geographic separation of workforce and autonomy of local decisionmakers); see also Cooper, 390 F.3d at 715. The appellants failed to identify any centralized, uniform policy or practice of discrimination by the USDA that formed the basis for discrimination against Hispanic loan applicants with varied eligibility criteria in over 2,700 counties nationwide over a 20year period. Rather, despite the appellants’ allegation that the USDA’s actions are those of a “single actor,” their claims arise from multiple individual decisions made by multiple individual committees. Moreover, they do not cite a single reversal of a district court’s denial of class certification based on no commonality resulting from the geographic spread of the decisionmakers.8 Cf. Stastny, 628 F.2d at 278-79 (district court abused discretion in certifying class of employees spread through “great number of geographically dispersed facilities” with “almost complete local autonomy”). Our standard of review is deferential and the appellants have failed to convince
8The appellants contend that we cannot rely on the geographic spread of defendant decisionmakers in deciding whether to certify a disparate treatment class. Appellants’ Br. at 40. They are wrong. See, e.g., Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 571 (6th Cir. 2004) (no abuse of discretion in denying certification of class of all black employees at four separate facilities of defendant over 20 year period); Cooper, 390 F.3d at 715 (no abuse of discretion in denying class certification to employees working for different defendants throughout wide geographic area and encompassing range of working environments); Stastny, 628 F.2d at 278-79 (no abuse of discretion in denying class certification to employees working in different plants with local decisionmakers throughout state); Webb v. Merck & Co., Inc., 206 F.R.D. 399, 406 (E.D. Pa. 2002) (denying class certification “cut[ting] across employment status, job categories, facilities and geographic regions”).

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us that the district court abused its discretion in denying class certification to the appellants’ alleged disparate treatment class.
B.
We next consider the appellants’ claim that the district court erred in failing to certify a class on whose members the Department’s facially neutral action has had a discriminatorily disparate impact. Assuming without deciding that a disparate impact claim is cognizable under ECOA,9 the claim would require a plaintiff to “identify a specific policy or practice which the defendant has used to discriminate and must also demonstrate with statistical evidence that the practice or policy has an adverse effect on the protected group.” Powell v. Am. Gen. Fin., Inc., 310 F. Supp. 2d 481, 487 (N.D.N.Y. 2004) (recognizing disparate impact claim under ECOA).
The appellants press two alternative theories to support their contention that the district court erred in not certifying a disparate impact class. First, they argue that they do not need to specify a facially neutral practice if it is impossible to determine which of the USDA eligibility criteria have had the discriminatory effect, instead borrowing from Title VII’s “one
9Both Title VII and the Age Discrimination in Employment Act (ADEA) prohibit actions that “otherwise adversely affect” a protected individual. See 42 U.S.C. § 2000e-2(a)(2); 29 U.S.C. § 623(a)(2). The Supreme Court has held that this language gives rise to a cause of action for disparate impact discrimination under Title VII and the ADEA. See Smith v. City of Jackson, 125 S. Ct. 1536, 1540 (2005) (ADEA); Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971) (Title VII). ECOA contains no such language. We express no opinion about whether a disparate impact claim can be pursued under ECOA. See Eisen v. Carlisle & Jacquelin, 418 U.S. 156, 177-78 (1974) (court should not examine whether “plaintiffs have stated a cause of action or will prevail on the merits” in determining class certification vel non).

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employment practice” notion.10 Alternately, they argue the USDA’s subjective decisionmaking process constitutes the common facially neutral practice. We reject both theories and instead affirm the district court’s denial of class certification because the appellants failed to show a common facially neutral USDA farm loan policy, resulting in the disparate effect on them and the putative class of Hispanic farmers. See Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 292 (2d Cir. 1999)
10The appellants cite the“one employment practice” language of Title VII, see 42 U.S.C. § 2000e-2(k)(1)(B)(I), and argue that it relieves them from having to tie a disparate impact to a facially neutral USDA policy. Appellants Br. at 34-38. The Congress added the “one employment policy” language following the Supreme Court’s holding in Wards Cove Parking Co. v. Atonio, 490 U.S. 642 (1989). It provides that “if the complaining party can demonstrate to the court that the elements of a respondent’s decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.” 42 U.S.C. § 2000e2(k)(1)(B)(I). Assuming—again, without deciding—the “one employment practice” notion applies to an ECOA disparate impact claim, it does not alter the required commonality showing under Federal Rule of Civil Procedure 23(a)(2). The appellants erroneously confuse the commonality showing with the prima facie case of disparate impact discrimination. See Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 572 (6th Cir. 2004) (“Plaintiffs cannot avoid the heavy lifting of showing eligibility for class certification by conflating two exceptions to separate rules for adjudicating discrimination cases.”). Under Rule 23(a)(2), the appellants must show that the putative class members have something in common—they all suffered an adverse effect from the same facially neutral policy, see id.—and their showing must be “significant,” see Hartman, 19 F.3d at 1470. On the other hand, courts have set a lower bar for establishing a prima facie discrimination case. See, e.g., Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Bundy v. Jackson, 641 F.2d 934, 950 (D.C. Cir. 1981) (recognizing difficulty plaintiff faces in proving motive behind employer’s actions).

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(“Of course, class certification would not be warranted absent some showing that the challenged practice . . . has a disparate impact on African-American employees at Metro-North.”). As the Supreme Court noted in Falcon—where class certification was denied—“[t]he mere fact that an aggrieved private plaintiff is a member of an identifiable class of persons of the same race or national origin is insufficient to establish his standing to litigate on their behalf all possible claims of discrimination against a common employer.” Falcon, 457 U.S. at 159 n.15.
In Garcia I, 211 F.R.D. at 21-22, the district court rejected the appellants’ disparate impact claim because they did not connect disparate impact with a common facially neutral USDA policy. They had submitted the declaration of Jerry Hausman, an expert in econometrics and microeconomics, in which declaration he concluded that Hispanic farmers received a lower percentage of USDA loans than white farmers received in 1997. JA 123. Hausman, however, analyzed all farmers (white and Hispanic) as opposed to only those farmers (white and Hispanic) who had applied for USDA loans. After further discovery produced USDA loan databases, two of which the appellants used to support their renewed class certification motion, they submitted the declaration of statistician Karl Pavlovic, who found that 72 per cent of white applications were approved in the period from October 1997 to January 2003 while 59 per cent of Hispanic applications were approved in the same period. JA 477. In Garcia II, the district court assumed a disparate impact without discussion of Pavlovic’s declaration. Garcia II, 224 F.R.D. at 11. The court, however, again concluded that the appellants had failed to connect the disparate impact to a common facially neutral USDA policy. Id. (rejecting appellants’ argument because “[n]ot only does it ‘leapfrog to the merits,’ . . . but it also boils down to the proposition that unexplained discrepancies in the distribution of government benefits satisfy the commonality requirement of Rule 23(a)(2) without more”).

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The appellants attempted to connect the disparate impact to USDA’s subjective loan decisionmaking criteria, relying in part on statistical evidence. But their statistical analyses were analytically flawed because they did not incorporate key relevant variables connecting disparate impact to loan decisionmaking criteria. See Bazemore v. Friday, 478 U.S. 385, 400 n.10 (1986) (“some regressions [are] so incomplete as to be inadmissible as irrelevant”). It does not suffice under Rule 23(a)(2) to show an ethnic imbalance in the USDA’s award of loans to farmers; rather, the appellants must show that a common facially neutral policy caused the imbalance. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656-57 (1989) (“[A] Title VII plaintiff does not make a case of disparate impact simply by showing that, ‘at the bottom line,’ there is racial imbalance in the work force.”); Caridad, 191 F.3d at 292. The appellants could have done this, for instance, by employing multiple regression. See Love v. Johanns, No. 04-5449, slip op. at 16 (“Instead of conducting a relatively simple statistical analysis (such as a multiple regression) to control for any or all of these variables, O’Brien simply reported a series of elementary cross-tabulations, from which it is impossible—as a statistical matter—to draw meaningful conclusions.”); see also Segar v. Smith, 738 F.2d 1249, 1261 (D.C. Cir. 1984) (“Multiple regression is a form of statistical analysis used increasingly in Title VII actions that measures the discrete influence independent variables have on a dependent variable such as salary levels.”). The appellants’ statistics failed to account for variables that affected the analyses such as whether fewer Hispanic farmers were U.S. citizens, whether Hispanic farmers had worse credit and whether Hispanic farmers had less experience. Love, No. 04-5449, slip. op. at 15-16.
The district court thus acted within its discretion in rejecting the appellants’ statistical showing as insufficient to infer classwide discrimination arising from the Department’s administration of the farmers’ loan programs. Its decision to

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deny class certification “did not constitute a clear error of judgment, nor [was it] otherwise outside the range of choices the district court was allowed to make.” Cooper, 390 F.3d at 715. We, of course, do not suggest that statistical evidence alone could never show commonality; we simply believe that the district court did not abuse its discretion in finding the appellants’ statistical evidence inadequate. See Hartman, 19 F.3d at 1473 (“While statistics can generally be probative of the question of commonality, we would feel uncomfortable in resting on the trial statistics in the present record for a final determination of commonality.”).11
11We think the class certification issue here is similar to that in Cooper v. Southern Co., 390 F.3d 695 (11th Cir. 2004), in which the Eleventh Circuit affirmed the denial of class certification in a Title VII action. Seven African-American employees of Southern Company and several of its subsidiaries sought to represent a class alleging disparate impact and disparate treatment claims in connection with promotion opportunities, performance evaluations and compensation. The court found that the “plaintiffs’ statistical evidence was insufficient to establish a presumption of discrimination common to the claims of all members of the putative class.” Id. at 719 (emphasis in original). “[A]nalytical flaws in the statistical evidence” prevented the Cooper plaintiffs from making a showing sufficient to “ ‘raise a presumption of discrimination arising from the collective whole of Defendant’s compensation and promotion policies. Thus, disparate impact analysis produce[d] no evidence common to the claims of all class members.’ ” Id. at 716 (quoting Cooper v. S. Co., 205 F.R.D. 596, 613 (N.D. Ga. 2001)) (alteration and emphases in original). The statistical evidence there did not account for variables such as an employee’s type or level of acquired skills and field of study, the quality, type and relevance of an employee’s experience, an employee’s job performance, etc., to ensure that black and white employees were similarly situated. Compare id. at 717 with Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 293 (2d Cir. 1999) (reversing denial of class certification because expert “controlled for various factors that one would expect to be relevant to the likelihood of disciplinary action and promotion”). In addition, the statistical

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The other evidence the appellants relied on—namely, the 37 USDA case files—arguably may have come closer to establishing commonality because it showed that the USDA often used the infeasibility of an applicant’s farm plan as one reason for denying a loan. See Garcia II, 224 F.R.D. 14 (farm plan infeasibility given as one reason for almost half of loan rejections). Nonetheless, mindful of our limited scope of review, see supra at 9, we do not believe that the district court abused its discretion in denying class certification. The USDA denied loans for a variety of reasons, including inadequate farm plans and lack of funds.12 Mem. in Response to the Court’s July 15, 2003 Order with Respect to Commonality at app. 7, Garcia v. Veneman, No. 02-2445 (D.D.C. filed Dec. 5, 2003). The case files as well as the anecdotal evidence upon which the appellants relied showed that often the appellants were denied loans based on objective financial data. See id. In sum, the Department used an array of objective—and individual—justifications in denying the appellants loans.13 Accordingly, we affirm the
evidence did not reference the named plaintiffs or their specific similarly-situated comparators and, accordingly, the court found that they had not established “commonality among these named plaintiffs’ claims and the overall affected class.” Cooper, 390 F.3d at 718 (emphasis in original).
12For instance, Roberto Salinas and his son jointly applied for an ownership loan in 2000 and Roberto Salinas solely applied for an operating loan in the same year. The USDA denied both loans because of the infeasibility of the farm plan as well as inadequate verification of Roberto Salinas’s debt. Mem. in Response to the Court’s July 15, 2003 Order with Respect to Commonality at app. 7, Garcia v. Veneman, No. 02-2445 (D.D.C. Dec. 5, 2003).
13In addition to the disparate impact and treatment classes already discussed, the appellants sought certification of five subclasses. Garcia II, 224 F.R.D. at 15-16. The five subclasses were set forth in their proposed Third Amended Complaint, see JA 512-13, which the

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district court’s denial of class certification of the appellants’ disparate impact claim.
III.
We have jurisdiction to review, in our discretion, the district court’s dismissal of the appellants’ failure-to-investigate claim under ECOA and the APA pursuant to 28 U.S.C. § 1292(b). The appellants must persuade us that exceptional circumstances justify a departure from the ordinary policy of postponing appellate review until after entry of final judgment. See United States. v. Philip Morris USA, Inc., 396 F.3d 1190, 1209 (D.C. Cir. 2005).
We exercise our jurisdiction over the dismissal of the ECOA failure-to-investigate claim, as we did in Love v. Johanns, and affirm the district court’s dismissal for the same reason—the failure to investigate a discrimination complaint is not a “credit transaction” within the meaning of ECOA. Love v. Veneman, No. 04-5449, slip op. at 17-18. We decline, however, to exercise our jurisdiction regarding the appeal of the denial of the appellants’ failure-to-investigate claim made under the APA. As in Love, the class certification issues took most of the trial court’s and the parties’ attention and unlike the straightforward statutory construction issue the appellants’ ECOA failure-toinvestigate claim presents, we think this claim will benefit from further development in the district court.14 Id. at 18.
district court denied without prejudice. Garcia II, 224 F.R.D. at 16. Their challenge to the district court’s denial of their motion to amend is supported by conclusionary assertions only, see Appellants’ Br. at 44, and they have therefore waived the issue. See United States v. Yeh, 278 F.3d 9, 16 n.4 (D.C. Cir. 2002).
14Before us, the appellants used slightly more than four pages of their 59-page brief and no time at oral argument addressing the APA failure-to-investigate claim.

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For the foregoing reasons, we affirm the district court’s denial of class certification as well as its dismissal of the failureto-investigate claim asserted under ECOA. We dismiss the appeal of the APA failure-to-investigate claim and remand to the district court for further proceedings consistent with this opinion.
So ordered.

 
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Notice: This opinion is subject to formal revision before publication in the Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 9, 2009

Decided April 24, 2009

No. 08-5110

GUADALUPE L. GARCIA, FOR HIMSELF AND ON BEHALF OF G.A. GARCIA AND SONS FARM, ET AL., APPELLANTS

v.

THOMAS VILSACK, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE,
APPELLEE

Appeal from the United States District Court for the District of Columbia (No. 1:00-cv-02445-JR)
______
No. 08-5135
ROSEMARY LOVE, ET AL., APPELLANTS
v.

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THOMAS VILSACK, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE,
APPELLEE
Appeal from the United States District Court for the District of Columbia (No. 1:00-cv-02502-JR)
Stephen S. Hillargued the cause for appellants Guadalupe L. Garcia, Jr., et al. With him on the briefs wereAlan M. Wiseman, Robert L. Green, and Kenneth C. Anderson.
Barbara S. Wahl argued the cause for appellants Rosemary Love, et al. W ith her on the briefs were Marc L. Fleischaker, Kristine J. Dunne , Jennifer A. Fischer , Roderic V.O. Boggs , Susan E. Huhta, Alexander John Pires, Jr., and Phillip L. Fraas.
Charles W. Scarborough , Attorney, U.S. Departm ent of Justice, argued the causes the appell ee. With him on the brief were Gregory G. Katsas, Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, and Marleigh D. Dover, Attorney.
Before: ROGERS and G RIFFITH, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: These appeals relate to the continuing efforts by farm ers to obt ain relief from the discriminatory distribution of federal farm benefits by the United States Department of Agriculture (“USDA”). See, e.g., Pigford v. Glickman, 206 F.3d 1212 (D.C. Cir. 2000). This tim e the complaints were f iled by f emale and Hispanic f armers who

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alleged that since 1981 the USDA has unlawfully discriminated against them in the administration of its farm benefit programs and failed to act on their administrative complaints in accordance with USDA regulations. This court affirmed the denial of class action certification and the dismissal of the failure-to-investigate claims brought under the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. §§ 1691-1691f. Love v. Johanns, 439 F.3d 723 (D.C. Cir. 2006);Garcia v. Johanns, 444 F.3d 625 (D.C. Cir. 2006). The question in this s econd interlocutory appeal is whether appellants’ failure-to-investigate claims are reviewable under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706. Because appellants fail to show they lack an adequate remedy in a court, we affirm the dismissals of their APA failureto-investigate claims and remand the cases to the district court.
I.
The ECOA provides that it is “unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction . . . on the basis of race, colo r, religion, national origin, sex or marital status, or age.” 15 U.S.C. § 1691(a). The statute authorizes the recovery of actual dam ages from creditors, including the federal governm ent, see id. §§ 1691a(e)-(f), 1691e(a), and a court “may grant such equitable and declaratory relief as is necessaryto enforce [the ECOA],” as well as “reasonable attorney’s fees” to applicants bringing a “successful action.” Id. § 1691e(c)-(d). Claims under the ECOA must be filed within two years of the “date of the occurrence of the violation.” Id. § 1691e(f).
USDA regulations have long provide d that applicants alleging discrimination by the USDA in its direct benefit programs may file administrative complaints with the USDA. See 7 C.F.R. § 15d.4; see also Love v. Connor, 525 F. Supp. 2d

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155, 157-58 (D.D.C. 2007).1 Appellants allege, however, that for years the USDA ignored discrim ination complaints like theirs. Indeed, in 1997 the USDA publicly acknowledged that in the early 1980s it “effectively dism antled” its civil rights enforcement apparatus.2
In response, Congress enacted a special remedial statute in 1998 for applicants who had filed a “nonem ployment related complaint” with the USDA before July 1, 1997 that alleged discrimination occurring between January 1, 1981 and December 31, 1996. Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Pub. L. No. 105-277, § 741(e), 112 Stat. 2681-31 (codified at 7 U.S.C. § 2279 Note) (hereinafter “Section 741”). The statute extended the ECOA statute of limitations until October 21, 2000, and provided that such eligible complainants could either file an ECOA action in federal court, pursuant to Section 741(a), or renew their adm inistrative complaints and obtain a determ ination on the m erits of their claim from the USDA, pursuant to Section 741(b). Subsection (b) of the statute required the USDA to timely process renewed administrative complaints, to investigate the claims, and to issue merits determinations after a hearing on the record. Subsections
1 The USDA regulations treat the filing of adm inistrative complaints alleging discrim ination as perm issive, rather than mandatory. See Nondiscrimination in USDA Conducted Program s and Activities, 63 Fed. Reg. 62,962, 62,963 (proposed Nov1.0, 1998).
2 CIVIL RIGHTS ACTION TEAM, USDA, CIVIL RIGHTS AT THE UNITED STATES DEPARTMENT OF AGRICULTURE 46-47 (1997); see also Pigford v. Venema n, 292 F.3d 918, 920 (D.C. Cir. 2002); Treatment of Minority and Limited Resource Producers by the U.S. Department of Agriculture: Hearings Before the H. Subcomm. on Dep’t Operations, Nutrition and ForeignAgric. and the H. Comm. on Agric., 105th Cong. 97 (1997) (statem ent of the Secretary of the USDA).

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(d) and (g) provided tha t complainants denied adm inistrative relief could seek de novo review in federal court.
Appellants, nearly all of whom appear to have filed complaints with the USDA before July 1, 1997,3 chose the first option: On the eve of the October 21, 2000 deadline, they filed complaints in the federal district court here under the ECOA and the Declaratory Judgm ent Act, 28 U.S.C. § 2201(a). Their complaints also included claims under the APA.4 They alleged that the USDA had discrim inated against them with respect to credit transactions and disaster benefits in violation of the ECOA, and also had systemically failed to investigate complaints of such discrimination in violation of USDA regulations. In the district court only appellants’ ECOA credit transaction claim s and the Garcia appellants’ APA disaster benefit claims have survived the USDA’s motion to dism iss. The district court also denied
3 Two Garcia appellants filed administrative complaints with the USDA regarding discrim ination occurring after 1996. Those complaints would not be covered by Section 741. This is a circumstance of no significance because we hold that al l of the appellants have an adequate remedy at law in the ECOA for their failure-to-investigate claims. Durin g oral argument government counsel acknowledged, however, that were agency action on thepost1996-occurrence complaints unreasonably delayed, these Garcia appellants could seek judicial relief in the district court under Telecommunications Research & Action Center v. FCC, 750 F.2d 70,
79-80 (D.C. Cir. 1984). Government counsel expressed no opinion on
whether such delay had occurred as to these two adm inistrative complaints. We leave for another day whether TRAC relief would be available given our holding that the ECOA provides an adequate remedy at law for failure-to-investigate claims.
4 See Love v. Veneman , Civ. No. 00-2502, slip op. at 1 (D.D.C. Dec. 13, 2001); Garcia v. Veneman, Civ. No. 00-2445, 2002 WL 33004124, at *1 (D.D.C. Mar. 20, 2002).

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appellants’ motions for class certif ication on their rem aining ECOA discrimination claims, and this court affirm ed upon interlocutory review in 2006. See Love, 439 F.3d 723; Garcia, 444 F.3d 625. Following a rem and of the APA f ailure-toinvestigate claims, the district court reaf firmed its dismissal of those claims on the ground that Section 741 provided appellants an adequate remedy at law. See Love v. Connor, 525 F. Supp. 2d 155; Order, Garcia v. Veneman, Civ. No. 00-2445. The district court certified its interlocutor y ruling, and this court granted appellants’ petition f or leave to appeal pursuant to 28 U.S.C. §1292(b).
II.
The APA provides that “[a]gency action made reviewable by statute and final agency a ction for which there is no other adequate remedy in a court are subject to judicial r eview.” 5 U.S.C. § 704. In Bowen v. Massachusetts, 487 U.S. 879, 904 (1988), the Supreme Court interpreted § 704 as precluding APA review where Congress has otherwise provided a “special and adequate review procedure.” Id. at 904 (internal quotations omitted). An alternative remedy will not be adequateunder § 704 if the remedy offers only “doubtful and limited relief.” Id. at 901. So understood, this court has held that the alterna tive remedy need not provide relief identical to relief under the APA, so long as it offers relief of t he “same genre.” El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’ t of Health & Human Servs., 396 F.3d 1265, 1272 (D.C. Cir. 2005.) Thus, for example, relief will be deem ed adequate “where a statute af fords an opportunity for de novo district-court review” of the agency action. Id. at 1270. In such cases, t he court has reasoned that “Congress did not intend to perm it a litigant challenging an administrative denial . . . to utilize sim ultaneously both [the review provision] and the APA.” Id. at 1270 (quoting Envtl. Defense Fund v. Reilly, 909 F.2d 1497, 1501 (D.C. Cir. 1990))

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(omission and alteration in original). Relief also will be deemed adequate “where there is a private cause of action against a third party otherwise subject to agency regulation.” Id. at 1271. I n evaluating the availability and adequacy ofalternative remedies, however, the court must give the APA “‘a hospitable interpretation’ such that ‘only upon a showing of clear and convincing evidence of a contrary legislative intent should the courts restrict access to judicial review.’” Id. at 1270 (quoting Abbott Labs. v. Gardner , 387 U.S. 136, 141 (1967)); see also Bowen v. Massachusetts, 487 U.S. at 904.
Appellants contend that the distri ct court erred in two respects in holding that they could not bring a claim under the APA challenging the USDA’s f ailure to investigate their civil rights complaints: First, the district court misapplied Bowen by disregarding record evidence that under Section 741 there was no real adequate alternative rem edy in a court f or their failure-toinvestigate claims; second, the district court mistakenly relied on this court’s precedents involving claim s against an agency f or failing to regulate third-partywrongdoers, and therefore failed to follow circuit precedent that permits a plaintiff to bring an APA claim for the agency’s failure to follow its regulations in addition to a non-APA discrimination claim. Appellants emphasize that their survival as farm ers depends in significant par t on their ability to obtain federal benefits authorized by Congress to be administered by the USDA, and that when the USDA fails to comply with its regul ations for handling and processing administrative complaints, the benefits syst ems envisioned by Congress are thwarted and their efforts to survive as farmers are stymied. Although this court has no occasion to doubt appellants’ claims of harm, their legal challenges to the dismissal of their APA failure-to-investigate claims are unpersuasive.
First, there is clear and convincing evidence that in enacting Section 741 Congress did not intend for com plainants who

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choose to proceed in the district court on their ECOA claim s to pursue their failure-to-investigate claim s under the APA simultaneously in the sam e lawsuit. In responding to the dilemma presented by the USDA’s f ailure to investigate discrimination claims, Congress resurrected time-barred claims and gave such complainants two options: either file a complaint in the district court or renew their administrative complaint with the USDA with subsequent judicial review if the USDA denied relief. Although appellants had t he option first to renew their administrative complaints with the USDA pursuant to Section 741(b), they chose not to do so. Had a ppellants done so, the USDA would have been obligated to process, inves tigate, and adjudicate appellants’ complaints of discrimination in a t imely fashion and absent relief de novo judicial review would be available. Having chosen instead to proceed directly to the district court pursuant to Section 741(a), appellants’ complaints sought declaratory and injunctive relief that the USDA should have investigated their old, unrenewed administrative complaints about discrimination and requiring USDA to develop a better processing system for such claim s — in other words to grant appellants the relief that they chose to f orego when they f iled their lawsuits pursuant to Section 741(a). By extendi ng the statute of limitations for administrative complaints and by providing for judicial review of USDA’s dete rminations, Congress provided appellants an adequate remedy in court within the meaning of the APA. Appe llants are therefore barred from relying on the APA to obtain relief they chose to forego.
Appellants contend, however, thatthey were entitled to seek a court order pursuant to the APA to remedy the USDA’s failure to investigate their old adm inistrative complaints because the alternative administrative option under Section 741(b) was illusory. To that end, appellants offered unrebutted evidence that the USDA never successfully im plemented the required administrative process; they also suggested that no plaintiff has

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yet obtained de novo district court review pursuant to Section 741(b).5 Beca use of the flaws in the Section 741(b) option, appellants conclude that they m ay obtain through their Se ction 741(a) complaint relief under the APA prom ised by Section 741(b).
There are two problems with appellants’ approach. The first is simply a m atter of statutory interpretation. Adoption of appellants’ interpretation would ef fectively rewrite the statute that Congress specifically enacted in response to the USDA’s failure to address discrim ination complaints. The plain text of Section 741 required com plainants to m ake a choice betw een going to court immediately or first renewing their administrative complaints. Congress required the USDA to process, investigate, and adjudicate the r enewed administrative complaints and afforded complainants who obtained no relief the opportunity to seek de novo review in the district court. Each option afforded an in-court remedy. Moreover, had appell ants renewed their administrative complaints pursuant to Section 741(b) and thereby attempted to obtain relief pursuant to the APA through the USDA’s administrative process, and been unable to obtain a final determination due to the USDA’s unreasonable delay, they could have sought, as government counsel acknowledged during oral argument, relief in the district court under Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 79-80 (D.C. Cir. 1984). Cf. In re Core Commc’ns, Inc. , 531 F.3d 849, 855, 860 (D.C. Cir. 2008); In re Tennant , 359 F.3d 523, 531 (D.C. Cir. 2004). Appellants’ futility contention, then, fails to show that in enacting Section 741 Congress did not intend to require eligible complainants to make a choice between two rem edial regimes.
5 See, e.g., Decl. of Rosalind Gray, Former Director, USDA Office of Civil Rights, Apr. 6, 2002;Gray Supp. Decl., Oct. 18, 2006; Gray Second Supp. Decl., Sept. 12, 200 7; Benoit v. U.S. Dep’t of Agric., 577 F. Supp. 2d 12 (D.D.C. 2008).

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Cf. Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1088-89 (D.C. Cir. 1996).
The second problem arises because, even giving credence to appellants’ futility suggestion, they still would be unable to show that they lack an adequate remedy at law. Under the ECOA, to the extent appellants can offer porof that the USDA discriminated against them in the adm inistration of its credit program s, appellants will be entitled to recover m oney damages and attorneys’ fees, and, as appropriate, also injunctive and declaratory relief. 15 U.S.C. § 1691e. This court’s precedent in Council of and for the Blind of Delaware County Valley, Inc. v. Regan, 709 F.2d 1521 (1983) (en banc), and its progeny —Coker v. Sullivan, 902 F.2d 84 (1990), and Women’s Equity Action League v. Cavazos (“WEAL”), 906 F.2d 742 (1990) — m ake clear that an ECOA discrimination claim filed directly against the USDA would be adequate to preclude a cause of action under the APA. In those cases the court held that the plaintiff could not maintain an action under the APA directly against a federal agency for failure to investigate and rectify the wrongdoing of a third party where Congress had provided the plaintiff with a private right of action against the third party. See Council, 709 F.2d at 1531-33; Coker, 902 F.2d at 89-90; WEAL, 906 F.2d at 750-51. For example, in Council, the plaintiffs had alleged that the Office of Revenue Sharing had failed to process and resolve administrative complaints in a timely manner. On appeal, they contended that a national suit agani st the federal agency would be more effective. This court held that even so the rem edy in the form of a private suit against state and local governm ents provided by Congress was adequate to address the allege d discrimination. Council, 709 F.2d at 1532-33.
The relevant question under the APA, then, is not whether private lawsuits against the third-party wrongdoer are as effective as an APA lawsuit against the regulating agency, but whether the

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private suit rem edy provided by Congress is adequate. See Council, 709 F.2d at 1532; WEAL, 906 F.2d at 751. As a result, the availability of actions against individuals m ay be adequate even if such actions “cannot redress the systemic lags and lapses by federal monitors” and even if such “[s]uits directly against the discriminating entities may be more arduous, and less effective in providing systemic relief, than continuing judicial oversight of federal government enforcement.” WEAL, 906 F.2d at 751. This is because the court concluded in Council, Coker, and WEAL, “situation-specific litigation af fords an adequate, even if imperfect, remedy.” Id. As explained in El Rio Santa Cruz , third-party suits are an adequate remedy for the alleged victims of statutory violations, like unlawful discrimination, because they provide relief of “ the same genre” as that offered by an APA claim. 396 F.3d at 1272 (quoting WEAL, 906 F.2d at 751).
Appellants’ attempts to avoid this precedent are unpersuasive. The court has confirm ed that its approach is consistent with the Supreme Court’s construction of the APA in Bowen. In El Rio Santa Cruz, the court explained that, consistent with Bowen, Council, Coker, and WEAL held that an alternative adequate remedy at law exists where Congress chooses to grant those allegedly aggrieved by agency failure to remedy the wrongs of a regulated third parties a private cause of action against those third parties. 396 F.3d at 1270-71. The fact that appellants fault the USDA’s regulation of itself and not its regulation of a third party does not mean that Council and its progeny are inapposite, because there is no material difference between the adequacy of the ECOA remedy and the third-party actions in Council, Coker and WEAL. The suggestion that ECOA relief would not vindicate appellants’ interest in ensuringthat the USDA adheres to its dutyto-investigate regulations, was rejected in Council, Coker, and WEAL when the court concluded that a direct action against a regulated private par ty was an adequate rem edy at law for whatever additional injury a plai ntiff suffered as a resul t of a

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federal agency’s failure to remedy that violation administratively. See Council, 709 F.2d at 1531-33; Coker, 902 F.2d at 89-90; WEAL, 906 F.2d at 750-51. If anyhting, an ECOA discrimination claim filed directly against the USDA affords a better rem edy than those available inCouncil, Coker, and WEAL. If successful, a plaintiff can obtain declaratoryand injunctive relief against the agency itself, in addition to money damages, and such remedies would presumably deter the USDA to the sam e extent as a successful APA claim from discriminating against plaintiff-credit applicants and failing to adhere to its duty-to-investigate regulations. On appellants’ view of Council, Coker, and WEAL, the availability of a direct ECOA claim against a private creditor would constitute an adequate remedy barring APA challenges to the FTC’s oversight of a private creditor,see 15 U.S.C. §§ 1691c, 1691c(a)-(c); see also 22 Op. Off. Legal Counsel 11, 1998 W L 1180049, at *1, but the availability of a nearly identical claim against the USDA would not constitute an adequate rem edy. Appellants cannot show that Congre ss intended such disparate results.
McKenna v. Weinberger, 729 F.2d 783 (D.C. Cir. 1984), is of no assistance to appellants. In McKenna, the court held that Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, did not provide the exclusive judicial remedy for a probationary employee’s claim that the agency failed to follow its regulations in effecting an allegedly discrim inatory discharge. Id. at 791. The court observed that “Ms. McKenna’s claim under the APA is not one of discrimination. Rather, she charges that the agency, whether its motive was legal or illegal, f ailed to conform to its own regulations. She does not claim that these procedural violations constitute employment discrimination.” Id. (emphasis in original). In other words, her claim related to a personnel matter that was com pletely distinct f rom her gender discrimination. Here, by contra st, appellants’ APA failure-to-

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investigate and lending discri mination claims are inextricably linked.
As appellants read McKenna, it stands for the proposition that a plaintiff may always bring an APA claim alleging that an agency failed to f ollow its own regulations in processing or investigating discrimination allegations, notwithstanding the existence of other adequat e remedies at law. But McKenna cannot bear the weight tha t appellants place upon it. In McKenna, the court did not address whether the judicial and administrative procedures under Title VII constituted anadequate remedy at law so as to preclude APA review and so cannot be read, as appellants urge, as inconsistent with Council and its progeny. Appe llants cite to no case that reads McKenna that way, and such precedent as wehave found does not support their position.6 In McKenna the court sim ply assumed without deciding that Title VII procedures did not constitute an adequate remedy at la w. Cf. Trudeau v. FTC , 456 F.3d 178 (D.C. Cir. 2006). Appellants’ other authorities also provide no support. For instance, their reliance on Esch v. Yeutter, 876 F.2d 976, 984-85 (D.C. Cir. 1989), is m isplaced; the court held only that the potential availability of a cause ofaction in the Claims Court was not an adequate rem edy because that court lacked equitable jurisdiction and it was doubtful that court had jurisdi ction over the plaintiffs claims.
Remaining are appellants’ APA claim s that the USDA discriminated in dispersing non-credit disaster benefits, which are not covered by Section 741. We remand these claims. As to the Garcia appellants, the district court’s dism issal did not address their non-credit claims. See Order, Garcia v. Veneman, Civ. No.
6 See Nichols v. Agency for Int’l Dev., 18 F. Supp. 2d 1, 3 & n.2 (D.D.C. 1998); Lynch v. Bennett, 665 F. Supp. 62, 64-65 (D.D.C. 1987).

USCA Case #08-5110 Document #1177401

Filed: 04/24/2009 Page 14 of 14

14
00-2445 (Nov. 30, 2007). As to the Love appellants, the district court’s conclusion that there was no reason to allow them to proceed with their non-credit claims “at this time,” Love, 525 F. Supp. 2d at 161, was not a dsimissal with prejudice, see Foremost Sales Promotions, Inc. v. Dir., Bureau of Al cohol, Tobacco & Firearms, 812 F.2d 1044, 1045-46 (7th Cir. 1987); 12 MOORE’S FEDERAL PRACTICE § 58.02. Finally, the court will not address the government’s jurisdictional and other contentions for dismissal of these claims because the district court has yet to rule on them and they were not adequately briefed in this interlocutory appeal.
Accordingly, we affirm the dismissals of appellants’ APA failure-to-investigate claims and otherwise remand the cases to the district court.

 
 Case 1:00-cv-02445-RBW Document 76 Filed 12/02/02 Page 1 of 28

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GUADALUPE L. GARCIA, et al.,
Plaintiffs,
v.
ANN V. VENEMAN, Secretary, United States Department of Agriculture,
Defendant.

Civil Action No. 00-2445 (JR)
FILED
DEC - 2 2002
NANCY ~AYE:R WI!! r-n~GTON, ClERK J S. DISTR"-1 uOURT

MEMORANDUM Plaintiffs are ten Hispanic farmers who complain of discrimination in the administration of U.S. Department of Agriculture (USDA) loan and disaster benefit programs. The named plaintiffs also sue on behalf of others similarly situated, including 92 individuals named but not described in their second amended complaint. Before the Court is plaintiffs' motion for class certification. The motion has been extensively briefed, but plaintiffs have yet to establish that there are questions of law or fact common to the class or that such questions predominate over any questions affecting only individual members. The motion must therefore be denied.

Case 1:00-cv-02445-RBW Document 76 Filed 12/02/02 Page 2 of 28
Background This is one of a number of suits filed as class actions by minority and women farmers in the wake of reports documenting discriminatory practices in local USDA offices and the dismantling of the USDA's civil rights enforcement program in the early 1980s. In 1998, concerned that farmers had relied to their detriment upon USDA's (inoperative) internal mechanisms to investigate their discrimination complaints, Congress extended the statute of limitations for filing complaints under the Equal Credit Opportunity Act, 15 U.S.C. § 1691 et ~' until October 21, 2000, to allow farmers who had filed administrative complaints concerning USDA discrimination between 1981 and 1996 to bring suit in U.S. District Court. See Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, Div. A §101(a), §741, 112 Stat. 2681 (Oct. 21, 1998) (codified at 7 U.S.C. § 2279 Notes). A number of class actions were filed just before the end of the extended period of limitations. USDA has settled a class action filed on behalf of African American farmers, Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999), aff'd, 206 F.3d 1212 (D.C. Cir. 2000). This action by Hispanic farmers, however, as well as suits by Native
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American farmers, Keepseagle v. Veneman, Civ. No. 99-3119, and female farmers, Love v. Veneman, Civ. No. 00-2502, continue in litigation.
The Garcia plaintiffs allege that, from January 1, 1981, to the present, the Farmers Home Administration and its successor, the Farm Service Agency, discriminated against Hispanic farmers and ranchers in making operating loans, farm ownership loans, and emergency loans, and in awarding disaster benefits. They also allege that the USDA acted unlawfully in failing to investigate and resolve the discrimination complaints they filed.
The Farm Service Agency (FSA) administers various farm loan and subsidy programs. FSA is the product of the 1994 merger of the Farmers Home Administration (FmHA) (which directly made and guaranteed loans to farmers) and the Agricultural Stabilization and Conservation Service (ASCS) (which provided such services to farmers under commodity, price support, CRP, disaster payment programs, and related services to stabilize farm income and prices, and to assist in the conservation of land). The individual farmer's point of contact with FSA, and with FmHA and ASCS before it, was at the county office level. County
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committees, comprised of local farmers, reviewed and decided whether or not to approve loan requests.
Procedural Background This suit was filed on October 13, 2000, eight days before the expiration of the extended statute of limitations. It was assigned to Judge Louis F. Oberdorfer, transferred to Judge Royce C. Lamberth, and transferred again, on February 1, 2002, to me. On March 20, 2002, I ruled on defendant's motion to dismiss, holding (1) that the Garcia plaintiffs were entitled to bring Equal Credit Opportunity Act (ECOA) claims for discrimination in lending transactions without administrative exhaustion; (2) that at least some of the named plaintiffs' lending claims had been filed within the extended limitations period; and (3) that plaintiffs' allegations of failure to investigate civil rights complaints did not state claims under ECOA or the Administrative Procedure Act. The motion now before the Court seeks certification of a class defined as: All Hispanic farmers and ranchers who farmed or ranched or attempted to do so and who were discriminated against on the basis of national origin or ethnicity in obtaining loans, including the servicing and continuation of loans, or in participating in disaster
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benefit programs administered in the United States Department of Agriculture, during the period from January 1, 1981 through December 31, 1996, and timely complained about such treatment, or who experienced such discrimination from the period of October 13, 1998 through the present.
Analysis
Standards for class certification
Proponents of a class action must first satisfy the
prerequisites of Fed.R.Civ.P. 23(a):
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative party will fairly and adequately protect the interests of the class.
If those requirements of numerosity, commonality,
typicality, and adequacy of representation are met, the class
action must also fit one of three subsections of Rule 23(b), the
second and third of which are pertinent to this case:
An action may be maintained as a class action if ... (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the
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class as a whole; or (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Fed.R.Civ.P. 23 (b).
The proponents of a class action have the burden of proof as to each of Rule 23's requirements. See McCarthy v. Kleindienst, 741 F.2d 1406, 1414 n.9 (D.C. Cir. 1984). If necessary, in deciding whether movants have met their burden, the Court may "probe behind the pleadings before coming to rest on the certification question.u Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982).
Rule 23(a) Analysis Numerosity and Adequacy of Representation Plaintiffs' showing of numerosity and adequacy of
representation is not seriously contested. The Second Amended Complaint names 98 plaintiffs; counsel represent that 179 more Hispanic farmers have signed retainer agreements; and plaintiffs estimate that their class could reach 20,000 people. Whether 20,000 is a reasonable estimate or not, 277 plaintiffs is easily a high enough number to satisfy the numerosity requirement. See,
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~' In re Pepco Employment Litig., Civ. No. 86-0603, 1992 WL 442759, at *4 (D.D.C. Dec. 4, 1992) ("As a general rule ... a proposed class of at least 40 members will satisfy this requirement").
As for adequacy of representation, the qualifications of plaintiffs' counsel are conceded. Opposition at 28. Defendant does suggest that the facts underlying the claims of the class representatives are not typical so that a "conflict of interest" might arise. That conflict was not further described, see Opposition at 27-28, but resolution of the issue is unnecessary to the disposition of this motion.
Commonality and Typicality1 "[T]here is more to a showing of commonality than a demonstration that class plaintiffs suffered discrimination on the basis of membership in a particular group .... plaintiffs must make a significant showing to permit the court to infer that members of the class suffered from a common policy of
1 In class certification analyses generally, and certainly in this one, the "commonality and typicality requirements tend to merge." Falcon, 457 U.S. at 158 n.13; Wagner v. Taylor, 836 F.2d 578, 590 n.77 (D.C. Cir. 1987). The following analysis, written in terms of commonality, applies fully to the typicality element as well.
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discrimination that pervaded all of the employer's challenged employment decisions." Hartman v. Duffey, 19 F.3d 1459, 1472 (D.C. Cir. 1994) (emphasis added). Plaintiffs have failed to make that "significant showing" in this case.
The commonality requirement is critical to a Rule 23(a) determination. In this case, plaintiffs make two central assertions to support their commonality claim: 1) that all of the putative class members were injured by a systemic USDA failure to investigate discrimination complaints made by Hispanic farmers who applied for loans or disaster relief benefits; and 2) that USDA loan and benefit programs were controlled by "local groups of white men who exercised unfettered discretion in applying highly subjective standards to discriminate against Hispanic and other minority farmers and ranchers." Plaintiffs' Supplemental Memorandum in Support of their Motion for Class Certification ("Supplemental Memorandum") at 34. On the basis of those two assertions, plus statistical evidence showing that Hispanic farmers have received disproportionately fewer USDA loans than white farmers, plaintiffs argue that they have sustained their burden of establishing the commonality and typicality elements that are crucial to class certification.
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The first of those two assertions -- as to the USDA's
failure to investigate discrimination complaints -- cannot serve
as the common issue of fact necessary to a Rule 23(a)
determination, after my ruling on March 20, 2002, that
plaintiffs' allegations of failure to investigate civil rights
complaints did not state a claim under the Equal Credit
Opportunity Act or the Administrative Procedure Act2 • What
2 That ruling separates this case from Pigford v. Glickman, 182 F.R.D. 341, 348 (D.D.C. 1998) and Keepseagle v. Veneman, Civ. No. 99-03119, Memorandum Opinion and Order at 19-20 (D.D.C. Dec. 11, 2001), in which Judges Paul L. Friedman and Emmet G. Sullivan based their class certification decisions at least partly on common issues of law and fact arising from USDA's failure to process and investigate discrimination complaints.
Consideration of the merits of plaintiffs' case is generally inappropriate at the class certification stage, see Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974), and see In re Veneman, No. 02-5021, 2002 WL 31414127, at *4 (D.C. Cir. Oct. 2 9, 2002) (where the Court of Appeals recently waved off the government's argument that the Keepseagle plaintiffs have no viable ECOA claim by stating that the argument has "no bearing on the question of class certification"). A court may certainly decide dispositive motions prior to determining whether the case can be maintained as a class action, however. See Curtin v. United Airlines, Inc., 275 F.3d 88, 92 (D.C. Cir. 2001); Telfair v. First Union Mortgage Corp., 216 F.3d 1333, 1343 (11th Cir. 2000); Cowen v. Bank United of Tex., 70 F.3d 937, 941 (7th Cir. 1995); Wright v. Schock, 742 F.2d 541, 543-44 (9th Cir. 1984). Once the court disposes of a claim, the court need not consider the disposed-of claim as a basis for class certification. See Thompson v. County of Medina, Ohio, 29 F.3d 238, 241 (6th Cir. 1994) ("[W]e find that the district court did not abuse its discretion in refusing to certify a class as to the issues disposed of on summary judgment").
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remains to establish commonality, then, is the allegation of a subjective decision-making process with discriminatory results.
Before the Supreme Court rejected the 'across-theboard' rule that many courts had been using to certify class actions in employment discrimination cases, see Falcon, 457 U.S. at 157-58, such a premise may well have been sufficient for class certification. In Falcon, the Court observed that:
Conceptually, there is a wide gap between (a) an individual's claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual's claim and the class claims will share common questions of law or fact and that the individual's claim will be typical of the class claims. For respondent to bridge that gap, he must prove much more than the validity of his own claim. Falcon, 457 U.S. at 157-58 (footnote omitted). In a footnote to that opinion, however, the Court speculated that "[s]ignificant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decision-making processes."
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Id. at 159 n.15 (emphasis added); see Wagner v. Taylor, 836 F.2d 578, 589 (D.C. Cir. 1987).
Plaintiffs rely heavily on Falcon's footnote 15. They argue that the very subjectivity of the USDA's county committee decision-making process, when considered with the statistical results of that process, is enough of a showing to support the certification of a class of plaintiffs making both disparate treatment and disparate impact claims3 •
The first, and most obvious, problem with this argument is its characterization of the decision-making process used in connection with USDA loan and benefit applications as "highly subjective." Falcon's note 15 suggests that an "entirely subjective" process might "conceivably" justify class certification. Falcon, 457 U.S. at 159 n.15. Slavish adherence to the word "entirelyn would be unwise, but where, as here, a number of objective factors guide the decision-making process, the proposed class fits less neatly into the Falcon exception.
3 Both of these theories must be kept in mind when considering the class certification question, because "'to answer the procedural questions [of Rule 23] ... in effect requires answering the substantive question whether, under either of the available theories, there exists the requisite 'pattern or practice' sufficiently and comparably affecting an identifiable class of protected employees."' See Wagner, 83 6 F. 2d at 587 n. 60 (quoting Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267, 274 (4thCir. 1980)).
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See Vuyanich v. Republic Nat 1 l Bank of Dallas 1 723 F.2d 1195 1 1199-200 (5th Cir. 1984) ("The district court 1 s finding that the Bank relied on two objective inputs -- education and experience - in its necessarily subjective hiring process ... precludes reliance on this 'general policy of discrimination[ exception11 ); Webb v. Merck & Co. r 206 F.R.D. 399 1 407 (E.D. Pa. 2002) ("Since defendant's decision-making processes with regard to promotion and compensation are at least in part objective ... plaintiffs cannot establish that defendants utilized a decision-making process which was entirely subjective for purposes of satisfying Rule 23(a) 's commonality and typicality requirements"); Lott v. Westinghouse Savannah River Co. 1 200 F.R.D. 539 1 560 (D.S.C. 2000) (rejecting plaintiffsr claim of commonality in part because "a host of relevant objective factors guide the decision-makerrs decision") .
The regulations governing the decisions of county committees set forth eleven eligibility criteriar at least eight of which (the first, secondr sixth 1 seventh, eighthr ninthr tenth and eleventh) cannot be properly characterized as subjective. They are: 1) United States citizenship; 2) the legal capacity to incur loan obligations; 3) education and/or farming experience in managing or operating a farm or ranch; 4) character (emphasizing
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credit history, past record of debt repayment and reliability);
5) a commitment to carrying out undertakings and obligations; 6)
inability to obtain credit elsewhere; 7) farm size (the farm to
be no larger than a family farm); 8) and 9) loan history
(restricting the permissible number of prior years in which the
applicant executed a promissory note for a "direct OL loanu); 10)
no previous debt forgiveness causing a loss to the Agency; and
11) no delinquency on any federal debt. See 7 C.F.R. §
1941.12(a) (operating loans) 4 ; see also 7 C.F.R. § 1943.12(a) (farm
ownership loans) 5 •
4 The objectivity of these criteria is one of the factual distinctions between this case and the recently-decided case McReynolds v. Sodexho Marriott Servs., Inc., 208 F.R.D. 428 (D.D.C. 2002). The Court in McReynolds certified a nationwide class of African American employees who had made disparate impact and treatment claims in regard to Sodexho's employment practices, including a decentralized, subjective promotion process. See McReynolds, 208 F.R.D. at 440-41. In that case, however, the Court based its holding on the fact that the decision-making process in that case was entirely subjective, pursuant to the stated Falcon exception: "Falcon's footnote 15 ... carved out an exception ... for 'entirely subjective decisionmaking processes' .. . what is significant [here] is that the determination of which criteria to use is left entirely to the individual manager. u Id. at 442 (emphasis in original) (citation omitted) . The presence of at least some mandatory objective criteria in the decision-making process take this case out of the purview of the Falcon exception, and distinguish this case from McReynolds.
5 Citations are to the current provisions of the Code of Federal Regulations. The parties have not indicated that these provisions have materially changed over the relevant time period.
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The issue presented by this case was considered five years ago by Judge Thomas A. Flannery in Williams v. Glickman, Civ. No. 95-1149, 1997 WL 198110 (D.D.C. Apr. 15, 1997) (Williams ll). In Williams II, Judge Flannery denied a motion for reconsideration of his previous denial of class certification to a group of African American and Hispanic farmers claiming discrimination arising out of the USDA loan application process. The Williams plaintiffs had based their suggestion of commonality on the allegation that county supervisors were subjectively applying the loan standards in a discriminatory fashion. Williams II at *2. After reviewing the same criteria involved in this case, Judge Flannery held that plaintiffs had not satisfied the commonality requirement:
[Plaintiffs' assertion does] not constitute significant proof of an entirely subjective decision-making process[], as required by Falcon. The plaintiffs appear to be arguing that local officials are ignoring applicable standards, not that such officials operate in a system without standards which allows them to make decisions subjectively. The plaintiffs, then, are not really describing "common practices" under Falcon. Id. (emphasis in original) (footnote omitted). Plaintiffs assert that this case is not like Williams II, because here they are indeed alleging that the system permits unfettered/ highly subjective decision-making, and they assert that their statistics will demonstrate the discriminatory results
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of that system. Plaintiffs' expert, Dr. Jerry A. Hausman, offers the opinion that Hispanic farmers are less likely to receive loans than whites. See Hausman Declaration at ~ 15. What Dr. Hausman's analysis does not show, or purport to show, however, is that this fact is attributable to any one, or more, of the arguably subjective criteria that are part of the loan approval process. A statistical analysis demonstrating that Hispanic farmers are disproportionately disqualified on grounds of "character" or "commitment," 7 C.F.R. § 1941.12(a), might well support a finding of commonality as to those criteria, which are indeed subjective. Dr. Hausman's analysis, however, fails to tie the statistical disparity he observes to any one or more subjective criterion and thus fails to establish that subjective decision-making is common to the proposed class. See Webb, 206 F.R.D. at 408 n.2 (finding plaintiffs' proffered statistics neither instructive nor determinative when they did not account for non-discriminatory variables) 6 • Here, as in Hartman,
6 Plaintiffs blame their inability to present better statistical proof on defendant's databases, which do not contain specific reasons for the denials of loan and benefit applications made by Hispanic farmers. Plaintiffs cite cases such as De Medina v. Reinhardt, 686 F.2d 997 (D.C. Cir. 1982), and Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984), for the basic proposition that they should be permitted to proceed with a "reduced level of proof [as] relevant qualification data are unavailable .... " De Medina, 686 F.2d at 1009, n.7. De Medina and Segar, however,
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"plaintiffs' statistics may have demonstrated that discrimination
against ... applicants ... was afoot, [but] nothing in the record so
far permits the additional inference that class members suffered
a common injury." 19 F.3d at 1472 (emphasis in original) 7 •
both dealt with attempts to make out prima facie cases of discrimination. Plaintiffs do not explain how such cases apply to a motion for class certification. Perhaps they are suggesting that, in the absence of better USDA data, their ''across the board" showing ought to shift the burden of disproving commonality to defendant, requiring defendant to show that Hispanic farmers' applications were rejected for objective reasons, just as proof of a prima facie case shifts the burden of proof in a Title VII case. If that is the suggestion, it is unsupported by case authority and unpersuasive.
More troubling are plaintiffs' assertions that defendant has engaged in the destruction of relevant documents in violation of document retention regulations. This assertion is the stated reason for plaintiffs' very recent motion for an order requiring that defendant preserve all documents "conceivably relevant" to the litigation. Plaintiffs urge that wrongful destruction would warrant an adverse inference against defendant. It is not clear whether such an inference could be used to support a Rule 23(a) commonality finding -- no precedent to that effect has been cited by plaintiffs, and we have found none -- but the assertion of document destruction is unproven, and the question is thus premature.
7 Plaintiffs' statistical problem is endemic to the entire class certification motion, but is particularly toxic to their claim of disparate impact: "Especially in [disparate impact] cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities." Wards Cove Packinq Co. v. Atonio, 490 U.S. 642, 656 (1989) (emphasis added) (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (O'Connor, J., concurring)); see Lu v. Woods, 717 F.Supp 886, 890 (D.D.C. 1989) .
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Commonality is defeated -- not only by plaintiffs' inability to correlate the discrimination they allege with subjective loan qualification criteria -- but also by the large numbers and geographic dispersion of the decision-makers. See Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267, 279 (4th Cir. 1980) ("substantial degree of and perhaps almost complete local autonomy in separate facilities ... cuts against any inference for class action commonality purposes that local facility practices were imposed or enforced state-wide with respect to a statewide class") i Webb, 206 F.R.D. at 406 (commonality and typicality lacking when plaintiffs' claim based on "individual decisions made by hundreds if not thousands of individual managers at all of these organizations") i Carson v. Giant Food, Inc., 187 F.Supp. 2d 462, 471 (D. Md. 2002) ("(P]utative class members worked in at least thirteen different facilities, located at five different towns or cities. This geographical diversity itself would make class treatment inappropriate") i Zachery v. Texaco Exploration and Prod., Inc., 185 F.R.D. 230, 239 (W.D. Tex. 1999) ("In this case, the proposed class is spread across fifteen states in seventeen separate business units, each of which, until 1998, had varying degrees of autonomy over evaluation and promotion decisions ... [d]elving into the practices of each local business
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unit and conceivably even into the individual decisions is
precisely the type of individualized inquiry that class actions
were designed to avoid").
The thousands of Hispanic farmers plaintiffs seek to
represent have dealt with hundreds, if not thousands, of local
FSA officials, in more that 2,700 county offices across the
country, over a 19-year period. See Plaintiffs' Reply to
Defendant's Opposition at 12. Those farmers' allegations of
discrimination cannot be sorted out without individualized
inquiries regarding the practices of the various county
committees8 • Plaintiffs' statistical analysis does not inform
this issue, because it is not broken down by county, or even by
state. Commonality has been found in a nationwide class with
decentralized decision-making when "[p]laintiffs' statistical
expert concluded that this pattern of discrimination was company-
The geographic dispersion of the decision-makers is especially damaging to the assertion of commonality with regard to plaintiffs' disparate treatment claim. A successful disparate treatment plaintiff must establish discriminatory intent on the part of the decisionmaker. That proof would have to be adduced on at least a county-by-county basis. See, e.g., Brooks v. Circuit City Stores, Inc., Civ.A.No. DKC 95-3296, 1996 WL 406684 at *4-5 (D. Md. June 17, 1996) i cf. Cook v. Boorstin, 763 F.2d 14 62, 14 72 (D.C. Cir. 198 5) (dictum) (Court suggested that disparate treatment plaintiffs may have met typicality requirement through use of affidavits and memoranda showing Library of Congress, as sole source of decision-making authority, engaged in discrimination through its subjective standards).
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wide and did not vary significantly by division," see McReynolds, 208 F.R.D. at 441 (emphasis added), but here, plaintiffs have proffered only a national average of loan ratios. See Stastny, 628 F.2d at 279 (rejecting statistical evidence that showed only overall disparities instead of disparities by individual facility) .
Rule 23(b) Analysis
Under Rule 23(b), the question is whether the proposed class could be certified under Rule 23 (b) (2) , Rule 23 (b) (3) , or a hybrid of the two. The inquiry focuses on the relief plaintiffs seek.
Rule 23 (b) (2)
Rule 23(b) (2) is properly applied to cases that seek injunctive or declaratory relief and "does not extend to cases in which the appropriate final relief relates exclusively or predominately to money damages." Fed.R.Civ.P. 23 Advisory Committee's Note (1966). Courts have permitted (b) (2) classes to recover monetary relief in addition to declaratory or injunctive relief where the monetary relief does not predominate, see
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Eubanks v. Billington, 110 F.3d 87, 92 (D.C. Cir. 1997), but when, exactly, a claim for monetary relief comes to predominate over a claim for declaratory or injunctive relief has not been decided in this Circuit, nor is the caselaw uniform in other Circuits. In the Fifth, Eleventh and Seventh Circuits "monetary relief predominates in (b) (2) class actions unless it is incidental to requested injunctive or declaratory relief. By incidental, we mean damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.u Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998) (internal citations omitted) (emphasis in original); Murray v. Auslander, 244 F.3d 807, 812 (11th Cir. 2001); Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894, 898 (7th Cir. 1999). The Second Circuit's approach is more flexible and ad hoc. See Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 164 (2d Cir. 2001) (rejecting Allison "incidentalu approach in favor of ad hoc balancing of the relative importance of the remedies sought).
One might expect the District of Columbia Circuit to find the Second Circuit's ad hoc balancing more persuasive than the Fifth Circuit's bright-line rule, see Taylor v. D.C. Water & Sewer Auth., 205 F.R.D. 43, 50 (D.D.C. 2002), but the outcome of
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that debate would not affect the instant case, because in this
case the monetary relief plaintiffs seek predominates under any
applicable test. Plaintiffs' Second Amended Complaint seeks
damages of $20 billion, or $1 million per class member in an
estimated class of 20,000 people. The only declaratory relief it
seeks is an order declaring that plaintiffs and the Class members
were denied equal credit and other farm program benefits and that
plaintiffs have a right to full and timely enforcement of their
civil rights discrimination complaints. 2d Amended Complaint at
~ 120. It seeks no injunctive relief at all 9 • Judge Flannery
came to the same conclusion in Williams v. Glickman (Williams I),
Civ. No 95-1149, Memorandum Opinion (D.D.C. February 14, 1997), a
suit very much like this one that he found to be "essentially a
9 If plaintiffs' complaint-processing claim were still in the case, their prayer for "specific performance with respect to their program benefits" (under a claim of violation of the Administrative Procedure Act), 2d Amended Complaint ~ 129, might support the provisional certification of a Rule 23(b) (2) class. The fate of such a certification is at least uncertain after In re Veneman, 2002 WL 31414127 at *1, however, and it is also worth noting that the class ultimately certified in Pigford for purposes of the settlement consent decree was a Rule 23 (b) (3) class. See Pigford v. Glickman, 185 F.R.D. 82, 94 (D.D.C. 1999) ("The parties in this case agreed that it was more appropriate and fairer to the members of the class -- to ask the Court to certify the class under Rule 23(b) (3) for all purposes, particularly since the proposed settlement involves primarily monetary relief"), aff'd 206 F.3d 1212 (D.C. Cir. 2000).
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suit to recover damages, not to obtain injunctive relief." Williams I, Memorandum Opinion at 19.
Rule 23 (b) (3) Rule 23 (b) (3) 's predominance criterion is far more
demanding than the commonality requirement of Rule 23(a). See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24 (1997). Numerous cases have held that decentralized, locally autonomous subjective decision-making practices present predominately individual, not common, issues in discrimination cases. In Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999 (11th Cir. 1997), for example, a proposed nationwide class of Motel 6 employees could not sustain a class action suit alleging racial discrimination because the widely-dispersed class did not satisfy Rule 23(b) 's predominance requirement:
The Jackson plaintiffs' claims will require distinctly case-specific inquiries into the facts surrounding each alleged incident of discrimination .... Furthermore, even factual issues that are common to many of the Jackson plaintiffs ... will require highly case-specific determinations at trial. These issues are clearly predominant over the only issue arguably common to the class -- whether Motel 6 has a practice or policy of racial discrimination. Jackson, 130 F.3d at 1006. Similar results, on similar reasoning, were reached in Carson, 187 F.Supp. 2d at 471-72
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(highly individual nature of discrimination claims concerning subjective decision-making at various facilities precluded fulfillment of predominance requirement); Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655, 684 (N.D. Ga. 2001) (discrimination suit challenging subjective practices in several facilities could not meet predominance requirement because court would focus on individual circumstance of each member of plaintiff class); Ramirez v. DeCoster, 194 F.R.D. 348, 353 (D. Me. 2000) ("Because each worker's exposure to this subjective decision-making ... will vary in nature and degree, any trial on 'class' issues will quickly erode into a series of individual trials focused on issues specific to each worker"); Riley v. Compucom Sys., Inc., No. 398CV1876L, 2000 WL 343189 at* 6 (N.D. Tex. March 31, 2000) (discrimination claims of geographically dispersed class regarding subjective decision-making process did not pass predominance requirement because they "fail[ed] to appreciate the overwhelming number of individual-specific issues") (internal quotation omitted); Brooks v. Circuit City Stores, No. 95-3296, 1996 WL 406684 at *6 (D. Md. June 17, 1996) (common questions did not predominate when discrimination claims centered on subjective decision-making of management at different store locations); Celestine v. Citgo Petroleum Corp., 165 F.R.D.
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463, 470 (W.D. La. 1995) (although attack on defendant's subjective decision-making policies survived 23(a) commonality test, case presented need for individualized evidence regarding each plaintiff's discrimination allegations, so individual questions predominated) .
The instant case, if allowed to proceed as a class action, would quickly devolve into hundreds or perhaps thousands of individual inquiries about each claimant's particular circumstances. No individual plaintiff could prevail without scrutiny of his or her individual loan application to determine whether the application was "feasible" in terms of such objective criteria as an applicant's financial qualifications and repayment ability. Williams I, Memorandum Opinion at 20. Even if the presence of classwide discrimination were established, individual issues would be much more important to any claimant's recovery.
Another Rule 23 (b) (3) criterion, that a class action is superior to other methods of adjudication, does favor the plaintiffs, if it is permissible as part of the class certification process to consider (a) the increased likelihood of settlement after class certification, and (b) the accelerated pace of individual determinations that can be expected in a class settlement. The Pigford case, frustrating as it has been to the
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parties in some respects 1 has successfully resolved thousands of individual cases with streamlined awards of $50,000 or with Teamster-type hearings. See Pigford v. Veneman, 292 F.3d 918, 920 (D.C. Cir. 2002); Pigford v. Veneman: Consent Decree in Class Action Suit by African American Farmers, Background and Current Status, at http://www.usda.gov/da/consentsum.htm. It seems unlikely that USDA would have proceeded nearly as quickly on individual Black farmer cases were it not for the class action settlement. A class action may indeed be superior to other methods of adjudicating the claims of Hispanic farmers. Without predominant of common questions of law or fact, however, that superiority is not enough to sustain class certification.
Hybrid Certification Plaintiffs urge consideration of a hybrid class like
that authorized by Eubanks, supra. Such a class would be certified under Rule 23(b) (2) for purposes of injunctive and declaratory reliefr and under Rule 23(b) (3) for monetary damages. See Supplemental Memorandum at 39-40. There are a two impediments to this request. First, it is out of the question that this class could be certified under Rule 23(b) (3), because of the predominance issues discussed above, so the proposed class
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would not really be a hybrid, but rather a Rule 23(b) (2) class with a different name. See Jefferson, 195 F.3d at 899 (hybrid class certification appropriate only "assuming that certification under Rule 23(b) (3) otherwise is sound") (dictum); Cooper v. Southern Co., 205 F.R.D. 596, 631 (N.D. Ga. 2001) (hybrid certification unavailable when "common elements of proof would not predominate in any event so as to meet the requirements of (b) (3)"); Lott, 200 F.R.D. at 563 (hybrid certification inappropriate because 23(b) (3) could not be satisfied, and hybrid certification "requires satisfaction of both the (b) (2) and (b) (3) requirements") .
Second, it is not at all certain that this class could be certified under Rule 23(b) (2), even temporarily. See In re Veneman, 2002 WL 31414127 at *1. Rule 23 (b) (2) demands a showing that a defendant has acted or refused to acts in ways generally applicable to the entire class. Here, the decentralization of loan and other benefits decision could negate such a finding of general applicability. See Webb, 206 F.R.D. at 409 ("Here, there are just too many individual issues which prevent this action from being certified under Rule 23(b) (2). The fact finder would have to review literally thousands of individual decisions made
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Case 1:00-cv-02445-RBW Document 76 Filed 12/02/02 Page 27 of 28 by hundreds of individual managers ... at six different facilities"); Riley, 2000 WL 343189 at *3.
An appropriate order accompanies this memorandum. JAMES ROBERTSON
United States District Judge
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Copies to:
Alexander J. Pires, Jr. Conlon, Frantz, Phelan & Pires, LLP 1818 N Street, N.W. Washington, DC 20036
Phillip L. Fraas 3050 K Street, N.W. Suite 400 Washington, DC 20007-5108
Alan M. Wiseman Stephen S. Hill Howrey Simon Arnold & White, LLP 1229 Pennsylvania Avenue, N.W. Washington, DC 20004
Counsel for Plaintiff

Lisa A. Olson Jean Lin U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, N.W. Room 6118 Washington, DC 20530
Counsel for Defendant

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 Case 1:00-cv-02445-RBW Document 132 Filed 09/10/04 Page 1 of 24

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GUADALUPE L. GARCIA, et al.,
Plaintiffs,
v.
ANN V. VENEMAN, Secretary, United States Department of Agriculture,
Defendant.

: : : : : Civil Action No. 00-2445 (JR) : : : : : :

MEMORANDUM ORDER DENYING CLASS CERTIFICATION This case presents claims of discrimination by Hispanic farmers nationwide who in various ways were denied USDA creditand non-credit benefits over a period of some twenty years. Before the Court for the second time is the question of whether the case may be certified as a class action. When the question was first presented, by a motion for class certification filed in April 2002, the answer was in the negative, because plaintiffs had not shown, nor did it appear from the record that they could show, a common question of law or fact within the meaning of Fed. R. Civ. P. 23(a). Garcia v. Veneman, 211 F.R.D. 15 (D.D.C. 2002)(“Garcia I”). Plaintiffs noticed an appeal from that order but withdrew the appeal when they were given leave to conduct limited discovery and invited to supplement their motion, Tr. of Jan. 15, 2003 Status Hr’g, at 2. Plaintiffs have now conducted further discovery — although the discovery has by no

Case 1:00-cv-02445-RBW Document 132 Filed 09/10/04 Page 2 of 24
means been as broad and searching as they wished — and they have presented a supplemental brief on the issue of commonality, which I have treated as a renewed motion for class certification. Because I have concluded that plaintiffs’ showing is still insufficient to establish the prerequisites for class certification established by Rules 23(a)(2), 23(b)(2), and 23(b)(3), and that further discovery is unlikely to change the picture, I am today issuing a second order denying class certification. This ruling, taken together with my earlier ruling that plaintiffs’ claim of failure to investigate did not state a claim under the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691 et. seq. (ECOA), or the Administrative Procedure Act, 5 U.S.C. §§ 701 et. seq., see Mem. Order of Mar. 20, 2002, so fundamentally alters the posture of this case that plaintiffs will presumably seek an interlocutory appeal.1 I will accordingly issue a sua sponte order staying proceedings in this Court so that plaintiffs may seek appellate review of the class certification question. See Fed. R. Civ. P. 23(f). If asked to
1 It is not for me to say whether this ruling is “questionable,” but it may present a “death-knell situation” for plaintiffs. See In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 102, 105 (D.C. Cir. 2002). In any event, this certification decision presents an “unsettled and fundamental issue of law relating to class actions, important both to [this] specific litigation and generally, that is likely to evade endof-the-case review.” Id. at 105.
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do so, I will also certify my Memorandum Order of March 20, 2002 pursuant to 28 U.S.C. § 1292(b).
Analysis This Memorandum Order is intended to pick up where Garcia I left off, and it should be read in conjunction with that ruling. 1. Proceedings since Garcia I In Garcia I, I acknowledged the possibility that statistical analysis demonstrating that Hispanic farmers were disproportionately denied credit or non-credit benefits on subjective grounds, such as “character” or “commitment,” might support a finding of commonality. At a status conference held on December 18, 2002, shortly after the issuance of Garcia I, I noted that certification would require more than anecdotal evidence (the plural of “anecdotes” is not “data”). I said I thought there must be a way to test plaintiffs’ hypothesis without inspecting the files of 2700 local offices, and I encouraged plaintiffs to develop a modest discovery plan designed to link USDA’s data to what plaintiffs claimed were subjective USDA criteria. At a subsequent status conference, on January 15, 2003, plaintiffs asserted their need for up to 25 depositions and 50 interrogatories, stating that these would involve individuals in the six states where most of the named plaintiffs reside (Texas, California, New Mexico, Florida, Washington, and
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Colorado). Plaintiffs also wanted to take Rule 30(b)(6) depositions of USDA persons who designed the databases that USDA has said contain all the data that has been captured on its benefit programs, but that plaintiffs already considered nearly useless for their purposes. At that time, I noted that I was trying to find a balance between plaintiffs’ legitimate need to take discovery, if they had a colorable commonality claim, and the government’s legitimate assertion of burdensomeness. I directed plaintiffs to serve their discovery so that I could evaluate any government objections.
At a status conference held on April 29, 2003, I noted again that there had to be a way to develop a discovery plan that would produce a good random sample. On July 15, 2003, government counsel asserted an inability to fashion such a sample and pointed to the databases that the government had already produced. Plaintiffs’ counsel complained that the databases were completely unhelpful because they did not indicate why a particular application had been denied. Tr. of Jan. 15, 2003 Status Hr’g, at 5-6. The government finally produced the loan and disaster benefit files of some 37 of the approximately 110 named plaintiffs. I instructed plaintiffs’ counsel to examine those files and to advise me whether “there is in those materials a colorable basis on which plaintiffs can assert that . . . a substantial number of [the named plaintiffs] were rejected for
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loans or benefits on grounds that are the kinds of subjective grounds that plaintiff[s] assert[] [they] can establish commonality for.” Id. at 22. I suggested that, upon such a showing, I might permit further discovery of other files to provide a basis for a more rigorous statistical comparison. I did not lay down a bright line definition of what I thought would be substantial, but I suggested that 25 out of 37 might be satisfactory while 5 out of 37 would probably not be. Id. at 2223. 2. Plaintiffs’ submission
In their supplemental brief on the issue of commonality filed on December 5, 2003, plaintiffs reviewed the results of the discovery they had taken. They submitted that they had demonstrated commonality with respect to both disparate impact and disparate treatment claims, and they urged that, should I find otherwise, they be permitted further, broad-ranging discovery.
Plaintiffs’ disparate impact theory is that the overall operation of USDA’s farm credit and non-credit benefit programs is “one practice” (or that it must be so considered because USDA’s failure to collect and maintain data makes it impossible to analyze the effect of separate components); that this “one practice” has had an adverse impact upon Hispanic farmers, as shown by discovery to date; and that class certification is
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appropriate because this “one practice” is subjective enough to come within any but the most rigid construction of the Supreme Court’s dicta in General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 159 n. 15 (1982). Plaintiffs’ disparate treatment theory asserts that USDA is itself the “single actor” responsible for a pattern and practice of discrimination against Hispanic farmers (because USDA has acquiesced in or ratified notoriously subjective and discriminatory practices of local offices and county commissioners), and that the sampling of evidence plaintiffs have been able to gather from the files they have examined reveals five sub-patterns of discrimination, any one of which would also support a finding sufficient to satisfy the commonality requirement of Rule 23(a)(2): (I) refusal to provide Hispanic farmers with loan applications or assistance in completing applications; (ii) subjecting Hispanic farmers to protracted delays in processing and funding their loans; (iii) using subjective criteria to reject the applications of Hispanic farmers; (iv) unnecessarily subjecting Hispanic farmers to the inconvenience of supervised bank accounts; and (v) delaying or denying loan servicing for Hispanic farmers.
At the same time that they submitted their supplemental brief, plaintiffs moved for leave to file a third amended complaint, setting forth five subclasses of Hispanic farmers, drawn to fit the sub-patterns plaintiffs claim to have
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discovered. Pls.’ Proposed Third Am. Class Action Compl., ¶ 103.2 3. Disparate impact theory
The plaintiff in a disparate impact case must “isolat[e] and identif[y] the specific employment practices that are allegedly responsible for any observed statistical disparities,” Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994 (1988). Plaintiffs have sought to finesse that requirement by asserting that isolation and identification are impossible because USDA did not keep adequate records. I rejected a variant of that argument in Garcia I as “unsupported by case authority and unpersuasive,” 211 F.R.D. at 21 n.6, but now plaintiffs have invoked the 1991 amendments to Title VII, 42 U.S.C. § 2000e2(k)(1)(B)(I) — Congress’s response to the burden of proof holding in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) — to assert (by analogy to employment law) that USDA’s entire decision-making process must be considered “one . . . practice” because its separate components cannot be analyzed. Pls.’ Mem. in Resp. to Ct.’s July 15, 2003 Order With Respect to Commonality, at 8 (“Pls.’ Mem.”). It is a creative argument, but ultimately an unpersuasive one. Not only does it “leapfrog to
2 The amended complaint would also add and emphasize prayers for equitable relief, since Garcia I rejected Rule 23(b)(2) certification on the ground, inter alia, that the original complaint had sought only limited declaratory relief and “no injunctive relief at all.” 211 F.R.D. at 23.
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the merits,” contrary to the teaching of Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974), as the Government observes, Def.’s Opp’n to Class Certification & Resp. to Pls.’ Dec. 5, 2003 Mem. Regarding Commonality, at 4, but it also boils down to the proposition that unexplained discrepancies in the distribution of government benefits satisfy the commonality requirement of Rule 23(a)(2) without more. That proposition is untenable. Anecdotal proof of discrimination against Hispanic farmers, and even statistical proof that Hispanic farmers have received proportionally less assistance than others, will not be enough to support class certification. Falcon reminds us that the underlying purpose of the Rule 23(a)(2) commonality requirement is to permit the court to define the class and determine whether the representation is adequate, to let the defendant know how to defend, and “‘most significant[ly]’” to guard against the “potential unfairness to the class members bound by the judgment if the framing of the class is overbroad.” 457 U.S. at 161, (quoting Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122(5th Cir. 1969)). That is why “‘precise pleadings’” with “‘reasonable specificity’” are required. Id. at 160-01. The plaintiffs in this case have not identified a USDA credit or disaster benefit practice established at the national level that comes close in specificity to the example of a common question offered by the Supreme Court in Falcon (“a biased testing procedure to evaluate both applicants for employment and
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incumbent employees,” 457 U.S. at 159 n.15). Without such specificity, Falcon teaches against class certification, except possibly in the “conceivabl[e]” case where there is both “significant proof” that the defendant “operated under a general policy of discrimination” and “the discrimination manifested itself . . . in the same general fashion, such as through entirely subjective decisionmaking processes.” Id. As discussed in later sections of this memorandum, plaintiffs have neither shown that they can satisfy that test nor established probable cause to believe that they could do so, if only they could take more discovery. 4. Disparate treatment theory
Plaintiffs assert (again “leapfrogging to the merits”) that USDA was on notice of discrimination against Hispanic farmers and that the Secretary “acquiesced in and ratified” that discrimination by failing to take meaningful corrective measures. That construction of the alleged facts appears to be an effort to sidestep my conclusion in Garcia I that “[c]ommonality is defeated . . . by the large numbers and geographic dispersion of the decision-makers,” 211 F.R.D. at 22, so that, having identified a “single actor,” plaintiffs may go on to assert USDA’s liability for a pattern and practice of discouraging Hispanic farmers from availing themselves of farm credit and noncredit programs. Pls.’ Mem., at 30-32. (Plaintiffs then go on to identify five sub-patterns and practices by which USDA
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allegedly “discouraged” Hispanic farmers: denying applications
and assistance, delaying processing, using “highly subjective
criteria,” subjecting them to supervised bank accounts, and
delaying or denying loan servicing. These alleged practices have
become the labels for the five subclasses plaintiffs now seek to
represent.)
I will step over the threshold question of whether a
private pattern and practice cause of action can ever be
maintained under ECOA.3 Neither side has briefed the issue, and
3 Pattern or practice employment cases were originally legislatively created, first as cases that could be brought only by the Attorney General, and then as cases that could be brought by the EEOC. See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 328 n.1, 336 n.16 (1977). Although the history is somewhat murky, private class action pattern or practice litigation appears to be a judge-made construct that arose from developments in class action litigation and the “private attorney general” concept. See, e.g., Cooper v. Fed. Reserve Bank, 467 U.S. 867, 876 n.9 (1984); Int’l Bhd. of Teamsters, 431 U.S. at 358-60 (1977); Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 760 (4th Cir. 1998), vacated on other grounds by 527 U.S. 1031 (1999). See generally Robert Belton, A Comparative Review of Public and Private Enforcement of Title VII of the Civil Rights Act of 1964, 31 Vand. L. Rev. 905, 919, 934 (1978). There is no language in the ECOA statute supporting private pattern or practice cases. The statute contains pattern or practice language, see 15 U.S.C. § 1691e(h) (“[W]henever he has reason to believe that one or more creditors are engaged in a pattern or practice in violation of this subchapter, the Attorney General may bring a civil action. . . .”), but on its face appears to contemplate only the government as plaintiff. ECOA law has nevertheless been held generally to track Title VII. See, e.g., Haynie v. Veneman, 272 F. Supp. 2d 10, 16 (D.D.C. 2003) (analogizing ECOA to Title VII); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215 (1st Cir. 2000) (“In interpreting the ECOA, this court looks to Title VII case law. . . .”. But see Latimore v. Citibank Fed. Sav. Bank, 151 F.3d 712, 713-15 (7th Cir. 1998) (rejecting the Title VII burden-shifting model for ECOA). That may be the reason why a number of courts have simply
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I will assume for the sake of argument that plaintiffs’ pattern and practice claims are cognizable. On the other side of the threshold, however, lies a question that cannot be assumed away, namely, whether plaintiffs’ sweeping allegations of departmental acquiescence and ratification will support class certification in view of Falcon’s concern about “across-the-board” discrimination claims and its insistence upon specificity in pleading. That question must again be answered in the negative. First, plaintiffs’ reliance upon EEOC v. Inland Marine Industries, 729 F.2d 1229 (9th Cir. 1984), Baer v. First Options of Chicago, Inc., No. 90 C 7207, 1993 U.S. Dist. LEXIS 19489 (N.D. Ill. Dec. 3, 1993), and other similar cases is misplaced. Those cases do stand for the proposition that a pattern of notice and refusal to correct can serve as proof of the intent element in an employment discrimination case, but they do not address the implication of such a pattern upon class certification. The holdings of those cases would not support a conclusion that USDA’s alleged acquiescence and ratification would be enough by itself to satisfy the commonality requirement. Proof of conscious inaction
assumed without discussion or analysis that ECOA’s pattern or practice language supports a private cause of action. See, e.g., Hargraves v. Capital City Mortg. Corp., 140 F. Supp. 2d 7, 14 (D.D.C. 2000); Sallion v. SunTrust Bank, Atlanta, 87 F. Supp. 2d 1323, 1327 (N.D. Ga. 2000); Rodriguez v. Ford Motor Credit Co., No. 01 C 8526, 2002 WL 655679, at *5 (N.D. Ill. Apr. 19, 2002), Massey v. First Greensboro Home Equity, Inc., No. 97-1292-CIV-T-17, 1998 WL 231141, at *9 (M.D. Fla. Apr. 27, 1998). No court has squarely so held.
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on the part of USDA (i.e., acquiescence and ratification) in the face of numbers demonstrating that Hispanic farmers suffered disproportionately high loan rejection rates and received disproportionately low disaster benefit payments might satisfy the first Falcon requirement of a “general policy of discrimination,” but it would be no help at all with respect to the second Falcon requirement of decision-making processes that were “entirely subjective.” The common discriminatory practice that Falcon and its progeny requires is still missing. 5. Subjective decision-making process
The class that plaintiffs seek to represent would include Hispanic farmers who suffered discrimination at the hands of county agents or county committees – hundreds and perhaps thousands of decision-makers in who knows how many of the 2700 county offices nationwide that number Hispanic farmers among their clientele. Garcia I, 211 F.R.D. at 22. As so described, the class presents insurmountable problems for plaintiffs in meeting what the Fourth Circuit has called the “critical” need to identify “the locus of autonomy in making the challenged . . . decisions.” Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267, 279 (4th Cir. 1980). Compare id. with Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 598 (2d Cir. 1986) (commonality supported where “evidence was offered to show that many of the decisions affecting employees’ opportunities for transfer,
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Case 1:00-cv-02445-RBW Document 132 Filed 09/10/04 Page 13 of 24
training and promotion were made by the same, central group of people. . . .”). See also Webb v. Merck & Co., 206 F.R.D. 399, 406 (E.D. Pa. 2002) (finding class certification inappropriate where employment decisions were made by managers with varying authority in six facilities across five states); Carson v. Giant Food, Inc., 187 F. Supp. 2d 462, 471 (D. Md. 2002) (finding class certification inappropriate when alleged discrimination involved thirteen facilities in five towns or cities), aff’d sub nom Skipper v. Giant Food Inc., No. 02-1319, 2003 WL 21350730 (4th Cir. June 11, 2003), cert. denied, 124 S. Ct. 929 (2003); Zachery v. Texaco Exploration & Prod., Inc., 185 F.R.D. 230, 239 (W.D. Tex. 1999) (finding class certification inappropriate when alleged discrimination made by five hundred and twenty-three autonomous supervisors in fifteen states). That is why plaintiffs’ argument for commonality has focused from the beginning on the subjectivity of USDA’s county committee decision-making process. Plaintiffs must either bring their claims under the “entirely subjective” rubric that the Supreme Court thought might “conceivably” satisfy Rule 23(a) — or fail on their class certification motion.
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Before 1997, USDA’s regulations set forth seven
eligibility criteria:
(1) United States citizenship; (2) Legal capacity to incur loan obligations; (3) Education and/or farming experience (at least “1
year's complete production and marketing cycle within the last 5 years”); (4) Character (emphasizing credit history, past record of debt repayment, and reliability) and industry to carry out the proposed operation; (5) Commitment to carry out undertakings and obligations; (6) Inability to obtain “sufficient credit elsewhere to finance actual needs at reasonable rates and terms. . . .”; and (7) Farm size (not to be larger than a family farm).
7 C.F.R. 1941.12 (1997). See also 7 C.F.R. 1943.12 (1997).4
4 In March 1997, the regulations were amended to include eleven eligibility criteria and to make them generally more objective:
(1) United States citizenship; (2) The legal capacity to incur loan obligations; (3) Education and/or farming experience (at least “1
year's complete production and marketing cycle within the last 5 years”); (4) Character (emphasizing credit history, past record of debt repayment, and reliability) and industry; (5) Commitment to carry out undertakings and obligations; (6) Inability to obtain “sufficient credit elsewhere to finance actual needs at reasonable rates and terms. . . .”; (7) Farm size (not to be larger than a family farm); (8) and (9) Loan history (restricting the number of prior years in which the applicant could have taken out a direct operating loan); (10) No previous debt forgiveness causing a loss to the USDA; and (11) No delinquency on any federal debt.
7 C.F.R. § 1941.12 (1998); 62 Fed. Reg. 9351, 9354 (Mar. 3,
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Case 1:00-cv-02445-RBW Document 132 Filed 09/10/04 Page 15 of 24
In addition to satisfying those criteria, a farmer also
had to submit a Farm and Home Plan, which had to meet with the
approval of the loan officer. A feasible plan is defined as:
[A] plan based upon the applicant/borrower's records that show the farming operation's actual production and expenses. These records will be used along with realistic anticipated prices, including farm program payments when available, to determine that the income from the farm operation, along with any other reliable off farm income, will provide the income necessary for an applicant/borrower to at least be able to:
(a) Pay all operating expenses and all taxes which are due during the projected farm budget period;
(b) Meet necessary payments on all debts; and
(c) Provide living expenses for the family members of an individual borrower or a wage for the farm operator in the case of an entity borrower which is in accordance with the essential family needs. Family members include the individual borrower of farm operator in the case of an entity, and the immediate members of the family who reside in the same household.
1997). In February 2003, subsequent to my initial class certification decision in Garcia I, these regulations were amended again to eliminate the character and commitment criteria, deeming them “obsolete.” 68 Fed. Reg. 7693, 7694 (Feb. 18, 2003).
The pre-1997 criteria were in force during a good portion of the putative class period.
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7 C.F.R. § 1941.4.5 I concluded in Garcia I that some of these eligibility criteria, such as “character” or “commitment,” are obviously subjective, while others, such as citizenship, legal capacity, inability to obtain credit elsewhere, and farm size, should be classified as objective. I also ruled that the eligibility factors added in 1997 were objective: loan history, lack of previous debt forgiveness, and no delinquency on any federal debt. Overall, I concluded that, because the decisionmaking process was guided by a number of objective factors, footnote 15 was not triggered.
Plaintiffs ask me to reconsider that overall conclusion, insisting that, of the seven factors set forth in the pre-1997 regulations — citizenship, legal capacity, education/experience, character, commitment, inability to obtain credit elsewhere, and farm size — only citizenship and legal capacity are truly objective. Plaintiffs argue that the “inability to obtain credit elsewhere” criterion, which I found to be objective in Garcia I, is actually open to subjective interpretation and application. The regulation provides that an applicant is eligible for a loan only if he or she could not obtain sufficient credit elsewhere to “finance . . . actual needs at reasonable rates and terms, taking into consideration
5 This provision was in force for a good portion of the putative class period.
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prevailing private and cooperative rates and terms in the community in or near where the applicant resides for loans for similar purposes and periods of time.” 7 C.F.R. § 1941.6. Plaintiffs argue that there was considerable room for local officials to interpret this factor, because, they assert, for most of the time period relevant to this suit, county committees were responsible for determining what were an applicant’s “actual needs,” what constituted “reasonable rates and terms,” and which legal institutions were deemed “near” the applicant’s residence. Plaintiffs also maintain that county officials had discretion to define what constituted a “family farm.” The applicable regulation defines a family farm as one which, inter alia, “produces agricultural commodities for sale in sufficient quantities so that it is recognized in the community as a farm rather than a rural residence.” 7 C.F.R. § 1941.4. Plaintiffs also assert that approximately one-third of the examined loan rejections were done “on the basis of character or other similarly highly subjective criteria.” Pls.’ Mem. Ex. 7. And, plaintiffs place considerable emphasis on the USDA requirement that Farm and Home Plans be “feasible.” Infeasibility appears to have been the reason given for more than half of the loan rejections plaintiffs have been able to review. The feasibility determination is guided by a number of objective inputs, however, including the applicant’s own records of the farming operation’s
- 17 -

Case 1:00-cv-02445-RBW Document 132 Filed 09/10/04 Page 18 of 24
actual production and expenses. 7 C.F.R. § 1941.4. These records are combined with other estimates of actual prices to determine feasibility. Id. Even plaintiffs’ anecdotal evidence shows that feasibility was grounded, at least in many cases, on objective financial data. See Pls.’ Mem. Ex. 7.
Many of plaintiffs’ arguments for reconsideration of my commonality finding are well taken, and taken together they do increase the subjectivity quotient of the USDA processes. The question is, have plaintiffs succeeded in raising the subjectivity quotient to the point where it can be said to be “entirely subjective”? The answer is no. Am I treating the words “entirely subjective” literally, as revealed truth? Again, no. Indeed, there can be no satisfactory resolution to the dispute about just how subjective is “entirely subjective” within the meaning of the Supreme Court’s oracular Falcon footnote (which is dicta anyway). Judge Huvelle recently found the test to have been met in McReynolds v. Sodexho Marriott Services, Inc., 208 F.R.D. 428, 441-42 (D.D.C. 2002), an employment case in which the choice of hiring and promotion criteria was left entirely to the individual discretion of thousands of decisionmakers at thousands of sites across the country. The line may not be clear, but whatever can be said about the USDA processes for making loans and giving disaster relief to farmers, they are (or were) certainly not so subjective as that, or as the process
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Case 1:00-cv-02445-RBW Document 132 Filed 09/10/04 Page 19 of 24
recently described in Dukes v. Wal-Mart Stores, Inc., No. C01-02252, 2004 WL 1385490 (N.D. Cal. June 21, 2004). 6. Commonality within proposed subclasses
Plaintiffs appear to be arguing that several of the subclasses they propose to define and seek to represent meet the standard for commonality wholly apart from any analysis of subjectivity. They assert that: • “Thirty-four named plaintiffs were either denied
applications altogether or refused requested assistance in completing the loan application.” Pls.’ Mem. Ex. 8. The stories of those 34 plaintiffs include many variations. One plaintiff was told to apply first to private banks; another was told that he did not have enough collateral and was not “offered” an application; another was told no disaster relief funds were available; another was treated rudely and was refused assistance in filling out the necessary forms. These are, essentially, thirty-four anecdotes about poor treatment given to individual Hispanic farmers at eight of USDA’s 2700 offices. • USDA “discouraged Hispanic farmers from availing themselves of farm credit by delaying the processing of their loan applications.” Pls.’ Mem., at 34. A narrative presented in Exhibit 9 of Plaintiffs’ Memorandum asserts that 28 of the 35 named plaintiffs for whom discovery has been received experienced “significant delays in receiving
- 19 -

Case 1:00-cv-02445-RBW Document 132 Filed 09/10/04 Page 20 of 24
benefits related to farm programs,” and that these delays were “in violation of the dictates of law and the dictates of morality.” The material submitted in support of this claim consists of stories of bureaucratic delays, each one different from the other. • USDA “discouraged Hispanic farmers from availing themselves
of farm credit by delaying or denying loan servicing.” Pls.’ Mem., at 37. Here again the individual stories of the named plaintiffs are anecdotes of bureaucracy, geographically dispersed, and quite different one from another. See Pls.’ Mem. Ex. 11. • USDA “discriminated against Hispanic farmers through the misuse of supervised bank accounts.” Pls.’ Mem. Ex. 10. The deposit of loan proceeds or disaster payments funds into supervised bank accounts (“SBAs”) imposes significant burdens on farmers. SBA’s should be used only temporarily “to help the borrower learn to properly manage his/her financial affairs” and normally not for more than a year. 7 C.F.R. § 1902.2(a)(6), (a)(4). Plaintiffs allege that SBA’s are frequently imposed on Hispanic farmers only because they cannot speak English, for no reason related to their farming experience or ability to manage their financial affairs, and for periods of longer than a year. That allegation is serious and comes closer than any of the others to fulfilling the requirements for class treatment. It
- 20 -

Case 1:00-cv-02445-RBW Document 132 Filed 09/10/04 Page 21 of 24
may be that, as the plaintiffs pursue their individual cases, facts will emerge that could support class treatment of this claim in individual offices or in larger districts. Cf. Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir. 1996) (finding class certification inappropriate for “immature” tort that could best be first developed in individual litigation). On the basis of the record in its present state of development, however, even if the SBA issue provided the requisite commonality, the requirements of Rule 23(b) have not been satisfied. 7. Rule 23(b) questions
Even if plaintiffs’ proposed subclasses satisfy the commonality requirement of Rule 23(a)(2), they do not pass muster under Rule 23(b)(2) or Rule 23(b)(3).6 Plaintiffs have done what they can to shore up their claim to represent a valid Rule 23(b)(2) class by seeking broad and carefully tailored injunctive relief in their proposed third amended complaint,7 but their assertion that USDA “has acted or refused to act on grounds generally applicable to the class” depends upon the same “one practice” and “single actor” theories by which plaintiffs have
6 I recognize that since Garcia I the parties have focused their briefs on Rule 23(a)(2) commonality and imagine that plaintiffs might have more to say about Rules 23(b)(2) and (b)(3). I do not believe that yet another round of briefing would be productive, however.
7 And see Submission of Plaintiffs Concerning the Nature of the Injunctive Relief Sought by Plaintiffs' Proposed Third Amended Complaint, filed September 2, 2004.
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Case 1:00-cv-02445-RBW Document 132 Filed 09/10/04 Page 22 of 24
sought to establish Rule 23(a) commonality, and which have already been rejected. As for Rule 23(b)(3), the discovery difficulties that have been encountered in this case and the diversity of the plaintiffs’ anecdotal support for their class certification motion underscore my observations in Garcia I that, if this case were permitted to proceed as a class action, it would “quickly devolve into hundreds or perhaps thousands of individual inquiries about each claimant’s particular circumstances,” and that “[e]ven if the presence of classwide discrimination were established, individual issues would be much more important to any claimant’s recovery.” 211 F.R.D. at 24. The history of the Pigford (black farmers) class action litigation8 amply demonstrates that the certification of a plaintiff class to resolve decades of disputes about loans made or not made and disaster relief provided or not provided to thousands of individual farmers, working under disparate conditions and submitting applications to hundreds of different decision-makers (to say nothing of loan applications offered or not offered, loan applications delayed or not delayed, supervised bank accounts required or not required, and loan servicing provided or not provided), would be only the beginning of a lengthy and difficult process in which, as it turns out, it is
8 Pigford v. Veneman, 1:97-cv-01978-PLF (D.D.C.)
- 22 -

Case 1:00-cv-02445-RBW Document 132 Filed 09/10/04 Page 23 of 24
the “questions affecting only individual members” that predominate. See Fed. R. Civ. P. 23(b)(3). 8. Further discovery
Plaintiffs will object – have already objected – that the denial of class certification at this point is uninformed by the information they might be able to develop through the broad discovery program that has been denied them until now, and that to restrict their discovery to unhelpful and uninformative USDA databases and to the loan files of their own clients unreasonably limits their ability to demonstrate the broader pattern of discrimination that they believe has existed over the last twenty years of USDA administration of farmers’ loan and disaster relief programs. That objection is overruled. What plaintiffs have been able to assemble and present so far does not give rise to probable cause to believe that a searching and expensive discovery program would unearth sufficient evidence of commonality to support class certification. The examination of individual loan files requested is labor intensive, time consuming, and is no different, or little different, from the kind of discovery that would be necessary to deal with these cases individually. 9. Amendment of the complaint
Plaintiffs’ proposed Third Amended Complaint, as already noted, would add five subclasses of plaintiffs and assert
- 23 -

Case 1:00-cv-02445-RBW Document 132 Filed 09/10/04 Page 24 of 24

prayers for injunctive relief. Leave to amend pleadings is to be

“freely given when justice so requires.” Fed. R. Civ. P. 15(a).

Because the ruling set forth in this Memorandum Order alters the

landscape of this case, however, the appropriate course is to

deny leave to amend, without prejudice.

*

*

*

*

*

For the reasons set forth above and in Garcia I it is

ORDERED that plaintiffs’ motion for class certification

[18], as renewed or supplemented by plaintiffs’ memorandum on the

subject of commonality [107], is denied. It is

FURTHER ORDERED that plaintiffs’ motion for leave to

file a third amended class action complaint [108] is denied

without prejudice. It is

FURTHER ORDERED that defendant’s motion to strike [131]

is denied. And it is

FURTHER ORDERED that further proceedings in this case

are stayed pending further order of the Court.

JAMES ROBERTSON United States District Judge

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 Case 1:00-cv-02445-RBW Document 187 Filed 10/20/10 Page 1 of 5

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

GUADALUPE L. GARCIA, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 00-2445 (RBW)

)

TOM VILSACK,

)

Secretary of Agriculture, et al.,

)

)

Defendants.

)

____________________________________)

ORDER

Currently before the Court ar e the Plaintiffs’ Motion to Re view Defendant[s’] Proposed

Notice and Terms of Class-Wide Settlement, and to Certify a Settlement Class and the Plaintiffs’

Emergency Motion to Stay Publication of De fendant[s’] Proposed Notice of a Class-W ide

Settlement Pending Court Review (the “Pls.’ Emer. Mot.”). The plaintiffs assert that because the

“defendant[s’] ‘proposed settlem ent’ raises serious fairness and cons titutional issues,”

Memorandum of Points and Authorities In

Support of Plaintiffs’ Motion to Review

Defendant[s’] Proposed Notice and Terms of Class-Wide Settlement, and to Certify a Settlement

Class (the “Pls.’ Class Mem .”) at 10, the Court should “certify a settlement class under [Federal

Rule of Civil Procedure] 23,” id. at 1, and “review the [proposed notice and settlement terms] in

light of the requirem ents” set forth under that rule, id. at 10. Furthermore, the plaintiffs argue

that the defendants have “threaten[ed] to publish the proposed notice before the briefing schedule

with respect to the [ plaintiffs’] pending [ class certification] motion is concluded,” Pls.’ Em er.

Mot. at 1, and thus “any public announcem ent or notice of the proposed class-wide settlem ent

process” should be held “in abeya nce . . . until af ter the [C]ourt has ruled on [ the] plaintiffs’

Case 1:00-cv-02445-RBW Document 187 Filed 10/20/10 Page 2 of 5
pending [m]otion” for class certification, Mem orandum of Points and Authorities In Support of Plaintiffs’ Emergency Motion to S tay Publication of Defendant[s’] Proposed Notice of a ClassWide Settlement Pending Court Review at 2. Af ter carefully considering the arguments ra ised by the plaintiffs in their motions,1 the Court concludes for the following reasons that it must deny their request for certifica tion of a settlem ent class, and, consequently, it must also deny as m oot their request for emergency relief.
Federal Rule of Civil Procedure 23 sets fort h several prerequisites the plaintiffs must satisfy in order to obtain class certification. The plaintiffs must first establish each of the four requirements listed under Rule 23(a); specifically, that
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative party will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). If the plaintiffs satisfy th ese four requirements, then the Court may certify the class if it f inds, inter alia, “that the questions of law or fact common to clas s members predominate over any questions affecting only i ndividual members, and that a class action is superior to other available methods for fairly and efficiently adju dicating the controversy.” Fed. R. Civ. P. 23(b). The Court m ay “probe behind the pleadings,” Gen. Tel. Co. of Sw. v. Falcon , 457 U.S. 147, 160 (1982), in assessing whether the plaintiffs have met their burden of proof as to each of the requirements prescribed in Rule 23, McCarthy v. Kleind ienst, 741 F.2d 1406, 1414 n.9 (D.C. Cir. 1984). On December 2, 2002, Judge Jam es Robertson, a fo rmer member of this Court, issued a memorandum opinion and order addressing a prior motion for class certification by the plaintiffs, who were seeking to certify a class of
1 The defendants have yet to file an opposition to either of the plaintiffs’ motions that are currently before the Court.
2

Case 1:00-cv-02445-RBW Document 187 Filed 10/20/10 Page 3 of 5
[a]ll Hispanic farmers and ranchers who fa rmed or ranched or attem pted to do so and who were discriminated against on the ba sis of national origin or ethnicity in obtaining loans, including the servici ng and continuation of loans, or in participating in disaster benefit progr ams administered in the United States Department of Agriculture, during th e period from January 1, 1981 through December 31, 1996, and tim ely complained about su ch treatment, or who experienced such discrimination from the period of October 13, 1998 through the present. Garcia v. Vene man, 211 F.R.D. 15, 18 (D.D.C. 2002). In his opinion, Judge Robertson concluded that the plaintiffs ha ve failed “to establish that ther e are questions of law or fac t common to the class[,] or that such questions predom inate over any questions affecting only individual members.” Id. at 17. Relying on the District of Columbia Circ uit’s decision in Hartman v. Duffey, 19 F.3d 1459, 1472 (D.C. Cir. 1994), J udge Robertson concluded, inter alia, that the pla intiffs failed to “‘m ake a sign ificant showing to perm it the [ C]ourt to inf er that members of the class su ffered from a common policy of discrimination that pervaded all of the employer’s challenged employment decisions,’” Garcia, 211 F.R.D. at 19, because th e purported discrimination suffered by the plaintiffs could not be “correlate[ d] . . . with subjectiv e loan qualification criteria,” id. at 22; see also Falcon, 457 U.S. at 159 n.15 (opi ning that “[s]ignificant proof that an em ployer operated under a genera l policy of discrim ination conceivably could justify a c lass . . . if the discrimination manifested itself in [a n] entirely subjective decision[]making process” (emphasis added)), and that the “farmers’ allegations of discrimination” would require “individualized inquiries regarding th e practices of the various county comm ittees” across the country that interacted with these farmers, Garcia, 211 F.R.D. at 22. Judge Robertson also concluded that any common qu estions of fact would not pre dominate in this action because “[e]ven if the presence of class-wide discrimination were established, individual issues would be much more important to any claimant’s recovery.” Id. at 24. The District of Columbia affirmed Judge Robertson’s ruling on the commonality issue, Garcia v. Johanns, 444 F.3d 625, 631 (D.C.
3

Case 1:00-cv-02445-RBW Document 187 Filed 10/20/10 Page 4 of 5
Cir. 2006), but it found no need to address his holding regarding the predom inance issue, id. at
631 n.6.
The plaintiffs now assert that “the government’s offer to settle all of the pending cases on
a class basis constitutes a sufficient[ly] changed circumstance to permit the [C]ourt to revisit the
question of class certifi cation,” Pls.’ Class Mem. at 22, “and to certify a class for settlem ent
purposes,” id. at 23. This argum ent is without m erit. It is true that the prospect of a
“[s]ettlement is relevant to . . . class certification,” Amchem Prod., Inc. v. W indsor, 521 U.S.
591, 619 (1997), but that factor does not always wei gh “in favor of c ertification,” as “proposed
settlement classes sometimes warrant more, not less, caution on the question of certification,” id.
at 620 n.16, to ensure that “a proposed class ha s sufficient unity so that absent mem bers can
fairly be bound by decisions of class representatives,” id. at 621. And here, Judge Robertson has
already ruled that the proposed cl ass in this case lacks such unit y, and the District of Colum bia
Circuit has affirmed that decision. To m eet the requirements of Rule 23, therefore, the plaintiffs
would have to explain how the administrative procedure proposed by the governm ent for
resolving claims of pur ported discrimination sufficiently changes the fact ual landscape of this
case as to cure the commonality defects found by Judge Robertson. The plaintiffs have made no such showing in their f iling,2 and thus the undersigned m ember of the Court concludes that it
2 Even assuming that the defendants’ desire “to settle th is case on a class-wide basis” is sufficien t to constitute a common question of fact under Rule 23(a), Pls.’ Class Mem. at 23, any common interest shared by the plaintiffs in obtaining a fai r settlement is in sufficient to satisfy th e predominance requirement of Rule 23(b)(3), see Windsor, 521 U.S. at 623 (concluding that “[i]f a common interest in a fai r compromise could satisfy the predominance requirement of Rule 23(b)(3),” then the prescriptions of Rule 23 t o “assure the class cohesion t hat legitimizes representative action in the first place . . . . would be stripped of any meaning in the settlement context”). Indeed, as Judge Robertson recognized,
[t]he instant case, if allowed to proceed as a class action, would quickly devolve into hundreds or perhaps thousands of indivi dual inquiries about each claimant’s particular circum stances. No individual plaintiff could prevail without scrutiny of his or her individual loan application to determine whether t he application was “ feasible” in terms of s uch objective criteria as a n applicant’s financial qualifications and repayment ability. Even if the presence of class-wide
(continued . . .)
4

Case 1:00-cv-02445-RBW Document 187 Filed 10/20/10 Page 5 of 5
would be inappropriate to disturb th e conclusions reached by Judge Robertson in h is December 2, 2002 memorandum opinion.3 See Lemmons v. Georgetown Univ. Hosp. , 241 F.R.D. 15, 22 (D.D.C. 2007) (Walton, J.) (quoting Judicial Watch v. Dep’t of Ar my, 466 F. Supp. 2d 112, 123 (D.D.C. 2006) (Urbina, J.)) (“[W ]here litigants have once b attled for the Court’s decision, they should neither be required, nor without good reason permitted, to battle for it again.”).
Accordingly, it is ORDERED that the plaintiffs’ motion for class certification is DENIED. It is further ORDERED that the plain tiffs’ emergency motion to enjoin the defendants from publishing notice of their proposed administrative procedure for settling potential discrimination claims is DENIED as moot. SO ORDERED this 20th day of October, 2010.
REGGIE B. WALTON United States District Judge
(. . . continued) discrimination were established, individual issues would be much more important to any claimant’s recovery.
Garcia, 211 F.R.D. at 24 (internal citation omitted). 3 As a result of the Court’s resolution of the plaintiffs’ motion for class certification, the plaintiff’s motion to enjoin the defendants from publishing notice of their proposed administrative procedure for resolving claims of purported discrimination is moot.
5

 
 Case 1:00-cv-02445-RBW Document 47 Filed 03/20/02 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GUADALUPE L. GARCIA, et al.,

Plaintiffs,

v.

Civil Action No. 00-2445 (JR)

ANN V. VENEMAN, Secretary, United States Department of Agriculture,
Defendant.
MEMORANDUM ORDER

FILED
MAR 2 0 2002
IIIJWCrtnk~CLa:

Plaintiffs are Hispanic farmers who complain of

discrimination in the administration of U.S. Department of

Agriculture loan and disaster benefit programs. 1 The government

moves to dismiss under Fed. R. Civ. P. 12(b) (1) and 12(b) (6),

arguing that the Court lacks jurisdiction over several claims and

that plaintiffs have failed to allege a cognizable claim under

the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691 et seq., the

Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., or the

Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq. For the

reasons set forth below and in Love v. Veneman, Civ. No. 00-2502,

mem. op. (D.D.C. Dec. 13, 2001), the motion will denied in part

and granted in part.

1 The ten named plaintiffs also sue on behalf of others similarly situated, including 92 individuals named but not described in the second amended complaint. The plaintiffs• motion for class certification and the government•s motion to strike class action allegations and to dismiss the putative class members are in abeyance pending further briefing by the parties.

Case 1:00-cv-02445-RBW Document 47 Filed 03/20/02 Page 2 of 6
Background This case is one of a number of class actions filed by minority and women farmers in the wake of several reports documenting discriminatory practices in local USDA offices and the dismantling of the Department's civil rights enforcement program in the early 1980s. In 1998, concerned that farmers had relied to their detriment upon USDA's (inoperative) internal mechanisms to investigate their discrimination complaints, Congress extended the statute of limitations until October 21, 2000, to allow farmers who had filed administrative complaints concerning USDA discrimination between 1981 and 1996 to bring suit in U.S. District Court. 7 U.S.C. § 2279 Note. USDA has settled a class action filed on behalf of African American farmers, Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999), aff'd, 206 F.3d 1212 (D.C. Cir. 2000). This action by Hispanic farmers, however, as well as suits by Native American farmers, Keepseagle v. Veneman, Civ. No. 99-3119, and female farmers, Love v. Veneman, Civ. No. 00-2502, continue in litigation. The Garcia plaintiffs allege that from January 1, 1981, to the present, the Farmers Home Administration and its successor, the Farm Service Agency, discriminated against Hispanic farmers and ranchers in awarding disaster benefits and operating, farm ownership, and emergency loans. They also allege
-2-

Case 1:00-cv-02445-RBW Document 47 Filed 03/20/02 Page 3 of 6
that the USDA acted arbitrarily in failing to investigate and
resolve their discrimination complaints.
Analysis
The government's motion to dismiss raises the same
legal arguments advanced in its motion to dismiss in Love v.
Veneman. For the reasons set forth in a memorandum issued in the
Love case on Dec. 13, 2001, (1) the Garcia plaintiffs are
entitled to bring ECOA claims for discrimination in lending
transactions without administrative exhaustion; (2) at least some
of the named plaintiffs' lending claims satisfy the statute of
limitations2 ; and (3) plaintiffs' allegations of failure to
2 Plaintiffs Guadalupe Garcia and Gloria Moralez satisfied the special statute of limitations for USDA claims by bringing suit on 11 eligible [administrative] complaints 11 that they had filed prior to July 1, 1997, asserting discrimination in USDA lending and disaster benefit programs between 1981 and 1996. Agricultural, Rural Development, Food and Drug Administration, and Related Agencies Appropriation Act, 1999, Pub. L. 105-277, § 741, 112 Stat. 2681-30 (codified at 7 U.S.C. § 2279 Note). However, Mr. Garcia's 11 eligible complaint'' only appears to have concerned his 1986 loan application. The plaintiffs' second amended complaint does not describe any discrimination complaint meeting the requirements of 7 U.S.C. § 2279 as having been filed concerning his 1988 and 1994 credit applications, so those claims are now time barred.
It is unclear from the face of the complaint whether Tony and Patricia Jimenez, Beatrice and Rodolfo Garza, and Edward and Normal Flores filed complaints within the USDA that specifically asserted discrimination as required by 7 U.S.C. § 2279 Note. Love v. Veneman, Civ. No. 00-2502, mem. op. at 10-12. It is also unclear whether Mr. Garcia, Mr. and Mrs. Jimenez, and Larry and Robert Chavarria meet ECOA's general two-year statute of limitations as to their claims based on 1998 credit transactions. 15 U.S.C. § 1691e(f). Since the special statute of limitations does not apply to USDA discrimination after 1996 or administrative complaints filed after July 1, 1997, the 1998
-3-

Case 1:00-cv-02445-RBW Document 47 Filed 03/20/02 Page 4 of 6
investigate civil rights complaints do not state claims under ECOA or the APA.
The only legal issue requiring further discussion arises from plaintiffs' claims for discriminatory administration of disaster benefit programs. 3 A disaster benefit decision is
not a "credit transaction" within the meaning of ECOA. 15 u.s.c.
§ 1691(a). A final agency action denying a disaster benefit is, however, reviewable under the Administrative Procedure Act, 5
u.s.c. §§ 702, 704. Plaintiff Gloria Moralez asserts that she
was denied disaster benefit payments for losses to her grape crop in 1993 and that she filed a discrimination complaint with the USDA prior to July 1, 1997, concerning that denial. Although the effectiveness of APA relief is questionable - the APA does not waive the government's sovereign immunity with regard to money damages, 5 U.S.C. § 702 -- Ms. Moralez has satisfied the special statute of limitations approved by Congress and has standing to assert her claim before this court. 7 U.S.C. § 2279 Note.
claims are barred unless they concern transactions occurring within two years of the filing of this action on October 13, 2000. Because 12(b) (1) motions must be generously construed in the plaintiffs' favor, the motion to dismiss these plaintiffs will be denied at this time. Love v. Veneman, Civ. No. 00-2502, mem. op. at 12 & n.8. However, the government is free to renew its motion if these plaintiffs cannot demonstrate that they satisfy the statute of limitation requirements.
3 Such claims were dismissed in Love because the only named plaintiff who alleged the unlawful denial of disaster benefits was successful on her administrative appeal. Love v. Veneman, Civ. No. 00-2502, mem. op. at 13.
-4 -

Case 1:00-cv-02445-RBW Document 47 Filed 03/20/02 Page 5 of 6

~

tD It is accordingly this

day of March 2002,

ORDERED that defendant's motion to dismiss [#5] is

denied in part and granted in part. And it is

FURTHER ORDERED that plaintiffs' motion to for leave to

file a second amended complaint [#16, #19] is granted. And it is

FURTHER ORDERED that defendant's motion to strike

plaintiffs' motion to certify the class [#21] is denied. And it

is

FURTHER ORDERED that plaintiffs' motion to strike

defendant's notice of filing [#33, #34] is granted. And it is

FURTHER ORDERED that the Court's order of January 23,

2001 [#14] is modified as described in open court on February 21,

2002, to permit further briefing on the motions to certify a

class [#18] and to strike class action allegations [#5]

JAMES ROBERTSON United States District Judge

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Case 1:00-cv-02445-RBW Document 47 Filed 03/20/02 Page 6 of 6

Copies to:
Alexander J. Pires, Jr. Conlon, Frantz, Phelan & Pires, LLP 1818 N Street, N.W. Washington, DC 20036
Phillip L. Fraas Hogan & Hartson, LLP 555 Thirteenth Street, N.W. Washington, DC 20004-1109
Alan M. Wiseman Stephen S. Hill Howrey Simon Arnold & White, LLP 1229 Pennsylvania Avenue, N.W. Washington, DC 20004
Counsel for Plaintiff

Jean Lin U.S. Department of Justice Civil Division Federal Programs Branch 901 E Street, N.W. Washington, DC 20530
Counsel for Defendant

-6-

 
 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

GUADALUPE L. GARCIA, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 00-2445 (RBW)

)

THOMAS J. VILSACK,

)

Secretary, The United States

)

Department of Agriculture,

)

)

Defendant.

)

____________________________________)

MEMORANDUM OPINION The plaintiffs in this civil action are Hispanic farmers who allege that the United States Department of Agriculture (“USDA”) discriminated against them on the basis of national origin in the administration of its farm loan and disaster benefit programs, and that it failed to timely resolve their discrimination complaints. Third Amended Class Action Complaint ¶¶ 102, 113, 115. The Black Farmers & Agriculturalists Association, Inc. (“Association”) has moved to intervene in this action pursuant to Federal Rule of Civil Procedure 24. Motion of Black Farmers and Agriculturalists Association, Inc. to Intervene (“Mot.”) at 1. Upon careful consideration of the relevant submissions,1 the Court concludes that it must deny the motion for the reasons set forth below.2

1 In addition to the Association’s motion to intervene, the Court considered the following filings in reaching its decision: (1) the Defendant’s Opposition to Motion to Intervene (“Def.’s Opp’n”); (2) the Plaintiffs’ Opposition to Black Farmers and Agriculturalists Association, Inc.’s Motion to Intervene (“Pls.’ Opp’n”); and (3) the Reply of Black Farmers and Agriculturalists Association, Inc. (BFAA) to Opposition to Motion to Intervene (“Reply”).
2 The Court is contemporaneously issuing a memorandum opinion resolving the Association’s motion to intervene in Love v. Vilsack, No. 00-2502 (D.D.C. filed Oct. 19, 2000), which addresses claims of female farmers similar to those asserted in this case.

1

I. BACKGROUND Between 1997 and 2000, African-American, Native American, Hispanic, and female farmers filed four similar class action lawsuits alleging that the USDA engaged in widespread discrimination on the basis of race, ethnicity, or gender in the administration of its farm loan and benefit programs, and that it routinely failed to investigate complaints of such discrimination. See Pigford v. Glickman, Nos. 97-1978, 98-1693 (D.D.C. filed Aug. 28, 1997, July 7, 1998) (“Pigford I”) (African-American farmers); Keepseagle v. Vilsack, No. 99-03119 (D.D.C. filed Nov. 24, 1999) (Native American farmers); Garcia v. Vilsack, No. 00-2445 (D.D.C. filed Oct. 13, 2000) (Hispanic farmers); Love v. Vilsack, No. 00-2502 (D.D.C. filed Oct. 19, 2000) (female farmers). Judge James Robertson, a former member of this Court, denied the plaintiffs’ motions for class certification in this action and in Love v. Vilsack.3 See 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). The defendant has, however, developed an administrative claims process for Hispanic and female farmers to resolve their claims of discrimination against the USDA. See Defendant’s Eighth Status Report at 1, ECF No. 218; Defendant’s Status Report at 1, Love, No. 00-2502 (D.D.C. Jan. 20, 2012), ECF No. 155. Participation in the administrative claims process is conditioned on dismissal of a farmer’s legal claims against the USDA. See Defendant’s Eighth Status Report, Exhibit (“Ex.”) 1 (Framework for Hispanic or Female Farmers’ Claims Process) at 6, ECF No. 218-1; Defendant’s Status Report, Ex. 1 (Framework for Hispanic or Female Farmers’ Claims Process) at 6, Love, No. 002502 (D.D.C. Jan. 20, 2012), ECF No. 155-1.
3 Upon Judge Robertson’s retirement from this Court, Garcia and Love were reassigned to the undersigned member of the Court.
2

The Association is “a not-for-profit organization created for the specific purpose of responding to the issues and concerns of Black Farmers in the United States and abroad,” Mot. at 2, and it seeks to intervene in this action and Love on behalf of its members who asserted timebarred claims in Pigford I, see Mot. at 6; Mot., Ex. 1 (Proposed Complaint) ¶¶ 15, 19. A brief overview of the Pigford litigation is necessary to understand the Association’s asserted interest in this case and in Love.
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.4 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).5 Pigford v. Glickman, 185 F.R.D. 82, 92 (D.D.C. 1999). Following the Court’s class certification rulings, the Pigford I parties 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 established an administrative claims process “by which each class member 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
4 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). 5 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).
3

resurrected the claims of those who had unsuccessfully petitioned the Arbitrator for permission to submit late claim packages” with a provision in the Food, Conservation, and Energy Act of 2008 (“2008 Farm Bill”), id., which 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,” id. (quoting Pub. L. 110–234, § 14012(b), 122 Stat. 923, 1448 (2008)). After this provision became effective, thousands of African-American farmers filed suit in this Court. Id. at 13. The Association also brought suit on behalf of its members who were eligible to file claims under the 2008 Farm Bill. Complaint to Determine Merits and Damages Pursuant to § 14012 of the Food, Conservation and Energy Act of 2008 ¶ 1, Black Farmers & Agriculturalists Ass’n, Inc. v. Schafer, No. 08-1188 (D.D.C. July 9, 2008), ECF No. 1. These cases were all subsequently consolidated before Judge Friedman, and are collectively known as Pigford II. In re Black Farmers, 856 F. Supp. 2d at 13.
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. Judge Friedman certified a settlement class consisting of “[a]ll individuals: (1) who submitted Late-Filing Requests under Section 5(g) of the Pigford v. Glickman Consent Decree on or after October 13, 1999, and on or before June 18, 2008; but (2) who have not obtained a determination on the merits of their discrimination complaints . . . .” Id. at 15. Notably, unlike the Pigford I class, Pigford II class members were not permitted to opt out of the class. See id. at 9, 32–33. The order and judgment granting approval of the settlement agreement provided that
the Class Representatives, the Class, and its members and their heirs, administrators, successors, and assigns release, waive, acquit and forever
4

discharge the United States and the Secretary from and are forever barred and precluded from prosecuting, any and all claims, causes of action, or requests for any monetary relief . . . that have been or could have been asserted in the Consolidated Case by reason of, with respect to, in connection with, or which arise out of, any matters alleged in the Consolidated Case that the Class Representatives, the Class, and its members, and their heirs, administrators, successors, and assigns have against the United States or the Secretary, or any of them.
Order and Judgment ¶ 19, Pigford II, No. 08-mc-0511 (D.D.C. Oct. 27, 2011), ECF No. 231.
The Association was terminated as a party in Pigford II, Amended Class Action Complaint to
Determine Merits and Damages Pursuant to § 14012 of the Food, Conservation and Energy Act
of 2008, As Amended at 1 n.1, Pigford II, No. 08-mc-0511 (D.D.C. Apr. 5, 2011), ECF No. 163,
and is not a member of the settlement class, see Latham v. Vilsack, Nos. 11-5326, 11-5334, 12-
5019, 2012 WL 10236550, at *1 (D.C. Cir. July 25, 2012).
The Association seeks to intervene in this litigation to assert two claims. Mot., Ex. 1
(Proposed Complaint) ¶¶ 16–23. First, it seeks a declaration finding that “both the Equal
Protection Clause and Due Process Clauses of the United States Constitution mandate[] that its
members who are eligible ‘Pigford claimants’ under the 2008 Farm Bill, but did not timely file
claims are entitled to file claims, under the framework established for Hispanic and female
farmers.” Id. ¶ 19. The Association’s second claim is for injunctive relief with respect to the
USDA’s current loan approval process, specifically, “a permanent injunction against [the] USDA
and its subordinate county level loan processing entities to refrain from discrimination in
processing loan applications of Black Farmers,” id. ¶ 21, and “an order restructuring the present loan approval process that removes the [county][6] and local level aspects of the process and
6 Although the proposed complaint uses the word “country” here, the Court assumes that this is a typographical error and the Association intended to use the word “county” because the relief sought in paragraph 21 of the proposed complaint refers to “county level loan processing entities,” and the clause that immediately follows the term “country” in paragraph 22 itself is directed at “local level aspects of the [present loan approval] process.”
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replaces it with a more equitable organizational structure,” id. ¶ 22. Both the defendant and the plaintiffs oppose the motion to intervene.
II. STANDARD OF REVIEW The Association seeks to intervene as a matter of right pursuant to Federal Rule of Civil Procedure 24(a), or, in the alternative, permissively pursuant to Rule 24(b). Mot. at 6. Federal Rule of Civil Procedure 24(a) provides that “on timely motion,” a court must allow a party to intervene if it claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest. Fed. R. Civ. P. 24(a)(2). In assessing a motion to intervene as of right, a court must consider the motion’s timeliness, whether the movant “claims an interest relating to the property or transaction which is the subject of the action,” whether the movant “is so situated that the disposition of the action may as a practical matter impair or impede [its] ability to protect [its] interest,” and whether the movant’s interest “is adequately represented” by the existing parties to the litigation. Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003) (citation omitted). A party seeking to intervene as of right must additionally establish standing under Article III of the Constitution. Id. at 731–32. Pursuant to Federal Rule of Civil Procedure 24(b), “on timely motion,” a court may permit a party to intervene if it “has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). In determining whether permissive intervention is appropriate, a court “must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P.
6

24(b)(3). Permissive intervention is “inherently discretionary,” EEOC v. Nat’l Children’s Ctr.,
Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998), and a court may deny a motion for permissive
intervention even if the movant has met all of the requirements of Rule 24(b), id. at 1048.
III. ANALYSIS While the Court sympathizes with the Association members who failed to timely assert
Pigford claims, the Association’s motion to intervene in this litigation fails on every score. The
Court agrees with the defendant that the Association’s first claim is plainly barred by Pigford II,
which unequivocally extinguished the right of any Pigford claimant to receive a determination on the merits of a claim outside of the claims process created by Pigford II.7 See Order and
Judgment ¶¶ 1, 18–19, Pigford II, No. 08-mc-0511 (D.D.C. Oct. 27, 2011), ECF No. 231. The
Association’s motion suffers from a more fundamental defect, however. In order to intervene as
of right, the Association must establish that it has Article III standing. Fund for Animals, Inc.,
322 F.3d at 731–32. As alluded to by the defendant, Def.’s Opp’n at 5 n.1; see also Def.’s Opp’n at 5–6, the Association’s standing to pursue its first claim is far from evident.8
“‘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
7 The Association contends that Pigford II does not bar its claim because it was dismissed from the litigation and thus was not a member of the settlement class. Reply at 4. The Association brings its claim on behalf of its members, however, who are members of the Pigford II class. Order and Judgment ¶¶ 1, 19, Pigford II, No. 08-mc0511 (D.D.C. Oct. 27, 2011), ECF No. 231. 8 The defendant’s standing argument focuses on the Association’s failure to demonstrate redressability in light of this Court’s reasoning in Cantu v. United States, 908 F. Supp. 2d 146 (D.D.C. 2012), Def.’s Opp’n at 5–6, to which the Association makes no response. Because the Court finds that the Association has failed to demonstrate Article III standing by its virtual silence on the topic, the Court need not address the merits of the defendant’s redressability argument.
7

absence of any one of these three elements defeats standing.” Newdow v. Roberts, 603 F.3d 1002, 1010 (D.C. Cir. 2010). An association has standing to bring suit on behalf of its members if “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Nat’l Ass’n of Home Builders, 667 F.3d at 12 (citation and internal quotation marks omitted).
In its proposed complaint, the Association asserts that it seeks a declaration that both the Equal Protection Clause and Due Process Clauses of the United States Constitution mandate[] that its members who are eligible ‘Pigford claimants’ under the 2008 Farm Bill, but did not timely file claims are entitled to file claims, under the framework established for Hispanic and female farmers. Mot., Ex. 1 (Proposed Complaint) ¶ 19. While it is apparent that the Association’s objective in intervening is to obtain an opportunity for its members to participate in the administrative claims process for Hispanic and female farmers, see id. ¶¶ 11, 19; Mot. at 6; Reply at 6, the nature of the Association members’ asserted injury, how that injury is fairly traceable to the USDA’s conduct, and how the requested relief will redress that injury is less clear. For example, if, as it appears, the harm that the Association seeks to redress is its members’ inability to obtain a determination on the merits of their claims, the Court is at a loss to discern how this injury is fairly traceable to the defendant’s actions in this case and whether the Association’s requested relief would likely redress this injury. See Mot. at 11 (describing the Association’s first claim as alleging that “the additional claim process is unconstitutional unless [the Association’s] members are permitted to intervene”). The Association’s motion yields no assistance here, providing only a recitation of the requirements for standing and the conclusory statement that it “has standing to sue based on injuries to itself or to its members.” Mot. at 7. The Association has therefore failed to
8

demonstrate Article III standing to pursue its first claim, as it must to intervene as of right in this
litigation.9
While the Association’s second claim10 does not present the same standing problems, the
Court agrees with the plaintiffs that the Association’s motion does not satisfy the requirements
for either intervention as of right or permissive intervention, see Pls.’ Opp’n at 1–2, because the
Association’s motion is untimely, a prerequisite for both modes of intervention, see Fed. R. Civ.
P. 24(a), (b). The timeliness of a motion to intervene
is to be judged in consideration of all the circumstances, especially weighing the factors of time elapsed since the inception of the suit, the purpose for which intervention is sought, the need for intervention as a means of preserving the applicant’s rights, and the probability of prejudice to those already parties in the case.
Smoke v. Norton, 252 F.3d 468, 471 (D.C. Cir. 2001) (citation omitted). The plaintiffs filed
their complaint on October 13, 2000, see ECF No. 1, and the defendant first announced its
9 The Court notes that several other obstacles preclude the Association from intervening here to pursue its first claim. As set forth below, the Association’s motion to intervene is untimely. In addition, as the plaintiffs note, Pls.’ Opp’n at 1–2, the Association fails to assert an interest sufficient to entitle it to intervene in this litigation. “[I]ntervention aims to protect interests which are ‘of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.’” United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1292 (D.C. Cir. 1980) (quoting Smith v. Gale, 144 U.S. 509, 518 (1892)). A judgment in this case will have virtually no effect on the Association’s members. It will not address the merits of the Association’s claim and will not preclude them from raising it in separate litigation. In its motion, the Association focuses on the flexible approach endorsed by this Circuit in Nuesse v. Camp, 385 F.2d 694 (D.C. Cir. 1967), which characterized the “interest” inquiry as “‘primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.’” Mot. at 8 (quoting Nuesse, 385 F.2d at 700). The Association places more weight upon this language than it can bear. The Association seeks to interject a claim which appears to challenge the USDA’s creation of the administrative claims process for Hispanic and female farmers, involving a statute which has no bearing whatsoever on the plaintiffs in this litigation and in Love, solely on the basis of a history of similar allegations of discrimination by the USDA against African-American, Hispanic, and female farmers, allegations which have been to this point litigated in separate actions. While there may be a shared history of discrimination, the Court finds that the Association’s first claim, which appears to raise entirely new legal and factual issues, has little in common with the existing claims in this case. Moreover, inserting such a claim into this litigation at this late date is clearly incompatible with efficiency, as set forth in greater detail in the Court’s discussion of the timeliness of this motion. The Association’s motion to intervene to pursue its first claim thus fails on multiple fronts.
10 The Court notes that while the Association’s proposed complaint includes a claim for injunctive relief relating to discrimination in the USDA’s present loan approval process, Mot., Ex. 1 (Proposed Complaint) ¶¶ 21–23, its motion to intervene focuses exclusively on its first claim regarding participation in the administrative claims process provided for Hispanic and female farmers.
9

intention to establish an administrative claims process for Hispanic and female farmers in September 2010, see Defendant’s Status Report at 1, ECF No. 181; Defendant’s Status Report at 1, Love, No. 00-2502 (D.D.C. Sept. 23, 2010), ECF No. 112. The claims process was finalized in January 2012. See Defendant’s Eighth Status Report, ECF No. 218; Defendant’s Status Report at 1, Love, No. 00-2502 (D.D.C. Jan. 20, 2012), ECF No. 155. The Association did not move to intervene for nearly thirteen years after the plaintiffs filed suit, almost three years after the USDA announced its intention to create the administrative claims process to settle the claims asserted in this litigation, and just over a year after the USDA finalized the claims process. The Association’s motion is untimely as measured from any of these points, see Moten v. Bricklayers, Masons & Plasterers Int’l Union of Am., 543 F.2d 224, 228 (D.C. Cir. 1976) (upholding denial of motion to intervene based on untimeliness because “[a]ny measure of timeliness of the motion to intervene must be cast against the backdrop of two years of controversy between the unions which now have reached settlement”), and the Association provides no reason for its delay. Indeed, it is apparent that its decision not to seek intervention earlier was a strategic choice to instead participate in the parallel Pigford litigation, a circumstance that weighs against intervention. See id.
The other factors the Court must consider also weigh in favor of finding the Association’s motion untimely. While the Association’s first claim relates solely to the administrative claims process, its purpose for intervention with respect to the second claim is to obtain injunctive relief relating to discrimination against African-American farmers in the USDA’s current loan approval process, a claim appropriately brought at the beginning, rather than the end, of this litigation. This litigation is quite advanced, and injection of new claims at this point will serve only to delay further the conclusion of this long-running case for the existing parties.
10

Intervention would require further proceedings to address new issues and potentially new factual development since the Association’s second claim relates to the USDA’s “present loan approval process,” Mot., Ex. 1 (Proposed Complaint) ¶ 22 (emphasis added), and therefore is likely to prejudice the existing parties, see Roane v. Leonhart, 741 F.3d 147, 152 (D.C. Cir. 2014) (identifying further discovery and argument on additional issues as sources of prejudice in evaluating the timeliness of a motion to intervene).
Moreover, the Association need not intervene here to pursue its second claim.11 While the ability to bring a claim in separate litigation is not in itself a sufficient reason to deny intervention, Natural Res. Def. Council v. Costle, 561 F.2d 904, 910 (D.C. Cir. 1977), the fact that the Association will suffer no harm if intervention is denied12 is very relevant to the Court’s assessment of the timeliness of its motion when all of the other considerations before the Court indicate that the Association’s intervention at this late date will serve only to disadvantage the existing parties, delay the resolution of this protracted litigation, and unnecessarily complicate an already-complex proceeding by injecting new issues when the litigation has advanced to the point it has reached here. Indeed, “the requirement of timeliness is aimed primarily at preventing potential intervenors from unduly disrupting litigation, to the unfair detriment of the existing parties,” Roane, 741 F.3d at 151, which is exactly what the Association’s intervention here would occasion.
11 The Court expresses no opinion as to whether this claim is barred by Pigford II. 12 The Association contends that intervention “is necessary to prevent grave injury” and that it will suffer “great harm” if intervention is denied. Mot. at 12. However, the Association provides no explanation as to what that harm might be. Left to speculate as to what it might mean by these assertions, the Court concludes that the Association is likely referring to the denial of an opportunity for its members to participate in the administrative claims process established for Hispanic and female farmers because, as noted earlier, the Association’s motion focuses exclusively on this requested relief. However, the Court has already concluded it has not demonstrated its standing to bring such a claim.
11

The Association responds that since this litigation has been stayed while claimants seek resolution through the administrative claims process, the Association’s intervention “will not delay or otherwise prejudice the parties for the reason the litigation will resume and a new case schedule will be formulated.” Reply at 6. Accepting this reasoning would render Rule 24’s timeliness requirement meaningless because intervening at any time short of final judgment would constitute timely intervention due to the fact that intervention would generally require that the litigation proceed under a revised scheduling order. The Association also argues that the plaintiffs do not set forth any “specific grounds” in support of their contention that the motion to intervene is untimely. Id. at 6. But the plaintiffs argue that the Association’s motion is untimely for precisely the reason stated above—the fact that this litigation was already far advanced when the Association moved to intervene. Pls.’ Opp’n at 1. The Association cites no authority for the proposition that anything more is required of the plaintiffs, and the Court has found none. Accordingly, the Court finds that the Association’s motion to intervene is untimely and that neither intervention as of right nor permissive intervention is appropriate.
IV. CONCLUSION For the foregoing reasons, the Association’s motion to intervene is denied. SO ORDERED this 13th day of June, 2014.13
REGGIE B. WALTON United States District Judge
13 The Court will contemporaneously issue an order consistent with this memorandum opinion.
12

 
 Case 1:00-cv-02445-RBW Document 347 Filed 03/25/15 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOE CONTRERAS Post Office Box 912 Childress, TX 79201
and
PAUL CONTRERAS, as personal representative of LOUIS CONTRERAS, deceased, Post Office Box 165 Bartlesville, OK 74005
Plaintiffs,
v. TOM VILSACK, Secretary THE UNITED STATES DEPARTMENT OF AGRICULTURE 14th and Independence Avenue, S.W. Washington, D.C. 20250
Defendant.

) ) ) ) ) ) ) ) ) ) ) ) NO. 1:00CV02445 ) ) Judge: Reggie B. Walton ) ) ) ) ) ) ) ) ) ) )

AMENDED COMPLAINT

Plaintiffs, Joe Contreras (“Joe”), and the estate of Louis Contreras (deceased),

collectively “the Contrerases” or “Plaintiffs,” complain of Defendant, Tom Vilsack, the

Secretary of the United States Department of Agriculture (“USDA”), as follows:

NATURE OF THE CASE

1. Louis Contreras, a third-generation Mexican-American farmer living in Texas,

raised his children, including his sons Joe and Alejandro (“Alex”), to carry on the family’s

farming legacy. Together, they dreamed of developing a family-owned cattle ranch that they

could pass on to future generations. In the 1970s, that dream appeared to be within their grasp.

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The USDA, via agencies such as the Agricultural Stabilization and Conservation Service (“ASCS”) and the Farmers Home Administration (“FmHA”), now the Farm Service Agency (“FSA”), offered loans to each of the Contrerases to purchase large tracts of undeveloped land on which they could raise cattle and grow cotton crops. Over the years, however, the local USDA officials entrusted with administering the loans to the Contrerases provided little oversight or expertise in the way of financial management. Then, in the mid-1980s, the USDA abruptly withdrew what little loan servicing the Contrerases had been receiving, and soon afterwards foreclosed upon their properties. Adding to their injury and humiliation, the Contrerases watched as white farmers in similarly dire financial circumstances continued to receive financial assistance from the USDA. Worse still, the Contrerases subsequently learned that local, white USDA officials had purchased parts of the Contrerases’ former properties. When the Contrerases complained to the USDA about its misconduct, the government largely ignored them and, in some instances, lied to the family and its representatives. Despite the government’s blatant discrimination, the Contrerases have never stopped fighting to recover their land.
2. The Contrerases were part of a generation of minority and women farmers swept up in an apathetic, neglectful, and biased farm loan management system. As far back as the early 1970s, the Secretary of Agriculture formed a “Young Executives Committee” which appeared to work deliberately to force minority and socially disadvantaged farmers off their land through discriminatory loan practices. A 1982 Civil Rights Commission report stated that the FmHA “may be involved in the very kind of racial discrimination it should be seeking to correct.” In 1996, the situation became so shameful that the USDA suspended government farm foreclosures nationwide and established a Civil Rights Action Team. This Team embarked on listening sessions throughout the country. USDA officials heard from disenfranchised minority and
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women farmers about the problems those farmers routinely encountered when trying to access USDA programs and resources as they struggled to operate their farms. The Civil Rights Action Team summarized its findings in a 1997 report (the “CRAT Report”). See Ex. A.
3. The CRAT Report confirmed that “civil rights at USDA ha[d] been in a persistent state of chaos because of numerous reorganizations since the 1980s. According to a June 1996 report by the U.S. Commission on Civil Rights, during the early and mid-1980s USDA leaders had effectively ‘dismantled’ USDA’s civil rights apparatus.” Id. at 47.
4. In dismantling the agency’s civil rights apparatus, the USDA denied women and minority farmers any meaningful process for farmers to challenge USDA decisions they believed to be discriminatory. See id. at 24 (“The CRAT was unable to gather historical data on program discrimination complaints at USDA because record keeping on these matters has been virtually nonexistent.”). The USDA misled farmers and the public by claiming to have a functioning process, when, in reality, the process was, at various times, dysfunctional, non-existent or a sham. Id. (“Complaints filed with the agencies [were] not necessarily reported to USDA’s Civil Rights office.”).
5. According to the CRAT Report, the absence of meaningful process to object to discrimination was exacerbated by the USDA’s county committee process, which suffered from a severe “lack of diversity.” Id. at 18. “In 1994, 94 percent of all county committees had no female or minority representation” and minorities “held only 2.9 percent of county committee seats.” Id. at 20.
6. The USDA admitted that it “[had] not effectively protected, supported, or promoted small and limited-resource farmers and ranchers and other underserved customers. Not only have they often not been served at all, but in many cases the service has appeared to be
3

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detrimental to the survival of minority and limited-resource farmers.” Ex. A at 30. The USDA also admitted that “[m]inority farmers have lost significant amounts of land and potential farm income as a result of discrimination by FSA programs and the programs of its predecessor agencies, ASCS and FmHA.” Id.
7. The CRAT Report concluded that the “USDA does not place a priority on serving the needs of small and limited-resource farmers and has not supported any coordinated effort to address this problem.” Id. at 26. The Report noted that “[m]inority and limited-resource farmers and ranchers reported that they are not receiving the technical assistance they require.” Id. For example, “[t]hey said they are not receiving basic information about programs for which they might be eligible. They are not being helped to complete complicated application forms. They are not being helped to understand and meet eligibility requirements for programs.” Id. And “[w]hen they do receive loans or other program benefits, they are not being helped to use those benefits most effectively to improve their operations.” Id.
8. For the Contrerases, the CRAT Report was not merely a bureaucratic mea culpa; it was the story of their lives. Their farming careers had been taken from them at the whim of a “huge decentralized bureaucracy,” id. at 2, that for decades rooted enormous power in the hands of individual local county supervisors who were predominantly white and male. These local officials had “the power ‘to send [small farmers] up the road to fortune, or down the road to foreclosure,’ . . . with impunity.” Id. at 7.
9. Unfortunately for the Contrerases, the local county official who oversaw the management of their USDA farm loans was a corrupt employee named Dale Burris, who, upon information and belief, was appointed to his position despite having little personal farming experience. Upon information and belief, there were no Hispanic officials in any local FmHA
4

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office in the North Texas region where the Contrerases were farming in the mid-1980s. As a result, there was no one to whom the Contrerases felt they could turn when, in 1986, Burris and the USDA abandoned them, sending them down the road to foreclosure and destroying their lives. Meanwhile, the USDA treated similarly-situated white farmers more favorably.
10. The Contrerases were not alone. The CRAT Report’s stunning admissions led to a number of class action lawsuits filed against the USDA in the late 1990s, including actions filed on behalf of African American farmers, Native American farmers, women farmers, and Hispanic farmers.1 These class actions were enabled in part by the passage of the Omnibus Consolidated Appropriations Act for Fiscal Year 1999, P.L. 105-277, Div. A, § 101(a) [§ 741], 112 Stat. 2681 (codified at 7 U.S.C. § 2279), which extended the statute of limitations for civil actions filed by minority farmers against the USDA related to loan-servicing discrimination that occurred over a certain period of time and was complained of prior to July 1, 1997. See 7 U.S.C. § 2279 (note addressing “waiver of statute of limitations”).
11. As recently as 2008, the Government Accountability Office (“GAO”) released a report on the USDA’s Office of the Assistant Secretary for Civil Rights concluding that efforts overseen by the office were marked by “significant deficiencies.” U.S. Gov’t Accountability Office, Rep. No. GAO-09-62, U.S. Department of Agriculture: Recommendations and Options to Address Management Deficiencies in the Office of the Assistant Secretary for Civil Rights 3132 (2008).
1 See Garcia v. Vilsack, No. 00-02445 (D.D.C.) (Hispanic farmers; this case); 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).
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12. The Contrerases are named plaintiffs in the initial class action brought by the Hispanic farmers (the “Garcia” action).2
13. The USDA settled the class actions brought by the African American and Native American farmers for $2.25 billion (a combined total of two different settlements) and $760 million, respectively.
14. The USDA did not agree to settle the class actions brought by the Hispanic and women farmers. Instead, it established an alternative dispute resolution process in 2012, known as the “Framework,” for Hispanic and women farmers who suffered discrimination by the USDA from January 1, 1981, to December 31, 1996, and/or October 13, 1998, to October 13, 2000.
JURISDICTION 15. Jurisdiction is founded upon 15 U.S.C. § 1691, 15 U.S.C. § 1691e(a), and 28 U.S.C. § 1331 and 28 U.S.C. § 1343.
VENUE 16. Venue lies in this judicial district pursuant to 28 U.S.C. § 1391(b) and (e).
PARTIES 17. Plaintiffs are farmers of Hispanic descent (and U.S. citizens) who were subjected to discrimination by the USDA in its farm benefit programs operated by its former agency, the FmHA, and the FmHA’s successor, the FSA. 18. Plaintiff Joe Contreras is a U.S. citizen born on April 26, 1944, who resides in Childress, Texas. He is a fourth generation Hispanic farmer who partnered with his brother, Alex, and his father, Louis, in the 1970s and 1980s to grow cotton and raise cattle.
2 The Contrerases are the only plaintiffs identified in the caption of the Garcia Amended Complaint who remain interested in pursuing their claims of discrimination in the federal district court. The caption of this Amended Complaint has been adjusted accordingly.
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19. Plaintiff Louis Contreras was a U.S. citizen born on July 17, 1920. He was a third generation Hispanic farmer who partnered with his sons, Alex and Joe, in the 1970s and 1980s to grow cotton and then raise cattle. Louis passed away on March 10, 2005. Paul Contreras represents the estate of Louis Contreras.
20. Defendant Secretary Tom Vilsack is the head of the USDA, a United States cabinet department responsible for developing and executing federal policy on farming, agriculture, and food. The USDA is headquartered in Washington, D.C.
FACTUAL ALLEGATIONS FmHA Solicits Louis, Joe and Alex to Incur Loans to Purchase a Massive Amount of Land to Start a Large Cattle Ranch Operation, when FmHA Knew or Should Have Known that the Land Was Not Well Suited for Cattle Farming and that the Contrerases Lacked the Financial Experience to Manage that Amount of Land. 21. In 1971, with the assistance of a loan from the FmHA, Louis purchased 814 acres of land known as Ox Bow Pass in Hall County, in northern Texas near the Oklahoma border. Louis bought Ox Bow Pass with the intention of becoming a successful cotton farmer. Two years later, the local FmHA County Supervisor for Hall County contacted two of Louis’s sons, Joe and Alex, and informed them that property adjacent to Ox Bow Pass was available for purchase. He encouraged Joe and Alex to enter into a business partnership with Louis, buy the property, and farm it together. The government official offered to supply the funds through the FmHA to purchase the land. 22. Joe and Alex agreed to the plan and the FmHA provided each with $81,000 in FmHA loans, for a total of $162,000. With these funds, Joe purchased 1,430 acres adjacent to Louis’s property and Alex purchased 1,247 acres. When combined with Louis’s land, the Contrerases ultimately owned 3,491 acres of land in Hall County, Texas in 1973. Their holdings
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were more than six times larger than the average farm in the U.S. USDA, Farms, Land in Farms, and Livestock Operations: 2012 Summary 8 (Feb. 2013).
23. The Contrerases have always been farmers of modest means. The FmHA knew or should have known that the purchase of that amount of land by a small family of farmers with meager funds and limited managerial experience was impracticable and unsustainable. The FmHA willfully, or at least negligently, created a situation whereby the Contrerases were doomed to fail from the start.
24. FmHA officials told Joe, Alex, and Louis that the amount of land they had purchased lent itself to a promising cattle business. In 1974, the Contrerases purchased a few cattle to start building their business and made other slight improvements to their properties, including adding fencing. At the time, however, their properties did not have a water supply to support cattle. The Contrerases joined the Red River Authority of Texas, which had been established that year to support farmers and ranchers in the area with water for a set monthly fee. Every year afterwards, the Contrerases used their own funds to build another mile or so of pipeline to extend the water supply further onto their properties, thereby greatly increasing its value.
25. In 1976, Alex was severely injured in an automobile accident and could no longer continue farming. In 1977, Louis assumed Alex’s obligations with respect to Alex’s FmHA loans and took over management of Alex’s farmland.
FmHA’s Bureaucratic Error Puts the Agency on Notice of the Nature of the Contrerases’ Farming Operation. 26. In the late 1970s, an administrative “mix-up” at the local FmHA agency resulted in Louis and Joe receiving a substantial amount of excess financing to which, unbeknownst to them, they were not entitled. These loans, which totaled approximately $90,000, were more
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than was necessary to sustain what the agency admitted was “a simple operation between a father and son who work together and at the end of the year pay their debt and split the proceeds between them, if there is any.” Even after resolving this mishap, however, the FmHA failed to adjust its financial oversight of the Contrerases’ operations in terms of the size of the loans it offered to the Contrerases and the loan servicing it offered to them.
FmHA Fails to Manage the Contrerases’ Loans and Fails to Meet Its Obligations Under the Law to Provide the Contrerases with Loan Management Services. 27. In December 1981, according to internal government documents known as “delinquency reports” (i.e., individualized standard reports summarizing the state of loans provided to a farmer on an annual basis), Joe was delinquent or behind schedule on his FmHA loans (totaling nearly $225,000) in the amount of approximately $47,500; Louis was delinquent or behind schedule on his FmHA loans (totaling nearly $314,500) in the amount of approximately $37,000. Local FmHA officials blamed the Contrerases’ delinquency on drought and poor cattle prices. The Contrerases never received these delinquency reports and were never informed that the regular annual payments they were making on their USDA farm loans were considered by FmHA to be insufficient. Moreover, government officials never told them to alter their operations or change anything about their farming goals. Instead, year after year, as they had been doing since the early 1970s, the Contrerases submitted their earnings to the FmHA to offset their debts and obtain approval for new financing for the coming year. 28. But in the meantime, according to government records, the Contrerases debts continued to pile up. By the end of 1982 – just one year later – the Contrerases’s delinquency reports indicated that Joe’s delinquency had nearly doubled, and Louis’s had tripled. 29. By 1983, Dale Burris, the local FmHA official to whom the Contrerases reported, had taken no steps to address what the government’s internal documents purported to show – that
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the Contrerases financial condition was worsening. Instead, Burris continued to pile more debt on them. On March 31, 1983, Burris filed a loan submission with the FmHA’s local District Director on behalf of Louis. On April 4, 1983, the State Office approved the loan, noting that “[t]he basic operation of this ranch is sound but there needs to be more management assistance to the family in financial analysis area and will need more than one visit per year as in the past.” In other words, the State Office recognized that while Louis was a good operational farmer, he needed more financial management assistance from FmHA local officials. Unfortunately, no assistance was forthcoming.
30. On January 19, 1984, Burris filled out another delinquency report analysis for Joe and Louis. In just over 2 years, according to the government’s calculations, Joe’s delinquency had increased by 360%, from $47,500 to $171,000; Louis’s delinquency had skyrocketed by 675%, from $37,000 to $250,000. Yet, even at this point, Burris did not suggest a change of course or indicate to the Contrerases that any adverse action was impending.
31. In December of 1985, Joe and Louis received a letter from Burris asking them to come to his office to discuss financing. Joe and Louis did so and asked if there was anything wrong with their FmHA account. Burris responded that they were in good shape financially. Burris told them to take out loans with First State Bank to cover school and county taxes and medical supplies for the cattle for 1986. Burris told them to prepare for a roundup of the cattle in March. He falsely promised that the FmHA would, as usual, approve their loan application the following March so that the loan from First State Bank could be partially repaid.3
3 Under the FmHA’s guidance, the Contrerases regularly procured loans from private banks to bridge them over until the USDA’s farm loan program funds were processed and made available.
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32. Relying on this promise, on February 5, 1986, Louis and Joe sold 175 head of cattle at an average price of $310.84, for a total of over $50,000. They used the money to partially pay down their FmHA loans.
For Discriminatory Reasons, FmHA Abruptly Changes Course, Threatens Adverse Action Against the Contrerases, and Unlawfully Denies Them the Loan Servicing They Requested and To Which They Were Entitled. 33. In February 1986, for the first and only time, the FmHA sent Joe and Louis Notices of Intent to Take Adverse Action, abruptly informing the Contrerases that because of their debt, they were in violation of their obligations to the agency. 34. The Contrerases sent back an acknowledgement of the Notices and each requested the following servicing actions: “Rescheduling,” “Consolidation,” and “Subordination.” Tragically for the Contrerases, FmHA provided none of these options. 35. In March 1986, Joe and Louis visited Burris’s office in Memphis, Texas, to apply for their annual FmHA loans, which only a few months before, Burris had promised they would receive. Joe met with his loan officer, William (Bill) Bailey, and Louis met with Burris. Bailey reviewed Joe’s file and ultimately informed him that he could not provide another loan because he had concluded that Joe’s operations would never work out. Joe went from Bailey’s office to Burris’s office where Louis was meeting with Burris. 36. Burris informed the Contrerases that they could not get new loans from FmHA because they were deeply in debt and did not have enough money to their financial situations. 37. At the time of their meeting with Burris, the Contrerases had been waiting to sell two calf crops until the cattle market improved the following month. Burris told them that they did not possess enough cattle to sell to satisfy their financial obligations. The Contrerases protested, stating that a cattle sale would generate sufficient funds. They invited Burris to take a
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head count of their cattle, but he declined to do so, capriciously insisting that they held only about the 600 head of cattle accounted for on his books.
38. Burris was cold and indifferent to their entreaties to help them save their land. He kept shouting, “you’re out” and “I’m shutting you down.” He provided no explanation for the FmHA’s abrupt change of heart regarding the provision of new loans to the Contrerases.
39. The Contrerases asked if they could appeal his decision. Burris falsely responded, “No, you cannot appeal the decision.” The Contrerases did in fact have a right to appeal under FmHA’s own regulations. Burris also told the Contrerases that they could not borrow any more money from any other financial institution, that their cattle were now U.S. government property, and that they should find a good lawyer and declare bankruptcy.
The Contrerases File Complaints of Racial Discrimination with the USDA; the USDA Ignores their Complaints and Their Cattle, Land and Equipment Are Sold and Purchased at Fire-Sale Prices by USDA Officials, Relatives, Friends and/or Insiders. 40. Immediately after their humiliating and devastating meeting with Burris, Joe, Louis and Alex signed a letter to the Secretary of Agriculture dated March 30, 1986, in which one of them wrote on behalf of the family, “I feel our rights were discrmation [sic] against the Contreras family in there [sic] ranch operations. We were told by Memphis, Texas by F.M.H.A. office to write to Washington, D.C. after Bankruptsy [sic].” However inartful the complaint, it served to put the FmHA on contemporaneous notice that the Contrerases were the victims of racial discrimination. 41. On April 7, 1986, before the Contrerases filed for bankruptcy, Burris arrived at their property with a team of fourteen cowboys under his supervision. For the next three days, Burris directed the roundup of the Contrerases’ cattle. Adding insult to injury, he offered to pay Joe, Louis, and Joe’s brothers, Randy and Paul, to help. At the end of the chaotic roundup, in
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which 8-10 cows died from the cowboys’ careless treatment, Burris counted 815 head of cattle. Burris “paid” the Contrerases with six of their own calves.
42. The USDA sold the Contrerases’ 815 head of cattle at prices far below what they were worth and applied the proceeds against their loans. But because Burris had commandeered the Contrerases’ cattle and sold them at bargain-basement prices, the proceeds were not nearly sufficient to satisfy their financial obligations. Upon information and belief, if Burris had provided proper oversight of the Contrerases’ operations, the Contrerases would have been able to sell their cattle in an organized fashion, at prices much higher than Burris obtained; and the proceeds of such a methodical sale would have markedly improved their financial situation.
43. On May 1, 1986, Joe, Louis and Alex Contreras wrote again to the Secretary of Agriculture:
I feel this party (Contreras family) has been Discrimated [sic] with the F.M.H.A. We are applying [sic] to this matter of U.S.D.A. that we wrote Washington, D.C. to our complaints. The supervisor from Memphis, Texas F.M.H.A. to us to comply [sic] to Washington, D.C. to our complaints. He could no longer help us with this matter. We had no business [sic] and no harassing with this problems. (Dale Burris), F.M.H.A. supervisor said. Leave this letter here in my office, and I will mail this to Washington, D.C., Myself (Dale Burris). As of this Contreras we had not heard anything on this matter since then. In May 1, 1986, two month after this happens we had not heard anything. 44. Around this time, Burris told Louis that he had rented Louis’s farming land to one of Louis’s neighbors, a white man named Larry Curry who possessed little or no farming experience. Burris instructed Louis to let Mr. Curry work the land. Louis complied, believing that he had no other choice. Mr. Curry farmed the land for only a year or two before giving up. 45. On August 27, 1986, with no response from the FmHA on their discrimination complaints, Louis and Joe were discharged from their debts by a federal bankruptcy court in the Northern District of Texas.
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46. Upon information and belief, during this same time period white farmers in the same region were either permitted to continue farming despite being delinquent on their loans or were given large cash settlements after filing for bankruptcy protection, enabling them to rebuild their farming businesses.
47. Louis’s property was set for a foreclosure sale by the property’s first lienholder, Texas Rural Communities (TRC) on September 2, 1986. On September 3, 1986, Burris wrote that he had attended the sale and that property had been sold to Nell Renfro for $44,195.00. Burris himself had valued the same property at $230,000 in the 1984 delinquency report he had filled out and placed in Louis’s file. On September 8, 1986, TRC’s General Manager wrote to Burris to tell him that it had been discovered that Nell Renfro, a white woman, was the motherin-law of a TRC board member who had told her about the property. To avoid a conflict of interest charge, TRC quickly regained title to the property.
48. On December 15, 1986, TRC wrote to Burris to inform him that TRC was willing to sell the property to either FmHA or Louis Contreras for $45,542.25. Upon information and belief, Burris never shared this important information with Louis nor did Burris attempt to help Louis find financing to repurchase his property; nor did Louis receive the information independently of Burris or the FmHA.
49. On October 6, 1987, the rest of Louis’s property – including the house in which he lived – was sold by the Federal Land Bank for $53,000 to a white couple, Bobby Max Ham and his wife, Anne-Marie Ham. Bobby Max Ham was, and still is, on the board of directors of two local banks in the region, the First National Bank in Quitaque, Texas, and Citizens National Bank in Crosbyton, Texas. In fact, Bobby Max Ham and Anne Marie Ham are two of the six
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board members of Citizens National Bank, with at least two of the other four members also being relatives of the Hams.
50. On November 27, 1987, the Hams sold a 50% interest in Louis’s property for $26,500 to Jay McKay. McKay was not just another white man – he was an FmHA County Supervisor for the FmHA office out of Dimmit, Texas. This conflict of interest was no secret in the community: McKay owned land adjacent to Louis’s property and it was well known that he purchased the land for the benefit of his children.
51. In fact, in December 1987, McKay and Mr. Ham visited their newly purchased property, where Louis was still living. McKay personally told Louis that he and Ham had purchased the property.
52. McKay was no stranger to the Contrerases. They knew he was an FmHA official and had seen McKay and Burris together on several occasions. When the Contrerases realized that their property had been sold to McKay, they began to comprehend that what was happening to them was no accident – it was government sanctioned discrimination.
USDA Officials Intentionally and Repeatedly Thwart the Contrerases’ Efforts to Recover Their Property, Misrepresenting the Record and Leaving the Contrerases Destitute. 53. In 1988, the Contrerases finally found people willing to advocate for them and help them salvage their operations – Richard and Belton Finney (a father and son). In February 1988, Richard Finney and Joe Contreras met with an FmHA official in its Vernon, Texas office to discuss a proposal to lease Joe’s property for a one to three year period. The FmHA official in Vernon told them that he would look into it but that the ultimate decision maker would be the Hall County supervisor, Dale Burris.
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54. Knowing full well that Burris would never help the Contrerases, the Finneys and Contrerases devised what they thought was another solution: the Contrerases established the “Ox Bow Crossing Living Trust,” sold part of their remaining property to the Trust, and then leased that property to Belton Finney. All of this occurred by the end of September 1988.
55. By October 14, 1988, Burris had learned of these events and wrote a letter to the FmHA’s State Director in Temple, Texas. He described the nature of the dealings between the Contrerases and the Finneys and stated that “Mr. Finney is representing himself to be an ‘FmHA Advocate’ to ignorant or ill-informed people that are suffering financial difficulty and suffering the trauma of bankruptcy.” Burris failed to mention that he had been the loan servicing officer to those “ignorant or ill-informed people” for years and had ignored State office directions to provide them with financial management assistance.
56. On January 30, 1989, after forcing the Contrerases into bankruptcy, selling their cattle, taking their land, taking their equipment and destroying their future viability as farmers, Burris sent a form letter to the Contrerases’ bankruptcy counsel, Don Patterson, to inform him “about some of the loan servicing options FmHA now has available as a result of the Agricultural Credit Act of 1987.” He continued, “[i]t appears that the result of your client’s Chapter 7 discharge eliminated your client’s personal liability for the FmHA debt. This action makes your client ineligible for FmHA’s primary loan service options,” but did not disqualify the Contrerases from being “eligible to apply for the preservation loan servicing programs.” Burris noted that “[i]f your client qualifies for these program(s) he or she would be able to retain possession of the home or farm.”
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57. On February 20, 1989, Both Louis and Joe Contreras promptly asked to be considered for these programs. Rather than respond, Burris sold the last pieces of equipment owned by Louis on May 16, 1989, and October 19, 1990.
58. Upon information and belief, during a similar time period, Dale Burris provided “restarts” to white farmers laboring under similar financial conditions. Upon information and belief, men like Lonnie Widener Sr. and his son Lonnie Widener Jr., Bruce Ariola, and Tony Cruse, all suffered under similar financial conditions, but each was able to move on and recover because the USDA provided substantial assistance to help them get back on their feet. The only difference between the Contrerases and these men is that the Contrerases were (are) MexicanAmerican and those men were (are) white.
FmHA Deceives the Chairman of the U.S. House Committee on Agriculture about the Purchase of the Contrerases’ Land by FmHA Officials; FmHA Arbitrarily Denies Joe’s Appeal. 59. Upon information and belief, in late 1990, Alex Contreras reached out to his U.S. Congressman, E. (Kika) de la Garza, Chairman of the House Committee on Agriculture, to seek his assistance on behalf of the Contrerases. Rep. de la Garza made inquiries with the FmHA. FmHA’s Administrator, La Verne Ausman, investigated the matter and told Rep. de la Garza that “[n]o present or former FmHA employee purchased the properties in question.” 60. In reality, this was incorrect. FmHA official Jay McKay, a white man, had purchased a 50% interest in Louis’s foreclosed property at that time. After receiving this false report, Rep. de la Garza ended his investigation into the issue and provided no further assistance to the Contrerases. Administrator Ausman’s factually inaccurate report completely discredited the Contrerases in Rep. de la Garza’s eyes. As a result, the Contrerases lost an important and powerful advocate who had the ability to intervene on their behalf in Washington, D.C.
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61. Meanwhile, FmHA sent Joe Contreras notices that it was accelerating his accounts. Fearing that they were running out of time, Richard Finney contacted FmHA officials on April 2, 1991. One official told Finney by phone that he had contacted Dale Burris, who claimed that he had never received the Contrerases’ applications in 1989 for the loan servicing programs he had offered. But when the official contacted the state office, it confirmed that the county office did receive the package from Joe but due to some “confusion” the office had overlooked it.
62. Frustrated with the USDA’s pattern and practice of ignoring the Contrerases’ loan servicing applications, Finney wrote to another FmHA official that there was something unusual about the FmHA’s treatment of the Contrerases and noted that it seemed wrong that a white FmHA employee, Jay McKay, had been permitted to purchase a stake in Louis’s foreclosed property. Finney noted that the Contrerases “are Spanish people and very well thought of in the community,” but that the “FmHA has treated them both very badly, not giving them their rights and taking their property and cattle.” Finney received no response.
63. On April 18, 1991, Finney, on behalf of Joe Contreras, filed an appeal of the foreclosure action being pursued against Joe because, Finney claimed, the FmHA had failed to give Joe any “primary or preservation loan servicing” as Joe had requested.
64. On May 3, 1991, an official with the USDA’s National Appeals Staff (“NAS”) responded to Mr. Finney’s request for an appeal on behalf of Joe Contreras. The NAS official stated that the foreclosure decision was not appealable because Joe had not “reaffirmed” his FmHA debt and therefore was ineligible for primary loan servicing programs.
65. Finney and the Contrerases realized that Burris had deceived them once again: he had never mentioned the “reaffirmation” requirement to the Contrerases.
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FmHA Grossly Misrepresents the History of Louis’s and Joe’s Farming Operations and the Adequacy of the Loan Services that FmHA Provided to the Contrerases. 66. On April 22, 1992, the FmHA prepared a “Debt Settlement/Release of Liability Summary” regarding Louis’s account. In the document, the FmHA stated that Louis had a “[f]arming background but lacked management ability,” and that his operations failed because of his “[w]eak management ability,” and “[m]arginally productive land.” It stated that Louis’s “[e]xpenses [were] undstated [sic] and income overstated.” Yet, when asked if the “borrower [was] properly and adequately supervised,” the answer was, “Yes. Farm visits and chattel inspections were done annually.” Regarding whether any “action or training [was recommended] to prevent losses of this nature in the future,” the answer was, “None.” 67. The FmHA had never before accused Louis of understating his expenses and overstating his income. It had never before stated that the land was only marginally productive. The FmHA denied any responsibility for the entire situation, stating that there was no action or training that could have been undertaken to prevent similarly-situated low-resource minority farmers from suffering the same fate. But this was false. The State Office had recommended for years that local FmHA officials conduct more than annual inspections and provide better financial management supervision for the Contrerases. Yet that was never done. 68. On September 29, 1994, the new FmHA district director prepared a “Debt Settlement/Release of Liability Summary” for Joe. Joe’s Settlement Summary stated that he had started with “a good chance for success,” had provided “realistic Farm and Home Plans,” made no changes without the consent of the county supervisor and had been able to account for the entirety of FmHA’s secured property. The FmHA stated that Joe’s failure was due to “[f]air to poor management,” but also allowed that “[d]rought conditions and low market prices were also a factor for failure.” The FmHA again failed to take any responsibility, stating that Joe had been
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“properly and adequately supervised,” because “at least 1 chattle inspection was done annually.” But again, the State Office had recommended for years that local FmHA officials conduct more than annual inspections and provide better financial management help for the Contrerases. When asked how to prevent a similar loss in the future, the response was, “continue with present stringent loan policies.”
69. Just a few years later, in February 1997, the USDA’s Civil Rights Action Team released its damning report. The report compiled various complaints from minority farmers all over the country. The Contrerases personally felt that the report represented much more – it vindicated their decision to continue their pursuit of relief for the discrimination they had suffered at the hands of the FmHA.
Congress Extends the Statute of Limitations for Lending Discrimination. 70. The Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691(a)(1), generally has a two-year statute of limitations triggered by the “date of the occurrence of the violation.” But in 1998, after “the USDA publicly acknowledged that in the early 1980s it ‘effectively dismantled its civil rights enforcement apparatus,’” Garcia v. Vilsack, 563 F.3d 519, 521 (D.C. Cir. 2009), Congress enacted a special remedial statute that extended the ECOA statute of limitations until October 21, 2000, and provided that eligible complainants could either file an ECOA action in federal court or renew their administrative complaints and obtain a determination on the merits of their claim from the USDA. 71. The discrimination claims the Contrerases filed in March and May of 1986 meet Congress’s definition of an “eligible complaint” for purposes of the extended statute of limitations under ECOA, as do the numerous other complaints they submitted.
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72. There were other farmers –white farmers – in North Texas who struggled under the same conditions that the Contreras family did in the early to mid-1980s. The FmHA did not abandon them like it abandoned the Contrerases because the other farmers were white and the Contrerases are Hispanic.
COUNT I (Violation of Equal Credit Opportunity Act) 73. The Contrerases hereby incorporate and re-allege all paragraphs above as fully set forth herein. 74. During the period from January 1, 1981, through December 31, 1996, the Contrerases attempted to apply for loans or loan servicing, or applied for loans or loan servicing, from the USDA. 75. The Contrerases were eligible for the loans and/or loan servicing that they attempted to apply for, or applied for, but nonetheless they were denied. 76. Based on the Contrerases’ Hispanic ethnicity, the USDA discriminatorily denied the Contrerases’ loan application requests, loans, and/or loan servicing. 77. FmHA officials convinced the enterprising Contrerases to acquire with USDA farm loans large parcels of land – land that was not properly equipped with basic fencing and water distribution systems – for a massive cattle-ranching operation. The Contrerases upheld their end of the bargain by working tirelessly to build their business. FmHA officials, in contrast, barely could be bothered to visit with them more than once a year despite the FmHA’s recognition that the Contrerases needed significant financial management assistance. Then, on the whim of one inexperienced local official, Dale Burris, FmHA suddenly and irrevocably turned off the loan spigot. FmHA did so despite the existence of loan servicing programs that could have saved the Contrerases. Instead, Burris and others at the FmHA either ignored or
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blocked every effort by the Contrerases to salvage their operations, while at the same time offering such assistance to similarly situated white farmers.
78. Upon information and belief, a number of other white farmers in Hall County and the surrounding area, including men such as Lonnie Widener Sr. and Jr., Bruce Ariola, and Tony Cruse, suffered under the same adverse meteorological and economic conditions as the Contrerases. These white farmers received loans and/or loan servicing and/or loan forgiveness or settlements that the Contrerases were denied under similar circumstances.
79. Then, adding insult to injury, FmHA officials foreclosed on the Contrerases and sold or rented, at large discounts, parts of their land, their homes, and their equipment to FmHA officials, their family, friends, and other insiders in and around Hall County.
80. The Contrerases timely complained about the FmHA’s actions, telling the USDA and anyone who would listen to them that they were the victims of discrimination. But instead of investigating the problem, the USDA allowed Burris to continue to hide facts, ignore loan servicing requests, and violate the USDA’s own regulations. Burris played on long-held stereotypes of the “ignorant Mexican” and no one from the USDA challenged him by conducting a ground-level investigation of the situation.
81. The USDA’s failure to provide the Contrerases’ loans and loan servicing constituted racial discrimination in violation of ECOA’s requirements, 15 U.S.C. § 1691(a).
PRAYER FOR RELIEF Wherefore, Plaintiffs respectfully request this Court to: 1. Enter judgment in their favor and against Defendant; 2. Award them monetary relief in the form of actual damages;
22

Case 1:00-cv-02445-RBW Document 347 Filed 03/25/15 Page 23 of 24

3. and
4.

Award reasonable attorneys’ fees and costs, including expert fees, and interest; Order such other and further relief as the Court deems just and proper.

Date: September 18, 2014

Respectfully Submitted,
/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 Email: rruyak@winston.com
Attorneys for Plaintiffs Joe Contreras and Louis Contreras

23

Case 1:00-cv-02445-RBW Document 347 Filed 03/25/15 Page 24 of 24 CERTIFICATE OF SERVICE
I hereby certify that, on September 18, 2014, I filed the foregoing document via the court’s ECF email system, which will send an electronic copy to all counsel of record.
/s/ Adam P. Feinberg_____ Adam P. Feinberg
24

 
 Case 1:00-cv-02445-RBW Document 358 Filed 06/08/15 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

GUADALUPE L. GARCIA, JR., et al., )

)

Plaintiffs,

)

)

v.

)

)

TOM VILSACK, Secretary of

)

Agriculture,

)

)

Defendant.

)

)

Case No. 1:00CV02445 Judge: Reggie B. Walton

DEFENDANT’S THIRTEENTH STATUS REPORT

Defendant the United States Department of Agriculture (USDA) submits 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

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 1:00-cv-02445-RBW Document 358 Filed 06/08/15 Page 2 of 3
plaintiff in Love v. Vilsack, No. 1:00-cv-2502 (RBW/JMF) (D.D.C.), and Cantu v. United States, No. 1:11-cv-0541 (RBW/JMF).
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 Cantu.
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 Cantu. The Government continues to submit all additional prevailing claims to Treasury on a rolling basis.
-2-

Case 1:00-cv-02445-RBW Document 358 Filed 06/08/15 Page 3 of 3

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).

Respectfully submitted,

BENJAMIN C. MIZER Principal Deputy Assistant Attorney General

VINCENT H. COHEN Acting United States Attorney

LESLEY FARBY Assistant Director

Dated: June 8, 2015

/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-

Case 1:00-cv-02H4is4p5an-iRc aBnWd WoDmeoncFuamrmeernst&3R5a8nc-h1ersFClialeimds 0Pr6o/g0ra8m/15 Page 1 of 1
All Tier Awards

Tier 1(a)
2 1(b) Grand Total Total Distribution

Count Total Award

Credit Award

Credit Tax

Debt Relief

Debt Tax

3,176 $ 200,373,858.63 $ 156,250,000.00 $ 39,062,500.00 $ 4,277,310.14 $ 784,048.49

24 $ 3,346,083.76 $ 1,200,000.00 $ 300,000.00 $ 1,626,918.27 $ 219,165.49

10 $ 3,674,068.20 $ 2,500,000.00 $

‐ $ 1,174,068.20 $

‐

3,210 $ 207,394,010.59 $ 159,950,000.00 $ 39,362,500.00 $ 7,078,296.61 $ 1,003,213.98

$ 207,394,010.59

Epiq Class Action & Claims Solutions

May 29, 2015

 
 Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 1 of 41
CLOSED,STAYED,TRANSFER−OUT,TYPE−E
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:00−cv−02445−RBW

GARCIA, et al v. VENEMAN, et al Assigned to: Judge Reggie B. Walton Demand: $20,000,000 Cases: 1:13−cv−00759−RBW
1:11−cv−00541−RBW Case in other court: USCA−DC, 04−05448
USCA−DC, 05−05002 USCA, 08−05110 USCA, 14−05175 USCA, 15−05152 Cause: 28:1331 Fed. Question: Review Agency Decision Plaintiff

Date Filed: 10/13/2000 Date Terminated: 12/19/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

GUADALUPE L. GARCIA For himself and on behald of G.A. GARCIA and SONS FARM

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

Alexander John Pires , Jr. PIRES COOLEY 4401 Q Street, NW Washington, DC 20007 (202) 905−6706 Fax: (202) 333−1134 Email: farmerslawyer@aol.com TERMINATED: 08/08/2006 LEAD ATTORNEY

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 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

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 2 of 41

5121 33rd Street, NW Washington, DC 20008 (202) 363−7018 Fax: (202) 363−0844 Email: sshill2@verizon.net TERMINATED: 07/03/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff TONY JIMINEZ

represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander John Pires , Jr. (See above for address) TERMINATED: 08/08/2006 LEAD ATTORNEY

Plaintiff
PATRICIA JIMINEZ TERMINATED: 03/25/2015

represented by PATRICIA JIMINEZ 3671 Old Toll Road Cathey's Valley, VC 95306 PRO SE

Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander John Pires , Jr. (See above for address) TERMINATED: 08/08/2006 LEAD ATTORNEY

Plaintiff MR. X

represented by Alexander John Pires , Jr. (See above for address) TERMINATED: 08/08/2006 LEAD ATTORNEY

Plaintiff MRS. X

represented by Alexander John Pires , Jr. (See above for address) TERMINATED: 08/08/2006 LEAD ATTORNEY

Plaintiff ALL PLAINTIFFS

represented by Alexander John Pires , Jr. (See above for address) TERMINATED: 08/08/2006 LEAD ATTORNEY

Alan Mitchell Wiseman COVINGTON & BURLING LLP 850 Tenth Street N.W. One City Center Washington, DC 20001 (202) 662−5069 Fax: (202) 778−5069 Email: awiseman@cov.com

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 3 of 41
TERMINATED: 03/24/2011
Stephen S Hill (See above for address) TERMINATED: 07/03/2012 ATTORNEY TO BE NOTICED

V. Consol Plaintiff PHILLIP L. FRAAS

represented by Phillip L. Fraas LAW OFFICE OF PHILLIP L. FRAAS 1455 Pennsylvania Avenue, NW Suite 400 Washington, DC 20004 (202) 280−2411 Fax: (202) 355−1799 Email: phil@phillipfraaslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant DAN GLICKMAN Secretary, United States Department of Agriculture TERMINATED: 12/03/2010
Defendant ANN V. VENEMAN TERMINATED: 07/19/2010

represented by Lisa Ann Olson U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Avenue, NW Room 7300 Washington, DC 20530 (202) 514−5633 Fax: (202) 616−8470 Email: lisa.olson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jean Lin U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 514−3716 Fax: (202) 616−8470 Email: jean.lin@usdoj.gov TERMINATED: 07/09/2009
represented by Lisa Ann Olson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rupa Bhattacharyya U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION P.O. Box 883 Washington, DC 20530 (202) 305−0008 Fax: (202) 616−4314 Email: rupa.bhattacharyya@usdoj.gov TERMINATED: 08/01/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 4 of 41

Defendant MICHAEL JOHANNS Secretary, The United States Department of Agriculture TERMINATED: 09/15/2011 Defendant THOMAS J. VILSACK Secretary, The United States Department of Agriculture
Movant BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. TERMINATED: 06/13/2014
Plaintiff GLORIA MORALEZ
Plaintiff BEATRICE GARZA

Elizabeth Goitein UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Room 7320 Washington, DC 20530 (202) 514−4470 Fax: (202) 616−8470 Email: elizabeth.goitein@usdoj.gov TERMINATED: 07/07/2009
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 Christal E. Edwards EDWARDS LEGAL GROUP, LLC 9701 Apollo Drive Suite 301 Largo, MD 20774 (240) 232−3122 Fax: (240) 232−3169 Email: cedwards@edwards−legal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul A. Robinson , Jr. LAW OFFICE OF PAUL ROBINSON 3749 Marty Street Memphis, TN 38109 901−649−4053 Fax: 601−328−1803 Email: problaw937@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Phillip L. Fraas (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
Phillip L. Fraas (See above for address) LEAD ATTORNEY

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 5 of 41

ATTORNEY TO BE NOTICED

Plaintiff RODOLFO GARZA

represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
LARRY CHAVARRIA TERMINATED: 03/25/2015

represented by Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
ROBERT CHAVARRIA for themselves and on behalf of Chavarria Farming Co.

represented by Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
YSIDORO F. MENDOZA TERMINATED: 03/25/2015

represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
ALBERTO A. ACOSTA TERMINATED: 03/25/2015

represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
JIMMY ALVAREZ TERMINATED: 03/25/2015

represented by Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ELIZABETH ALVAREZ

represented by Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 6 of 41

DAVID FLORES Mr. TERMINATED: 03/25/2015

represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
PATRICK R. FLORES Mr. TERMINATED: 03/25/2015

represented by Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
GILBERT A. GARCIA Mr. TERMINATED: 03/25/2015

represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
F. RICHARD LLANEZ Mr. TERMINATED: 03/25/2015

represented by Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
EDWARDO R. LOPEZ Mr. TERMINATED: 03/25/2015

represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
ISMAEL O. MEDINA Mr.

represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
SONJA MEYERS Ms. TERMINATED: 03/25/2015

represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 7 of 41

Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
ROBERT ORTEGA, JR. Mr. TERMINATED: 03/25/2015

represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
EDWARD W. PROVENCIO Mr. TERMINATED: 03/25/2015

represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
GEORGE L. PROVENCIO Mr. TERMINATED: 03/25/2015

represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
ALEX CONTRERAS Mr. TERMINATED: 03/25/2015

represented by Adam P. Feinberg (See above for address) 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

Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
JOE CONTRERAS Mr.

represented by Adam P. Feinberg (See above for address)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 8 of 41

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura G. Ferguson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
LOUIS CONTRERAS Mr.

represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura G. Ferguson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
HECTOR T. FLORES Mr. TERMINATED: 03/25/2015

represented by Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
JUAN J. FLORES Mr. R TERMINATED: 03/25/2015

represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
ALBERTO M. ORTEGA Mr. TERMINATED: 03/25/2015

represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
RENE ORTEGA Ms. TERMINATED: 03/25/2015

represented by Adam P. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 9 of 41

Plaintiff RUPERTO R. RODRIGUEZ Mr.
Plaintiff ERASMO VALDEZ Mr. TERMINATED: 03/25/2015
Plaintiff DIONICIO VALDEZZ, II Mr. TERMINATED: 03/25/2015
Plaintiff ARTURO VASQUEZ Mr. TERMINATED: 03/25/2015
Plaintiff RODOLFO VASQUEZ Mr.
Plaintiff DAVID L. HINJOSA, SR. Mr. TERMINATED: 03/25/2015

Phillip L. Fraas (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
Phillip L. Fraas (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
Phillip L. Fraas (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
Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Phillip L. Fraas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 10 of 41

10/13/2000 10/13/2000 12/06/2000 12/08/2000 12/12/2000
12/22/2000 12/22/2000 01/04/2001 01/09/2001 01/09/2001 01/10/2001 01/10/2001 01/10/2001 01/17/2001 01/23/2001

1 COMPLAINT filed by plaintiff GUADALUPE L. GARCIA, plaintiff TONY JIMINEZ, plaintiff PATRICIA JIMINEZ, plaintiff MR. X, plaintiff MRS. X (kmk) (Entered: 10/26/2000)
SUMMONS (3) issued to federal party(s) federal defendant DAN GLICKMAN , and non−parties: U.S. Attorney and U.S. Attorney General. (kmk) (Entered: 10/26/2000)
2 MOTION (CONSENT) filed by federal defendant DAN GLICKMAN to extend time to 12/22/00 in which to answer or otherwise respond to plaintiff's Class Action Complaint. (cas) (Entered: 12/07/2000)
3 ORDER by Judge Louis F. Oberdorfer : granting motion to extend time to 12/22/00 in which to answer or otherwise respond to plaintiff's Class Action Complaint. [2−1] by DAN GLICKMAN (N) (rew) (Entered: 12/08/2000)
4 AMENDED COMPLAINT by plaintiff adding plaintiff GLORIA MORALEZ, BEATRICE GARZA, RODOLFO GARZA, LARRY CHAVARRIA, ROBERT CHAVARRIA, YSIDORO F. MENDOZA, ALBERTO A. ACOSTA, JIMMY ALVAREZ, ELIZABETH ALVAREZ, DAVID FLORES, PATRICK R. FLORES, GILBERT A. GARCIA, F. RICHARD LLANEZ, EDWARDO R. LOPEZ, ISMAEL O. MEDINA, SONJA MEYERS, ROBERT ORTEGA JR., EDWARD W. PROVENCIO, GEORGE L. PROVENCIO, ALEX CONTRERAS, JOE CONTRERAS, LOUIS CONTRERAS, HECTOR T. FLORES, JUAN J. FLORES, ALBERTO M. ORTEGA, RENE ORTEGA, RUPERTO R. RODRIGUEZ, ERASMO VALDEZ, DIONICIO VALDEZZ II, ARTURO VASQUEZ, RODOLFO VASQUEZ, DAVID L. HINJOSA SR., and amending complaint [1−1]; Exhibits (5). (tth) (Entered: 12/15/2000)
5 MOTION filed by federal defendant DAN GLICKMAN to dismiss amended complaint complaint [4−1] , and to strike class action allegations (ag) (Entered: 12/27/2000)
6 MOTION (CONSENT) filed by federal defendant DAN GLICKMAN to file excess pages limitation ; EXHIBIT (Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss and to Strike Class Action Allegations) (ag) (Entered: 12/27/2000)
7 MOTION (CONSENT) filed by plaintiffs to extend time to 2/5/01 to respond to defendant's motion to dismiss and to strike class action allegations (cas) (Entered: 01/05/2001)
8 ORDER by Judge Louis F. Oberdorfer : granting motion to extend time to 2/5/01 to respond to defendant's motion to dismiss and to strike class action allegations [7−1] by plaintiffs; response to dispositive motions due by 2/5/01 ; (N) (jf) (Entered: 01/10/2001)
10 MOTION filed by plaintiff to extend time to 2/12/01 to move class certification (cas) (Entered: 01/11/2001)
9 RESPONSE by federal defendant DAN GLICKMAN to plaintiff's motion to extend time to 2/5/01 to respond to defendant's motion to dismiss and to strike class action allegations [7−1] by plaintiff's. (cas) (Entered: 01/11/2001)
11 ORDER by Judge Louis F. Oberdorfer : Tele−conference set for 2:30 1/18/01 (N) (tb) (Entered: 01/11/2001)
12 ORDER by Judge Louis F. Oberdorfer : granting motion to extend time to 2/12/01 to move class certification [10−1] by plaintiffs; pending telephone conference set for 01/18/01 at 2:30 (N) (tb) (Entered: 01/11/2001)
13 ORDER by Judge Louis F. Oberdorfer : Tele−conference set for 10:00 1/23/01 (N) (tb) (Entered: 01/18/2001)
14 ORDER by Judge Louis F. Oberdorfer; briefing on plaintiffs' motion for class certification is stayed pending resolution of defendant's motion to dismiss and to strike class allegations; class discovery shall commence one week after court's ruling on defendant's pending motion, parties shall submit a proposed schedule for briefing on class cerification within 10 days after ruling : (N) (tb) (Entered: 01/24/2001)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 11 of 41

02/05/2001
02/06/2001 02/07/2001 02/08/2001 02/08/2001 02/12/2001 02/16/2001 02/20/2001 02/21/2001 02/21/2001 02/21/2001 02/21/2001 02/26/2001 02/28/2001 02/28/2001

15 RESPONSE by plaintiff GUADALUPE L. GARCIA, plaintiff TONY JIMINEZ, plaintiff PATRICIA JIMINEZ, plaintiff MR. X, plaintiff MRS. X, plaintiff GLORIA MORALEZ, plaintiff BEATRICE GARZA, plaintiff RODOLFO GARZA, plaintiff LARRY CHAVARRIA, plaintiff ROBERT CHAVARRIA, plaintiff YSIDORO F. MENDOZA, plaintiff ALBERTO A. ACOSTA, plaintiff JIMMY ALVAREZ, plaintiff ELIZABETH ALVAREZ, plaintiff DAVID FLORES, plaintiff PATRICK R. FLORES, plaintiff GILBERT A. GARCIA, plaintiff F. RICHARD LLANEZ, plaintiff EDWARDO R. LOPEZ, plaintiff ISMAEL O. MEDINA, plaintiff SONJA MEYERS, plaintiff ROBERT ORTEGA JR., plaintiff EDWARD W. PROVENCIO, plaintiff GEORGE L. PROVENCIO, plaintiff ALEX CONTRERAS, plaintiff JOE CONTRERAS, plaintiff LOUIS CONTRERAS, plaintiff HECTOR T. FLORES, plaintiff JUAN J. FLORES, plaintiff ALBERTO M. ORTEGA, plaintiff RENE ORTEGA, plaintiff RUPERTO R. RODRIGUEZ, plaintiff ERASMO VALDEZ, plaintiff DIONICIO VALDEZZ II, plaintiff ARTURO VASQUEZ, plaintiff RODOLFO VASQUEZ, plaintiff DAVID L. HINJOSA SR. in opposition to motion to dismiss amended complaint complaint [4−1] [5−1] by DAN GLICKMAN, motion to strike class action allegations [5−2] by DAN GLICKMAN; exhibits (6) (cas) (Entered: 02/06/2001)
16 MOTION filed by plaintiff for leave to file to file second amend class action complaint ; EXHIBIT (SECOND AMENDED CLASS ACTION COMPLAINT (cas) Modified on 01/15/2002 (Entered: 02/08/2001)
17 MOTION filed by federal defendant DAN GLICKMAN to extend time to 2/28/01 within which to reply to Plaintiff's Opposition to Defendant's Motion to Dismiss and to Strike Class Action Allegations (cas) (Entered: 02/08/2001)
19 MOTION filed by plaintiff for leave to file second amended class action complaint ; EXHIBIT (amended complaint) (jf) (Entered: 02/15/2001)
20 ERRATA by plaintiff to motion for leave to file second amended class action complaint; EXHIBIT (second amended complaint) (jf) (Entered: 02/15/2001)
18 MOTION filed by plaintiff to certify class ; exhibits (4) (jf) (Entered: 02/15/2001)
26 RESPONSE by federal defendant DAN GLICKMAN in opposition to motion for leave to file second amended class action complaint [19−1] by MRS. X, MR. X, PATRICIA JIMINEZ, TONY JIMINEZ, GUADALUPE L. GARCIA . (bjsp) (Entered: 03/01/2001)
21 MOTION filed by federal defendant ANN V. VENEMAN to strike motion to certify class [18−1] (jdm) (Entered: 02/21/2001)
22 ORDER by Judge Louis F. Oberdorfer : granting motion to extend time to 2/28/01 within which to reply to Plaintiff's Opposition to Defendant's Motion to Dismiss and to Strike Class Action Allegations [17−1] by DAN GLICKMAN; reply to motion due by 2/28/01 ; (N) (tb) Modified on 02/21/2001 (Entered: 02/21/2001)
23 ORDER by Judge Louis F. Oberdorfer : granting motion to file excess pages limitation [6−1] by DAN GLICKMAN (N) (tb) (Entered: 02/21/2001)
24 RESPONSE by plaintiffs in opposition to motion to strike motion to certify class [18−1] [21−1] by ANN V. VENEMAN . (jdm) (Entered: 02/22/2001)
42 MEMORANDUM by federal defendant in support of motion to dismiss amended complaint complaint [4−1] [5−1] and motion to strike class action allegations [5−2]; exhibits (6) (jf) (Entered: 06/25/2001)
25 REPLY by plaintiffs to defendant's opposition to theirn motion for leave to file second amended class action complaint [19−1] (ag) Modified on 03/05/2001 (Entered: 03/01/2001)
27 MOTION (CONSENT) filed by federal defendant DAN GLICKMAN exceed page limitation on defendnats reply to plaintiffs' opposition to defendant's motion to dismiss or strike class action complaint (bjsp) (Entered: 03/01/2001)
28 REPLY by federal defendants to plaintiffs opposition to motion to dismiss amended complaint complaint [4−1] [5−1] by DAN GLICKMAN, motion to strike class action allegations [5−2] by DAN GLICKMAN ; exhibits (2) (bjsp) Modified on 03/05/2001

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 12 of 41

03/23/2001 03/26/2001
03/26/2001
03/26/2001
03/27/2001 04/04/2001 04/06/2001 04/06/2001 04/10/2001
05/02/2001 05/04/2001 05/11/2001 05/14/2001 05/18/2001 05/21/2001 09/27/2001
02/01/2002 02/07/2002 02/07/2002 02/14/2002
02/21/2002

(Entered: 03/02/2001)
29 MOTION filed by plaintiffs for temporary restraining order and oral argument requested ; Exhibits (7). (jdm) Modified on 03/28/2001 (Entered: 03/26/2001)
MOTION HEARING before Judge Louis F. Oberdorfer denied motion for temporary restraining order [29−1] by plaintiffs. Reporter: Santa Zizzo (gdf) (Entered: 03/26/2001)
30 RESPONSE (OPPOSITIONS) by federal defendant ANN V. VENEMAN to motion for temporary restraining order [29−1] by plaintiffs; exhibits (6) (jf) (Entered: 03/27/2001)
31 STRICKEN PURSUANT TO COURT ORDER DATED 3/20/02 −−− NOTICE OF SUPPLEMENTAL AUTHORITY by federal defendant ANN V. VENEMAN of recent filing in Pigford v. Veneman, CA 97−1978 (PLF). (jf) Modified on 03/20/2002 (Entered: 03/27/2001)
32 ORDER by Judge Louis F. Oberdorfer denying plaintiff's motion for temporary restraining order : (N) (tb) (Entered: 03/28/2001)
33 MOTION filed by plaintiffs to strike notice [31−1] (jdm) (Entered: 04/05/2001)
34 MOTION filed by plaintiffs to strike defendant's notice of filing [31−1] (bjsp) (Entered: 04/10/2001)
35 ERRATA by plaintiffs to plaintiffs' previously filed motion to strike defendant's notice of filing (bjsp) (Entered: 04/10/2001)
36 RESPONSE by federal defendant ANN V. VENEMAN in opposition to motion to strike defendant's notice of filing [31−1] [34−1] by GUADALUPE L. GARCIA, motion to strike notice [31−1] [33−1] by plaintiffs; Exhibits (2). (jdm) (Entered: 04/11/2001)
37 ORDER by Judge Paul L. Friedman : motion hearing on defendant's motion to dismiss and to strike clas allegations set for 10:00 5/21/01 ; (N) (tb) (Entered: 05/03/2001)
38 MOTION filed by plaintiffs for status conference (tb) (Entered: 05/07/2001)
40 RESPONSE by federal defendant ANN V. VENEMAN in opposition to motion for status conference [38−1] by plaintiff's (cas) (Entered: 05/14/2001)
39 ORDER by Judge Louis F. Oberdorfer : converting motion hearing set for 05/21/01 to a status hearing set for 10:00 5/22/01 (N) (tb) (Entered: 05/14/2001)
CASE REASSIGNED to Judge Royce C. Lamberth (tth) (Entered: 05/21/2001)
41 ORDER by Judge Louis F. Oberdorfer : continuin hearing scheduled for 05/22/01 until further notice. (N) (jf) (Entered: 05/22/2001)
43 ORDER by Judge Royce C. Lamberth : granting motion exceed page limitation on defendnats reply to plaintiffs' opposition to defendant's motion to dismiss or strike class action complaint [27−1] by DAN GLICKMAN (N) (tb) (Entered: 09/27/2001)
CASE REASSIGNED to Judge James Robertson (aet) (Entered: 02/04/2002)
44 ORDER by Judge James Robertson: granting motion for status conference [38−1] by plaintiffs; status hearing is set for 2:00 2/21/02. (N) (mlp) (Entered: 02/07/2002)
45 ATTORNEY APPEARANCE for plaintiffs by Alan Wiseman. (aet) (Entered: 02/12/2002)
46 NOTICE OF CHANGE OF ADDRESS by Phillip L. Fraas representing ALL PLAINTIFFS . New address: Hogan & Hartson 555 Thirteenth St., NW Washington DC 20004 202−637−6624. (aet) (Entered: 02/19/2002)
STATUS HEARING before Judge James Robertson : trial set for 9:30 3/17/03 ; brief regarding class action due 4/8/02 ; response to brief due 4/29/02 ; reply to brief due 5/6/02. Reporter: Dennis Dinkel (mlp) (Entered: 02/21/2002)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 13 of 41

03/20/2002
03/21/2002 04/08/2002 04/15/2002 04/25/2002 04/29/2002 05/06/2002 05/06/2002 05/09/2002 05/22/2002 06/03/2002 06/06/2002 06/24/2002 07/17/2002 07/24/2002
07/26/2002

47 ORDER by Judge James Robertson: granting motion to strike defendant's notice of filing [34−1] by GUADALUPE L. GARCIA; granting motion to strike notice [33−1] by plaintiffs; denying motion to strike motion to certify class [21−1] by ANN V. VENEMAN; granting motion for leave to file second amended class action complaint [19−1] by MRS. X, MR. X, PATRICIA JIMINEZ, TONY JIMINEZ, GUADALUPE L. GARCIA; granting motion for leave to file second amended class action complaint [16−1] by plaintiffs; granting in part, denying in part motion to dismiss amended complaint complaint [5−1]; the Court's order of 1/23/01 14 is modified as described in open court on 2/21/02, to permit further briefing on the motions to certify a class 18 and to strike class action allegations 5 . (N) (mlp) (Entered: 03/20/2002)
48 TRANSCRIPT filed for date(s) of 2/21/02. Reporter: Dennis Dinkel (aet) (Entered: 03/26/2002)
50 MEMORANDUM by ALL PLAINTIFFS in support of motion to certify class [18−1] by MRS. X, MR. X, PATRICIA JIMINEZ, TONY JIMINEZ, GUADALUPE L. GARCIA; exhibits (50) (aet) (Entered: 05/01/2002)
49 MOTION filed by plaintiffs for hearing on motion for class certification (aet) (Entered: 04/22/2002)
51 MOTION filed by plaintiff ALL PLAINTIFFS to lift stay on discovery , and to adopt discovery plan (aet) (Entered: 05/01/2002)
52 RESPONSE by federal defendant ANN V. VENEMAN in opposition to motion to certify class [18−1] by MRS. X, MR. X, PATRICIA JIMINEZ, TONY JIMINEZ, GUADALUPE L. GARCIA . (aet) (Entered: 05/01/2002)
53 RESPONSE by federal defendant DAN GLICKMAN in opposition to motion to lift stay on discovery [51−1] and to stop discovery plan [51−2] by ALL PLAINTIFFS (cdw) (Entered: 05/07/2002)
54 REPLY by plaintiff to response in opposition to motion to certify class [18−1] by MRS. X, MR. X, PATRICIA JIMINEZ, TONY JIMINEZ, GUADALUPE L. GARCIA (aet) (Entered: 05/08/2002)
55 ORDER by Judge James Robertson: denying motion to lift stay on discovery [51−1] by ALL PLAINTIFFS, denying motion to adopt discovery plan [51−2] by ALL PLAINTIFFS (N) (mlp) (Entered: 05/10/2002)
56 MEMORANDUM AND ORDER by Judge James Robertson :directing parties meet and confer on schedule for discovery related to class coertification and setting status hearing set for 4:30 6/24/02 (N) (rew) Modified on 06/06/2002 (Entered: 05/23/2002)
57 MOTION filed by plaintiff for reconsideration or in the alternative clarification of the courts memorandum order of 5/22/02 [56−2] (bcs) (Entered: 06/06/2002)
58 ORDER by Judge James Robertson : denying motion for reconsideration or in the alternative clarification of the courts memorandum order of 5/22/02 [56−2] [57−1] by GUADALUPE L. GARCIA (N) (lin) (Entered: 06/07/2002)
59 ATTORNEY APPEARANCE for federal defendants DAN GLICKMAN, ANN V. VENEMAN by Lisa Ann Olson (bcs) (Entered: 06/25/2002)
60 SUPPLEMENTAL MEMORANDUM (SECOND) by plaintiffs in support of motion to certify class [18−1] by MRS. X, MR. X, PATRICIA JIMINEZ, TONY JIMINEZ, GUADALUPE L. GARCIA; exhibits (96) (bcs) (Entered: 07/18/2002)
61 MOTION filed by federal defendants DAN GLICKMAN, ANN V. VENEMAN to extend time to 8/28/02 to file a response to plaintiffs second suppplemental memorandum in support of their motion for class certification (bcs) (Entered: 07/25/2002)
62 ORDER by Judge James Robertson : granting motion to extend time to 8/28/02 to file a response to plaintiffs second suppplemental memorandum in support of their motion for class certification [61−1] by ANN V. VENEMAN, DAN GLICKMAN (N) (gdf) (Entered: 07/30/2002)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 14 of 41

07/30/2002 07/30/2002 08/09/2002 08/19/2002
08/28/2002 09/05/2002 09/13/2002 09/17/2002 11/08/2002 11/15/2002 11/15/2002 11/27/2002
11/27/2002 12/02/2002 12/02/2002

63 MEMORANDUM by plaintiff ALL PLAINTIFFS in opposition to motion to extend time to 8/28/02 to file a response to plaintiffs second suppplemental memorandum in support of their motion for class certification [61−1] by ANN V. VENEMAN, DAN GLICKMAN (bcs) (Entered: 07/31/2002)
64 EXHIBITS (AMENDED) of plaintiff ALL PLAINTIFFS to plaintiffs second supplemental memorandum in support of their motion for class certification; exhibits (4−75) (bcs) (Entered: 07/31/2002)
65 ORDER by Judge James Robertson: the Court will consider plaintiffs' second supplemental memorandum in support of their motion for class certification [#63] to be deemed a motion for reconsideration. The motion for reconsideration is denied. (N) (dam) (Entered: 08/09/2002)
66 NOTICE OF CHANGE OF ADDRESS by Phillip L. Fraas representing plaintiff GUADALUPE L. GARCIA, plaintiff TONY JIMINEZ, plaintiff PATRICIA JIMINEZ, plaintiff MR. X, plaintiff MRS. X . New address: 3050 K Street, N.W., Suite 400 Washington, D.C., 20007−5108, 202−342−8864, effective 9/3/02. (rje) (Entered: 08/20/2002)
67 RESPONSE (OPPOSITIONS) by federal defendants DAN GLICKMAN, ANN V. VENEMAN to supplemental memorandum [60−1] by ALL PLAINTIFFS; exhibits (4) (bcs) (Entered: 08/29/2002)
68 REPLY by plaintiffs to defendants response to plaintiffs second supplemental memorandum in support of their motion to certify class [18−1] by MRS. X, MR. X, PATRICIA JIMINEZ, TONY JIMINEZ, GUADALUPE L. GARCIA; exhibits (6) (bcs) (Entered: 09/06/2002)
69 MOTION filed by federal defendants DAN GLICKMAN, ANN V. VENEMAN for leave to file a surreply to plaintiffs second supplemental memorandum in support of plaintiffs motion for class cerrification ; EXHIBIT (SURREPLY) (bcs) (Entered: 09/16/2002)
70 RESPONSE by plaintiff ALL PLAINTIFFS in opposition to motion for leave to file a surreply to plaintiffs second supplemental memorandum in support of plaintiffs motion for class cerrification [69−1] by ANN V. VENEMAN, DAN GLICKMAN . (bcs) (Entered: 09/18/2002)
71 NOTICE by federal defendants DAN GLICKMAN, ANN V. VENEMAN of recent decisions handed down. (bcs) (Entered: 11/12/2002)
72 MOTION filed by ALL PLAINTIFFS to lift the stay on discovery, to adopt a discovery plan and to require defendant to preserve all conceivably relevant documents and tangible things during the pendency of this case ; exhibits (5) (bcs) (Entered: 11/18/2002)
73 RESPONSE by ALL PLAINTIFFS to notice of recent decisions [71−1] by ANN V. VENEMAN, DAN GLICKMAN; exhibits (2) (bcs) (Entered: 11/18/2002)
74 RESPONSE by federal defendants DAN GLICKMAN, ANN V. VENEMAN in opposition to motion to lift the stay on discovery, to adopt a discovery plan and to require defendant to preserve all conceivably relevant documents and tangible things during the pendency of this case [72−1] by ALL PLAINTIFFS . (bcs) (Entered: 12/02/2002)
75 NOTICE OF CHANGE OF ADDRESS by Lisa Ann Olson representing federal defendant DAN GLICKMAN, federal defendant ANN V. VENEMAN . New address: U.S. Department of Justice 20 Mass. Ave., NW, Rm 6118 Washington DC 20530 (202)514−5633. (bcs) (Entered: 12/02/2002)
76 MEMORANDUM OPINION by Judge James Robertson (N) (dam) (Entered: 12/03/2002)
77 ORDER by Judge James Robertson: denying motion to certify class [18−1] by MRS. X, MR. X, PATRICIA JIMINEZ, TONY JIMINEZ, GUADALUPE L. GARCIA (N) (dam) (Entered: 12/03/2002)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 15 of 41

12/09/2002 12/10/2002
12/18/2002 12/20/2002 01/06/2003 01/13/2003 01/14/2003 01/14/2003 01/15/2003
01/28/2003 02/14/2003 02/14/2003
02/28/2003
03/21/2003 05/02/2003 05/04/2003 05/07/2003 05/07/2003 05/08/2003

78 MOTION (EMERGENCY) filed by plaintiff ALL PLAINTIFFS to stay proceedings nunc pro tunc to 12/2/02 pending resolution of plaintiffs' pending Interlocutory Appeal pursuant to Fed. R. Civ. P. 23 (f) ; exhibits (3) (bcs) (Entered: 12/10/2002)
79 ORDER by Judge James Robertson : granting motion to stay proceedings nunc pro tunc to 12/2/02 pending resolution of plaintiffs' pending Interlocutory Appeal pursuant to Fed. R. Civ. P. 23 (f) [78−1] by ALL PLAINTIFFS (N) (dam) (Entered: 12/10/2002)
STATUS HEARING before Judge James Robertson: held. status hearing set for 4:30 1/15/03 ; Reporter: Dennis Dinkel (dam) (Entered: 12/18/2002)
80 TRANSCRIPT filed for status hearing date(s) of 12/18/02. Reporter: Dennis A. Dinkel (bcs) (Entered: 12/24/2002)
81 MOTION (EMERGENCY) filed by ALL PLAINTIFFS to modify 12/9/02 order staying proceedings nunc pro tunc to 12/2/02 for purposes of tolling the statute of limitations pursuant to LCR 7.1 (bcs) (Entered: 01/07/2003)
82 ORDER by Judge James Robertson: granting motion to modify 12/9/02 order staying proceedings nunc pro tunc to 12/2/02 for purposes of tolling the statute of limitations pursuant to LCR 7.1 [81−1] by ALL PLAINTIFFS (N) (dam) (Entered: 01/14/2003)
83 MOTION filed by ALL PLAINTIFFS to lift the stay on discovery, to adopt a discovery plan and to require defendant to preserve all conceivably relevant documents and tangible things during the pendency of this case (bcs) (Entered: 01/15/2003)
84 MOTION filed by plaintiff ALL PLAINTIFFS for reconsideration of the court's order dated 12/2/02 [77−1] , in the alternative, clarification of certain issues (bcs) (Entered: 01/15/2003)
STATUS HEARING before Judge James Robertson: The plaintiff is to serve discovery upon the defendant. If the defendant wants to oppose it they may. Discovery to be served by plaintiff upon defendant by 1/20/03; the defendant is to repond by 2/14/03. Reporter: Dennis Dinkel (dam) (Entered: 01/16/2003)
85 TRANSCRIPT filed for status hearing date(s) of 1/15/03. Reporter: Dennis A. Dinkel (bcs) (Entered: 01/29/2003)
86 ATTORNEY APPEARANCE for federal defendant ANN V. VENEMAN by Rupa Bhattacharyya (nmr) (Entered: 02/19/2003)
87 RESPONSE by federal defendant ANN V. VENEMAN, federal defendant DAN GLICKMAN to motion to lift the stay on discovery, to adopt a discovery plan and to require defendant to preserve all conceivably relevant documents and tangible things during the pendency of this case [83−1] by ALL PLAINTIFFS; exhibits (3); (COPY) (bcs) (Entered: 03/11/2003)
88 REPLY by plaintiff ALL PLAINTIFFS to response to motion to lift the stay on discovery, to adopt a discovery plan and to require defendant to preserve all conceivably relevant documents and tangible things during the pendency of this case [83−1] by ALL PLAINTIFFS; exhibits (4) (bcs) (Entered: 03/11/2003)
SCHEDULING NOTICE: status hearing set for 4:45 4/9/03 ; before Judge James Robertson . (dam) (Entered: 03/21/2003)
89 STATEMENT filed by federal defendant ANN V. VENEMAN , regarding: the deliberative process privilege. (bcs) (Entered: 05/05/2003)
93 MEMORANDUM by ALL PLAINTIFFS in support of proposed protective order in a status hearing held 4/29/03. (bcs) (Entered: 05/14/2003)
90 OBJECTIONS by federal defendant ANN V. VENEMAN to plaintiffs' proposed order (bcs) (Entered: 05/08/2003)
91 TRANSCRIPT filed for status hearing date(s) of 4/29/03. Reporter: Dennis A. Dinkel (bcs) (Entered: 05/08/2003)
92 PROTECTIVE ORDER by Judge James Robertson: setting forth procedures for handling confidential material; allowing designated material to be filed under seal. (N)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 16 of 41

05/29/2003 05/30/2003 06/04/2003 06/13/2003 07/08/2003 07/15/2003
07/15/2003 09/25/2003 09/26/2003 10/02/2003 10/03/2003 10/14/2003
10/21/2003
12/05/2003 12/05/2003
12/08/2003 12/09/2003

(dam) (Entered: 05/08/2003)
94 MOTION filed by federal defendant ANN V. VENEMAN to extend time to 6/5/03 to respond to plaintiffs' pending discovery requests (nmr) (Entered: 05/30/2003)
95 RESPONSE by plaintiffs in opposition to motion to extend time to 6/5/03 to respond to plaintiffs' pending discovery requests [94−1] by ANN V. VENEMAN; attachment (1) . (rje) (Entered: 06/02/2003)
96 ORDER by Judge James Robertson: granting motion to extend time to 6/5/03 to respond to plaintiffs' pending discovery requests [94−1] by ANN V. VENEMAN (N) (dam) (Entered: 06/04/2003)
97 ATTORNEY APPEARANCE for federal defendant ANN V. VENEMAN by Elizabeth Goitein (bm) (Entered: 06/17/2003)
99 TRANSCRIPT filed for status hearing date(s) of 7/15/03. Reporter: Dennis A. Dinkel (bcs) (Entered: 07/21/2003)
STATUS HEARING before Judge James Robertson: Held. Plaintiff's counsel is to go throught the documents that have been turned over to him before another status hearing can be set. After reviewing the material, plaintiff's counsel is to contact counsel for the defense and agree upon a date for a status hearing and then contact the courtroom clerk. Reporter: Dennis Dinkel (dam) (Entered: 07/15/2003)
98 STATUS REPORT by plaintiff on the progress of discovery (jf) (Entered: 07/16/2003)
100 MOTION filed by plaintiffs to compel production of certain allegedly privileged documents and for in camera inspection of other allegedly privileged documents ; exhibits (8) (bcs) (Entered: 09/29/2003)
101 MOTION filed by federal defendant ANN V. VENEMAN to extend time to 10/14/03 to file a response to plaintiffs' motion to compel (bcs) (Entered: 09/29/2003)
102 RESPONSE by plaintiff ALL PLAINTIFFS in opposition to motion to extend time to 10/14/03 to file a response to plaintiffs' motion to compel [101−1] by ANN V. VENEMAN .; exhibits (3) (bcs) (Entered: 10/03/2003)
103 ORDER by Judge James Robertson : granting motion to extend time to 10/14/03 to file a response to plaintiffs' motion to compel [101−1] by ANN V. VENEMAN response to motion(s) due by 10/14/03 ; (N) (dam) (Entered: 10/03/2003)
104 RESPONSE by federal defendant DAN GLICKMAN, federal defendant ANN V. VENEMAN in opposition to motion to compel production of certain allegedly privileged documents and for in camera inspection of other allegedly privileged documents [100−1] by ALL PLAINTIFFS.; exhibits (2) (bcs) (Entered: 10/15/2003)
105 REPLY by plaintiff to response in opposition to motion to compel production of certain allegedly privileged documents and for in camera inspection of other allegedly privileged documents [100−1] by ALL PLAINTIFFS; exhibit (1) (bcs) (Entered: 10/22/2003)
106 MOTION Unopposed Motion To Establish Briefing Schedule by ALL PLAINTIFFS. (Hill, Stephen) (Entered: 12/05/2003)
107 MEMORANDUM from Plaintiffs In Response To The Court's July 15, 2003 Order With Respect To Commonality. (Attachments: # 1 Exhibit Exhibits 1−6# 2 Exhibit Exhibit 7# 3 Exhibit Exhibit 8# 4 Exhibit Exhibit 9# 5 Exhibit Exhibit 10# 6 Exhibit Exhibit 11# 7 Exhibit Exhibits 12−19)(Hill, Stephen) (Entered: 12/05/2003)
108 MOTION for Leave to File a third amended class action complaint by ALL PLAINTIFFS. (Attachments: # 1 Exhibit third amended complaint# 2 Text of Proposed Order)(bcs, ) (Entered: 12/09/2003)
MINUTE ENTRY: Court grants motion to establish briefing schedule 106 and approves proposed dates. Signed by Judge James Robertson on December 9, 2003. (MT) (Entered: 12/09/2003)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 17 of 41

12/15/2003 12/15/2003
12/16/2003 12/22/2003 01/16/2004 01/16/2004 01/20/2004 01/26/2004 01/30/2004
02/04/2004
02/04/2004
02/06/2004 02/06/2004
02/06/2004 02/12/2004 02/17/2004 02/18/2004 02/25/2004

109 MOTION for Extension of Time to File Response/Reply by DAN GLICKMAN. (Olson, Lisa) (Entered: 12/15/2003)
110 Memorandum in opposition to motion re 109 Plaintiffs' Opposition To Defendant's Motion For An Extension Of Time To Respond To Plaintiffs' Motion For Leave To File A Third Amended Complaint filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit Order# 2 Exhibit Proof of Filing)(Hill, Stephen) (Entered: 12/15/2003)
111 REPLY in support of motion re 109 filed by ANN V. VENEMAN. (Attachments: # 1)(Olson, Lisa) (Entered: 12/16/2003)
112 ORDER granting defendant's motion for extension of time 109 to January 20, 2004. Signed by Judge James Robertson on December 22, 2003. (MT) (Entered: 12/22/2003)
113 Memorandum in opposition to motion re 108 leave to file third amended class action complaint filed by ANN V. VENEMAN. (Olson, Lisa) (Entered: 01/16/2004)
114 RESPONSE to Plaintiffs' Dec. 5, 2003 Memorandum Regarding Commonality filed by ANN V. VENEMAN. (Attachments: # 1)(Olson, Lisa) (Entered: 01/16/2004)
115 ORDER granting plaintiffs' motion to compel 100 . Signed by Judge James Robertson on January 20, 2004. (MT) (Entered: 01/20/2004)
116 REPLY to opposition to motion re 108 Plaintiffs' Reply to Defendant's Opposition to Motion For Leave to File a Third Amended Class Action Complaint filed by ALL PLAINTIFFS. (Hill, Stephen) (Entered: 01/26/2004)
117 REPLY Plaintiffs' Reply to Defendant's Opposition to Class Certification and Response to Plaintiffs' December 5, 2003 Memorandum Regarding Commonality by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1−4)(Hill, Stephen) (Entered: 01/30/2004)
118 ENTERED IN ERROR.....MEMORANDUM of Points and Authority in Support of Plaintiffs' Motion for Expenses. (Attachments: # 1 Text of Proposed Order # 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3)(Hill, Stephen) Modified on 2/6/2004 (bcs, ). (Entered: 02/04/2004)
119 MOTION for Attorney Fees Plaintiffs' Corrected Motion for Expenses with Memorandum of Points and Authorities in Support Thereof by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order # 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3)(Hill, Stephen) Modified on 2/6/2004 (bcs, ). Modified on 2/6/2004 (bcs, ). (Entered: 02/04/2004)
120 NOTICE by ANN V. VENEMAN Notice of Filing of Supplemental Declaration in Support of Defendant's Opposition to Plaintiffs' Motion to Compel (Attachments: # 1)(Olson, Lisa) (Entered: 02/06/2004)
"NOTICE OF CORRECTED DOCKET ENTRIES. Document No.(s) 118 & 119 were entered in error and counsel was instructed to refile the motion and memorandum together as one and everthing else is attached to the motion as exhibits." (bcs, ) (Entered: 02/06/2004)
"AMENDED NOTICE OF CORRECTED DOCKET ENTRY. Document No. 119 is the correction of document number 118." (bcs, ) (Entered: 02/06/2004)
121 First MOTION for Extension of Time to File Response/Reply Unopposed Motion for a One−Week Extension of Time to Respond to Plaintiffs' Motion for Expenses by ANN V. VENEMAN. (Olson, Lisa) (Entered: 02/12/2004)
122 ORDER granting 121 Motion for Extension of Time to File Response/Reply re 119 MOTION for Attorney Fees. Signed by Judge James Robertson on 02/17/04. (lcjr1, ) (Entered: 02/17/2004)
123 ORDER re February 6, 2004 in camera inspection. Signed by Judge James Robertson on February 18, 2004. (MT) (Entered: 02/18/2004)
124 Memorandum in opposition to motion re 119 Defendant's Opposition to Plaintiffs' Motion for Expenses filed by ANN V. VENEMAN. (Olson, Lisa) (Entered: 02/25/2004)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 18 of 41

03/03/2004 03/11/2004 05/28/2004 06/02/2004 08/27/2004 09/02/2004 09/10/2004 09/10/2004
09/24/2004 09/27/2004 11/01/2004
11/05/2004 11/05/2004 11/09/2004
11/18/2004 12/17/2004

125 REPLY to opposition to motion re 119 Plaintiffs' Reply to Defendant's Opposition to Plaintiffs' Motion for Expenses filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit Affidavit of Stephen S. Hill# 2 Exhibit Privilege Log)(Hill, Stephen) (Entered: 03/03/2004)
126 ORDER granting plaintiffs' motion for attorney fees 119 . Signed by Judge James Robertson on March 11, 2004. (MT) (Entered: 03/11/2004)
127 MOTION to Expedite Plaintiffs' Motion For Expedited Consideration of Pending Matters with Memorandum of Points and Authorities in Support Thereof by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Hill, Stephen) (Entered: 05/28/2004)
128 RESPONSE to Plaintiffs' Motion for Expedited Consideration filed by ANN V. VENEMAN. (Olson, Lisa) (Entered: 06/02/2004)
129 NOTICE TO COUNSEL: The September 1, 2004 trial date is off the calendar. Signed by Judge James Robertson on August 27, 2004. (MT) (Entered: 08/27/2004)
130 SUPPLEMENTAL MEMORANDUM Submission of Plaintiffs Concerning the Nature of the Injunctive Relief Sought by Plaintiffs' Proposed Third Amended Complaint. (Hill, Stephen) (Entered: 09/02/2004)
131 MOTION to Strike 130 Reply in Support, Supplemental Memorandum by ANN V. VENEMAN. (Olson, Lisa) (Entered: 09/10/2004)
132 MEMORANDUM ORDER denying plaintiffs' motion for class certification 18 , as renewed or supplemented by plaintiffs' memorandum on subject of commonality 107 ; denying without prejudice plaintiffs' motion for leave to file third amended class action complaint 108 ; denying defendant's motion to strike 131 . Further proceedings in this case are stayed pending further order of the Court . Signed by Judge James Robertson on September 10, 2004. (MT, ) (Entered: 09/10/2004)
133 MOTION Plaintiffs' Motion for Certification of Order for Interlocutory Review Under 28 U.S.C. 1292(b) with Memorandum of Points and Authorities in Support Thereof by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Hill, Stephen) (Entered: 09/24/2004)
134 ORDER granting plaintiffs' motion for certification of order for interlocutory review 133 . This Court's memorandum order of March 20, 2002 is certified for interlocutory review . Signed by Judge James Robertson on September 27, 2004. (MT) (Entered: 09/27/2004)
135 MOTION for Preliminary Injunction Plaintiffs' Emergency Motion for Preliminary Injunction with Memorandum of Points and Authorities in Support Thereof by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order # 2 Exhibit 1−3# 3 Exhibit 4# 4 Exhibit 5# 5 Exhibit 6# 6 Exhibit 7# 7 Exhibit 8# 8 Exhibit 9)(Hill, Stephen) (Entered: 11/01/2004)
136 ENTERED IN ERROR.....See Document No. 137 for corrected Memorandum in opposition to motion re 135 emergency preliminary injunction filed by ANN V. VENEMAN. (Olson, Lisa) Modified on 11/8/2004 (lc, ). (Entered: 11/05/2004)
137 Memorandum in opposition to motion re 135 emergency preliminary injunction filed by ANN V. VENEMAN. (Olson, Lisa) (Entered: 11/05/2004)
138 REPLY to opposition to motion re 135 Plaintiffs' Reply to Defendant's Opposition to Plaintiffs' Emergency Motion for Preliminary Injunction filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit Declaration of Vicky Garza# 2 Exhibit Declaration of Stella Garza# 3 Exhibit Declaration of Adam P. Garza, Jr.)(Hill, Stephen) (Entered: 11/09/2004)
139 ORDER denying plaintiffs' emergency motion for preliminary injunction 135 . Signed by Judge James Robertson on November 18, 2004. (MT) (Entered: 11/18/2004)
142 MANDATE of USCA (certified copy) as to 140 Notice of Interlocutory Appeal,,, filed by ALL PLAINTIFFS,, GUADALUPE L. GARCIA,, TONY JIMINEZ,, PATRICIA JIMINEZ,, MR. X,, MRS. X,, GLORIA MORALEZ,, BEATRICE GARZA,, RODOLFO GARZA,, LARRY CHAVARRIA,, ROBERT CHAVARRIA,, YSIDORO

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 19 of 41

12/21/2004
12/21/2004
12/27/2004 01/03/2005

F. MENDOZA,, ALBERTO A. ACOSTA,, JIMMY ALVAREZ,, ELIZABETH ALVAREZ,, DAVID FLORES,, PATRICK R. FLORES,, GILBERT A. GARCIA,, F. RICHARD LLANEZ,, EDWARDO R. LOPEZ,, ISMAEL O. MEDINA,, SONJA MEYERS,, ROBERT ORTEGA, JR., EDWARD W. PROVENCIO,, GEORGE L. PROVENCIO,, ALEX CONTRERAS,, JOE CONTRERAS,, LOUIS CONTRERAS,, HECTOR T. FLORES,, JUAN J. FLORES,, ALBERTO M. ORTEGA,, RENE ORTEGA,, RUPERTO R. RODRIGUEZ,, ERASMO VALDEZ,, DIONICIO VALDEZZ, II, ARTURO VASQUEZ,, RODOLFO VASQUEZ,, DAVID L. HINJOSA, SR., 141 Notice of Interlocutory Appeal,,, filed by ALL PLAINTIFFS,, GUADALUPE L. GARCIA,, TONY JIMINEZ,, PATRICIA JIMINEZ,, MR. X,, MRS. X,, GLORIA MORALEZ,, BEATRICE GARZA,, RODOLFO GARZA,, LARRY CHAVARRIA,, ROBERT CHAVARRIA,, YSIDORO F. MENDOZA,, ALBERTO A. ACOSTA,, JIMMY ALVAREZ,, ELIZABETH ALVAREZ,, DAVID FLORES,, PATRICK R. FLORES,, GILBERT A. GARCIA,, F. RICHARD LLANEZ,, EDWARDO R. LOPEZ,, ISMAEL O. MEDINA,, SONJA MEYERS,, ROBERT ORTEGA, JR., EDWARD W. PROVENCIO,, GEORGE L. PROVENCIO,, ALEX CONTRERAS,, JOE CONTRERAS,, LOUIS CONTRERAS,, HECTOR T. FLORES,, JUAN J. FLORES,, ALBERTO M. ORTEGA,, RENE ORTEGA,, RUPERTO R. RODRIGUEZ,, ERASMO VALDEZ,, DIONICIO VALDEZZ, II, ARTURO VASQUEZ,, RODOLFO VASQUEZ,, DAVID L. HINJOSA, SR.; It is hereby ordered that the petition for permission to take an interlocutory appeal be granted; USCA#04−8008 USCA#04−8010 (jsc) (Entered: 12/28/2004)
140 NOTICE OF INTERLOCUTORY APPEAL as to 132 Order on Motion for Leave to File, Order on Motion to Strike, by LARRY CHAVARRIA, ROBERT CHAVARRIA, YSIDORO F. MENDOZA, ALBERTO A. ACOSTA, JIMMY ALVAREZ, ELIZABETH ALVAREZ, DAVID FLORES, PATRICK R. FLORES, GILBERT A. GARCIA, F. RICHARD LLANEZ, GUADALUPE L. GARCIA, EDWARDO R. LOPEZ, ISMAEL O. MEDINA, SONJA MEYERS, ROBERT ORTEGA, JR, EDWARD W. PROVENCIO, GEORGE L. PROVENCIO, ALEX CONTRERAS, JOE CONTRERAS, LOUIS CONTRERAS, HECTOR T. FLORES, TONY JIMINEZ, JUAN J. FLORES, ALBERTO M. ORTEGA, RENE ORTEGA, RUPERTO R. RODRIGUEZ, ERASMO VALDEZ, DIONICIO VALDEZZ, II, ARTURO VASQUEZ, RODOLFO VASQUEZ, DAVID L. HINJOSA, SR, PATRICIA JIMINEZ, ALL PLAINTIFFS, MR. X, MRS. X, GLORIA MORALEZ, BEATRICE GARZA, RODOLFO GARZA. Filing fee $ 255, receipt number 130416. (lc, ) (Entered: 12/27/2004)
141 NOTICE OF INTERLOCUTORY APPEAL as to 134 Order on Motion for Miscellaneous Relief, by LARRY CHAVARRIA, ROBERT CHAVARRIA, YSIDORO F. MENDOZA, ALBERTO A. ACOSTA, JIMMY ALVAREZ, ELIZABETH ALVAREZ, DAVID FLORES, PATRICK R. FLORES, GILBERT A. GARCIA, F. RICHARD LLANEZ, GUADALUPE L. GARCIA, EDWARDO R. LOPEZ, ISMAEL O. MEDINA, SONJA MEYERS, ROBERT ORTEGA, JR, EDWARD W. PROVENCIO, GEORGE L. PROVENCIO, ALEX CONTRERAS, JOE CONTRERAS, LOUIS CONTRERAS, HECTOR T. FLORES, TONY JIMINEZ, JUAN J. FLORES, ALBERTO M. ORTEGA, RENE ORTEGA, RUPERTO R. RODRIGUEZ, ERASMO VALDEZ, DIONICIO VALDEZZ, II, ARTURO VASQUEZ, RODOLFO VASQUEZ, DAVID L. HINJOSA, SR, PATRICIA JIMINEZ, ALL PLAINTIFFS, MR. X, MRS. X, GLORIA MORALEZ, BEATRICE GARZA, RODOLFO GARZA. Filing fee $ 255, receipt number 130417. (lc, ) (Entered: 12/27/2004)
Transmission of (2) Notices of Appeal and Docket Sheet to US Court of Appeals re 140 Notice of Interlocutory Appeal, 141 Notice of Interlocutory Appeal. (lc, ) (Entered: 12/27/2004)
USCA Case Number 04−5448 for 140 Notice of Interlocutory Appeal,,, filed by ALL PLAINTIFFS,, GUADALUPE L. GARCIA,, TONY JIMINEZ,, PATRICIA JIMINEZ,, MR. X,, MRS. X,, GLORIA MORALEZ,, BEATRICE GARZA,, RODOLFO GARZA,, LARRY CHAVARRIA,, ROBERT CHAVARRIA,, YSIDORO F. MENDOZA,, ALBERTO A. ACOSTA,, JIMMY ALVAREZ,, ELIZABETH ALVAREZ,, DAVID FLORES,, PATRICK R. FLORES,, GILBERT A. GARCIA,, F. RICHARD LLANEZ,, EDWARDO R. LOPEZ,, ISMAEL O. MEDINA,, SONJA MEYERS,, ROBERT ORTEGA, JR., EDWARD W. PROVENCIO,, GEORGE L.

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 20 of 41

01/14/2005
06/12/2006
06/22/2006 06/28/2006 06/28/2006 06/30/2006 07/14/2006 07/31/2006 08/07/2006 08/08/2006

PROVENCIO,, ALEX CONTRERAS,, JOE CONTRERAS,, LOUIS CONTRERAS,, HECTOR T. FLORES,, JUAN J. FLORES,, ALBERTO M. ORTEGA,, RENE ORTEGA,, RUPERTO R. RODRIGUEZ,, ERASMO VALDEZ,, DIONICIO VALDEZZ, II, ARTURO VASQUEZ,, RODOLFO VASQUEZ,, DAVID L. HINJOSA, SR.. (lc, ) (Entered: 01/11/2005)
USCA Case Number 05−5002 for 141 Notice of Interlocutory Appeal,,, filed by ALL PLAINTIFFS,, GUADALUPE L. GARCIA,, TONY JIMINEZ,, PATRICIA JIMINEZ,, MR. X,, MRS. X,, GLORIA MORALEZ,, BEATRICE GARZA,, RODOLFO GARZA,, LARRY CHAVARRIA,, ROBERT CHAVARRIA,, YSIDORO F. MENDOZA,, ALBERTO A. ACOSTA,, JIMMY ALVAREZ,, ELIZABETH ALVAREZ,, DAVID FLORES,, PATRICK R. FLORES,, GILBERT A. GARCIA,, F. RICHARD LLANEZ,, EDWARDO R. LOPEZ,, ISMAEL O. MEDINA,, SONJA MEYERS,, ROBERT ORTEGA, JR., EDWARD W. PROVENCIO,, GEORGE L. PROVENCIO,, ALEX CONTRERAS,, JOE CONTRERAS,, LOUIS CONTRERAS,, HECTOR T. FLORES,, JUAN J. FLORES,, ALBERTO M. ORTEGA,, RENE ORTEGA,, RUPERTO R. RODRIGUEZ,, ERASMO VALDEZ,, DIONICIO VALDEZZ, II, ARTURO VASQUEZ,, RODOLFO VASQUEZ,, DAVID L. HINJOSA, SR.. (lc, ) (Entered: 01/19/2005)
146 USCA JUDGMENT (certified copy) as to 140 Notice of Interlocutory Appeal,,, filed by ALL PLAINTIFFS,, GUADALUPE L. GARCIA,, TONY JIMINEZ,, PATRICIA JIMINEZ,, MR. X,, MRS. X,, GLORIA MORALEZ,, BEATRICE GARZA,, RODOLFO GARZA,, LARRY CHAVARRIA,, ROBERT CHAVARRIA,, YSIDORO F. MENDOZA,, ALBERTO A. ACOSTA,, JIMMY ALVAREZ,, ELIZABETH ALVAREZ,, DAVID FLORES,, PATRICK R. FLORES,, GILBERT A. GARCIA,, F. RICHARD LLANEZ,, EDWARDO R. LOPEZ,, ISMAEL O. MEDINA,, SONJA MEYERS,, ROBERT ORTEGA, JR., EDWARD W. PROVENCIO,, GEORGE L. PROVENCIO,, ALEX CONTRERAS,, JOE CONTRERAS,, LOUIS CONTRERAS,, HECTOR T. FLORES,, JUAN J. FLORES,, ALBERTO M. ORTEGA,, RENE ORTEGA,, RUPERTO R. RODRIGUEZ,, ERASMO VALDEZ,, DIONICIO VALDEZZ, II, ARTURO VASQUEZ,, RODOLFO VASQUEZ,, DAVID L. HINJOSA, SR.; It is hereby ordered and adjudged that the District Court's denial of class certification and dismissal of the failure to investigate claim asserted under ECOA be affirmed; The appeal of the APA's failure to investigate claim be dismissed and the case remanded to the District Court for further proceedings; USCA#04−5448 (jsc) (Entered: 07/18/2006)
Set/Reset Hearings: Scheduling Conference set for 6/28/2006 04:00 PM in Courtroom 23A before Judge James Robertson. (alr) (Entered: 06/22/2006)
143 ORDER re briefing schedule of Administrative Procedures Act issues remanded by the U.S. Court of Appeals for the D.C. Circuit. All further proceedings in this matter are stayed until further order of this Court. Signed by Judge James Robertson on June 28, 2006. (MT) (Entered: 06/28/2006)
Minute Entry for proceedings held before Judge James Robertson : Scheduling Conference held on 6/28/2006. Court grants motion for leave to file 3rd amended complaint. (Court Reporter Rebecca Stonestreet.) (alr) (Entered: 06/30/2006)
144 THIRD AMENDED COMPLAINT against MICHAEL JOHANNS filed by ALL PLAINTIFFS.(nmw, ) (Entered: 07/03/2006)
145 TRANSCRIPT of Scheduling Conference held on Jun 28, 2006 before Judge James Robertson. Court Reporter: Rebecca Stonestreet. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (lc, ) (Entered: 07/17/2006)
147 NOTICE of Change of Address by Phillip L. Fraas (Fraas, Phillip) (Entered: 07/31/2006)
148 MOTION to Withdraw as Attorney by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Pires, Alexander) (Entered: 08/07/2006)
MINUTE ORDER granting 148 Motion to Withdraw as Attorney. Attorney Alexander John Pires, Jr terminated . Signed by Judge James Robertson on 8/7/2006. (alr) (Entered: 08/08/2006)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 21 of 41

08/15/2006 08/28/2006
09/27/2006 10/27/2006
04/10/2007 04/19/2007 05/01/2007 05/03/2007 08/28/2007 08/31/2007 09/04/2007 09/18/2007 09/18/2007 11/30/2007 12/03/2007

149 TRANSCRIPT of Proceedings held on June 28, 2006 Schedule Conference before Judge James Robertson. Court Reporter: Rebecca Stonestreet. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (tg, ) (Entered: 08/16/2006)
150 BRIEF in support of claims that defendant's failure to investigate and denial of benefits are reviewable under the Administrative Procedure Act re 143 Order, filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1 through 3# 2 Exhibit 4# 3 Exhibit 5# 4 Exhibit 6 through 7# 5 Exhibit 8# 6 Exhibit 9 through 10# 7 Exhibit 11# 8 Exhibit 12# 9 Exhibit 13 through 14# 10 Exhibit 15 through 17)(jeb, ) (Entered: 08/29/2006)
151 RESPONSE to 150 Plaintiffs' Request for Administrative Procedure Act Review filed by MICHAEL JOHANNS. (Olson, Lisa) Modified on 9/28/2006 (zlc, ). (Entered: 09/27/2006)
152 REPLY Plaintiffs' Reply Brief in Support of 150 Their Claims Based on the Administrative Procedure Act filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1 Order# 2 Exhibit 2−10 Declarations# 3 Exhibit 11−20 Declarations# 4 Exhibit 21−30 Declarations# 5 Exhibit 31−38 Declarations# 6 Exhibit 39 Declaration of Jimmy Jones# 7 Exhibit 40 Declaration of Rosalind Gray)(Hill, Stephen) Modified on 10/30/2006 (lc, ). (Entered: 10/27/2006)
Set Hearing: Oral Argument on Briefs in support of APA Claims set for 4/19/2007 09:30 AM in Courtroom 23A before Judge James Robertson. (alr, ) (Entered: 04/10/2007)
Minute Entry for proceedings held before Judge James Robertson : Oral Argument on Briefs in support of APA claims held on 4/19/2007. (Court Reporter Santa Zizzo.) (alr, ) (Entered: 04/20/2007)
153 TRANSCRIPT of Motions Hearing held on April 19, 2007 before Judge James Robertson. Court Reporter: Santa Theresa Zizzo. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (Transcript lodged with Case No. 00−2502) (lc, ) (Entered: 05/01/2007)
154 SUPPLEMENTAL MEMORANDUM to 150 Plaintiffs' Supplemental Memorandum in Support of Their Claims Based on the Administrative Procedure Act filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1 Pt A# 2 Exhibit 1 Pt B# 3 Exhibit 1 Pt C)(Hill, Stephen) Modified on 5/4/2007 (lc, ). (Entered: 05/03/2007)
155 NOTICE TO COUNSEL. Signed by Judge James Robertson on August 28, 2007. (MT) (Entered: 08/28/2007)
156 Unopposed MOTION for Extension of Time to Respond to August 28, 2007 Notice to Counsel by MICHAEL JOHANNS (Attachments: # 1 Text of Proposed Order Proposed Order)(Olson, Lisa) (Entered: 08/31/2007)
MINUTE ORDER granting defendants' unopposed motion for extension of time 56 to September 18, 2007. Signed by Judge James Robertson on September 4, 2007. (MT) (Entered: 09/04/2007)
157 SUPPLEMENTAL MEMORANDUM to in Opposition to 150 Plaintiffs' Request for Administrative Procedure Act Review filed by MICHAEL JOHANNS. (Olson, Lisa) Modified on 9/19/2007 (lc, ). (Entered: 09/18/2007)
158 SUPPLEMENTAL MEMORANDUM re 150 to Plaintiffs' Brief in Response to Notice to Counsel filed by ALL PLAINTIFFS. (Attachments: # 1 2d Supplemental Declaration of Rosalind D. Gray)(Hill, Stephen) Modified on 9/19/2007 (lc, ). (Entered: 09/18/2007)
159 ORDER that the APA cause of action with respect to such claims is dismissed. Signed by Judge James Robertson on November 30, 2007. (Attachments: # 1 Memorandum in No. 00−2502 Love v. Veneman (D.D.C. Nov. 30, 2007))(MT) (Entered: 11/30/2007)
160 MOTION to Continue Plaintiffs' Emergency Motion to Continue Order Staying Proceeding or, in the Alternative, to Issue a New Stay of Proceedings Nunc Pro Tunc to November 30, 2007 Until Further Order of the Court by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order # 2 Exhibits 1−3)(Hill, Stephen) (Entered: 12/03/2007)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 22 of 41

12/05/2007 12/05/2007 12/07/2007 12/11/2007 12/14/2007 12/14/2007 12/17/2007 12/28/2007
01/02/2008 01/02/2008 01/10/2008
01/16/2008 01/16/2008 01/17/2008 02/01/2008 04/23/2008

161 Memorandum in opposition to re 160 MOTION to Continue Plaintiffs' Emergency Motion to Continue Order Staying Proceeding or, in the Alternative, to Issue a New Stay of Proceedings Nunc Pro Tunc to November 30, 2007 Until Further Order of the Court filed by MICHAEL JOHANNS. (Olson, Lisa) (Entered: 12/05/2007)
162 NOTICE of Errata re 161 Memorandum in opposition to re 160 MOTION to Continue by MICHAEL JOHANNS (Attachments: # 1 Corrected Brief)(Olson, Lisa) Modified on 12/6/2007 (lc, ). (Entered: 12/05/2007)
163 ORDER granting motion to continue the existing stay 160 . The Clerk is directed to set a scheduling conference for a date within 30 days of this order. Signed by Judge James Robertson on December 7, 2007. (MT) (Entered: 12/07/2007)
Set Hearing: Scheduling Conference set for 1/2/2008 02:00 PM in Courtroom 23A before Judge James Robertson. (alr, ) (Entered: 12/11/2007)
164 ENTERED IN ERROR.....MOTION to Amend/Correct Plaintiffs' Motion to Amend November 30, 2007 Order to Certify the Amended Order for Interlocutory Review Under 28 U.S.C. § 1292(b) by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Hill, Stephen) Modified on 12/17/2007 (lc, ). (Entered: 12/14/2007)
165 MOTION to Amend/Correct CORRECTED MOTION. Plaintiffs' Motion to Amend November 30, 2007 Order to Certify the Amended Order For Interlocutory Review Under 28 U.S.C. § 1292(b) by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Hill, Stephen) (Entered: 12/14/2007)
NOTICE OF CORRECTED DOCKET ENTRY: re 164 MOTION to Amend/Correct was entered in error and was refiled by counsel in docket entry 165 . (lc, ) (Entered: 12/17/2007)
166 Memorandum in opposition to re 165 MOTION to Amend/Correct CORRECTED MOTION. Plaintiffs' Motion to Amend November 30, 2007 Order to Certify the Amended Order For Interlocutory Review Under 28 U.S.C. § 1292(b) MOTION to Amend/Correct CORRECTED MOTION. Plaintiffs' Motion to Amend November 30, 2007 Order to Certify the Amended Order For Interlocutory Review Under 28 U.S.C. § 1292(b) filed by MICHAEL JOHANNS. (Olson, Lisa) (Entered: 12/28/2007)
NOTICE OF CANCELLATION of 1/2/2008 Scheduling Conference. Hearing will be reset by the Clerk. (alr, ) (Entered: 01/02/2008)
Reset Hearing: Scheduling Conference RESET for 1/16/2008 02:00 PM in Courtroom 23A before Judge James Robertson. (alr, ) (Entered: 01/02/2008)
167 REPLY to opposition to motion re 165 MOTION to Amend/Correct CORRECTED MOTION. Plaintiffs' Motion to Amend November 30, 2007 Order to Certify the Amended Order For Interlocutory Review Under 28 U.S.C. § 1292(b) MOTION to Amend/Correct CORRECTED MOTION. Plaintiffs' Motion to Amend November 30, 2007 Order to Certify the Amended Order For Interlocutory Review Under 28 U.S.C. § 1292(b) filed by ALL PLAINTIFFS. (Hill, Stephen) (Entered: 01/10/2008)
168 ORDER granting plaintiffs' motion to certify for interlocutory appeal 165 . All District Court proceedings in this cass are stayed while plaintiffs' appeal is pending. Signed by Judge James Robertson on January 16, 2008. (MT) (Entered: 01/16/2008)
Minute Entry. Proceedings held before Judge James Robertson: Status Conference held on 1/16/2008. (Court Reporter Rebecca Stonestreet.) (alr) (Entered: 01/17/2008)
Case Stayed (alr, ) (Entered: 01/17/2008)
169 TRANSCRIPT of Scheduling Conference held on 1/16/2008 before Judge James Robertson. Court Reporter: Rebecca Stonestreet. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (lc, ) (Entered: 02/04/2008)
170 NOTICE OF APPEAL by ALL PLAINTIFFS. Filing fee $ 455, receipt number 4616011842. Fee Status: Fee Paid. Parties have been notified. (tg, ) (Entered: 04/24/2008)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 23 of 41

04/24/2008 04/29/2008 08/01/2008 11/21/2008 07/07/2009 07/08/2009 07/08/2009
07/09/2009 07/10/2009 08/04/2009
08/05/2009

Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 170 Notice of Appeal (tg, ) (Entered: 04/24/2008)
USCA Case Number 08−5110 for 170 Notice of Appeal filed by ALL PLAINTIFFS. (tg, ) (Entered: 05/01/2008)
171 NOTICE OF WITHDRAWAL OF APPEARANCE as to ANN V. VENEMAN. Attorney Rupa Bhattacharyya terminated. (Bhattacharyya, Rupa) (Entered: 08/01/2008)
172 NOTICE of Change of Address by Phillip L. Fraas (Fraas, Phillip) (Entered: 11/21/2008)
173 MOTION to Transfer Case by MICHAEL JOHANNS (Attachments: # 1 Text of Proposed Order)(Olson, Lisa) (Entered: 07/07/2009)
MINUTE ORDER denying without prejudice defendants' motion to transfer case 173 . Signed by Judge James Robertson on July 8, 2009. (MT) (Entered: 07/08/2009)
175 MANDATE of USCA (certified copy) as to (104 in 1:00−cv−02502−JR) Notice of Appeal, filed by JOYCE A. KING, MARY L. BROWN, GAIL LENNON, JOYCE L. ACOMB, MARGARET ODOM, PHYLLIS L. ROBERTSON, LIND MARIE BARA−WEAVER, MARYLAND B. WYNNE, ROSEMARY LOVE, EDITH L. SCRUGGS, (170 in 1:00−cv−02445−JR) Notice of Appeal filed by ALL PLAINTIFFS ; ORDERED AND ADJUDGED Affirming the judgments of the District court and REMANDING the cases. USCA Case Number 08−5110;08−5135. (tr) (Entered: 07/10/2009)
174 NOTICE OF WITHDRAWAL OF APPEARANCE as to TOM VILSACK. Attorney Jean Lin terminated. (Olson, Lisa) (Entered: 07/09/2009)
Set Hearings: Status Conference set for 8/4/2009 at 10:30 AM in Courtroom 23A before Judge James Robertson. (cp, ) (Entered: 07/10/2009)
Minute Entry for proceedings held before Judge James Robertson: Status Conference held on 8/4/2009. Status Conference set for 10/13/2009 at 10:00 AM in Courtroom 23A before Judge James Robertson. (Court Reporter Rebecca Stonestreet.) (cp, ) (Entered: 08/04/2009)
176 TRANSCRIPT OF PROCEEDINGS before Judge James Robertson held on August 4, 2009; Date of Issuance:August 5, 2009. Court Reporter/Transcriber Rebecca Stonestreet, Telephone number 202−354−3249, Court Reporter Email Address : kingreporter2@verizon.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.

10/06/2009 10/07/2009

Redaction Request due 8/26/2009. Redacted Transcript Deadline set for 9/8/2009. Release of Transcript Restriction set for 11/3/2009.(Stonestreet, Rebecca) (Entered: 08/05/2009)
Reset Hearings: Status Conference reset to 10/15/2009 at 11:30 AM in Courtroom 23A before Judge James Robertson. (cp, ) (Entered: 10/06/2009)
177 MOTION to Continue Motion for Continuance of Status Conference by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Hill, Stephen) (Entered: 10/07/2009)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 24 of 41

10/14/2009 01/22/2010 02/04/2010 02/12/2010 02/19/2010 05/12/2010
06/03/2010 07/19/2010 08/03/2010 08/03/2010 09/27/2010 10/06/2010
10/08/2010

MINUTE ORDER granting plaintiffs' motion to continue the 11/15/09 status conference 177 until further order of the Court. Plaintiffs are ordered to notify the Court of any action in the Supreme Court. Signed by Judge James Robertson on October 14, 2009. (MT) (Entered: 10/14/2009)
Set/Reset Hearings: Status Conference set for 2/5/2010 at 11:00 AM in Courtroom 23A before Judge James Robertson. (tr) (Entered: 01/22/2010)
Set/Reset Hearings: Status Conference set for February 5, 2010 at 11:00 AM has been cancelled and Rescheduled for 2/12/2010 at 11:00 AM in Courtroom 23A before Judge James Robertson. (tr) . (Entered: 02/04/2010)
Set/Reset Hearings: Status Conference originally set for February 12, 2010 at 11:00 AM has been Rescheduled for 2/19/2010 at 11:00 AM in Courtroom 23A before Judge James Robertson. (tr) (Entered: 02/12/2010)
Minute Entry for proceedings held before Judge James Robertson. Status Conference held and concluded on 2/19/2010. This matter is adjourned until both parties agree to a consented Status Conference. Court Reporter Rebecca Stonestreet (tr) (Entered: 02/19/2010)
178 TRANSCRIPT OF PROCEEDINGS before Judge James Robertson held on February 19, 2010; Page Numbers: 1 − 13. Date of Issuance:May 12, 2010. Court Reporter/Transcriber Rebecca Stonestreet, Telephone number 202−354−3249, Court Reporter Email Address : kingreporter2@verizon.net.<P></P>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.<P>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.<P></P> Redaction Request due 6/2/2010. Redacted Transcript Deadline set for 6/14/2010. Release of Transcript Restriction set for 8/10/2010.(Stonestreet, Rebecca) (Entered: 05/12/2010)
179 Case reassigned to Judge Reggie B. Walton. Judge James Robertson no longer assigned to the case. (ds ) (Entered: 06/03/2010)
Set/Reset Hearings: Status Conference set for 8/3/2010 10:00 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt, ) (Entered: 07/19/2010)
180 ORDER. The parties shall appear before the Court for a status conference at 9:00 a.m. on October 8, 2010. Signed by Judge Reggie B. Walton on 8/3/2010 (lcrbw1). (Entered: 08/03/2010)
Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 8/3/2010, (Further Status Conference set for 10/8/2010 09:00 AM in Courtroom 16 before Judge Reggie B. Walton.). (Court Reporter Cathryn Jones.) (mpt, ) (Entered: 08/03/2010)
181 STATUS REPORT by TOM VILSACK. (Olson, Lisa) (Entered: 09/27/2010)
182 MOTION Plaintiffs' Motion to Review Defendant's Proposed Notice and Terms of Class−Wide Settlement, and to Certify a Settlement Class with Memorandum of Points and Authorities in Support Thereof re 181 Status Report by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7 Pt 1, # 9 Exhibit 7 Pt 2, # 10 Exhibit 8−12, # 11 Exhibit 13)(Hill, Stephen) (Entered: 10/06/2010)
Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 10/8/2010. Status Conference set for 12/3/2010 at 09:00 AM in Courtroom 16 before Judge Reggie B. Walton. (Court Reporter Cathryn Jones) (ad) (Entered: 10/08/2010)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 25 of 41

10/08/2010 10/15/2010 10/19/2010 10/20/2010
10/20/2010 10/21/2010 12/03/2010 12/03/2010 01/14/2011 01/14/2011 02/02/2011

183 ORDER. The parties shall appear before the Court for a further status conference at 9:00 a.m. on December 3, 2010. Signed by Judge Reggie B. Walton on 10/8/2010 (lcrbw1). (Entered: 10/08/2010)
184 STATUS REPORT (Second) by TOM VILSACK. (Olson, Lisa) (Entered: 10/15/2010)
185 MOTION Plaintiffs' Emergency Motion to Stay Publication of Defendant's Proposed Notice of a Class−Wide Settlement Pending Court Review with Memorandum in Support Thereof re 184 Status Report by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order, # 3 Certificate of Service)(Hill, Stephen) (Entered: 10/19/2010)
186 Memorandum in opposition to re 185 MOTION Plaintiffs' Emergency Motion to Stay Publication of Defendant's Proposed Notice of a Class−Wide Settlement Pending Court Review with Memorandum in Support Thereof re 184 Status Report MOTION Plaintiffs' Emergency Motion to Stay Publication of Defendant's Proposed Notice of a Class−Wide Settlement Pending Court Review with Memorandum in Support Thereof re 184 Status Report, 182 MOTION Plaintiffs' Motion to Review Defendant's Proposed Notice and Terms of Class−Wide Settlement, and to Certify a Settlement Class with Memorandum of Points and Authorities in Support Thereof re 181 Status Report MOTION Plaintiffs' Motion to Review Defendant's Proposed Notice and Terms of Class−Wide Settlement, and to Certify a Settlement Class with Memorandum of Points and Authorities in Support Thereof re 181 Status Report filed by TOM VILSACK. (Olson, Lisa) (Entered: 10/20/2010)
187 ORDER denying 182 Motion to Review Defendants' Proposed Notice and Terms of Class−Wide Settlement and to Certify a Settlement Class; denying as moot 185 Emergency Motion to Stay Publication of Defendants' Proposed Notice of a Class−Wide Settlement Pending Court Review. Signed by Judge Reggie B. Walton on 10/20/2010 (lcrbw1). (Entered: 10/20/2010)
188 STATUS REPORT (Third) by TOM VILSACK. (Olson, Lisa) (Entered: 10/21/2010)
Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 12/3/2010. Status Conference set for 1/14/2011 at 12:00 PM in Courtroom 16 before Judge Reggie B. Walton. (Court Reporter Cathryn Jones) (ad) (Entered: 12/03/2010)
189 ORDER. The parties shall appear before the Court for a further status conference at 12:00 p.m. on January 14, 2011. Signed by Judge Reggie B. Walton on 12/3/2010 (lcrbw1). (Entered: 12/03/2010)
Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 1/14/2011. A Further Status Conference is set for 4/15/2011 at 10:30 AM in Courtroom 16 before Judge Reggie B. Walton. (Court Reporter Cathryn Jones) (ad) (Entered: 01/14/2011)
190 ORDER. The parties shall appear before the Court for a further status conference at 10:30 a.m. on April 15, 2011. Signed by Judge Reggie B. Walton on 1/14/2011 (lcrbw1). (Entered: 01/14/2011)
191 TRANSCRIPT OF PROCEEDINGS before Judge Reggie B. Walton held on December 3, 2010; Page Numbers: 1 − 4. Court Reporter/Transcriber Cathryn Jones, Telephone number 202 354−3246, Court Reporter Email Address : cjjones10@verizon.net.<P></P>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.<P>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.<P></P> Redaction Request due 2/23/2011. Redacted Transcript Deadline set for 3/5/2011. Release of Transcript Restriction set for 5/3/2011.(Jones, Cathryn) (Entered: 02/02/2011)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 26 of 41

02/22/2011 03/07/2011 03/14/2011 03/16/2011
03/21/2011 03/23/2011 03/24/2011 04/15/2011
04/15/2011
04/21/2011 04/28/2011
04/28/2011 07/08/2011 07/12/2011 07/15/2011
07/15/2011 07/15/2011

192 STATUS REPORT Fourth by TOM VILSACK. (Olson, Lisa) (Entered: 02/22/2011)
193 MOTION for Request for Accommodation by GLORIA MORALEZ (rdj) (Entered: 03/09/2011)
194 RESPONSE re 193 MOTION Request for Accommodation filed by TOM VILSACK. (Olson, Lisa) (Entered: 03/14/2011)
195 ORDER denying 193 Request for Accommodation. The plaintiff's motion is denied without prejudice. Furthermore, any party in this matter who is represented by counsel and desires to file a motion seeking relief from the Court shall file such a motion only through counsel. Signed by Judge Reggie B. Walton on 3/16/2011 (lcrbw1). (Entered: 03/16/2011)
196 NOTICE OF RELATED CASE by TOM VILSACK. Case related to Case No. 1:11cv00541. (Olson, Lisa) (Entered: 03/21/2011)
197 MOTION to Withdraw as Attorney Motion of Alan M. Wiseman to Withdraw as Counsel of Record by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Hill, Stephen) (Entered: 03/23/2011)
198 ORDER granting 197 Motion of Alan M. Wiseman to Withdraw as Counsel of Record. Mr. Wiseman may withdraw as counsel of record. Signed by Judge Reggie B. Walton on 3/24/2011 (lcrbw1). (Entered: 03/24/2011)
Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 4/15/2011, (Further Status Conference set for 6/23/2011 09:00 AM in Courtroom 16 before Judge Reggie B. Walton.). (Court Reporter Cathryn Jones.) (mpt, ) (Entered: 04/15/2011)
199 ORDER. This case shall remain stayed until further order of the Court. Furthermore, the parties shall appear before the Court for a further status conference at 9:00 a.m. on June 23, 2011. Signed by Judge Reggie B. Walton on 4/15/2011 (lcrbw1). (Entered: 04/15/2011)
200 Unopposed MOTION Reschedule Status Conference by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Hill, Stephen) (Entered: 04/21/2011)
MINUTE ORDER granting 200 Motion to Reschedule Status Conference. The Court having considered the plaintiffs' Unopposed Motion to Reschedule Status Conference, and it appearing to the Court that there is good cause to grant the relief requested therein based upon the consent of the defendant as represented to the Court by the plaintiffs, it is ORDERED that the motion is GRANTED. It is further ORDERED that the status conference originally scheduled for 9:00 a.m. on June 23, 2011, is now scheduled for 11:00 a.m. on July 15, 2011. Signed by Judge Reggie B. Walton on 4/28/2011 (lcrbw1). (Entered: 04/28/2011)
Set/Reset Hearings: Status Conference reset for 7/15/2011 11:00 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt, ) (Entered: 04/28/2011)
201 STATUS REPORT (Fifth) by TOM VILSACK. (Olson, Lisa) (Entered: 07/08/2011)
202 Unopposed MOTION to Continue July 15 Status Conference by TOM VILSACK (Attachments: # 1 Text of Proposed Order)(Olson, Lisa) (Entered: 07/12/2011)
MINUTE ORDER granting 202 Motion to Continue. The Court having considered the Defendant's Unopposed Motion to Reschedule Status Conference, 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 defendant, it is ORDERED that the motion is GRANTED. It is further ORDERED that the status conference originally scheduled for 11:30 a.m. on July 15, 2011, is now rescheduled for 9:30 a.m. on July 27, 2011. Signed by Judge Reggie B. Walton on 7/15/2011 (lcrbw1). Modified on 7/18/2011 to edit link (td, ). (Entered: 07/15/2011)
Set/Reset Hearings: Status Conference reset for 7/27/2011 09:30 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt, ) (Entered: 07/15/2011)
Set/Reset Hearings: Status Conference originally set for 7/27/2011 at 9:30 am was reset for 10:15 AM instead in Courtroom 16 before Judge Reggie B. Walton. (mpt, )

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 27 of 41

07/27/2011 07/27/2011 09/02/2011 09/13/2011 09/15/2011 09/15/2011 09/20/2011
10/18/2011 10/20/2011 10/20/2011 10/20/2011 10/21/2011
10/21/2011

(Entered: 07/15/2011)
Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 7/27/2011, (Further Status Conference set for 9/16/2011 10:15 AM in Courtroom 16 before Judge Reggie B. Walton.). (Court Reporter Cathryn Jones.) (mpt, ) (Entered: 07/27/2011)
203 ORDER. This case shall remain stayed until further order of the Court. Furthermore, the parties shall appear before the Court for a further status conference at 10:15 a.m. on September 16, 2011. Signed by Judge Reggie B. Walton on 7/27/2011 (lcrbw1). (Entered: 07/27/2011)
204 NOTICE of Change of Address by Stephen S Hill (Hill, Stephen) (Entered: 09/02/2011)
205 STATUS REPORT Sixth by TOM VILSACK. (Attachments: # 1 Exhibit Letter)(Olson, Lisa) (Entered: 09/13/2011)
Set/Reset Hearings: Status Conference originally set for 9/16/11 was reset for 10/21/2011 10:45 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt, ) (Entered: 09/15/2011)
MINUTE ORDER. Due to unanticipated scheduling conflicts, it is ORDERED that the status conference originally set for 10:15 a.m. on September 16, 2011, is CONTINUED to 10:45 a.m. on October 21, 2011. Signed by Judge Reggie B. Walton on 9−15−11 (lcrbw3). (Entered: 09/15/2011)
206 TRANSCRIPT OF PROCEEDINGS before Judge Reggie B. Walton held on July 27, 2011; Page Numbers: 1 − 12. Court Reporter/Transcriber Cathryn Jones, Telephone number 202 354−3246, Court Reporter Email Address : cathryjns1@aol.com.<P></P>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.<P>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.<P></P> Redaction Request due 10/11/2011. Redacted Transcript Deadline set for 10/21/2011. Release of Transcript Restriction set for 12/19/2011.(Jones, Cathryn) (Entered: 09/20/2011)
207 STATUS REPORT Seventh by TOM VILSACK. (Attachments: # 1 Exhibit Sept. 19, 2011 GAO Decision)(Olson, Lisa) (Entered: 10/18/2011)
208 ENTERED IN ERROR. . . . .RESPONSE filed by GUADALUPE L. GARCIA. (Attachments: # 1 Exhibits to Plaintiffs' Response)(Hill, Stephen) Modified on 10/21/2011 (ztd, ). (Entered: 10/20/2011)
209 ENTERED IN ERROR. . . . . REPLY filed by GUADALUPE L. GARCIA. (Attachments: # 1 Exhibits to Plaintiffs' Corrected Response to Defendant's Sixth and Seventh Status Reports)(Hill, Stephen) Modified on 10/21/2011 (ztd, ). (Entered: 10/20/2011)
210 (Corrected) RESPONSE 207 filed by GUADALUPE L. GARCIA. (Attachments: # 1 Exhibits)(Hill, Stephen) Modified on 10/21/2011 to add corrected and linkage (td, ). (Entered: 10/20/2011)
211 ORDER. This case shall remain stayed until further order of the Court. The parties shall meet and confer regarding a proposed schedule that will control the progress of the litigation of this case. The parties shall submit their proposed schedule to the Court by January 3, 2012. The parties shall appear before the Court for a further status conference at 10:00 a.m. on January 6, 2012, concerning their proposed schedule. Signed by Judge Reggie B. Walton on 10−21−11 (lcrbw3). (Entered: 10/21/2011)
Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 10/21/2011. Proposed Schedule due by 1/3/2012. Further Status Conference

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 28 of 41

12/30/2011 12/30/2011 12/30/2011 01/03/2012 01/03/2012 01/06/2012
01/06/2012
01/11/2012 01/20/2012 01/26/2012 02/21/2012 02/23/2012
03/08/2012

set for 1/6/2012 10:00 AM in Courtroom 16 before Judge Reggie B. Walton. (Court Reporter Cathryn Jones.) (mpt) (Entered: 10/21/2011)
212 MOTION to Continue by ALBERTO A. ACOSTA (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(Murray, Christopher) (Entered: 12/30/2011)
213 Unopposed MOTION to Withdraw as Attorney by ALBERTO A. ACOSTA (Attachments: # 1 Affidavit, # 2 Text of Proposed Order, # 3 Supplement List for Service of Order)(Murray, Christopher) (Entered: 12/30/2011)
214 NOTICE of Change of Address by Stephen S Hill (Hill, Stephen) (Entered: 12/30/2011)
215 STATUS REPORT Plaintiffs' Report In Response To The Court's October 21, 2011 Order To Meet And Confer To Develop A Plan For Trying Individual Cases by ALL PLAINTIFFS. (Hill, Stephen) (Entered: 01/03/2012)
216 RESPONSE TO ORDER OF THE COURT re 211 Order, Defendants' Proposed Litigation Schedule filed by TOM VILSACK. (Olson, Lisa) (Entered: 01/03/2012)
MINUTE ORDER denying 212 Motion to Continue as moot; granting 213 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. It is further ORDERED that, in light of the foregoing ruling, Howrey, LLP's Motion to Continue is DENIED as moot. It is further ORDERED that the parties shall appear before the Court for a status conference at 9:00 a.m. on February 23, 2012. Signed by Judge Reggie B. Walton on 1−6−11 (lcrbw3). Modified on 1/6/2012 (lcrbw3, ). (Entered: 01/06/2012)
Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 1/6/2012. Further Status Conference set for 2/23/2012 09:00 AM in Courtroom 16 before Judge Reggie B. Walton. (Court Reporter Cathryn Jones) (mpt ) (Entered: 01/06/2012)
217 Memorandum in opposition to re 213 Unopposed MOTION to Withdraw as Attorney filed by GLORIA MORALEZ. (td, ) (Entered: 01/12/2012)
218 STATUS REPORT Eighth by TOM VILSACK. (Attachments: # 1 Exhibit Framework)(Olson, Lisa) (Entered: 01/20/2012)
219 NOTICE of Charging Lien of Howrey LLP by ALL PLAINTIFFS (Murray, Christopher) (Entered: 01/26/2012)
220 STATUS REPORT Plaintiffs' Response To Defendant's Eighth Status Report by ALL PLAINTIFFS. (Hill, Stephen) (Entered: 02/21/2012)
Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 2/23/2012. Further Status Conference set for 6/5/2012 09:30 AM in Courtroom 16 before Judge Reggie B. Walton. (Court Reporter Cathryn Jones.) (mpt) (Entered: 02/24/2012)
221 TRANSCRIPT OF PROCEEDINGS before Judge Reggie B. Walton held on February 23, 2012; Page Numbers: 1 − 39. Court Reporter/Transcriber Cathryn Jones, Telephone number 202 354−3246, Court Reporter Email Address : cathryjns1@aol.com.<P></P>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.<P>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.<P></P> Redaction Request due 3/29/2012. Redacted Transcript Deadline set for 4/8/2012. Release of Transcript Restriction set for 6/6/2012.(Jones, Cathryn) (Entered: 03/08/2012)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 29 of 41

04/02/2012 05/25/2012 06/19/2012
06/20/2012
06/21/2012 06/22/2012 06/25/2012 06/26/2012 06/26/2012 07/03/2012 07/13/2012 07/13/2012 07/13/2012 07/17/2012
07/18/2012 07/25/2012 07/25/2012

222 STATUS REPORT Ninth by TOM VILSACK. (Attachments: # 1 Exhibit Claim Form)(Olson, Lisa) (Entered: 04/02/2012)
Set/Reset Hearings: Status Conference reset for 6/19/2012 09:45 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt) (Entered: 05/25/2012)
Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 6/19/2012. Status Report due by 8/17/2012; Further Status Conference set for 8/28/2012 10:00 AM in Courtroom 16 before Judge Reggie B. Walton.). (Court Reporter Cathryn Jones) (mpt) (Entered: 06/20/2012)
223 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 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: Amended Complaint due by 7/13/2012. Final Version of Claim due by 8/3/2012. (mpt) (Entered: 06/21/2012)
224 Unopposed MOTION to Withdraw as Attorney Unopposed Motion of Stephen S. Hill to withdraw as Counsel of Record by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Hill, Stephen) (Entered: 06/22/2012)
225 NOTICE of Appearance by Richard A. Hibey on behalf of GUADALUPE L. GARCIA (Hibey, Richard) (Entered: 06/25/2012)
226 NOTICE of Appearance by Robert F. Ruyak on behalf of GUADALUPE L. GARCIA (Ruyak, Robert) (Entered: 06/26/2012)
227 NOTICE of Appearance by Adam P. Feinberg on behalf of GUADALUPE L. GARCIA (Feinberg, Adam) (Entered: 06/26/2012)
228 ORDERED that the 224 Motion to Withdraw as Attorney is GRANTED. Attorney Stephen S Hill terminated. Signed by Judge Reggie B. Walton on 6/27/12. (mpt) (Entered: 07/03/2012)
229 ENTER IN ERROR.....CASE REFERRED for Report and Recommendation to Magistrate Judge Deborah A. Robinson. (sth, ) Modified on 7/16/2012 (ls, ). (Entered: 07/13/2012)
230 ENTER IN ERROR.....CASE REFERRED to Magistrate Judge Alan Kay for report & recommendation. (sth, ) (Entered: 07/13/2012)
231 CASE REFERRED to Magistrate Judge John M. Facciola for Report and Recommendation. (ls, ) (Entered: 07/16/2012)
NOTICE OF CORRECTED DOCKET ENTRY: re 230 Case Referred to Magistrate Judge Kay 229 Case Referred to Magistrate Judge Robinson was entered in error. This case was inadvertently assigned to Magistrate Judge Deborah A. Robinson and Magistrate Judge Alan Kay. The case is correctly assigned to Magistrate Judge John M. Facciola.(ls, ) (Entered: 07/17/2012)
232 STATUS REPORT Tenth by TOM J. VILSACK. (Attachments: # 1 Exhibit Claim Form)(Olson, Lisa) (Entered: 07/18/2012)
233 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)
234 TRANSCRIPT OF PROCEEDINGS before Judge Reggie B. Walton held on June 19, 2012; Page Numbers: 1 − 31. Court Reporter/Transcriber Cathryn Jones, Telephone

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 30 of 41

08/17/2012 08/24/2012 08/24/2012
08/24/2012 08/30/2012 12/11/2012
12/11/2012 12/18/2012 12/19/2012

number 202 354−3246, Court Reporter Email Address : cathryjns1@aol.com.<P></P>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.<P>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.<P></P> Redaction Request due 8/15/2012. Redacted Transcript Deadline set for 8/25/2012. Release of Transcript Restriction set for 10/23/2012.(Jones, Cathryn) (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)
235 Report and Recommendation re 223 Order. Signed by Magistrate Judge John M. Facciola on 8/24/12. (lcjmf1, ) (Entered: 08/24/2012)
MINUTE ORDER. Having considered the Magistrate Judge's Report and Recommendation 235 , 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)
MINUTE ORDER. To ensure the expeditious resolution of this action, and in light of the Memorandum Opinion and Order issued today in the related case of Cantu v. United States, No. 11−cv−541 (D.D.C.), it is ORDERED that the parties shall submit a joint proposed briefing schedule on or before December 18, 2012, governing the filing of any pre−discovery motions they wish to file, such as motions to transfer and motions to dismiss. Signed by Judge Reggie B. Walton on 12−11−12 (lcrbw3). (Entered: 12/11/2012)
Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 12/18/2012. (mpt, ) (Entered: 12/11/2012)
236 RESPONSE TO ORDER OF THE COURT re Order, Joint Proposed Briefing Schedule filed by TOM J. VILSACK. (Olson, Lisa) (Entered: 12/18/2012)
MINUTE ORDER. In accordance with the parties' Joint Proposed Briefing Schedule 236 , it is ORDERED that this case shall proceed as follows: (1) plaintiffs' counsel shall identify each named plaintiff who intends to proceed with this litigation (as opposed to participating in the government's administrative claims process) on or before April 1, 2013; (2) the defendant may file a motion to transfer as to any remaining plaintiffs on or before May 1, 2013, with the plaintiffs' opposition brief due on or before June 17, 2013, and the defendant's reply brief due on or before July 17,

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 31 of 41

01/08/2013 04/01/2013 04/02/2013 04/02/2013 04/02/2013
04/04/2013 04/05/2013

2013; upon resolution of the defendant's motion(s) to transfer, if any, the Court will set a further schedule in this case; (3) if the defendant chooses not to file any motion to transfer, it shall notify the Court of this decision on or before May 1, 2013, at which time the Court will set deadlines for the defendant to file any pre−discovery dispositive motions or to answer the complaint; (4) the defendant shall file a motion to end the tolling of the statute of limitations presently in effect for putative plaintiffs on or after April 22, 2013, with the plaintiffs' opposition brief due within 30 days of the motion, and the defendant's reply brief due within 45 days of the motion; and (5) this case is STAYED and ADMINISTRATIVELY CLOSED pending further Order of the Court. Signed by Judge Reggie B. Walton on 12−19−12. (lcrbw3) (Entered: 12/19/2012)
Set/Reset Deadlines: Identify named plaintiffs by 4/1/2013. Motion to transfer by 5/1/2013; Opposition due by 6/17/2013; Reply due by 7/17/2013. Motion to end tolling of statue due by 4/22/13. (mpt, ) (Entered: 01/08/2013)
237 WITHDRAWN PURSUANT TO DOCKET ENTRY NO. 238 . . . . . MOTION to Amend/Correct Scheduling Order by GUADALUPE L. GARCIA (Attachments: # 1 Text of Proposed Order)(Feinberg, Adam) Modified on 4/3/2013 (td, ). (Entered: 04/01/2013)
238 NOTICE OF WITHDRAWAL OF MOTION by GUADALUPE L. GARCIA re 237 MOTION to Amend/Correct Scheduling Order (Feinberg, Adam) (Entered: 04/02/2013)
239 Joint MOTION to Amend/Correct Order,,,,, by THOMAS JAMES VILSACK (Attachments: # 1 Text of Proposed Order)(Olson, Lisa) (Entered: 04/02/2013)
MINUTE ORDER granting 239 Motion to Amend/Correct. For good cause shown, it is ORDERED that the Joint Motion to Amend Scheduling Order is GRANTED. It is further ORDERED that this case shall proceed as follows: (1) plaintiffs' counsel shall identify each named plaintiff who intends to proceed with this litigation (as opposed to participating in the government's administrative claims process) on or before May 6, 2013; (2) the defendant may file a motion to transfer as to any remaining plaintiffs on or before June 6, 2013, with the plaintiffs' opposition brief due on or before July 22, 2013, and the defendant's reply brief due on or before August 22, 2013; upon resolution of the defendant's motion(s) to transfer, if any, the Court will set a further schedule in this case; (3) if the defendant chooses not to file any motion to transfer, it shall notify the Court of this decision on or before June 6, 2013, at which time the Court will set deadlines for the defendant to file any pre−discovery dispositive motions or to answer the complaint; and (4) the defendant shall file a motion to end the tolling of the statute of limitations presently in effect for putative plaintiffs, specifying a date on which the tolling would cease that would be no sooner than 45 days from the date of the Order granting the motion, on or after May 28, 2013, with the plaintiffs' opposition brief due within 30 days of the motion, and the defendant's reply brief due within 45 days of the motion. Signed by Judge Reggie B. Walton on 4−2−2013. (lcrbw3, ) (Entered: 04/02/2013)
240 MOTION to Intervene by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Proposed Complaint)(rdj) (Entered: 04/04/2013)
241 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

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 32 of 41

ww.dcd.uscourts.gov.

04/22/2013 04/22/2013
05/02/2013 05/02/2013 05/03/2013 05/06/2013 06/06/2013 06/11/2013
08/07/2013 08/08/2013 08/13/2013 08/27/2013

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)
242 Memorandum in opposition to re 240 MOTION to Intervene filed by THOMAS JAMES VILSACK. (Olson, Lisa) (Entered: 04/22/2013)
243 Memorandum in opposition to re 240 MOTION to Intervene of Black Farmers and Agriculturalists Ass'n, Inc. filed by ALBERTO A. ACOSTA, ALEX CONTRERAS, JOE CONTRERAS, LOUIS CONTRERAS, DAVID FLORES, JUAN J. FLORES, GILBERT A. GARCIA, GUADALUPE L. GARCIA, BEATRICE GARZA, RODOLFO GARZA, PATRICIA JIMINEZ, TONY JIMINEZ, EDWARDO R. LOPEZ, ISMAEL O. MEDINA, YSIDORO F. MENDOZA, SONJA MEYERS, ALBERTO M. ORTEGA, RENE ORTEGA, ROBERT ORTEGA, JR, EDWARD W. PROVENCIO, GEORGE L. PROVENCIO, RUPERTO R. RODRIGUEZ, ERASMO VALDEZ, DIONICIO VALDEZZ, II. (Attachments: # 1 Text of Proposed Order)(Feinberg, Adam) (Entered: 04/22/2013)
244 ENTERED IN ERROR.....MOTION for Temporary Restraining Order and Preliminary Injunction by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Supplement, # 4 Supplement, # 5 Text of Proposed Order)(Edwards, Christal) Modified on 5/3/2013 (rdj). (Entered: 05/02/2013)
245 REPLY to opposition to motion re 240 MOTION to Intervene filed by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. (rdj) (Entered: 05/03/2013)
NOTICE OF CORRECTED DOCKET ENTRY: re 244 MOTION for Temporary Restraining Order and Preliminary Injunction was entered in error and counsel is reminded that no pleading can be filed until the movant has been granted permission to intervene (Docket entry 240 pending). (rdj) (Entered: 05/03/2013)
246 STATUS REPORT : Plaintiffs' Counsel's Report Pursuant to the Court's April 2, 2013 Minute Order by ALL PLAINTIFFS. (Feinberg, Adam) (Entered: 05/06/2013)
247 Unopposed MOTION for Extension of Time to File Motion to Transfer, MOTION for Extension of Time to by THOMAS JAMES VILSACK (Attachments: # 1 Text of Proposed Order)(Olson, Lisa) (Entered: 06/06/2013)
MINUTE ORDER granting 247 Motion for Extension of Time to File; granting 247 Motion for Extension of Time. For good cause shown, it is ORDERED that the Defendant's Unopposed Motion for Extension of Time to File Any Motion to Transfer is GRANTED. It is further ORDERED that the schedule in this case is modified as follows: (1) the defendant shall file a status report within fourteen days of when the Administrator has reached a final decision as to the acceptance of all claims for adjudication; (2) the plaintiffs shall file a status report within thirty days after that, indicating updates to the list of plaintiffs who intend to litigate 246 , if any; and (3) the defendant shall file any motion to transfer within thirty days after plaintiffs' status report is filed. Signed by Judge Reggie B. Walton on 6−11−2013. (lcrbw3) (Entered: 06/11/2013)
248 WITHDRAWN PURSUANT TO DOCKET ENTRY NO. 249 . . . . .MOTION for Order to End the Tolling of the Statute of Limitations by THOMAS JAMES VILSACK (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Olson, Lisa) Modified on 8/8/2013 (td, ). (Entered: 08/07/2013)
249 NOTICE OF WITHDRAWAL OF MOTION by THOMAS JAMES VILSACK re 248 MOTION for Order to End the Tolling of the Statute of Limitations (Olson, Lisa) (Entered: 08/08/2013)
250 MOTION for Order to End Tolling of Statute of Limitations by THOMAS JAMES VILSACK (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Olson, Lisa) (Entered: 08/13/2013)
251 LEAVE TO FILE DENIED− Memorandum in Opposition to USDA's Motion to End Tolling of the Statute of Limitations."Leave to file is denied because leave to intervene

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 33 of 41

09/12/2013
09/20/2013 12/11/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013

as not been granted" Signed by Judge Reggie B. Walton on 08/29/2013. This document is unavailable as the Court denied its filing. (jf, ) (Entered: 09/03/2013)
252 Memorandum in opposition to re 250 MOTION for Order to End Tolling of Statute of Limitations filed by ALBERTO A. ACOSTA, ALEX CONTRERAS, JOE CONTRERAS, LOUIS CONTRERAS, DAVID FLORES, JUAN J. FLORES, GILBERT A. GARCIA, GUADALUPE L. GARCIA, BEATRICE GARZA, RODOLFO GARZA, PATRICIA JIMINEZ, TONY JIMINEZ, EDWARDO R. LOPEZ, ISMAEL O. MEDINA, YSIDORO F. MENDOZA, SONJA MEYERS, ALBERTO M. ORTEGA, RENE ORTEGA, ROBERT ORTEGA, JR, EDWARD W. PROVENCIO, GEORGE L. PROVENCIO, RUPERTO R. RODRIGUEZ, ERASMO VALDEZ, DIONICIO VALDEZZ, II. (Attachments: # 1 Exhibit A − email between counsel, # 2 Text of Proposed Order)(Feinberg, Adam) (Entered: 09/12/2013)
253 REPLY to opposition to motion re 250 MOTION for Order to End Tolling of Statute of Limitations filed by THOMAS JAMES VILSACK. (Olson, Lisa) (Entered: 09/20/2013)
254 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Alberto Acosta by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/11/2013)
255 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Alfredo Alvarez by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
256 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Arturo Vasquez by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
257 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Rigoberto Banuelos by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
258 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Efrian Bernal by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
259 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Jose Chaidez by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
260 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of David Flores by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
261 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Tyn Davis by ANN V. VENEMAN (Olson, Lisa) (Entered: 12/16/2013)
262 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Dionicio Valdez II by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
263 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Eduardo Flores by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
264 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Eduardo Provencio by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
265 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Antonio Espindola by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
266 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Jaime Fuentes by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
267 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Jose Galvan by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
268 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Lupe Garcia by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
269 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Joanne Garza by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
270 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of George Provencio by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 34 of 41

12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013

271 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Maria Gutierrez by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
272 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Hector Flores by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
273 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of David Hinojosa by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
274 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Homero Garza Jr. by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
275 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Norberto Iriarte by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
276 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Patricia Jimenez by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
277 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Jimmy Alvarez by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
278 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Joe Flores by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
279 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Jose Ortega by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
280 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Juan Flores by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
281 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Larry Chavarria by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
282 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Javier Ledesma by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
283 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Dora Linares by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
284 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of F. Richard Llanez by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
285 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Edwardo Lopez by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
286 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Angel Medina by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
287 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Esrael Mendoza by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
288 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Mary Ortega by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
289 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Mark Baeza by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
290 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Erasmo Valdez by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
291 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Sonja Myers by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
292 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of John Oaxaca by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
293 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Alberto Ortega by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
294 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Patrick Flores by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 35 of 41

12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 02/21/2014 02/24/2014 02/28/2014 03/05/2014 03/05/2014 03/05/2014 03/05/2014 03/05/2014 03/05/2014 03/05/2014 03/05/2014 03/05/2014 03/05/2014 03/27/2014

295 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Gregorio Ramon by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
296 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Guadalupe Rejino by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
297 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Rene Ortega by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
298 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Robert Ortega Jr. by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
299 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Lorissa Garza Martinez by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
300 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Maria Ruiz by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
301 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Romeo Salinas by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
302 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Jose Tellez by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
303 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Tommy Vasquez by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
304 MOTION to Dismiss − Stipulation of Dismissal With Prejudice of Ysidoro Mendoza by THOMAS J. VILSACK (Olson, Lisa) (Entered: 12/16/2013)
305 STIPULATION of Dismissal With Prejudice of Modesta Rodriguez Salazar by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 02/21/2014)
306 STIPULATION of Dismissal With Prejudice of Roberto Salinas Sr. by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 02/24/2014)
307 NOTICE of Change in Firm Status by PHILLIP L. FRAAS (Fraas, Phillip) (Entered: 02/28/2014)
308 STIPULATION of Dismissal With Prejudice of Ricardo Arevalo Moreno by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 03/05/2014)
309 STIPULATION of Dismissal With Prejudice of Ruben Alvarez by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 03/05/2014)
310 STIPULATION of Dismissal With Prejudice of Gustvo Arevalo by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 03/05/2014)
311 STIPULATION of Dismissal With Prejudice of Alejandro Camargo by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 03/05/2014)
312 STIPULATION of Dismissal With Prejudice of Jose Camargo by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 03/05/2014)
313 STIPULATION of Dismissal ith Prejudice of Manuel Cantu by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 03/05/2014)
314 STIPULATION of Dismissal With Prejudice of Valentin Cornejo by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 03/05/2014)
315 STIPULATION of Dismissal With Prejudice of Oracio Encinias by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 03/05/2014)
316 STIPULATION of Dismissal With Prejudice of Albert Garcia by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 03/05/2014)
317 STIPULATION of Dismissal With Prejudice of Jess Vasquez by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 03/05/2014)
318 NOTICE of Dismissal With Prejudice by Gilbert L. Garcia (Pro Se) by THOMAS J. VILSACK (Olson, Lisa) (Entered: 03/27/2014)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 36 of 41

04/11/2014 05/08/2014 05/21/2014 06/13/2014
06/13/2014 06/20/2014 07/07/2014 07/10/2014 07/11/2014
07/11/2014 07/12/2014
07/12/2014 07/14/2014 07/14/2014
07/18/2014 07/31/2014 08/11/2014 08/15/2014

319 STIPULATION of Dismissal With Prejudice of Juan Cisneros by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 04/11/2014)
320 STIPULATION of Dismissal With Prejudice of Frank Velarde by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 05/08/2014)
321 STATUS REPORT Eleventh by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 05/21/2014)
322 ORDER denying 240 Motion to Intervene. In accordance with the memorandum opinion issued this same date, it is hereby ORDERED that the Motion of Black Farmers and Agriculturalists Association, Inc. to Intervene is DENIED. Signed by Judge Reggie B. Walton on June 13, 2014. (lcrbw1) (Entered: 06/13/2014)
323 MEMORANDUM OPINION. Signed by Judge Reggie B. Walton on June 13, 2014. (lcrbw1) (Entered: 06/13/2014)
324 STATUS REPORT Pursuant to the Court's June 11, 2013 Minute Order by ALL PLAINTIFFS. (Feinberg, Adam) (Entered: 06/20/2014)
325 REPLY re 324 Status Report filed by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 07/07/2014)
326 Unopposed MOTION for Extension of Time to File Any Motion to Transfer by THOMAS J. VILSACK (Attachments: # 1 Text of Proposed Order)(Olson, Lisa) (Entered: 07/10/2014)
MINUTE ORDER granting 326 Motion for Extension of Time to File. Upon consideration of the Defendant's Unopposed Motion for Extension of Time to File Any Motion to Transfer and for good cause shown, it is hereby ORDERED that the motion is GRANTED, and the defendant shall file any motion to transfer on or before September 4, 2014. Signed by Judge Reggie B. Walton on July 11, 2014. (lcrbw1) (Entered: 07/11/2014)
Set/Reset Deadline: The defendant shall file any motion to transfer on or before 9/4/2014. (ad) (Entered: 07/11/2014)
327 ENTERED IN ERROR. . . . .NOTICE OF APPEAL TO THE FEDERAL CIRCUIT as to 323 Memorandum & Opinion by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC.. Fee Status: No Fee Paid. Parties have been notified. (Attachments: # 1 Exhibit memorandum opinion)(Robinson, Paul) Modified on 7/14/2014 (td, ). (Entered: 07/12/2014)
328 NOTICE OF APPEAL as to 323 Memorandum & Opinion, 322 Order on Motion to Intervene, by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC.. Fee Status: No Fee Paid. Parties have been notified. (td, ) (Entered: 07/14/2014)
NOTICE OF CORRECTED DOCKET ENTRY: re 327 Notice of Appeal to the Federal Circuit, was entered in error and refiled as docket entry no. 328 using correct event. (td, ) (Entered: 07/14/2014)
329 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Fee remains to be paid and another notice will be transmitted when the fee has been paid in the District Court re 328 Notice of Appeal. (td, ) (Entered: 07/14/2014)
USCA Case Number 14−5175 for 328 Notice of Appeal filed by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. (kb) (Entered: 07/18/2014)
330 USCA Appeal Fees received $ 505 receipt number 46160065202 re 328 Notice of Appeal filed by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. (td, ) (Entered: 08/11/2014)
331 Supplemental Record on Appeal transmitted to US Court of Appeals re 330 USCA Appeal Fees ;USCA Case Number 14−5175. (td, ) (Entered: 08/11/2014)
334 MOTION to keep plaintiff's case in this court by GLORIA MORALEZ (td, ) (Entered: 08/20/2014)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 37 of 41

08/18/2014 08/20/2014 09/02/2014 09/03/2014 09/04/2014 09/04/2014
09/05/2014 09/17/2014
09/18/2014
09/29/2014 01/15/2015 01/20/2015 02/18/2015 03/09/2015 03/19/2015

332 CERTIFICATE OF SERVICE. (td, ) (Entered: 08/20/2014)
333 MOTION for Leave to Proceed in forma pauperis by GLORIA MORALEZ (td, ) (Entered: 08/20/2014)
335 RESPONSE re 334 MOTION for Order filed by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 09/02/2014)
336 MOTION to Dismiss for Lack of Prosecution the Claims of Plaintiffs Reyes Mancillas, Ignacio Ruiz, Jr., Stella Ruiz, and Gloria Moralez by THOMAS J. VILSACK (Attachments: # 1 Text of Proposed Order)(Olson, Lisa) (Entered: 09/03/2014)
337 Unopposed MOTION for Extension of Time to File Any Motion to Transfer Venue, MOTION for Extension of Time to by THOMAS J. VILSACK (Attachments: # 1 Text of Proposed Order)(Olson, Lisa) (Entered: 09/04/2014)
MINUTE ORDER granting 337 Motion for Extension of Time to File. Upon consideration of the Defendant's Unopposed Motion for Extension of Time to File Any Motion to Transfer Venue and for good cause shown, it is hereby ORDERED that the motion is GRANTED, and the defendant shall file any motion to transfer the claims of Joe Contreras, Paul Contreras, or Alex Contreras on or before September 18, 2014, and it is further ORDERED that the defendant shall file any motion to transfer the claims of Reyes Mancillas, Ignacio Ruiz, Jr., Stella Ruiz, and Gloria Moralez within fourteen days of the Court's ruling on Defendant's Motion to Dismiss Claims of Plaintiffs Reyes Mancillas, Ignacio Ruiz, Jr., Stella Ruiz, and Gloria Moralez 336 , in the event that the motion is denied. Signed by Judge Reggie B. Walton on September 4, 2014. (lcrbw1) (Entered: 09/04/2014)
338 NOTICE re Moralez pro se motion by ALL PLAINTIFFS (Fraas, Phillip) (Entered: 09/05/2014)
339 RESPONSE re 336 MOTION to Dismiss for Lack of Prosecution the Claims of Plaintiffs Reyes Mancillas, Ignacio Ruiz, Jr., Stella Ruiz, and Gloria Moralez Plaintiff's Opposition to Defendant's Motion to Dismiss the Claims of Plaintiffs Reyes Mancillas, Ignacio Ruiz, Jr., Stella Ruiz and Gloria Moralez filed by PHILLIP L. FRAAS. (Fraas, Phillip) (Entered: 09/17/2014)
340 Consent MOTION to Sever Their Claims by Joe and Louis Contreras, Consent MOTION for Leave to File Amended Complaint regarding Joe and Louis Contreras, Joint MOTION to Transfer Case regarding Joe and Louis Contreras's Amended Complaint, Consent MOTION to Dismiss Voluntarily, Alex Contereras's Individual Claims by ALEX CONTRERAS, JOE CONTRERAS, LOUIS CONTRERAS (Attachments: # 1 Memorandum in Support, # 2 Exhibit A − Proposed Am. Compl re Joe and Louis Contreras, # 3 Text of Proposed Order)(Feinberg, Adam) (Entered: 09/18/2014)
341 REPLY re 336 MOTION to Dismiss for Lack of Prosecution the Claims of Plaintiffs Reyes Mancillas, Ignacio Ruiz, Jr., Stella Ruiz, and Gloria Moralez filed by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 09/29/2014)
342 MANDATE of USCA (certified copy) as to 328 Notice of Appeal filed by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. ; ORDERED that the motion be granted. USCA Case Number 14−5175. (md, ) (Entered: 01/15/2015)
MINUTE ORDER. It is hereby ORDERED that the parties shall appear for a Status Hearing on February 25, 2015, at 9:30 a.m. to review the procedural posture of this case. Signed by Judge Reggie B. Walton on January 20, 2015. (lcrbw1) (Entered: 01/20/2015)
Set/Reset Hearings: Status Conference originally set for 2/25/15 was reset for 3/25/2015 11:15 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt, ) (Entered: 02/18/2015)
343 NOTICE of Appearance by Laura G. Ferguson on behalf of ALEX CONTRERAS, JOE CONTRERAS, LOUIS CONTRERAS (Ferguson, Laura) (Entered: 03/09/2015)
344 STATUS REPORT Twelfth by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 03/19/2015)

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03/23/2015 03/25/2015 03/25/2015
03/25/2015 04/08/2015 04/15/2015

345 Consent MOTION for Leave to File Corrected Exhibit to Docket No. 340 by ALEX CONTRERAS, JOE CONTRERAS, LOUIS CONTRERAS (Attachments: # 1 Exhibit Corrected Exhibit A, # 2 Text of Proposed Order)(Ferguson, Laura) (Entered: 03/23/2015)
Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 3/25/2015. Order forthcoming. A Status Conference is set for 4/21/2015, at 2:00 PM, in Courtroom 16, before Judge Reggie B. Walton. (Court Reporter Cathryn Jones) (ad) (Entered: 03/25/2015)
346 ORDER granting 340 Motion to Sever; granting 340 Motion for Leave to File; granting Motion to Transfer Case 340 ; granting 340 Motion to Dismiss; granting 345 Motion for Leave to File. In accordance with the attached Order and the oral rulings made during the Status Conference held this same day, it is hereby ORDERED that, in light of the stipulations of dismissal filed with the Court, the following plaintiffs and their claims are DISMISSED WITH PREJUDICE: Frank Velarde, Juan Cisneros, Gilbert L. Garcia, Jess Vasquez, Oracio Encinias, Valentin Cornejo, Manuel Cantu, Jose Camargo, Alejandro Camargo, Gustvo Arevalo, Ruben Alvarez, Ricardo Arevalo Moreno, Roberto Salinas Sr., Modesta Rodriguez Salazar, Ysidoro Mendoza, Tommy Vasquez, Jose Tellez, Romeo Salinas, Maria Ruiz, Lorissa Garza Martinez, Robert Ortega, Jr., Rene Ortega, Guadalupe Rejino, Gregorio Ramon, Patrick Flores, Alberto Ortega, John Oaxaca, Sonja Myers, Erasmo Valdez, Mark Baeza, Mary Ortega, Esrael Mendoza, Angel Medina, Edwardo Lopez, F. Richard Llanez, Dora Linares, Javier Ledesma, Larry Chavarria, Juan Flores, Jose Ortega, Joe Flores, Jimmy Alvarez, Patricia Jimenez, Norberto Iriarte, Homero Garza, Jr., David Hinojosa, Hector Flores, Maria Gutierrez, George Provencio, Joanne Garza, Lupe Garcia, Jose Galvan, Jaime Fuentes, Antonio Espindola, Eduardo Provencio, Eduardo Flores, Dionicio Valdez II, Tyn Davis, David Flores, Jose Chaidez, Efrian Bernal, Rigoberto Banuelos, Arturo Vasquez, Alfredo Alvarez, and Alberto Acosta. It is further ORDERED the plaintiffs Joe and Louis Contreras's Consent Motion to File Corrected Exhibit is GRANTED. It is further ORDERED that plaintiffs Joe and Louis Contreras's Consent Motion to Sever Their Claims and for Leave to File an Amended Complaint is GRANTED. The Clerk shall sever these plaintiffs from this action and docket their Amended Complaint, filed as Exhibit A to the plaintiffs' Consent Motion to File Corrected Exhibit 345 , as a new case. It is further ORDERED that the Parties' Joint Motion to Transfer Joe and Louis Contreras's Amended Complaint is GRANTED, and plaintiffs Joe and Louis Contreras's severed case is TRANSFERRED to the Northern District of Texas, Amarillo Division. It is further ORDERED that plaintiff Alex Contreras's Consent Motion to Voluntarily Dismiss His Individual Claims is GRANTED, and the claims asserted by Alex Contreras are DISMISSED WITHOUT PREJUDICE. It is further ORDERED that plaintiffs Reyes Mancillas, Ignacio Ruiz, Jr., Stella Ruiz, and Gloria Moralez shall file by April 8, 2015, a supplement to their Opposition to the defendant's Motion to Dismiss with documentation demonstrating their efforts to engage in the defendant's alternative dispute resolution process. The defendant shall file any reply to the supplement on or before April 15, 2015. It is further ORDERED that any party plaintiff opposing the government's request that the Court terminate the tolling of the statute of limitations shall SHOW CAUSE on or before April 8, 2015, why the Court should not end the tolling. The defendant shall file any reply to the response on or before April 15, 2015. It is further ORDERED that the parties shall appear for a further hearing on April 21, 2015, at 2:00 p.m. See image for details. Signed by Judge Reggie B. Walton on March 25, 2015. (lcrbw1) (Entered: 03/25/2015)
347 AMENDED COMPLAINT against THOMAS J. VILSACK filed by JOE CONTRERAS, LOUIS CONTRERAS.(td, ) (Entered: 04/07/2015)
348 SUPPLEMENTAL MEMORANDUM to re 339 Response to motion, to Dismiss filed by PHILLIP L. FRAAS. (Attachments: # 1 Exhibit 1 Part 1, # 2 Exhibit 1 Part 2, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(Fraas, Phillip) (Entered: 04/08/2015)
349 SUPPLEMENTAL MEMORANDUM to re 336 MOTION to Dismiss for Lack of Prosecution the Claims of Plaintiffs Reyes Mancillas, Ignacio Ruiz, Jr., Stella Ruiz, and Gloria Moralez filed by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 04/15/2015)

Case: 1:00-cv-2445 As of: 11/02/2018 03:20 PM EDT 39 of 41

04/20/2015 04/21/2015 04/23/2015
05/05/2015 05/19/2015 05/21/2015 05/21/2015 05/26/2015 05/28/2015 05/28/2015 05/28/2015 06/08/2015

350 RESPONSE re 349 Supplemental Memorandum filed by PHILLIP L. FRAAS. (Attachments: # 1 Exhibit)(Fraas, Phillip) (Entered: 04/20/2015)
Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 4/21/2015. (Court Reporter Jan Dickman) (mpt, ) (Entered: 04/23/2015)
351 ORDER granting 250 Motion for Order; denying 334 Motion for Order; granting in part and denying in part 336 Motion to Dismiss for Lack of Prosecution. In accordance with the attached Order and the oral rulings made during the Motion Hearing held on April 21, 2015, it is hereby ORDERED that plaintiff Gloria Moralez's motion to represent herself pro se is DENIED AS MOOT. It is further ORDERED that the Defendant's Motion to Dismiss Claims of Plaintiffs Reyes Mancillas, Ignacio Ruiz, Jr., Stella Ruiz, and Gloria Moralez is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED with respect to plaintiffs Reyes Mancillas, Ignacio Ruiz, Jr., and Stella Ruiz, and the claims asserted by these plaintiffs are DISMISSED WITHOUT PREJUDICE. The motion is DENIED with respect to plaintiff Gloria Moralez. It is further ORDERED that the defendant shall file any motion to transfer the claims asserted by Gloria Moralez on or before May 5, 2015. If Gloria Moralez opposes the motion, she shall file her opposition on or before May 19, 2015, and the defendant shall file its reply on or before May 26, 2015. It is further ORDERED that the Defendant's Motion to End the Tolling of the Statute of Limitations is GRANTED, and the tolling of the statute of limitations shall end on June 8, 2015, except that for any putative class member who filed an administrative claim in the ADR program prior to May 1, 2013, whose claim remains pending as of the date of this Order, and whose claim is subsequently rejected by the claims Administrator as incomplete, the tolling of the statute of limitations shall end forty−five days after the Administrator issues notification of such rejection. Signed by Judge Reggie B. Walton on April 23, 2015. (lcrbw1) (Entered: 04/23/2015)
352 MOTION to Change Venue of Claims Asserted by Plaintiff Gloria Moralez by THOMAS J. VILSACK (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Olson, Lisa) (Entered: 05/05/2015)
353 RESPONSE re 352 MOTION to Change Venue of Claims Asserted by Plaintiff Gloria Moralez filed by PHILLIP L. FRAAS. (Attachments: # 1 Exhibit)(Fraas, Phillip) (Entered: 05/19/2015)
354 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 351 Order on Motion for Order,, Order on Motion to Dismiss for Lack of Prosecution,,,,,,,,,,,,,,,,,,,,, by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC.. Fee Status: No Fee Paid. Parties have been notified. (Attachments: # 1 Exhibit A−Order)(Robinson, Paul) (Entered: 05/21/2015)
355 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Fee remains to be paid and another notice will be transmitted when the fee has been paid in the District Court re 354 Notice of Appeal to DC Circuit Court,. (jf, ) (Entered: 05/21/2015)
356 REPLY to opposition to motion re 352 MOTION to Change Venue of Claims Asserted by Plaintiff Gloria Moralez filed by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 05/26/2015)
USCA Appeal Fees received $ 505 receipt number 4616070408 re 354 Notice of Appeal to DC Circuit Court, filed by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. (jf) (Entered: 05/28/2015)
357 Supplemental Record on Appeal transmitted to US Court of Appeals re USCA Appeal Fees received $ 505 receipt number 4616070408 re 354 Notice of Appeal to DC Circuit Court, (jf) (Entered: 05/28/2015)
USCA Case Number 15−5152 for 354 Notice of Appeal to DC Circuit Court, filed by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC.. (md) (Entered: 05/29/2015)
358 STATUS REPORT Thirteenth by THOMAS J. VILSACK. (Attachments: # 1 Exhibit Exhibit A)(Olson, Lisa) (Entered: 06/08/2015)

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08/20/2015 08/25/2015 09/09/2015 10/06/2015 10/26/2015 10/30/2015 11/09/2015
11/09/2015 11/23/2015 12/08/2015
12/08/2015 12/23/2015
01/15/2016 01/19/2016 01/19/2016 01/21/2016

359 NOTICE of Change of Address by Phillip L. Fraas (Fraas, Phillip) (Entered: 08/20/2015)
360 MOTION to Stay Pending Appeal Immediately by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. (Attachments: # 1 Exhibit)(Robinson, Paul) (Entered: 08/25/2015)
361 Memorandum in opposition to re 360 MOTION to Stay Pending Appeal Immediately filed by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 09/09/2015)
362 NOTICE Regarding BFAA's Motion for Stay by THOMAS J. VILSACK re 360 MOTION to Stay Pending Appeal Immediately (Olson, Lisa) (Entered: 10/06/2015)
363 STATUS REPORT Fourteenth by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 10/26/2015)
364 ORDER of USCA (certified copy) ORDERED that the motion to dismiss be granted as to 354 Notice of Appeal to DC Circuit Court, filed by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. USCA Case Number 15−5152. (vt) (Entered: 11/03/2015)
365 ORDER denying 360 Motion to Stay. For the reasons set forth in the attached Order, it is hereby ORDERED that the Motion of Putative Intervenor Black Farmers and Agriculturalists Association, Inc. for an Immediate Stay Pending Appeal is DENIED AS MOOT. Signed by Judge Reggie B. Walton on November 9, 2015. (lcrbw1) (Entered: 11/09/2015)
MINUTE ORDER. It is hereby ORDERED that the parties shall appear for a Motion Hearing to address the Defendant's Motion to Transfer Venue of the Claims of Gloria Moralez 352 at a time and date to be determined by the Clerk of the Court. Signed by Judge Reggie B. Walton on November 9, 2015. (lcrbw1) (Entered: 11/09/2015)
Set/Reset Hearings: Motion Hearing set for 12/8/2015 at 10:30 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt) (Entered: 11/23/2015)
MINUTE ORDER. In accordance with the oral rulings issued during the Motion Hearing held this same day, it is hereby ORDERED that the defendants shall supplement their motion to transfer the venue of plaintiff Gloria Moralez's claims by January 15, 2016. It is further ORDERED that the parties shall appear for a status conference on January 22, 2016, at 12:00 p.m. Signed by Judge Reggie B. Walton on December 8, 2015. (lcrbw1) (Entered: 12/08/2015)
Minute Entry for proceedings held before Judge Reggie B. Walton: Motion Hearing held on 12/8/2015. Defendants supplemental motion to transfer the venue due by 1/15/2016. Status Conference set for 1/22/2016 at 12:00 PM in Courtroom 16 before Judge Reggie B. Walton. (Court Reporter Cathryn Jones) (mpt) (Entered: 12/08/2015)
366 MANDATE of USCA (certified copy) ORDERED that the motion to dismiss be granted as to (354 in 1:00−cv−02445−RBW) Notice of Appeal to DC Circuit Court, filed by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC., (245 in 1:00−cv−02502−RBW) Notice of Appeal to DC Circuit Court filed by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. USCA Case Number 15−5152 (Consolidated with 15−5156). (zrdj) (Entered: 12/28/2015)
367 SUPPLEMENTAL MEMORANDUM to re 352 MOTION to Change Venue of Claims Asserted by Plaintiff Gloria Moralez List of Witnesses filed by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 01/15/2016)
368 MOTION Accommodation to participate in status conference by GLORIA MORALEZ (Fraas, Phillip) (Entered: 01/19/2016)
369 RESPONSE re 367 Supplemental Memorandum by GLORIA MORALEZ. (Fraas, Phillip) Modified event title and link on 1/20/2016 (znmw). (Entered: 01/19/2016)
MINUTE ORDER. In anticipation of the inclement weather expected tomorrow, it is hereby ORDERED that the Status Conference scheduled for January 22, 2016, is CONTINUED to a time and date to be determined by the Clerk of the Court. Signed by Judge Reggie B. Walton on January 21, 2016. (lcrbw1) (Entered: 01/21/2016)

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01/21/2016
01/27/2016 01/27/2016 01/29/2016
02/12/2016 02/12/2016 02/13/2016
02/16/2016 02/16/2016
02/26/2016 02/29/2016
02/29/2016 03/01/2016 03/21/2016

MINUTE ORDER granting 368 Motion. In light of the defendants' consent, and for good cause shown, it is hereby ORDERED that plaintiff Gloria Moralez's motion to participate by telephone at the upcoming hearing in this case is GRANTED. Signed by Judge Reggie B. Walton on January 21, 2016. (lcrbw1) (Entered: 01/21/2016)
NOTICE of Hearing: A Status Conference is set for 1/29/2016, at 3:00 PM, in Courtroom 16, before Judge Reggie B. Walton. (ad) (Entered: 01/27/2016)
370 REPLY to Plaintiff Moralez's Response Regarding Motion to Transfer Venue of the Claims of Gloria Moralez filed by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 01/27/2016)
Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 1/29/2016. Gloria Morales appeared via telephone. Order forthcoming. A Further Status Conference is set for 2/16/2016, at 10:30 AM, in Courtroom 16, before Judge Reggie B. Walton. (Court Reporter Cathryn Jones) (ad) (Entered: 01/29/2016)
371 STATUS REPORT Regarding Motion to Transfer Venue of the Claims of Gloria Moralez by THOMAS J. VILSACK. (Olson, Lisa) (Entered: 02/12/2016)
372 MOTION Accommodation to participate in status conference by phone by GLORIA MORALEZ (Fraas, Phillip) (Entered: 02/12/2016)
MINUTE ORDER granting 372 Motion. It is hereby ORDERED that plaintiff Gloria Moralez's motion to participate by telephone at the upcoming hearing in this case is GRANTED. Signed by Judge Reggie B. Walton on February 12, 2016. (lcrbw1) (Entered: 02/13/2016)
Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 2/16/2016. Case to be transferred to the District of California. (Order forthcoming). (Court Reporter Cathryn Jones). (tg) (Entered: 02/16/2016)
373 ORDER granting 352 Motion to Change Venue. In accordance with the oral rulings issued during the hearing held this same day, it is hereby ORDERED that the Defendant's Motion to Transfer Venue of the Claims of Gloria Moralez is GRANTED. It is further ORDERED that the claims of Gloria Moralez are SEVERED from this action and TRANSFERRED to the Eastern District of California. It is further ORDERED that this case is CLOSED. Signed by Judge Reggie B. Walton on February 16, 2016. (lcrbw1) (Entered: 02/16/2016)
374 NOTICE of Change of Address by Phillip L. Fraas (Fraas, Phillip) (Entered: 02/26/2016)
375 Case transferring only the claims of Gloria Moralez from this action and TRANSFERRED to the Eastern District of California to the USDC for the Eastern District of California, pursuant to Court Order entered 02/16/2016. Sent to Court Extraction. (td) (Entered: 02/29/2016)
376 NOTICE of Extraction of case transferred to USDC for the Eastern District of California ONLY on the claims of Gloria Moralez. (td) (Entered: 02/29/2016)
Receipt on 03/01/2016 of Electronic Transfer. Other Court Number 1:16−cv−00282 sent by USDC for the Eastern District of California. (zrdj) (Entered: 03/01/2016)
377 NOTICE of Change of Address by Adam P. Feinberg (Feinberg, Adam) (Entered: 03/21/2016)