Case 1:00-cv-02502-RBW Document 1 Filed 10/19/00 Page 1 of 67

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

___________________________________

RoseMary Love

:

P.O. Box 214

Harlem, MT 59526

:

and

:

Lind Marie Bara-Weaver

:

4845 Belle Terre Parkway C-8

Palm Coast, Florida 32137

:

and

:

Margaret Odom P.O. Box 143 Sardis, Georgia 30456

: : Civil Action No. ________

and

:

Gail Lennon

:

295 County Road 149

Lookout, California 96054

:

and

:

James Murnion

:

Box 55

Shawmut, MT 59078

:

ON BEHALF OF THEMSELVES AND ALL

:

OTHERS SIMILARLY SITUATED;

:

Plaintiffs,

:

vs.

:

DAN GLICKMAN, Secretary

THE UNITED STATES DEPARTMENT

:

OF AGRICULTURE

14th and Independence Avenue, S.W. :

Washington, D.C. 20250

:

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Case 1:00-cv-02502-RBW Document 1 Filed 10/19/00 Page 2 of 67 Defendant. : CLASS ACTION COMPLAINT
(FOR DECLARATORY JUDGMENT, REVIEW OF AGENCY ACTION, VIOLATIONS OF EQUAL CREDIT OPPORTUNITY ACT,
AND OTHER RELIEF) ________________________________________________ The representative and individual plaintiffs listed in the caption ("plaintiffs"), on behalf of themselves and all others similarly situated, complain of defendant as follows:
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NATURE OF THE CASE Since 1981, when processing applications for women, minorities and other protected farmers and ranchers1 (hereinafter, collectively, “farmers”) for farm credit and farm programs, (hereinafter, generally, “farm programs”) defendant willfully discriminated against them. Loans were denied, provided late, or provided with less money than needed to adequately farm. Further, when, in response, plaintiffs filed (in writing or orally) discrimination complaints individually with defendant, defendant failed, although required by, inter alia, the Civil Rights Act of 1964 and the Equal Credit Opportunity Act, to investigate the complaints. For example, when women, minorities and other protected farmers and ranchers filed complaints of discrimination with defendant, defendant willfully either (1) avoided processing or resolving the complaints, (2) stretched the review process out over many years, (3) conducted a meaningless, or "ghost” investigation, or (4) failed to do anything. These two acts: (1) the discrimination in denial of the application to participate in the farm program and (2) the failure to properly and timely investigate the discrimination complaints, deprived women, minorities and other protected farmers, inter
1 This includes farmers who have been discriminated against on the basis of age, sex, marital status, race, color, national origin or religion.
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alia, of equal and fair access to farm programs, and due process, resulting in substantial damages to them.
In May 1997, defendant's officials admitted that, in early 1983, the Reagan administration had quietly disbanded and dismantled the civil rights enforcement arm at the United States Department of Agriculture ("USDA") and that discrimination complaints had not been properly investigated since 1983. Two federal reports, issued in February, 1997, verified these facts. Further, defendant’s own Office of Inspector General has stated that, since then, the defendant’s civil rights oversight agency, the Office of Civil Rights, has failed to adequately deal with the problems USDA has in effectively processing civil rights claims.
Plaintiffs, allege that this discriminatory treatment was imposed on women, minorities and other protected farmers in a manner as egregious as that visited upon African-Americans, Native Americans, and Hispanic Americans. See Pigford, et al. v. Glickman, Civil Action No. 97-1978 (PLF), and 185 F.R.D. 82 (D.D.C. 1999)(approving Consent Decree); Keepseagle, et al. v. Glickman, Civil Action No. 1:99cv03119 (D.D.C. 1999); Garcia, et al. v. Glickman, Civil Action No. 1:00cv02445 (D.D.C. 2000).
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JURISDICTION 1. Jurisdiction is founded upon 15 U.S.C. § 1691, 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.
VENUE 2. Venue lies in this judicial district because the claim arose in this judicial district, and pursuant to 28 U.S.C. § 1391(e).
PARTIES (There are five class representatives—four women (Ms. Love, Ms. Bara-Weaver, Ms. Odom, and Mrs. Lennon) and one elderly man
(Mr. Murnion)) 3. Plaintiff and proposed Class representative RoseMary Love is a woman rancher who has operated ranches in Blaine and Glacier Counties, Montana, with her estranged husband, Clinton Love. They started raising sheep in 1975, and operated their 1,056 acre ranch in Blaine County. In 1980, they leased 20,000 acres in Glacier County, Montana. In 1983, they acquired their 2,600 acre ranch in Glacier County and leased another 1,500 acres. At the height of their operation, in 1983, they were running approximately 3,300 sheep. Ms. Love (a) timely applied for various loan programs with defendant during the period 1982 to 1989 and was subject to willful and continuous discrimination on the basis of her gender, causing Ms. Love substantial damages,
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and (b) timely filed complaints with defendant of these acts of discrimination, which complaints were never acted upon pursuant to applicable law. In each instance of discrimination, male farmers received more favorable treatment from USDA.
4. In 1978, following a devastating drought in the area, they began dealing with FSA. They received an emergency loan that year. They increased their borrowings from FSA over the next three years as they encountered further natural disasters and low commodity prices, and (like so many other farmers with substantial debt loads) record high interest rates. Through receipt of additional emergency and economic emergency loans, by 1982 they owed FmHA approximately $897,000.
5. RoseMary was the one who dealt with FmHA in most instances on behalf of the Loves. She was the one who worked on farm and home plans with the FmHA County Supervisor and other county office staff. Thus, although both her and estranged husband’s names were on the paperwork, she for all practical purposes played the central role with FmHA in loan applications and loan servicing for the Love sheep operation.
6. RoseMary Love completed the ranch’s Farm and Home Plan for 1982 operating loan purposes in the fall of 1981. By June 1, 1982, the Blaine County FmHA office had still not finished processing it, having revised it four times in the interim. Then,
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the 1982 operating loan was both late (funds weren’t received until the end of July) and for about $100,000 less than needed to operate the ranch. It also included 10 conditions dictated by FmHA without the consent of RoseMary Love or her estranged husband, including a demand that they liquidate the ranch operation as soon as practicable.
7. In May of 1983, FmHA accelerated on all the loans, demanding payment in full in 30 days. This forced the Loves into Chapter 11 bankruptcy. At about this time, a Federal court in South Dakota, in Coleman v. Block, had issued a stay of adverse actions by FmHA against its farm borrowers. However, FmHA, through its lawyers, ignored both the stay of adverse action issued in the bankruptcy and the Coleman stay, and arranged for the transfer – in June of 1984 – of most of the Love’s sheep to a third party. These were the Love’s primary income-producing assets on the ranch. In addition, the transfer caused the Loves to lose their Glacier County operation. Thus, FmHA’s action most certainly doomed the Loves’ farming operation to ultimate failure.
8. Further, it should be noted that, before the loan was accelerated, for the sheep that RoseMary Love was able to hang on to, FmHA refused to allow Love to sell the wool from the sheep even though they could not properly feed them. Also, FmHA refused
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to allow the Loves to sell other ranch security (land, crops, or machinery) to obtain feed for these sheep. As a result, many of them died of starvation.
9. RoseMary Love and her estranged husband hung onto the ranch, even though its income flow was slashed to practically zero, for several more years. Then, on December 16, 1988, RoseMary Love applied for 1951-S servicing. On March 2, 1989, she and her ex-husband were notified that they were determined eligible by the State FmHA office. However, the lawyers for FmHA prevented the implementation of this option by making a baseless claim that the Loves had not shown good faith in their dealings with FmHA.
10. While all these adverse actions were being conducted against RoseMary Love, a number of similarly situated male farmers were receiving substantial loan servicing benefits to allow them to deal with the stresses caused by physical disasters, low commodity prices, and record high interest rates. A prime example is Neil Johnson (and his family) doing business as the Johnson Cattle Company of Glacier County, that received loans in the same time frame as the Loves. In 1981, it was made eligible for low interest limited resource loans, provided an emergency loan in 1985, and were given debt forgiveness, i,e., had debt simply written off, for $1 million in 1989.
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11. Most painful to RoseMary Love was the crude insensitivity shown by the Blaine County FmHA staff when, in early February 1983, she had a radical mastectomy because she had cancer. Less than 48 hours after the operation, as she lay on her hospital bed under sedation, the county loan supervisor came to her to get her to sign a new security agreement. The local FmHA office was so eager to complete the paperwork needed to strengthen its position against the Loves (who supposedly were its customers) that it completely overstepped the bounds of common decency.
12. RoseMary Love filed a complaint with Secretary Mike Espy regarding her disparate treatment in May of 1993, and she filed a discrimination complaint with USDA’s Office of Civil Rights (OCR) on April 10, 1997. The case was investigated in 1998 and the USDA investigator indicated to her that he had found evidence of unfair treatment. On the basis of this finding, Love, through her attorney, diligently sought to negotiate a resolution of the complaint administratively by OCR. However, some two years after the investigation was completed, in June of 2000, the Director of OCR by letter informed RoseMary Love that she had insufficient basis for settling the complaint informally, leaving RoseMary Love with only the option of entering into a long and
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expensive administrative law judge proceeding if she chose to resolve her case short of filing a law suit in Federal court.
13. Plaintiff and proposed Class Representative, Lind Marie Bara-Weaver, is a female farmer and resident of Palm Coast, Florida. Plaintiff farmed for 15 years in Virginia where she raised Welch ponies, Holly trees, and worms. Ms. Bara-Weaver (a) timely applied for various loan programs with defendant during the period 1984 to 1998 and was subject to willful and continuous discrimination on the basis of her gender, causing Ms. BaraWeaver substantial damages, and (b) timely filed complaints with defendant of these acts of discrimination, which complaints were never acted upon pursuant to applicable law. In each instance of discrimination, male farmers received more favorable treatment from USDA.
14. In October 1984, Ms. Bara-Weaver attempted to apply for farm ownership and operating loans at the Loudon County FmHA office in Leesburg, Virginia, to purchase and operate a 16.5 acre farm. At the office, the loan officer, Mr. Faulk, informed Ms. Bara-Weaver that neither funds nor forms were available. She was not given an application.
15. In late October or early November of the same year, Ms. Bara-Weaver visited the Leesburg FmHA office again, and was told a second time that neither funds nor forms were available. Ms.
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Bara-Weaver’s husband called USDA and forms were mailed to him. Ms. Bara-Weaver filled out the forms as the sole borrower and delivered them to Mr. Faulk at the Lessburg FmHA office. Two days later her application was denied.
16. In the Summer of 1988, Ms. Bara-Weaver again attempted to apply for farm ownership and operating loans through the Loudon County FmHA office. She was told no applications were available.
17. Ms. Bara-Weaver made formal complaints to the FmHA state office in Richmond and to the USDA Office of the Inspector General in Washington, DC. The Richmond office sent her the loan application, without any of the additional forms required to complete the application.
18. Ms. Bara-Weaver submitted her application (without the additional forms) to Mr. Reed, the loan officer in Loudon County. Mr. Reed told Ms. Bara-Weaver that farming was not a good business for women. He then stated the additional forms she needed were available to her in exchange for sexual favors. Ms. Bara-Weaver left the office immediately.
19. Ms. Bara-Weaver contacted the office of Senator John Warner and received the additional forms she needed to complete her application.
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20. As part of the loan application process, the property Ms. Bara-Weaver wished to purchase had to be appraised by Mr. Reed. During the appraisal visit, Mr. Reed made sexual advances toward her. Ms. Bara-Weaver again rejected his advances. Her loan was denied.
21. In May 1993, Ms. Bara-Weaver’s equine breeding stock was poisoned by contaminated feed. Plaintiff visited the FmHA office, which by then had been moved to Fredericksburg, to inquire about a loan to help with veterinarian expenses and special feed. Plaintiff was told that FmHA did not provide such loans or assistance.
22. In the Fall of 1994, Ms. Bara-Weaver submitted completed applications for a farm ownership and operating loan by certified mail to the Fredericksburg FmHA office. Although FmHA had signed for Ms. Bara-Weavers’s application package, when she called to check on the status of her applications, FmHA told her they did not have her applications.
23. In January 1998, after her husband’s death, Ms. BaraWeaver attempted to refinance the farm through a trust for her daughter, and sought FSA financing at the Fredericksburg office. She was told that USDA did not deal with trusts, despite the fact that USDA program regulations specifically refer to trusts.
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Case 1:00-cv-02502-RBW Document 1 Filed 10/19/00 Page 13 of 67 24. Plaintiff and proposed Class representative Margaret Odom is a female farmer and resident of Sardis, Georgia. She raised cattle and row crops. Ms. Odom (a) timely applied for various loan programs with defendant during the period 1984 to 1998 and was subject to willful and continuous discrimination on the basis of her gender, causing Ms. Odom substantial damages, and (b) timely filed complaints with defendant of these acts of discrimination, which complaints were never acted upon pursuant to applicable law. In each instance of discrimination, male farmers received more favorable treatment from USDA. 25. In December 1991, Ms. Odom applied for an operating loan at the Waynesboro, Georgia FmHA office in Burke County and was denied. She was told by FmHA loan officer Alphonzo Andrews, that she did not qualify as a beginning farmer, and that she would not be able to get a loan from their office until she had been farming for a year, even though she had farmed with her husband for years.
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26. Ms. Odom farmed in 1992 with her own funds. In 1993, she applied again for an operating loan at the same FmHA office. Her loan was denied because FmHA alleged she farmed in an “unworkmanlike manner”. She hand-delivered a complaint to the USDA State Director, Gene Carr, at the State Office in Athens, Georgia. Mr. Carr and three loan servicing specialists met with Ms. Odom that same day. The next day, Mr. Andrews called her and informed her that she had been approved for the loan.
27. In 1993, the Sardis region was declared a disaster area. Ms. Odom applied to the Waynesboro ASCS office for disaster benefits and was denied. She appealed the decision to USDA’s National Appeals Division (“NAD”). NAD ruled in her favor. She received disaster benefits for that year and a debt reduction.
28. In 1994, Ms. Odom applied for a farm ownership loan and an operating loan at the Waynesboro FmHA office. She was denied for both. FSA’s stated reason for denying Ms. Odom’s applications in 1994 was virtually identical to the reason the Agency denied her 1993 disaster benefits -- which reason had been overturned by NAD. Ms. Odom appealed the 1994 loan denials to NAD. Again NAD ruled in her favor.
29. Based on the NAD decision, in 1995, Ms. Odom went back to FSA to reapply for the same loans for which she had been wrongfully denied in 1994. She was told she had to fill out new
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applications, which she did. Ms. Odom was denied again for farming in an “unworkmanlike manner” which NAD had in 1994 ruled as an invalid basis for denying Ms. Odom access to federal farm programs. She appealed the 1995 decision and again, NAD ruled in her favor. In 1997 and again in 1998, Ms. Odom reapplied for the same loans and was denied for the same reason NAD ruled invalid in 1994 and 1995.
30. Because FmHA discriminatorily denied Ms. Odom’s loans for years, despite NAD rulings in her favor, Ms. Odom’s finances were severely strained. However, in 1998, FSA refused to restructure her debt.
31. Plaintiff and proposed Class representative, Gail Lennon, is a female farmer and resident of Lookout, California. Ms. Lennon (a) timely applied for various loan programs with defendant during the period 1983 to 1996 and was subject to willful and continuous discrimination on the basis of her gender, including defendant’s imposition of restrictive conditions on her loans, defendant’s failure to process her requests for loan servicing and grant her a timely and adequate appeal, causing her substantial damages, and (b) timely filed complaints with defendant of these acts of discrimination, which complaints were never acted upon pursuant to applicable law. In each instance of
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discrimination, male farmers received more favorable treatment from USDA.
32. In July, 1983, Ms. Lennon applied for a farm ownership and operating loan at the Modoc County FmHA office in Alturas, California2. She needed the loans to purchase a ranch where she intended to raise cattle and pigs. FmHA demanded excessive collateral for the loans. Collateral valued at approximately $748,000 – the purchased ranch (545 acres, appraised at $435,000), an additional 130 acres valued at approximately $200,000, equipment valued at approximately $100,000, and 25 mother cows valued at approximately $13,000 – was taken as collateral for loans totaling $273,000. When Ms. Lennon questioned the severe collateral requirements, County Supervisor Lloyd Leighton responded that he was acting in accordance with regulations. Ms. Lennon’s loan funds were placed in a supervised account, which meant funds could not be released for any purpose without the consent of FmHA.
33. Pending the processing of these USDA loans, County Supervisor Lloyd Leighton promised Ms. Lennon that (a) if she obtained a short-term loan from the local production credit association (hereinafter, “PCA”) that said loan would be paid in
2 FmHA required Mr. Lennon, a school teacher, to be named as an applicant for the loan even though Ms. Lennon signed all farmrelated documents and conducted all farm-related business.
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full by the USDA loans, and (b) due to the time required to develop a profitable ranching operation, Ms. Lennon would not have to make payments on the USDA loans until 1985. USDA did not keep these promises. In fact, in 1985, the new Modoc County Supervisor denied Ms. Lennon access to operating funds from her supervised account and told her that she was delinquent on her payments for the 1984 loans – payments that the former County Supervisor had indicated would not become due until 1985.
34. On numerous occasions beginning in December 1984, Ms. Lennon requested USDA loan servicing. USDA denied said servicing on each occasion – including, after 1986, when USDA’s National Appeals Division ruled in favor of Ms. Lennon and ordered the Modoc County Office to provide her with maximum servicing. Between 1988 and 1996, Ms. Lennon was repeatedly denied due process in her attempts to appeal USDA’s refusals to provide loan servicing.
35. In April 1997, Ms. Lennon filed a civil rights complaint against USDA alleging gender discrimination. As of October 19, 2000, USDA has not responded to her complaint.
36. Plaintiff and proposed Class representative, James Murnion, is a 73-year old farmer in Wheatland County, Montana. His farm consists of 4,500 acres, including 500 acres of irrigated cropland, 2,500 acres allocated to dry land wheat, and
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the rest used for grazing 600 sheep and 40 cattle. Mr. Murnion (a) timely applied for various loan programs with defendant during the period beginning 1997 to 1998 and was subject to willful and continuous discrimination on the basis of his age, causing Mr. Murnion substantial damages, and (b) timely filed complaints with the defendant of these acts of discrimination, which complaints were never acted upon pursuant to applicable law. In each instance of discrimination, younger farmers received more favorable treatment from USDA. Beginning in 1974, Mr. Murnion had taken out several emergency loans from the Farm Service Agency (“FSA”) in years when his area of Montana suffered disaster losses due to bad weather or other conditions beyond the control of the farmer. His debt to FSA on these loans had built to $320,000 by 1997 and he was having trouble servicing the debt. The debt was secured by a mortgage on the ranch real estate.
37. With the assistance of a farm financial consultant, Keith McGruder, Mr. Murnion had developed a plan to pay off the debt in full (without any write-off) and at all times to keep the debt more than fully collateralized. Under the proposed plan, Mr. Murnion’s son would assist him in operating the ranch. Mr. Murnion met with the Wheatland County FSA agricultural credit manager, Mr. Stuver, in early 1997 to discuss the proposed plan to pay off the debt. Also present at the meeting were Mr.
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Case 1:00-cv-02502-RBW Document 1 Filed 10/19/00 Page 19 of 67 Murnion’s wife and son, and Mr. McGruder. During the negotiations, the parties got very close to an agreement on a pay-back schedule (they were only $1,000 apart on the amount of the annual payment Murnion would have to make under the plan). At that point, however, Stuver refused to consider the plan any further because of Mr. Murnion’s age. He said, “you have to sign the ranch over to someone else because you are 70 years old”. Even though Mr. Murnion and his advisor reviewed in detail the economic viability of the proposed plan, Stuver would not consider it, repeating over and over that, because of his age, Mr. Murnion would have to sign the ranch over and out of his name. After this meeting, Mr. Murnion tried to get Stuver to reconsider; but Stuver never returned his phone calls and refused to meet with him further.
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38. FSA having rejected his pay-back plan, Murnion was unable to make timely payments under the existing debt structure; so FSA initiated foreclosure on against him. The ranch was sold at a sheriff’s auction, and FSA bought it for the amount of the debt Mr. Murnion owed him. FSA failed to file a certificate of sale, so as a legal matter, the agency never officially owned the property. Nonetheless, a year later, Mr. Murnion, rather than fight FSA in court on its ownership of the land, exercised his right of redemption and paid off FSA in full. He did this by finding a third party buyer for all but 1,000 acres of the ranch. As a result of the foreclosure process, Mr. Murnion suffered substantial and unnecessary losses. He lost all of his irrigated and dry land wheat acreage, and was forced to sell his equipment and supplies for a loss of over $90,000. His economic losses totaled over $400,000. Even worse, the stress induced by the foreclosure process caused him to have a heart attack in July 1998.
39. Mr. Murnion filed a complaint regarding the age discrimination against him with USDA’s Office of Civil Rights (“OCR”) in March 1997. After sending an investigator out to interview Mr. Murnion in May 1998 and receiving supplementary information from him in December of 1998, OCR has done nothing to process his complaint other than to occasionally send him
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paperwork stating that the case is still pending. Early in the process, Mr. Murnion made repeated calls to OCR to find out the status of his case, but never got a satisfactory answer. He eventually gave up trying. Defendant’s failure to act on his discrimination complaint has caused Mr. Murnion further damage.
40. Defendant, Dan Glickman, is Secretary of the United States Department of Agriculture (“USDA”), and is the federal official responsible for the administration of the statutes, regulations and programs which are the focus of this action.
HOW DEFENDANT IS ORGANIZED AND, GENERALLY, THE GOVERNMENT PROGRAMS AT ISSUE 41. USDA's Farm Service Agency ("FSA") provides commodity program benefits (such as deficiency payments, price support loans, conservation reserve program (“CRP”) benefits), disaster payments, farm loans and other farm credit benefits to U.S. farmers. The agency was created in 1994, as a result of a reorganization of USDA, primarily by the merger of the Agricultural Stabilization and Conservation Service ("ASCS", which previously had handled commodity program benefits, price support loans, CRP payments, disaster payments, and related services) with the Farmers’ Home Administration ("FmHA", which previously had provided farm loans and other farm credit benefits).
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Case 1:00-cv-02502-RBW Document 1 Filed 10/19/00 Page 22 of 67 42. FmHA was created decades ago to provide loans, credit and technical assistance for farmers. FmHA made loans directly to farmers or guaranteed the loans made to farmers by private, commercial lenders. These loans included "farm ownership", "operating", and "continuing assistance" loans, as well as loans that "restructure" existing loans and "emergency disaster" loans. FmHA’s key responsibilities were to work with small, minority and disadvantaged farmers – farmers who could not get credit elsewhere, and to assist these farmers in developing their financial plans and loan applications. 43. ASCS was an agency of USDA created to provide services to U.S. farmers under the price support, deficiency payment, CRP, and related programs to stabilize farm income and prices, and to assist in the conservation of land.
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44. Defendant Glickman is responsible for the administration of the Farm Service Agency (FSA) and previously FmHA & ASCS. FSA, like FmHA and ASCS before it, administers the federal farm programs through a three-tiered review system consisting of (1) county offices and committees, (2) state offices and committees, and (3) a federal level of review in Washington, D.C., the National Appeals Division ("NAD"). The local county committees consist of producers from a county who have been elected by other producers in that county; they oversee the county offices. The state committees consist of producers from each state selected by the Secretary of USDA; they oversee the state offices. At the federal level NAD renders final determinations of administrative appeals. (Prior to the 1994 consolidation, FmHA had its own administrative appeal process).
45. The Minority and Socially Disadvantaged Program Offices within USDA have the primary responsibility for coordinating USDA programs serving minorities and the socially disadvantaged. USDA defines women as minorities and as socially disadvantaged.
HOW FARMERS (1) APPLY FOR LOANS AND CREDIT WITH USDA AND (2) APPLY FOR PARTICIPATION IN OTHER FARM PROGRAMS WITH USDA
46. When a farmer applies for any federal farm loan or program, she goes to her county office (formerly the FmHA office), and fills out a Farm and Home Plan (“FHP”, a financial plan for the farm), along with her loan application, which requires the
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assistance and guidance of defendant's officials to complete. Assistance and guidance is critical because of the complexity of the programs and forms. This application process has been done pursuant to regulations found at 7 C.F.R. § 1910, et seq. If the farmer needs an ASCS-type benefit or assistance, she works with her County Executive Director ("CED") (who is an employee of the county committee paid by USDA) and county committee in applying for participation or benefits. The process has been done 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 seq.).
47. When the federal farm loan application with its supporting documents is completed, it is presented to the county committee. If the farmer is approved for participation, the loan is processed. 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). If an FSA loan, or loan services, is denied on discriminatory grounds, the farmer can file a complaint of discrimination 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").
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48. With respect to ASCS-type programs, the application is reviewed by the CED and then presented to the county committee. If approved, the ASCS benefits are awarded. Title VI of the Civil Rights Act of 1964 prohibits 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.
HOW PLAINTIFFS AND MEMBERS OF THE CLASS WERE DAMAGED -WHAT DEFENDANT DID IN RESPONSE TO COMPLAINTS OF DISCRIMINATION
49. Unbeknownst to plaintiffs and members of the Class, defendant disbanded the enforcement ability of EO and OCREA in 1983, leaving defendant with no ability to investigate discrimination complaints. In a May 25, 1997, Richmond News Dispatch article and interview of Lloyd Wright, Director of USDA Office of Civil Rights, Mr. Wright stated that (1) no systematic probes or investigations had been taken since 1983, when the Reagan administration disbanded the Civil Rights investigative staff, and (2) that agency regulations and the provisions of the Civil Rights Act of 1964, et al. had been violated. In a January 5, 1999, New York Times article, Rosalind Gray, who succeeded Wright as head of the Office of Civil Rights, stated that USDA “would agree that its procedures in handling bias claims had been
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flawed.” Further evidence of defendant's willful failure to investigate discrimination complaints is evident in the February 27, 1997, Office of Inspector General Report ("OIG Report"), (attached hereto as Exhibit A) and the February, 1997 Civil Rights Action Team Report ("CRAT Report"), (attached hereto as Exhibit B), both explained below.
50. On March 10, 2000, the Office of Inspector General released its Seventh audit report “Office of Civil Rights Status of the implementation of Recommendations Made in Prior Evaluations of Program Complaints – Phase VII (“OIG Report VII” attached hereto as Exhibit C). The report states OCR’s processing of Civil rights complaints remains flawed: “ 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 CR, we cannot report encouraging news.” (OIG Report VII, Viadero cover letter at 1) “…[N]o significant changes in how complaints are processed have been made.” (OIG Report VII at i).
51. The Department of Justice (“DOJ”) is required to ensure that Federal agencies meet their Title VI enforcement obligations and provide civil rights protection to persons filing discrimination complaints in the FSA programs. DOJ has failed to ensure that defendant meets its Title VI obligations.
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52. Within USDA, in past years, the Policy Analysis and Coordination Center (“PACC”), an agency under the Assistant Secretary for Administration, was responsible for civil rights compliance and developing regulations for processing program discrimination complaints at USDA. See OIG Report at 4. OCREA was responsible for processing program discrimination complaints received by USDA from participants in FSA programs. See OIG Report at 4.
53. OCREA was required to forward written complaints of discrimination from USDA program participants to the appropriate agency within USDA asking the agency to attempt conciliation of the complaint. If conciliation was not successful, the agency was to be instructed to perform a preliminary inquiry and make a recommendation of a finding of "discrimination" or "no discrimination". OCREA was to perform its own analysis of the complaint and the preliminary inquiry and make a recommendation to the Assistant Secretary for Administration on the finding of "discrimination" or "no discrimination". This process never occurred during the relevant period covered by this lawsuit. See OIG Report at 4.
54. FSA's Civil Rights and Small Business Utilization Staff (CR&SBUS) has been responsible for handling program discrimination complaints within FSA. CR&SBUS never followed proper procedure
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pursuant to the law during the relevant period covered by this lawsuit. See OIG Report at 5.
55. The applicable State Civil Rights Coordinator in FSA was responsible for obtaining a conciliation agreement or performing a preliminary inquiry and forwarding it to CR&SBUS. If a conciliation agreement was reached with the complainant, CR&SBUS was to forward the agreement to OCREA and recommend the discrimination complaint be closed. If a preliminary inquiry was performed, CR&SBUS would analyze the information and determine if discrimination was found; CR&SBUS was to forward the preliminary inquiry and its analysis to OCREA with its determination. These procedures were never properly followed.
56. USDA has codified regulations, 7 C.F.R. Part 15 "Nondiscrimination", which state USDA's policy of nondiscrimination in federally assisted and conducted programs in compliance with Title VI of the Civil Rights Act of 1964. The regulations should have served as a basis for civil rights compliance and enforcement with respect to participants in FSA programs; however, defendant admits the regulations have long been and still are outdated and never reflected the departmental agencies, programs and laws. See OIG Report at 5.
57. USDA Regulation 4330-1, which is over 13 years old, dated June 27, 1986, set the departmental policy for program civil
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rights compliance reviews, but did not provide policy and guidance for processing program discrimination complaints. See OIG Report at 5.
58. On December 12, 1994, in a management alert to the then Office of Civil Rights Enforcement, defendant's Office of Inspector General (OIG) reported problems with how USDA received, processed, and resolved program discrimination complaints. OIG recommended that "a departmental regulation be promulgated that sets forth the authorities of the Office of Civil Rights Enforcement and that written procedures and controls be established governing the receipt, processing, and resolution of program discrimination complaints within established timeframes". OIG Report at 5. 23 59. The regulation was never published.3
60. After years of abuse and neglect of Black, Native American, Hispanic, Women, Minorities and other protected farmers, OIG finally undertook an investigation and review, the results of which were released on February 27, 1997, of defendant's program discrimination complaints within FSA as well as 10 other agencies within USDA. OIG found, inter alia, that the discrimination
3The U.S. Commission on Civil Rights issued a report in June 1996, titled Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs. This report also had specific findings and recommendations critical of the USDA system for processing discrimination complaints.
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complaint process within FSA lacked "integrity," and

"accountability" was without a tracking system, was in "disorder,"

did not resolve discrimination complaints, and had a massive

backlog:

The program discrimination complaint process at FSA

lacks integrity, direction and accountability. The

staff responsible for processing discrimination

complaints receives little guidance from management,

functions in the absence of any current position

descriptions or internal procedures, and is beset with

its own personnel EEO problems. The staff also

processes discrimination complaints without a reliable

tracking system to determine the status of the

complaints and, apparently, without deadlines to resolve

the complaints. The resulting climate of disorder has

brought the complaint system within FSA to a near

standstill.

Little gets accomplished to resolve

discrimination complaints or to make program managers

aware of alleged problems within their programs. After

developing our own database of unresolved cases, we

determined that as of January 27, 1997, FSA had an

outstanding backlog of 241 complaints. OIG Report at 6

(emphasis added).

61. OIG found that the FSA staff responsible for processing
the discrimination complaints consisted of two untrained and
unqualified people:
The FSA staff responsible for processing discrimination complaints, the Civil Rights and Small Business Utilization Staff (CR&SBUS)" has two full-time program specialists working to resolve program complaints. These program specialists are supplemented by an administrative assistant who provides secretarial support and two staff assistants who maintain case files and the tracking system. The two program specialists and the two staff assistants transferred to FSA from the civil rights staff of the former Farmer's Home Administration (FmHA) during the Department's

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reorganization in October 1995. The staff assistants have been performing analyses of the preliminary inquiries conducted on the complaints, although they are not trained or otherwise qualified to do so. None of the former FmHA employees with CR&SBUS have position descriptions to reflect their current duties and responsibilities, and none have received performance appraisals for fiscal year 1996. OIG Report at 6 (emphasis added).
62. OIG found a "massive backlog" of unprocessed FSA
complaints. OIG Report at 6.
63. OIG found the FSA files "disorganized" and unaccountable:
CR&SBUS was unable to provide us with an accurate number of outstanding complaints or their status. We reviewed the case files and found them generally disorganized. It was difficult for us to readily determine the date of the complaint, the reason it was brought, and the status of its resolution. OIG Report at 7 (emphasis added).
64. OIG found hundreds of FSA cases unresolved:
Our review at the CR&SBUS and CREA disclosed that, between them, they had listed a total of 272 cases as being active. The oldest case listed dates back to 1986 ... After resolving all duplications and determining the actual status of the 272 cases, we found that FSA had 241 cases of program discrimination complaints that had not been resolved. OIG Report at 7 (emphasis added).
65. OIG found repeated unaccountability and missing files:
During our reconciliation of the two agencies' lists, we noted that some cases were listed by one or the other agency but could not be found in its filing system. CR&SBUS listed 32 cases that we could not find in its filing system, and CREA listed 28 cases that we could not find in its filing system. We also noted that CR&SBUS listed cases unknown to CREA. CR&SBUS listed 19 cases that CREA did not list. OIG Report at 7.
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66. OIG found there was no reliable method to the
processing:
CREA had officially closed 30 of the 272 cases with findings of no discrimination. CREA had also closed one case with a finding of discrimination, and the complainant was compensated. The case involved the FSA disaster program, and the complainant received the benefits which were at first denied by FSA. Four of the remaining 24 cases had findings of discrimination as determined by CREA and are pending resolution. One of the four complainants has not responded to the Department's written notice regarding filing a claim for compensation. Office of Operations officials are negotiating a settlement with the remaining three complainants. OIG Report at 7-8.
67. OIG found improperly closed files and improper reviews,
and many files with no documentation:
We found that FSA improperly closed and forwarded 30 complaints to program managers, without notifying the Department (26 of 30 cases were closed under the old FmHA agency management). The civil rights staff concluded without first receiving concurrence from the Department that these cases were the result of "programmatic discrepancies" (i.e., agency error rather than civil rights violations). Without departmental concurrence with its findings, the agency may not have addressed the legitimate cases of discrimination. CREA has the responsibility to make final determination of program discrimination. FSA may recommend to CREA that cases be closed, but it does not have the authority to close these cases without concurrence from CREA. For example, we noted that in one instance FSA (the former FmHA) incorrectly concluded that a case had only programmatic concerns and closed the case without forwarding it to the Department. Only after a civil rights staff member complained, did FSA process the case as a civil rights discrimination case. The civil rights staff stated in a letter that the allegation of racial discrimination was overlooked. The mix-up was discussed with the Department, which determined that the case should be processed by the civil rights staff. For most
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of the remaining cases, we found no documentation in the case files at FSA that the Department has reviewed these cases. OIG Report at 8 (emphasis added).

68. OIG found 58% of the FSA civil rights complaint case

files were over 1 year old and over 150 cases were almost two

years old:

[T]he average age of the 241 cases we consider open because they were not officially closed by the Department.

No. of Cases

Program

Average Age

151

Ag. Credit

703 Days

(Farm Loans)

40

Disaster

485 Days

50

Others

482 Days

Of the 241 open cases, 139 (58 percent) were known to be over 1 year old. Of the 241 cases, 129 (54 percent) are awaiting action in FSA; the remaining 112 cases (46 percent) are in the hands of the CREA staff in USDA's Office of Operations. Sixty-five of the cases at FSA (50 percent) need a preliminary inquiry. Some of these date back to 1993. OIG Report at 8.
69. OIG found no system within FSA for reconciliation or
tracking of civil rights complaint cases:
CR&SBUS has no procedures in place to reconcile or track the status of complaints after they are forwarded to CREA. Therefore, CR&SBUS could not tell us the status of complaints at CREA. As noted above, both CR&SBUS and CREA had different numbers and were not aware of all the outstanding complaints. OIG Report at 8 (emphasis added).
70. OIG found no management oversight within FSA with
respect to the handling of civil rights complaints:

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"CR&SBUS also does not prepare management reports to inform FSA program managers of alleged problems of discrimination within their programs. Without this information, program managers may not be aware of potential discrimination in the programs they are responsible for administering." OIG Report at 9.
71. With respect to defendant's Office of Operations, Civil
Rights Enforcement and Adjudication, OIG found repeated
inaccuracies and unaccountability:
[T]he listing of outstanding cases provided by CREA contained inaccurate information. In some instances we were unable to locate the case files at CREA that were on its outstanding case list. Without reviewing the case files, we were unable to verify the status of the complaints. Also, CREA and FSA had not reconciled their cases, and neither could inform us of the correct number of outstanding cases.
CREA does not have controls in place to monitor and track discrimination complaints. When complaints are received they are logged in, given a case number, and after the agency forwards the preliminary inquiry to CREA, the case is assigned to one of its seven program specialists. There are no procedures to require the program specialists to follow up on overdue responses from the agency. We have found that CREA is not following up on discrimination cases it returned to FSA for conciliation or performance of a preliminary inquiry. CREA advises the agency that it has 90 days to complete its review, but it does not follow up with the agency to determine the status of the complaint. OIG Report at 9. 72. OIG surveyed 10 other USDA program agencies in addition
to FSA, to determine the procedures used for processing program
discrimination complaints and found the same problems. See OIG
Report at 10-11.
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73. OIG compiled a list of outstanding ("open") program
discrimination complaints, as late as 1996, within the Department,
totaling 271. See OIG Report at Attachment A.
74. At the same time that OIG released its report, a USDA
Civil Rights Action Team (“CRAT”) released its report, dated
February 1997, condemning defendant's lack of civil rights
enforcement and accountability, which was a cause of the drastic
decline in the number of minority farmers:
According to the most recent Census of Agriculture, the number of all minority farms has fallen -- from 950,000 in 1920 to around 60,000 in 1992. CRAT Report at 14.
75. USDA’s Economic Research Service has stated:
Farms of female operators were smaller on average 309 acres – than the U.S. average, although not as small as those of Blacks or Asians and Pacific Islanders. The average value of sales, however - $35,000 – fell below all other operator groups except Blacks. Two-thirds of female-operated farms had sales below $10,000, compared with half of all U.S. farms, and only 20 percent had sales of $25,000 or more. Anne B.W. Effland et al., “Minority & Women Farmers in the U.S.”, Agricultural Outlook, AO-251, May 1998, p. 19 (attached hereto as Exhibit D)
Although females are a majority in the U.S. population, women are a minority among farm operators. Only 145,200 farm operators were women in 1992, or 7.5 percent of the U.S. total, but their numbers are increasing. Economic Research Service, USDA, farm Structure Briefing Room, found at www.USDA.gov, (attached hereto as Exhibit E)
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76. CRAT found that minority, limited-resource, and women
farmers look to USDA’s discrimination in managing benefit programs
as responsible for their involuntary loss of land:
These farmers blame USDA’s program delivery system, with its wide-ranging and relatively autonomous local delivery structure. They charge that USDA has long tolerated discrimination in the distribution of program benefits and misuse of power to influence land ownership and farm profitability. They blame farm program regulations that – intentionally or not – shut out minority and limited-resource farmers and ranchers from the benefits of the programs that have helped larger non-minority producers survive the changes in agriculture in the last 50 years. And they blame USDA’s insensitivity to the differing needs of minority and limited-resource customers and neglect of its responsibility to reach out and serve all who need USDA’s assistance. CRAT Report at 14.
77. CRAT found a common problem involved minority or small
farmers applying to defendant for loans:
The minority or limited-resource farmer tries to apply for a farm-operating loan through the FSA county office well in advance of planting season. The FSA county office might claim to have no applications available and ask the farmer to return later. Upon returning, the farmer might receive an application without any assistance in completing it, then be asked repeatedly to correct mistakes or complete oversight in the loan application. Often those requests for correcting the application could be stretched for months, since they would come only if the minority farmer contacted the office to check on the loan processing. By the time processing is completed, even when the loan is approved, planting season has already passed and the farmer either has not been able to plant at all, or has obtained limited credit on the strength of an expected FSA loan to plant a small crop, usually without the fertilizer and other supplies necessary for the best yields. The farmer's profit is then reduced. CRAT Report at 15 (emphasis added).
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78. CRAT found systematic mistreatment of minority farmers:
If the farmer's promised FSA loan finally does arrive, it may have been arbitrarily reduced, leaving the farmer without enough money to repay suppliers and any mortgage or equipment debts. In some cases, the FSA loan never arrives, again leaving the farmer without means to repay debts. Further operating and disaster loans may be denied because of the farmer's debt load, making it impossible for the farmer to earn any money from the farm. As an alternative, the local FSA official might offer the farmer an opportunity to lease back the land with an option to buy it back later. The appraised value of the land is set very high, presumably to support the needed operating loans, but also making repurchase of the land beyond the limited-resource farmer's means. The land is lost finally and sold at auction, where it is bought by someone else at half the price being asked of the minority farmer. Often it is alleged that the person was a friend or relative of one of the FSA county officials. CRAT Report at 16 (emphasis added).
79. CRAT found insufficient oversight of farm credit to
minorities:
Currently, the Farm and Foreign Agricultural Services (FFAS) Mission Area, which manages the FSA program delivery system, provides ineffective oversight of the local delivery of farm credit services. CRAT Report at 16 (emphasis added).
80. CRAT found a lack of diversity in FSA program delivery
structure:
Because of the ways in which State and county committees are chosen and county offices are staffed, FSA lacks diversity in its program delivery structure. Federal EEO and Affirmative Employment laws and policies do not govern the FSA non-Federal workforce except by agency regulation. CRAT Report at 18 (emphasis added).
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81. CRAT found a lack of minority employees, including a lack
of female employees in FSA county offices:
A recent GAO study indicated that in the 101 counties with the largest concentration of minority farmers, one-quarter had no minority employees in their offices.
Perhaps the lack of diversity that minority and limited resource customers deem to be most critical, however – and this was confirmed by comments in listening sessions – is the lack of minority and female representatives on the County Committees which affect access to FSA programs. CRAT Report at 18. (emphasis added).
82. CRAT found lower participation rates and lower approval
rates for minorities in FSA programs:
Recent studies requested by Congress and FSA have found lower participation and lower loan approval rates for minorities in most FSA programs. Participation rates in 1994 in programs of the former Agricultural Stabilization and Conservation Service (ASCS), particularly commodity programs and disaster programs, were disproportionately low for all minorities. The GAO found that between October 1, 1994 and March 31, 1996, 33 percent of minority applications but only 27 percent of non-minority applications in the Agricultural Conservation Program (ACP) were disapproved. During the same period, 16 percent of minority but only 10 percent of non-minority loans in the direct loan program were disapproved. CRAT Report at 21 (emphasis added).
83. CRAT found discrimination complaints at USDA were
often ignored:
Farmers who told the CRAT stories of discrimination and abuse by USDA agencies also described a complaints processing system which, if anything, often makes matters worse. They described a bureaucratic nightmare where, even after they receive a finding of discrimination, USDA refuses to pay damages. They
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charged USDA with forcing them into court to seek justice, rather than working with them to redress acknowledged grievances. They painfully described the toll these ongoing battles with USDA has taken on their families, and on their health. CRAT Report at 22-23.
84. CRAT found decisions favoring farmers routinely not
enforced by USDA:
However, many farmers, especially small farmers, who have managed to appeal their cases to FSA charge that even when decisions are overturned, local offices often do not honor the decision. They claim that decisions favoring farmers are simply ‘not enforced.’ CRAT Report at 23.
85. CRAT found minority and women farmers less likely to appeal decisions:
The D.J. Miller report of 1996 noted that this system was not beneficial to minority farmers. It found that “the statistical evidence shows that minority and female farmers do not file appeals of FSA decisions in proportion to their share of producers” and “anecdotal evidence suggests that minorities and females utilize the appeals process less primarily due to discomfort with and lack of confidence in the decision makers; slowness of the appeal process; and lack of knowledge of appeals rules and regulations; and the time-consuming bureaucracy of the appeal process.” CRAT Report at 23.
86. CRAT found a lack of USDA regulations for discrimination
complaint processing:
Program discrimination complaints generally fall within two categories: (1) programs conducted directly by a USDA agency, such as USDA loan programs, and (2) federal assisted programs, where USDA does not directly offer services to customers, but recipients of USDA funds do. The recipients must obey civil rights laws, and USDA can be sued under such laws as Title VI, the Rehabilitation Act, Title IX, the Equal Credit Opportunity Act, and others. CRAT members were informed
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by OGC that USDA presently has no published regulations with clear guidance on the process or time lines involved in program discrimination complaints. When a farmer does allege discrimination, "preliminary investigations" are typically conducted by the agency that has been charged with violating her or his right. CRAT Report at 24.

87. CRAT found discrimination complaints often are not

responded to by USDA, including those of women farmers:

USDA doesn't respond even when they do file

complaints.

In Tulsa, OK. [sic] an advocate

representing black and American Indian farmers said, "we

have filed 72 civil rights complaints. Not one

complaint has even been answered." CRAT Report at 24.

During a CRAT listening session, a female farmer said that the “single largest problem for women is to be taken seriously by the financial Community.” CRAT Report at 6.

88. CRAT found record-keeping on discrimination complaints

"non-existent" and that a backlog existed:

The CRAT was unable to gather historical data on program discrimination complaints at USDA because record keeping on these matters has been virtually nonexistent. Complaints filed with the agencies are not necessarily reported to USDA's Civil Rights office. Some figures are available however, for cases that were open as of December 31, 1996. The largest number of pending discrimination complaints, as comments at the listening sessions suggests, are concentrated in three agencies at USDA. There were 205 case pending, representing 42 percent of the total, against the FSA: 165, or 33.3 percent against the Rural Housing Service (RHS): and 62, or 12.5 percent against the Food and Consumer Services. Sixty-three cases, or 12.7 percent of the total, were pending against other agencies. The Department had a total of 495 pending program discrimination complaints. Approximately one-half of the pending cases are 2 years old or older, verifying farmers' contention that complaints are being processed slowly, if at all.

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According to the Complaints Processing Division at the Office of Operations (OO), which processes complaints that make it to the Department level. USDA averages about 200 new program discrimination complaints each year. However, in fiscal year 1996, an average of only 9 cases were closed per month, or 108 during the year -increasing a backlog of program complaints. CRAT Report at 24-25 (emphasis added).
89. CRAT found that a lack of diversity in FSA county
offices combined with a lack of outreach to small and limited-
resource farmers directly affects the participation of minorities
in USDA programs:
Lack of diversity in the FSA county office delivery system directly affects participation of minority and female producers in USDA programs. Underrepresentation of minorities on county committees and on county staffs means minority and female producers hear less about programs and have a more difficult time participating in USDA programs because they lack specific information on available services.
However, outreach efforts have failed on a much broader front than just the county committee system in FSA. 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. The many mission areas and agencies within the Department have developed their own separate programs that may or may not be successful in responding to the real differences in scale and culture presented by minority and limited-resource customers.
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Minority and limited-resource farmers and ranchers reported they are not receiving the technical assistance they require. They 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. They are not receiving information about how their applications are handled and, if they are denied participation, why they were denied and how they might succeed in the future. When they do receive loans or other program benefits, they are not being helped to use those benefits most effectively to improve their operations.

Some outreach efforts, like the consolidated Service Center approach to providing comprehensive services to USDA customers, have created new barriers. Their locations have not considered the needs of minority and limited-resource customers who may have difficulty in reaching more distant centers than customers with greater resources. Their services have not provided for cultural and language differences that make USDA programs inaccessible or less relevant to minority customer needs. And their services have failed to recognize the different needs of small-scale enterprises, be they farms, businesses, communities, or families. CRAT Report at 26-27.

90. CRAT found that cultural insensitivity interferes with

minority participation:

USDA program outreach efforts have not made

sufficient use of partnerships with community-based

organizations, land-grant and other educational

institutions, and program diversity initiatives that

understand the specific needs of minority and limited-

resource customers.

These organizations and

institutions can help USDA agencies address

discriminatory program rules, develop appropriate

special programs, and target outreach in the most

effective ways to reach minority communities and other

groups with special needs.

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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.
91. CRAT uncovered neglect of and bias against minorities by
USDA, resulting in a loss of farmers' land and income.
The recent Civil Rights listening-sessions revealed a general perception of apathy, neglect, and a negative bias towards all minorities on the part of most local USDA government officials directly involved in decision making for program delivery. A reporter at the recent listening session in Tulsa, OK. [sic] observed that minority farmer are not sure which condition "was worse -- being ignored by the USDA and missing potential opportunities or getting involved with its programs and facing a litany of abuses.” Minority farmers have lost significant amounts of land and potential farm income as a result of discrimination of FSA programs and the programs of its predecessor agencies, ASCS and FmHA. Socially disadvantaged and minority farmers said USDA is part of a conspiracy to take their land and look to USDA for some kind of compensation for their loses. CRAT Report at 30.
92. CRAT found USDA the fifth worst (of 56 government
agencies) in hiring minorities:
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According to the US Department of Labor, between 1990 and 2000, women, minorities, and immigrants will account for 80 percent of the United States labor force growth. The "Framework for Change: Work Force Diversity and Delivery of Programs," a USDA report released in 1990, found that USDA had a need to remedy underrepresentation in its workforce by providing equal employment and promotion opportunities for all employees. When this statement was made, USDA ranked 52 out of 56 Federal agencies in the employment of minorities, women, and individuals witChRAdTisRaebpiolrittiaets.33.

93. CRAT found that men continue to dominate the best jobs at USDA:

An analysis of USDA’s workforce by Professional,

Administrative, Technical, Clerical, Other, and Blue

Collar (PATCOB) series shows that men continue to

dominate the professional ranks in USDA, accounting for

over 77 percent of the 28,101 professional positions in

USDA.

CRAT Report at 33.

94. CRAT found the lack of diversity at USDA adversely

affects program delivery to minorities and women:

USDA's workforce does not reflect the diversity of it customer base. The lack of diversity in field offices adversely affects program delivery to minority and women customers of USDA. CRAT Report at 45.

95. CRAT found a lack of resources at USDA to ensure fair and

equitable (non-discriminatory) program delivery to farmers:

The Assistant Secretary for Administration is USDA's senior official responsible for civil rights. Although that position has the responsibility for civil rights policy and compliance, it does not have the authority or resources necessary to ensure that programs are delivered and employees are treated fairly and equitably. CRAT Report at 46.

96. CRAT found enforcement of civil rights at USDA in program

delivery lacking:

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Another problem with enforcing civil rights in program delivery is fragmentation. Agency civil rights directors have a number of responsibilities. For example, USDA agencies each perform some complaint processing functions. However, the Commission noted that the respective roles of OCRE and the agencies were not clearly defined. The Commission also found that OCRE was providing technical assistance to agencies on civil rights statutes, not proactively, but only when requested. CRAT Report at 51.
97. CRAT found a lack of civil rights specialists and
knowledge for program-related civil rights issues at USDA:
The Civil Rights Commission's report on the lack of Title VI enforcement also pointed to USDA's lack of civil rights specialists in program-related civil rights issues. Many of the Department's civil rights resources are devoted to processing of employment discrimination complaints. Of the current staff in the Department's two civil rights offices, two-thirds work on EEO complaints. That means only a small percentage of USDA's civil rights staff works on civil rights issues relating to program delivery. According to the Commission, the 1994 civil rights reorganization was deficient because OCRE did not separate internal and external civil rights issues into separate offices. The Commission predicted that "a probable consequence is that USDA's Title VI enforcement program may suffer as OCRE responds to pressures to improve USDA's internal civil rights program." It recommended that USDA establish "two separate units, with different supervisory staff," one for internal and one for external civil rights issues. CRAT Report at 54.
98. CRAT found defendant's counsel hostile to civil rights,
if not racist:
The perception that the Office of the General Counsel [at USDA] is hostile to civil rights has been discussed earlier in this report. OGC's legal positions on civil right issues are perceived as insensitive at the least, and racist at worst. Correcting this problem
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is critical to the success of USDA's civil rights program. CRAT Report at 55.

99. CRAT found defendant's counsel often have no civil

rights experience or education:

However, the CRAT has found that attorneys who practice civil rights law at [USDA's] OGC are not required to have specialized experience or education in civil rights when they are hired. They acquire their civil rights experience on the job. In addition, most of OGC's lawyers working on civil rights issues work on non-civil-rights issues as well. CRAT Report at 55.

100. In sum, CRAT concluded that defendant 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.

101. Neither the OIG nor CRAT Report thoroughly analyzed any

counties where substantial numbers of women, minorities and other

protected farmers farm. However, both reports indicate that the

discrimination problems at USDA were not limited to a specific

group of farmers but victimized minorities in general.

102. The magnitude of the problem is greater than reflected

in the OIG and CRAT studies. The process of resolving claims

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under the Pigford settlement has shown that literally thousands of discrimination complaints filed at the local level never made it into the FSA/OCREA system. Further, while the OIG and CRAT reports reviewed the situation prior to 1997, later USDA reports indicate that the problems persist.
103. On September 29, 1997, USDA's Office of Inspector General issued Phase II of the OIG Report on Civil Rights Issues, entitled "Minority Participation In Farm Service Agency's Farm Loan Programs - Phase II". (hereinafter OIG Report II)(attached hereto as Exhibit F), which found, inter alia that (a) defendant has resolved only 32 of the 241 outstanding discrimination complaints reported in the OIG Report (back in February, 1997) and (b) that the backlog of discrimination complaints had increased from 241 to 474 for FSA and from 530 to 984 for all of USDA.
104. On September 30, 1998, the USDA’s Office of Inspector General released its “Report to the Secretary on Civil Rights Issues – Phase V” (“OIG Report V”, attached hereto as Exhibit G), which states, inter alia:
a. We found that the Department [USDA], through CR [Office of Civil Rights], 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 the Secretary.
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b. The backlog is not being resolved at a faster rate because CR 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 of the past. We noted with considerable concern that after 20 months, CR has made 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 CR. The data base CR uses to report the status of cases is unreliable and full of error, and the files it keeps to store needed documentation are slovenly and unmanaged. Forty complaint files could not be found, and another 130 complaints that were listed in USDA agency files were not recorded in CR’s data base. 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 records raises questions about due care within the complaints resolution process. We found critical quality control steps missing at every stage of the process. Staff members with little training and less experience were put to judging matters that carry serious legal and moral implications. Many of CR’s adjudicators, who must determine whether discrimination occurred, were student interns. Legal staff members with the Office of General Counsel (OGC), who review CR’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).
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105. This systemic pattern of inefficiency continues. As
reported On March 10, 2000, by OIG Report VII (Exhibit C, supra)
which states:
(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 CR, we cannot report encouraging news. OIG Report VII, Viadero cover letter at 1.
(b) Based on the findings of our current review and on CR’s poor record of responding to our past recommendations, it is difficult to recognize any significant level of progress. Unless CR implements a management plan that addresses effective leadership, changing organizational culture, customer focus, and process engineering, we question whether future complaints of discrimination in the distribution of program benefits will receive due care. OIG Report VII, Viadero cover letter at 2.
(c) Many other critical issues remain unresolved. Most notably, CR did not reengineer its complaints resolution process. Although, CR 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.
(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 CR) have not been adequately addressed by CR, based on the actions taken as of December 1, 1999. As a result, we still have concerns that CR may not be providing due care when processing complaints alleging discrimination in USDA programs. OIG Report VII at 14.
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106. The Office of the Inspector General cannot report that the USDA Office of Civil Rights has made any meaningful progress -- OIG initiated these corrective measures over three years ago (February 1997). Furthermore, USDA's inability to even marginally improve its operating procedures shows the Agency's reluctance to adequately address past civil rights violations and ensure that the present system will effectively protect the rights of its farmer constituents.
107. In sum, defendant's willful disregard of, and failure to properly investigate, discrimination complaints from women, minorities and other protected farmers’ began with the disbanding of civil rights enforcement functions back in 1983. Even after February, 1997, when the current administration reorganized and reestablished the enforcement staff of the civil rights office, the situation has gotten worse, as evidenced by the massive increase of backlogged, unresolved cases and overall disarray in the USDA Office of Civil Rights as reported in the most recent OIG Report.
EQUAL CREDIT OPPORTUNITY ACT AND ADMINISTRATIVE PROCEDURE ACT
108. The Equal Credit Opportunity Act (“ECOA”) is a detailed and exhaustive legislative directive unequivocal in its statutory intent to stamp out discrimination by any lender,
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anywhere, whether private, public, governmental or quasi-governmental.
ECOA states, inter alia:
It shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction – (1) on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract);... 15 U.S.C. § 1691(a)(1).
Second, ECOA provides for monetary relief to both individuals and class members who are damaged by creditors who violate the statute:
Any creditor who fails to comply with any requirement imposed under this subchapter shall be liable 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) (emphasis added).
Third, district courts are vested with the authority to provide equitable and declaratory relief under ECOA:
Upon application by an aggrieved applicant, the appropriate United States district court or any other court of competent jurisdiction may grant such equitable and declaratory relief as is necessary to enforce the requirements imposed under this subchapter. 15 U.S.C. § 1691e(c) (emphasis added).
Fourth, the prevailing party can recover costs and reasonable attorneys fees under ECOA:
In the case of any successful action under subsection (a), (b), or (c) of this section, the cost of the action, together with a reasonable attorney’s fee as determined by the court, shall be added to any damages awarded by the court under such subsection. 15 U.S.C. § 1691e(d) (emphasis added).
109. In sum, this court has jurisdiction to grant actual damages, equitable and declaratory relief, costs and attorneys fees under ECOA, and ECOA contains a waiver of United States sovereign immunity.
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110. When class members filed discrimination complaints, they fell four-square under the umbrella of ECOA. It is plaintiffs’ belief that ninety-five percent of class members filed complaints of discrimination with respect to USDA’s loan application process. Only five percent have claims for denial of disaster applications.
111. While ECOA covers farm “credit” programs, but not disaster and other non-credit farm programs, the Administrative Procedure Act provides an avenue of relief for farmers who have been denied equal access to the non-credit programs.
112. Further, the implementation of USDA’s credit programs and the non-credit programs were closely intertwined and the violation of plaintiffs’ rights were equally egregious in both areas. Discrimination existed under both credit and non-credit programs, and neither offered women, minorities and other protected farmers an opportunity to appeal to a civil rights enforcement body to obtain relief. Further, in many instances, the calculation of loans under the credit program and payments or benefits under the non-credit programs were interdependent. For example, the amount of non-credit program benefits or program allotments that a farmer could receive for the crop of a commodity (such as cotton, corn, wheat, rice, peanuts, or tobacco) in a year required a review of his or her farming history, which, in turn, was directly related to the yield per acre the farmer cultivated, which was dependent on the amount of operating credit made available to the farmer.
STATUTE OF LIMITATIONS IS WAIVED 113. On October 21, 1998, the President signed into law 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). The following provisions of said legislation waive the Statute of Limitations for plaintiffs in this case:
Sec. [741]. Waiver of Statute of Limitations.
(a) To the extent permitted by the Constitution, any civil action to obtain relief with respect to the discrimination alleged in an eligible complaint, if commenced not later than 2 years after the date of the enactment of this Act, shall not be barred by any statute of limitations.
... (d) The United States Court of Federal Claims and the United States District Court shall have exclusive original jurisdiction over
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(1) any cause of action arising out of a complaint with respect to which this section waives the statute of limitations; and
(2) any civil action for judicial review of a determination in an administrative proceeding in the Department of Agriculture under this section.
(e) As used in this section, the term “eligible complaint” means a nonemployment 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 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.
(f) This section shall apply in fiscal year 1999 and thereafter.
114. In addition, federal legal standards provide for the
tolling of any other applicable statutes of limitation applicable
to class members in this case whenever a person is induced or
tricked into not timely filing a complaint -- such as 1) when the
person incorrectly relies on USDA to process an administrative
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Case 1:00-cv-02502-RBW Document 1 Filed 10/19/00 Page 54 of 67 complaint when, as the OIG notes, USDA remains incapable of doing so in a timely manner; or 2) the person is prevented by extraordinary circumstances beyond his or her control from filing a complaint in a timely manner, such as when a person has a wellfounded fear of retaliation against himself or herself for voicing concerns about discriminatory practices in the local area in which he or she lives or farms; or 3) when women have difficulty in voicing gender-related discrimination complaints in the male dominated agricultural community.
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CLASS ACTION ALLEGATIONS 115. Plaintiffs bring this Class action on behalf of women, minorities and other protected farmers, who have been discriminated against4 on the basis of age, sex, marital status, race, color, national origin, or religion5, for the purpose of asserting the claims alleged in this Complaint on a common basis. Plaintiffs' proposed Class is defined as all women, minorities and other protected participants in FSA's farm programs who petitioned or would have petition had they not been induced, tricked, or otherwise prevented from timely filing a complaint--USDA at any time between January 1, 1981, and December 31, 1999, for relief from acts of discrimination visited on them, as they tried to participate in such farm programs and who, because of the failings in the USDA civil rights complaint processing system described above, were denied equal protection under the laws of the United States and deprived of due process in the handling of their discrimination complaints.
4 Excluding claimants in Pigford v. Glickman, Native American farmers who are class members in Keepseagle v. Glickman and Hispanic and Latino farmers who are class members Garcia v. Glickman. 5 In the event that this court should determine in our motion for class certification that there is any incompatibility between women and any of the other five protected classes, we reserve the right to separate them into separate class actions.
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116. During the period January 1, 1981 to December 31, 1999, plaintiffs and members of the Class filed discrimination complaints for not less than 3,000 farmers.
117. This action is brought and may properly be 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 requirement of those provisions.
118. Numerosity of the Class. Fed. R. Civ. P. 23(a)(1). The Class is so numerous that the individual joinder of all its members is impracticable. FSA has approximately 2,750 county offices throughout the United States; they process applications for approximately 1,400,000 farmers. Plaintiffs believe, from plaintiffs’ research and travel to county offices throughout the country, interviews with hundreds of women, minorities and other protected farmers and ranchers, and review of defendant's reports, that during the period January 1, 1981, to December 31, 1999, USDA received at least 3,000 discrimination complaints on behalf of class members. Accordingly, plaintiffs are informed and believe, and on that basis allege, that the Class includes not less than 3,000 members. However, plaintiffs and members of the Class contend that many written complaints of discrimination were never
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properly docketed in defendant's "system" and therefore were never acknowledged by or responded to by defendant. For example, many complaints filed years ago in local and state offices are (because of the publicity generated in Pigford v. Glickman) only now being forwarded to USDA's offices in Washington, D.C. While plaintiffs believe the minimal number of cases is 3,000, without access to defendant’s files, plaintiffs have no further specific knowledge as to the exact number of complaints. Class members may be informed of the pendency of this Class action by published and broadcast notice; in addition, defendant has each Class member's farm number, address, application date and payment results on computer, and thus readily available.
119. Existence and Predominance of Common Questions Of Law and Fact. Fed. R. Civ. P. 23(a) and 23(b)(3). Common questions of law and fact exist as to all members of the Class and predominate over any questions affecting only individual members of the Class. These common legal and factual questions arise from one central issue, which does not vary from Class member to Class member and which may be determined without reference to the individual circumstances of any particular Class member: defendant's institutional and systematic course of conduct in denying civil rights complainants due process of law in the handling of their
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complaints. These common legal and factual questions include, but are not limited to, the following:
a) Whether and when defendant's officials discriminated against plaintiffs and Class members in failing to process discrimination complaints;
b) Whether and when defendant's officials discriminated against plaintiffs and Class members in granting credit and providing other program benefits;
c) Whether defendant's officials failed to provide plaintiffs and Class members equal opportunity for and access to credit or other program benefits;
d) Whether defendant's institutional and systematic failure to provide plaintiffs and Class members equal opportunity for and access to credit or other program benefits was arbitrary, capricious, an abuse of discretion, and in excess of statutory jurisdiction;
e) Whether defendant's actions violated plaintiffs' and Class members' rights under the Equal Credit Opportunity Act, 15 U.S.C. § 1691(a);
f) Whether plaintiffs and Class members are entitled to (1) a declaration of their eligibility to receive damages or other monetary relief, (2) costs, (3) attorneys fees and (4)
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interest from the date they should have been paid to the actual date of payment; and
g) How any and all payments plaintiffs are declared eligible to receive should be equitably allocated among the Class.
These questions of law as to each Class member arose at the same time - following the release of the OIG Report and CRAT Report, in February, 1997, exposing for the first time, the institutional and systematic failure of the discrimination complaint process at USDA.
120. Typicality of Claims. Fed. R. Civ. P. 23(a)(3). Plaintiffs' claims are typical of the claims of the members of the Class, all of whom have been denied equal access to credit or other program benefits and due process in the enforcement of their discrimination complaints, and have been subject to defendant's institutional and systematic failure to enforce the civil rights laws intended to benefit plaintiffs and members of the Class, due to defendant's arbitrary and unlawful actions.
121. Adequacy of Representation. Fed. R. Civ. P. 23(a)(4). 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. They have retained competent counsel experienced in the prosecution of complex agricultural disputes involving review of
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adverse agency action, experienced in civil rights litigation, and experienced in class action litigation, and they intend to prosecute this action vigorously for the benefit of the Class. Mr. Pires, after 7 years at the U.S. Department of Justice, has spent 17 years in private practice representing farmers; he has been Lead Counsel in over 50 lawsuits filed on behalf of farmers in federal courts throughout the country. Mr. Fraas has been in private practice representing farmers for 11 years. Prior to that, he was Chief Counsel of the House Agriculture Committee, responsible for all USDA programs and laws. Mr. Pires and Mr. Fraas were Lead Counsel in (1) Pigford v. Glickman, a similar class action lawsuit in which over 20,100 Black farmers are participating under a Consent Decree, (2) Keepseagle v. Glickman, a similar class action lawsuit on behalf of Native American farmers and ranchers, and (3) Garcia v. Glickman, a similar class action lawsuit on behalf of Hispanic American farmers and ranchers. Mr. Pires and Mr. Fraas are Lead Counsel in this case. Joining them as Of Counsel, are (1) J. L. Chestnut of Chestnut, Sanders, Sanders, Pettaway, Campbell & Albright, a nationally known civil rights lawyer, with 38 years of experience in discrimination law and class action litigation. Mr. Chestnut is Of Counsel in Pigford, Keepseagle and Garcia; (2) Dennis C. Sweet, III of Langston, Sweet & Freese, is an experienced class action
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attorney with extensive experience in discrimination law. Mr. Sweet is Of Counsel in Pigford; and (3) Sarah M. Vogel of Wheeler Wolf Attorneys, is an experienced attorney in the field of agricultural law and has been practicing for nearly 30 years. Ms. Vogel is Of Counsel in Keepseagle. The interests of the members of the Class will be fairly and adequately protected by plaintiffs and their Lead Counsel and Of Counsel. Counsel for plaintiffs have signed retainer agreements with plaintiffs stating that in the event of a successful settlement or judgment (1) 100% of all monies received will go to plaintiffs and Class members; and (2) counsel will seek recovery of legal fees, expenses and costs under the Equal Credit Opportunity Act and the Equal Access To Justice Act.
122. Superiority. Fed. R. Civ. P. 23(b)(3). 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 the defendant's institutional and systematic deprivation of their civil rights as described in this Complaint is impracticable. Even if any Class members could afford individual litigation, the court system could not. It would be unduly burdensome to the courts in which individual litigation of the facts of not less than 3,000 cases would proceed. Individual litigation further presents a potential for
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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, defendant has each Class member's farm number, address, application date and payment results on computer, readily available.
123. The various claims asserted in this action are additionally or alternatively certifiable under the provisions of Federal Rules of Civil Procedure 23(b)(1) and 23(b)(2) because:
a) The prosecution of separate actions by the individual members of the Class would create a risk of inconsistent or varying adjudications with respect to individual Class members, thus establishing incompatible standards of conduct for defendant;
b) The prosecution of separate actions by individual Class members would create a risk of adjudications that would, as a practical matter, be dispositive of the interests of the other Class members not parties to such adjudications or would
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substantially impair or impede the ability of such non-party Class

members to protect their interests; and

c) Defendant has acted on grounds generally applicable

to the Class, thereby making appropriate final declaratory relief

with respect to the Class as a whole.

124.

COUNT I (Declaratory Judgment) Plaintiffs, on behalf of themselves and all others

similarly situated, re-allege all paragraphs above as if fully set

forth herein.

125. An actual controversy exists between plaintiffs and

Class members and defendant as to their rights with respect to

defendant's farm programs.

126. Plaintiffs and the Class 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, equal participation in farm

programs, and their right to full and timely enforcement of gender

discrimination complaints.

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COUNT II (Violation of Equal Credit Opportunity Act) 12P7l.aintiffs, on behalf of themselves and all others similarly situated, re-allege all paragraphs above as if fully set forth herein. 128. Defendant's acts of denying plaintiffs and Class members credit and other benefits and systematically failing to properly process their discrimination complaints was gender discrimination and contrary to the requirements of the Equal Credit Opportunity Act, 15 U.S.C. § 1691(a). 129. Plaintiffs and the Class pray defendant's actions be reversed as violative of the Equal Credit Opportunity Act. 130. Plaintiffs and the class pray for money damages for plaintiffs and Class members of $3,000,000,000.
COUNT III (Violation of the Administrative Procedure Act) 131. Plaintiffs, on behalf of themselves and all others similarly situated, re-allege all paragraphs above as if fully set forth herein. 132. Defendant's acts of denying plaintiffs and Class members credit and other benefits and systematically failing to properly process their discrimination complaints was gender discrimination and contrary to the requirements of applicable law.
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133. Plaintiffs and the Class pray defendant’s actions be reversed as arbitrary, capricious, and abuse of discretion, and not in accordance with the law, pursuant to 5 U.S.C. § 706(2)(A), and in excess of defendant’s statutory jurisdiction, pursuant to 5 U.S.C. § 706(2)(C).
134. As a direct and proximate result of defendant's acts, plaintiffs and the Class members sustained damages, including payments rightfully due plaintiffs and the Class members.
135. Plaintiffs pray for appropriate relief under the Administrative Procedure Act, including (1) compensation to plaintiffs and Class members for there having been no proper investigation of their complaints, and (2) specific performance with respect to their program benefits.
WHEREFORE, plaintiffs, on behalf of themselves and all others similarly situated, request that this Court enter judgment against defendant as follows:
(1) An Order certifying the Class, and any appropriate subclass thereof, under the appropriate provisions of Fed. R. Civ. P. 23, and appointing plaintiffs (class representatives) and Alexander J. Pires, Jr. and Phillip L. Fraas as Lead Counsel to represent the Class;
(2) An Order declaring, pursuant to 28 U.S.C. § 2201, that plaintiffs and the Class members were denied equal credit and
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other farm program benefits and full and timely enforcement of their civil rights discrimination complaints.
(3) An Order declaring defendant's actions to be a breach of plaintiffs' rights under the Equal Credit Opportunity Act and the Administrative Procedures Act and declaring plaintiffs and the Class members eligible to receive monetary and other relief of not less than $3,000,000,000.
(4) An Order granting plaintiffs' and the Class members' attorneys' fees and expenses pursuant to the Equal Credit Opportunity Act, and the Equal Access to Justice Act, costs of suit, and interest from date when plaintiffs and the Class members should have been paid to actual date of payment, and all other relief that the Court determines proper and fair.

October 19, 2000

Respectfully submitted,
By: _______________________________ Alexander J. Pires, Jr. #185009 CONLON, FRANTZ, PHELAN & PIRES, LLP 1818 N Street, N.W., Suite 700 Washington, D.C. 20036 (202) 331-7050
By: ________________________________ Phillip L. Fraas #211219 TUTTLE, TAYLOR & HERON 1025 Thomas Jefferson Street, N.W. Washington, D.C. 20007 (202)342-1300
Lead Counsel for Plaintiffs

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Case 1:00-cv-02502-RBW Document 1 Filed 10/19/00 Page 67 of 67 Of Counsel: J. L. Chestnut CHESTNUT, SANDERS,SANDERS, PETTAWAY, Campbell & Albright, P.C. 1 Union Street Selma, Alabama 36701 (334) 875-9264 Dennis C. Sweet, III Langston, Sweet & Freese 201 N. President Street Jackson, Mississippi 39201 (601) 969-1356 Sarah Vogel WHEELER WOLF ATTORNEYS 220 North Fourth Street Bismarck, ND 58502-2056 (701) 223-5300
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 Case 1:00-cv-02502-RBW Document 28 Filed 12/13/01 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROSEMARY LOVE, et al., Plaintiffs,
v. ANN VENEMAN, Secretary, U.S. Department of Agriculture,
Defendant.

: : : : : Civil Action No. 00-2502 (JR) : : : : :

MEMORANDUM Plaintiffs are farmers who claim that the United States Department of Agriculture discriminated against them on the basis of age, sex, marital status, race, color, national origin or religion, when it denied them credit and other benefits under farm programs.1 Plaintiffs bring their claims under the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691 et seq., the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq. 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 any of the statutes they have invoked. For the reasons set forth below, that motion will denied with respect to

1 Plaintiffs also sue on behalf of others similarly situated and seek certification of a class of “not less than 3,000" farmers. The motion for class certification has been delayed pending resolution of this dispositive motion.

Case 1:00-cv-02502-RBW Document 28 Filed 12/13/01 Page 2 of 14
plaintiffs’ claim for discrimination in lending decisions under ECOA, but granted on their other claims.2
Background Plaintiffs allege that, from January 1, 1981, to December 31, 1999, the Farmers Home Administration and its successor, the Farm Service Agency, administered and maintained a credit program in a discriminatory fashion. More specifically, plaintiffs challenge the determinations of the USDA’s credit agencies, which were authorized to make operating, farm ownership, and emergency loans to farmers who were otherwise unable to secure credit from commercial lenders.3 They also assert that the USDA acted arbitrarily in failing to investigate and resolve their discrimination complaints. In 1998, responding to reports concerning the dismantling of USDA’s civil rights enforcement program in the early 1980s, Congress extended the statute of limitations until October 21, 2000, for “eligible complaints” of discrimination alleged to have taken place at USDA between 1981 and 1996.
2 This memorandum does not address the defendant’s motions to strike the class allegations and to dismiss seven plaintiffs who are included in the first amended complaint as class members. Those issues will be addressed in connection with the pending class certification motion.
3 An operating loan aids in the maintenance of a farm. A farm ownership loan enables a farmer to buy, expand or improve a farm.
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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). The present case is one of a number of claims filed shortly before the new deadline.4

Analysis

I.

Exhaustion Issues

USDA’s first asserted ground for dismissal is lack of

subject matter jurisdiction, Fed R. Civ. P. 12(b)(1), for

plaintiffs’ failure to exhaust administrative remedies with

respect to their claims under the Equal Credit Opportunity Act.

An exhaustion requirement generally applicable to claims against

the USDA is found in the Federal Crop Insurance Reform and

Department of Agriculture Reorganization Act of 1994, Pub. L. No.

103-354, § 212, 108 Stat. 3718, 3210, and codified at 7 U.S.C. §

4 One of those suits, a class action filed on behalf of African American farmers, was settled by a consent decree allowing individual plaintiffs to present their claims for compensation. Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999), aff’d, 206 F.3d 1212 (D.C. Cir. 2000). Plaintiffs in the present suit maintain that many of the defendant’s arguments have been resolved against the government in the Pigford litigation. Pigford focused solely on allegations of racial discrimination, however, and the Pigford consent decree contains no admission of engaging in discriminatory conduct. In any case, nonmutual offensive collateral estoppel is not available against the government. United States v. Mendoza, 464 U.S. 154, 160-63 (1984).
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6912(e), along with other provisions defining the authority of the Secretary of Agriculture. It states:
Notwithstanding any other provision of law, a person shall exhaust all administrative appeal procedures established by the Secretary or required by law before the person may bring an action in a court of competent jurisdiction against–
(1) the Secretary; (2) the Department; or (3) an agency, office, officer, or employee of the Department. 7 U.S.C. § 6912(e). Some courts have concluded that § 6912(e) is of jurisdictional significance, see, e.g.,Gilmer-Glenville, Ltd. Partnership v. Farmers Home Admin., 102 F. Supp. 2d 791, 794 (N.D. Ohio 2000); Calhoun v. USDA Farm Service Agency, 920 F. Supp. 696, 701-02 (N.D. Miss. 1996), but that question has not been decided in the D.C. Circuit. See Deaf Smith County Grain Processors, Inc. v. Glickman, 162 F.3d 1206, 1214 (D.C. Cir. 1998) (dismissing an unexhausted claim without discussing whether § 6912(e) was jurisdictional). Exhaustion statutes that create jurisdictional barriers to suit are written in “sweeping and direct” language that “is more than a codified requirement of administrative exhaustion.” Weinberger v. Salfi, 422 U.S. 749, 757-58 (1975). The statute at issue in Salfi, for instance, barred review by any court except in accordance with the statutory scheme and provided that “[n]o action ... shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.” 42
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U.S.C. § 405(h). Exhaustion statutes not considered jurisdictional, on the other hand, provide simply that actions not be initiated before available administrative remedies have been exhausted. Anderson v. Babbitt, 230 F.3d 1158, 1162 (9th Cir. 2000); Underwood v. Wilson, 151 F.3d 292, 294-95 (5th Cir. 1998). Section 6912(e) appears to be of the latter type and does not appear to support defendant’s Rule 12(b)(1) motion to dismiss plaintiffs’ ECOA claims on jurisdictional grounds. Farmers Alliance Mut. Ins. Co. v. Federal Crop Ins. Corp., No. 00-2347JWL, 2001 WL 30443 at *2 (D. Kan. Jan. 3, 2001). It remains to be determined, however, whether failure to exhaust requires dismissal under Rule 12(b)(6).
Section 6912(e) requires exhaustion of “all administrative appeal procedures established by the Secretary or required by law.” There are no administrative review procedures in ECOA itself, 15 U.S.C. §§ 1691 et seq. The administrative review process outlined in 7 C.F.R. Pt. 11 applies generally to appeals of adverse decisions through the USDA’s National Appeals Division, however, and the administrative review processes outlined in 7 C.F.R. Pts. 15, 15a, 15b, 15d, 15e, and 15f apply to various types of discrimination claims filed before other parts of the Department. Part 15d (formerly Part 15, Supbart B), in particular, applies to the gender and age claims at issue in this suit.
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Defendant’s argument here is that the general appeals process found in 7 C.F.R. Pt. 11 is mandatory, and that plaintiffs’ failure to follow it is fatal to their ECOA claims. That argument must be rejected. The language of Part 11 expressly excludes “persons whose claim(s) arise under ... [d]iscrimination complaints prosecutable under the nondiscrimination regulations at 7 CFR parts 15, 15a, 15b, [15d,] 15e, and 15f.”5 7 C.F.R. § 11.1 (2001). ECOA discrimination complaints are clearly “prosecutable” under Part 15d. Compare 15 U.S.C. § 1691(a)(1) (prohibiting discrimination in credit transactions “on the basis of race, color, religion, national origin, sex or marital status, or age”) with 7 C.F.R. § 15d.2(a) (prohibiting discrimination in USDA programs and activities “on the ground of race, color, religion, sex, age, national origin, marital status, [or] familial status ....”). Moreover, the USDA abolished regulatory language in 1989 requiring its agencies generally to handle discrimination complaints “in accordance with the procedures established by law or regulation of the Department or any of its agencies for the handling of complaints or appeals ... which are not based on grounds of discrimination prohibited
5 At the time that 7 C.F.R. § 11.1 was issued, 64 Fed. Reg. 33,367 (June 30, 1999), the provisions now located in 7 C.F.R. Part 15d were located in Part 15, Subpart B. 64 Fed. Reg. 66,709 (Nov. 30, 1999).
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Case 1:00-cv-02502-RBW Document 28 Filed 12/13/01 Page 7 of 14
by this subpart.” 7 C.F.R. § 15.52 (1988); 54 Fed. Reg. 31,163,
31,164 (July 27, 1989).6
The Part 15d appeal process is not mandatory either,
and defendant has conceded the point for purposes of this case.
See Defendant’s Memorandum in Support of Motion to Dismiss at 9;
see also Plaintiff’s Opposition App. 4 at 11-13 (Department of
Justice memorandum, Jan. 29, 1998) (concluding that Part 15d
exhaustion is not required by § 6912(e)).
6 The conclusion that § 6912(e) does not require Part 11 exhaustion is consistent with the way USDA has handled lending discrimination claims in the past. During the drafting of § 6912(e) and reforms of the National Appeals Division in 1994, USDA officials told Congress that they did not interpret the changes to require borrowers alleging discrimination to submit their claims to the Division. Instead, they indicated that discrimination complainants would continue to use Part 15 procedures, because those provided “a well-established and sufficient departmentwide appeal mechanism.” H.R. Rep. No. 103714 App. at 114, Questions Submitted by Congressman Stenholm re the National Appeals Division and USDA Answers (1994). Indeed, it appears that the USDA processed ECOA claims under its Part 15 procedures at least as recently as 1998. Plaintiff’s Opposition App. 4 at 2 (Department of Justice memorandum, Jan. 29, 1998).
And when USDA officials made Part 15, Subpart B into the present Part 15d, they anticipated that ECOA claims would be processed under Part 15d. See, e.g., 63 Fed. Reg. 62,962, 62,963 (Nov. 10, 1998) (“Part 15d is not an ECOA administrative procedure .... Of course, the availability of 15d and ECOA often will be co-extensive, and it often will be the case that a 15d complaint will afford the Department an opportunity to provide relief to a complainant that may avoid an ECOA lawsuit.... There is no exhaustion of administrative [remedies] requirement to filing an ECOA lawsuit.” (emphasis added)); id. (barring discrimination based on marital and familial status to match ECOA); 64 Fed. Reg. 66,709, 66,709 (Nov. 30, 1999) (barring discrimination based on participation in public assistance programs to match ECOA).
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Case 1:00-cv-02502-RBW Document 28 Filed 12/13/01 Page 8 of 14

Thus, although § 6912(e) gave the Secretary of

Agriculture authority to create mandatory administrative

procedures for handling plaintiffs’ complaints of discrimination,

the Secretary has not done so. It follows that plaintiffs’

claims need not be dismissed because of their failure to obtain final determinations by the Office of Civil Rights.7

II.

Statute of Limitations

Defendant’s second argument for dismissal is that most

of the plaintiffs’ ECOA claims are time-barred. This issue is

properly resolved under the rubric of Rule 12(b)(1) because the

statute of limitations in this case defines the scope of the U.S.

government’s waiver of sovereign immunity, and, thus, the Court’s

jurisdiction. See, e.g., United States v. Mottaz, 476 U.S. 834,

841 (1986); Warren v. United States, 234 F.3d 1331, 1335-38 (D.C.

Cir. 2000).

7 This conclusion makes it unnecessary to consider whether Congress intended to trump exhaustion requirements when it extended the statute of limitations on certain discrimination complaints against the USDA. 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). It is interesting to note, however, that Congress passed § 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.” H.R. Rep. No. 105-593 at 2 (1998). That is tantamount to a legislative finding that, at USDA, resort to administrative remedies was futile. Cf. Weinberger v. Salfi, 422 U.S. 749, 766 (1975) (noting that congressionally mandated administrative exhaustion requirements “may not be dispensed with merely by a judicial conclusion of futility” (emphasis added)).
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Case 1:00-cv-02502-RBW Document 28 Filed 12/13/01 Page 9 of 14
ECOA’s general limitations period requires that a district court action be brought within two years of an alleged violation. 15 U.S.C. § 1691e(f). Plaintiffs brought this suit on October 19, 2000, so -- unless the special extension is applicable -- claims of discriminatory acts or practices occurring before October 19, 1998, would be time-barred. It is not clear from the face of the complaint whether any of the plaintiffs’ claims fall within the general limitations period, although Barbara Odom’s claims of discriminatory denial of loans and debt restructuring in 1998 may be timely if the alleged acts took place late in the year.
Plaintiffs apparently did not bother to specify how their claims fall within the general ECOA limitations period because they filed this action on the eve of the last day for filing under the extended limitations period established by Congress in 1998. 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). Defendants argue that the claims of several plaintiffs are time-barred even under the § 741 extension, however, because plaintiffs did not file “eligible complaints.” An “eligible complaint” is defined as:
a nonemployment related complaint that was filed with the Department of Agriculture before July 1, 1997 and alleges discrimination at any time during the period
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Case 1:00-cv-02502-RBW Document 28 Filed 12/13/01 Page 10 of 14
beginning on January 1, 1981 and ending 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. In defendant’s submission, only written
discrimination complaints filed with the Office of Civil Rights
as required by Part 15d (or, presumably, another set of
discrimination regulations where applicable) are “eligible” under
this definition. That interpretation of the statutory
definition, if accepted, would re-inject a limitations period
into the case, because Part 15d rejects complaints not filed with
the Office of Civil Rights within 180 days of discovery of the
alleged discrimination. Only one of the plaintiffs in this case
would unquestionably clear that hurdle.
Defendant’s argument is problematic in part because the
regulations now found at Part 15d have only applied since 1989;
before that time, discrimination complaints had to be filed
within 90 days but could be submitted directly to each agency or
in certain circumstances to the Secretary of Agriculture. 7
C.F.R. § 15.52 (1988); 54 Fed. Reg. 31,163, 31,164 (July 27,
1989). Regardless of which version of the regulations would
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Case 1:00-cv-02502-RBW Document 28 Filed 12/13/01 Page 11 of 14
apply to which claims, however, Congress’s extension of the statute of limitations for complaints of discrimination in the administration of USDA loan programs “at any time” between 1981 and 1996 was a waiver of sovereign immunity. Courts must neither enlarge such waivers beyond what the statutory language requires, Library of Congress v. Shaw, 478 U.S. 310, 318 (1986), nor narrow them by unduly restrictive interpretation, Bowen v. City of New York, 476 U.S. 467, 479 (1986). Fortunately, the language of § 741 is plain. It does not support defendant’s interpretation. It does not require “written” complaints (although the reference to “filing” them strongly suggests Congress’ expectation that complaints would be made formally and in writing). It does not mention the Office of Civil Rights (in view of the legislative accord that gave rise to § 741, the omission may have been deliberate, see supra n. 7). And it makes no mention of Part 15d or its predecessor regulation.
Thus, a complaint filed anywhere in the USDA before July 1, 1997, would qualify for § 741's extended statute of limitations if it charged discrimination in the administration of loan programs with the USDA. Plaintiffs James Murnion, Rosemary Love, and Gail Lennon meet that standard.
It is not clear from the face of the complaint whether plaintiff Lind Marie Bara-Weaver can also satisfy § 741's requirements. She filed formal complaints in 1988 with the
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Case 1:00-cv-02502-RBW Document 28 Filed 12/13/01 Page 12 of 14

Richmond Farmers Home Administration office and with the USDA Office of Inspector General in Washington D.C., but the amended complaint does not state explicitly whether she alleged discrimination. Nor, as noted supra, is it clear from the face of the complaint that the acts of which Barbara Odom complains occurred after October 19, 1998, so that her claims are timely under ECOA’s normal statute of limitations. In deciding Rule 12(b)(1) motions, however, courts must generously construe allegations of a complaint in the plaintiff's favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974), overturned on other grounds, Harlow v. Fitzgerald, 457 U.S. 800 (1982); Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 440 n.3 (D.C. Cir. 1990). The “generous construction” rule and the interests of justice counsel denial of the motion to dismiss the claims of Ms. Bara-Weaver and Ms. Odom.8

III.

Non-Lending Claims

Plaintiffs’ allegations of discrimination in the

administration of USDA’s disaster benefit programs must be

dismissed because a disaster benefit decision is not a “credit

8 Dismissal with leave to replead would only create more paper if Ms. Bara-Weaver and Ms. Odom can bring themselves within the § 741 extension. If they cannot, their claims will be dismissed later.
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Case 1:00-cv-02502-RBW Document 28 Filed 12/13/01 Page 13 of 14
transaction” within the meaning of ECOA. 15 U.S.C. § 1691(a). Neither, of course, is a failure to investigate a complaint.
Plaintiffs also attempt bring their disaster benefit and failure to investigate claims under the Administrative Procedure Act, but they do not fit. The only plaintiff who alleged the unlawful denial of disaster benefits, Ms. Odom, was successful on her administrative appeal. And the allegation of failure to investigate plaintiffs’ civil rights complaints fails to state a claim upon which relief can be granted under the APA.
APA review is available only for a “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Even if USDA’s repeated and systematic failures to investigate and decide civil rights complaints were “final agency actions,” see Sierra Club v. Thomas, 828 F.2d 783, 792-96 (D.C. Cir. 1987), Circuit precedent requires the rejection of APA claims for agency failure to investigate allegations of discrimination where Congress has provided an adequate alternative remedy. See, e.g., Women's Equity Action League v. Cavazos, 906 F.2d 742, 750-51 (D.C. Cir. 1990); Council of & for the Blind of Delaware County Valley, Inc. v. Regan, 709 F.2d 1521, 1531-33 (D.C. Cir. 1983) (en banc). Those cases might be distinguished on the ground that they involved private causes of action against third parties, but their central point is that APA review is not available for agency action “for which there is ...
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Case 1:00-cv-02502-RBW Document 28 Filed 12/13/01 Page 14 of 14 [some] other adequate remedy in a court.” Here the Equal Credit Opportunity Act provides such a remedy. Indeed, the steps Congress took to preserve that remedy by extending the statute of limitations were taken precisely because of USDA’s failures to investigate.
Moreover, to the extent that plaintiffs are seeking monetary relief, the U.S. government has not waived its immunity against suits for damages under the APA. 5 U.S.C. § 702; Transohio Savs. Bank v. Director, Office of Thrift Supervision, 967 F.2d 598, 607-08 (D.C. Cir. 1992).
An appropriate order accompanies this memorandum.
JAMES ROBERTSON United States District Judge
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 Case 1:00-cv-02502-RBW Document 66 Filed 09/29/04 Page 1 of 15

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROSEMARY LOVE, et al., Plaintiffs,
v. ANN VENEMAN, Secretary, U.S. Department of Agriculture,
Defendant.

: : : : : Civil Action No. 00-2502 (JR) : : : : :

MEMORANDUM ORDER DENYING CLASS CERTIFICATION

In this suit, Rosemary Love and a number of other named plaintiffs, all women farmers, complain of gender discrimination on the part of the United States Department of Agriculture over the past 23 years. They allege that, from January 1, 1981 until December 31, 1996, and again from October 1998 until the present,1 they were refused USDA farm loans, loan servicing and loan continuation, and even refused farm loan application forms, because they were women. The plaintiffs seek to represent a class of women similarly situated, and they have moved for certification of two of the three subclasses defined in their third amended complaint.
This is one of three companion cases filed after the settlement of Pigford v. Veneman, 1:97-cv-01978-PLF (D.D.C.), the

1

The 21-month gap has to do with a statute of

limitations question that is not germane to the motion now before

the Court.

Case 1:00-cv-02502-RBW Document 66 Filed 09/29/04 Page 2 of 15

Black farmers case. The other two, Keepseagle v. Veneman, 1:99cv-03119-EGS (D.D.C.), and Garcia v. Veneman, 1:00-cv-02445-JR (D.D.C.), were filed on behalf of Native American and Hispanic farmers, respectively. Judges Friedman and Sullivan granted class certification motions in Pigford and Keepseagle, after finding that USDA had acted or refused to act upon grounds generally applicable to the plaintiff classes in those cases, in part because, for nearly twelve years during the Reagan and first Bush administrations, the Civil Rights Office within USDA was virtually shut down and farmers’ claims of discrimination were not investigated or simply ignored. In Garcia and Love, however, I ruled 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 Act. That ruling, which has now been appealed,2 effectively means that plaintiffs in Garcia and Love must seek to satisfy Rule 23(a)’s commonality requirement in some other way.
It should be noted at the outset that the numerosity and adequacy of representation requirements of Fed. R. Civ. P. 23(a) are not at issue here. They are virtually conceded by the government, and, if they have not been, I find that the putative

2

My order of September 10, 2004, in Garcia invited the

plaintiffs to seek certification of that question for an

interlocutory appeal under 28 U.S.C. 1292(b). They have now done

so.

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Case 1:00-cv-02502-RBW Document 66 Filed 09/29/04 Page 3 of 15
plaintiff class is so numerous that joinder of all members is impracticable and that the representative parties will fairly and adequately protect the interests of the class. Plaintiffs’ problem lies with the second and third requirements of Rule 23(a), that there be “questions of law or fact common to the class, [and] that claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” Those two requirements are analytically different from one another, see Bynum v. District of Columbia, 214 F.R.D. 27, 34 (D.D.C. 2003)(commonality refers to the claims of members of the class, while typicality focuses on whether class representatives assert the claims that are common), but they are usually treated together, and there is no reason to separate them in this case.
Plaintiffs’ third amended complaint identifies three sub-classes of women farmers -- those who were denied loan applications because of their gender, those who applied for loans but never received them because of their gender, and those who obtained at least one farm loan but experienced delays or difficulty in obtaining loan servicing because of their gender. The present motion seeks certification only of the first two. The questions presented by the motion and the government’s opposition are these: Have plaintiffs met the prerequisite commonality (and typicality) requirements of Rule 23(a)? If so, have they satisfied either or both of the requirements of Rules
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Case 1:00-cv-02502-RBW Document 66 Filed 09/29/04 Page 4 of 15
23(b)(2) and 23(b)(3), that USDA has acted in a manner “generally applicable to the class, consequently making entry of declaratory or injunctive relief appropriate” and that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members”? Because I find here, as I have twice found in the Garcia case, 211 F.R.D. 15 (Garcia I), and Order of September 10, 2004 (Garcia II), that all of these questions must be answered in the negative, the motion for class certification will be denied.
1. Rule 23(a) commonality Plaintiffs have assembled an impressive collection of sworn statements asserting that a great many women have been flatly refused farm loans and even loan application forms in some of USDA’s some 2700 county offices over the last 22 years. They concede that these declarations are anecdotal but assert that they are “typical and representative of a national problem,” Plaintiff’s Memorandum in Support of the Motion for Class Certification (Pltfs’ Memo) at 9. Plaintiffs also offer a statistical argument that “women farm operators have received fewer numbers of loans and less loan dollars than they should have received,” id. at 11.
In this case, as in the Garcia case, the parties have struggled with the Supreme Court’s decision in General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147 (1982), and particularly with the Court’s dictum, 457 U.S. at 159 n.15, that
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Case 1:00-cv-02502-RBW Document 66 Filed 09/29/04 Page 5 of 15
commonality might “conceivably” be established by “significant
proof” that the defendant
“[o]perated under a general policy of discrimination . . . if the discrimination manifested itself in . . . practices in the same general fashion, such as through entirely subjective decisionmaking processes.”
Falcon, of course, is not exactly on point. It involved an
“across the board” claim of discrimination (one employee seeking
to represent the discrimination claims of all), and the Court was
particularly concerned about the class plaintiff’s claim to
represent both employees and applicants. Falcon was applied and
explained, however, in Hartman v. Duffey, 19 F.3d 1459, 1472
(D.C. Cir. 1994), a case much closer to home:
As Falcon made clear, there is more to a showing of commonality than a demonstration that class plaintiffs suffered discrimination on the basis of membership in a particular group. . . . While in a case alleging intentional discrimination, such as this one, a plaintiff need not isolate the particular practice and prove that such practice caused the discrimination, plaintiffs 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 employer's challenged employment decisions.
In my initial denials of class certification in this case and in
Garcia, I focused on the geographic and organizational dispersal
of the decision makers at USDA who denied farm loans or refused
application forms and on the question of whether USDA’s criteria
for making loans to farmers were “entirely subjective.” Now
pressing their arguments on those points, the plaintiffs urge
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Case 1:00-cv-02502-RBW Document 66 Filed 09/29/04 Page 6 of 15
that the “entirely subjective” language must not be interpreted inflexibly and that “decentralized decision making should not be and is not a per se bar to a finding of commonality,” Pltfs’ Memo at 29. They are correct, it seems to me, on both counts. Each factor, the geographic and organizational dispersal of decision makers, and the degree of subjectivity in the decision making criteria, describes a spectrum.
The record of this case, however, describes a fact pattern further from the “entirely subjective” end of the subjectivity spectrum, and closer to the “completely scattered” end of the geographic dispersal spectrum, than plaintiffs would have it. The declarations submitted by the plaintiffs might have been sufficient to support certification of subclasses of women who suffered discrimination at the hands of particular county committees or extension office officials, such as in Coffee County and Douglas County, Georgia, Jefferson Davis County, Mississippi, and Jefferson County, Arkansas, see Memorandum of Points and Authorities in Opposition to Class Certification Motion (Deft Memo) at 17 n.13. But they do not amount to the “significant showing” required by Hartman, supra, that would “permit the Court to infer that members of the class suffered from a common policy of discrimination that pervaded all of the . . . challenged . . . decisions” nationwide, as the government correctly points out, citing a string of cases to
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Case 1:00-cv-02502-RBW Document 66 Filed 09/29/04 Page 7 of 15

support the proposition that “[t]he clear weight of authority examining decentralized decision making acknowledges that it ‘cuts against any inference for class action commonality.’ Stastny v. Southern Bell Co., 628 F.2d 267, 279 (4th Cir. 1980).” Deft Memo at 8.
As for subjectivity, although plaintiffs are certainly correct that the criteria set forth in USDA’s regulations for making farm loans during the years in question were subjective in many of their parts, the existence of non-subjective criteria cuts against the inference that there was a “common policy of discrimination that pervaded all of the . . . challenged . . . decisions.” Hartman 19 F.3d at 1472.3 A number of the reasons given to plaintiffs’ declarants for the disapproval of their loans -- failure to meet collateral requirements, poor credit, insufficient income, see Deft Memo at 12-13, nn.8-10 -- register more nearly at the “objective” end of the subjectivity spectrum.
Nor do the cases upon which plaintiffs rely provide as much support as plaintiffs suggest. The first one, Cook v. Billington, No. 82-0400, 1992 WL 276936, at *4-5 (D.D.C. Aug. 14, 1991), is not a class action case. Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291-92 (2d. Cir. 1999) (a decision annotated with an impressive list of “disagreed with,” “declined

3

The “subjectivity quotient” of USDA’s decision-making

process is discussed in Garcia II, supra, at 12-19, and need not

be repeated here.

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Case 1:00-cv-02502-RBW Document 66 Filed 09/29/04 Page 8 of 15
to follow” and “distinguished” citations) involved a single employer and a district judge who apparently thought that the employer’s policy of delegating discretionary authority to supervisors precluded a finding of commonality and typicality. Buycks-Roberson v. Citibank Fed.. Sav. Bank, 162 F.R.D. 322, 330, 331 (N.D. Ill.) (alleging “redlining” in the granting or denial of home mortgage loans) is analytically quite similar to the present case, but the judge in that case granted class certification only for injunctive relief under Rule 23(b)(2), a ruling that our Court of Appeals has found to be at least problematical, see infra. In Shores v. Publix Super Mkts., Inc., No. 95-1162-CIV-T-25(E), 1996 WL 407850, at *4 (M.D. Fla. Mar. 12, 1996), Arnett v. Am. Nat’l Red Cross, 78 F.R.D. 73, 76 (D.D.C. 1978) (a pre-Falcon decision), Hyman v. First Union Corp., 982 F.Supp. 1, 5-7 (D.D.C. 1997), and Thomas v. Christopher, 169 F.R.D. 224, 237-38 (D.D.C. 1996), allegations of centralized employment practices provided the necessary commonality. Perhaps the best language for plaintiffs’ view of the commonality issue is found in Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 2003), but plaintiffs have misstated the posture of the case, which is very important to understanding the holding: it was not Boeing that objected to class certification, but a group of class members dissatisfied with a class action settlement that Boeing had an interest in preserving. The Ninth
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Case 1:00-cv-02502-RBW Document 66 Filed 09/29/04 Page 9 of 15
Circuit upheld the commonality determination, but it rejected the settlement. (Thomas v. Christopher, supra, was also a settlement.)
It is true, as plaintiffs’ assert, that the combination of “excessive (albeit not entirely) subjective decision making, coupled with evidence tending to show that the process results in a pattern and practice of discrimination, will provide the basis for finding of commonality,” Pltf Memo at 27-28. The statistical showing plaintiffs have offered, however, does not significantly change the anecdotal nature of the facts recited in the declarations. The fact that “women comprised approximately 6.9 percent of the farm operators but received only 3.2 percent of the credit lent,” Pltf Memo at 2 (see expert report of Patrick M. O’Brien (Jan. 12, 2004), at 6), has meaning only if we know how many women farmers and how many men farmers applied for loans, and we do not.
Defining putative subclasses as plaintiffs have in their third amended complaint -- “women who were denied applications to apply for farm loans on the basis of gender” and “women who actually applied for farm loans, but were denied them on the basis of gender” -- might seem to satisfy the requirement of the commonality cases as a matter of form, but it begs the precertification question of substance posed by the Hartman decision, namely, whether there has been a substantial showing
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Case 1:00-cv-02502-RBW Document 66 Filed 09/29/04 Page 10 of 15
that would permit the inference that members of the class suffered from a common policy of discrimination that pervaded all of the challenged decisions. In my view, there has not been such a showing.
2. Rule 23(b) requirements If Rule 23(a) commonality were the only issue to be resolved on this motion, the question of whether or not to certify plaintiffs’ two sub-classes would be a considerably closer one. But the Rule 23(a) factors are only prerequisites -- first steps in the certification analysis. The requirements of Rule 23(b) are more exacting.
a. Rule 23(b)(2) Rule 23(b)(2) analysis requires a determination of whether the party opposing the class (USDA) has acted in a manner “generally applicable to the class, consequently making entry of declaratory or injunctive relief appropriate.” Plaintiffs say yes, simply asserting without analysis that “USDA’s conduct -- through the county committees and other local county officials -- is ‘generally applicable’ to the entire class of women who were discriminated against in the distribution and review of farm loan applications . . . .” Deft Memo at 43. Now that plaintiffs have defined the class(es) they seek to represent as women who have been discriminated against that assertion becomes quite plausible. Defendants’ nevertheless insist that the answer is no: “P]laintiffs do not challenge a defined policy or clearly delineated practice adopted
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Case 1:00-cv-02502-RBW Document 66 Filed 09/29/04 Page 11 of 15
by USDA all farm credit programs. Rather, they challenge thousands of individual loan decisions made over two decades in approximately 2700 county offices by thousands of different USDA officials.” Deft Memo at 23. Plaintiffs have the better of this argument. They do assert that responsibility for those thousands of individual loan decisions (and decisions about whether or not to give loan application forms to women) lies centrally with USDA, because USDA abetted or failed to prevent the unlawful acts of local officials or county committees for 22 years, even if only by looking the other way. Successfully arguing the general applicability of USDA’s failure to act and the appropriateness of injunctive relief is only necessary for Rule 23(b)(2) certification, however. It is not, by itself, sufficient.
It is universally held, although with differences from circuit to circuit, that Rule 23(b)(2) certification is inappropriate where claims for money damages predominate but permissible if the claim for money damages is “incidental” to the claim for equitable relief. In this case, as in the Garcia case, see 211 F.R.D. at 22-23, money damages are far from incidental. Plaintiffs acknowledge the problem, but they have not forsworn their claim for money damages. Instead, they have proposed alternatives adopted in other cases: granting Rule 23(b)(2) certification for the liability phase of the case, leaving open the question of (b)(2) or (b)(3) certification to the remedy
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Case 1:00-cv-02502-RBW Document 66 Filed 09/29/04 Page 12 of 15
phase, as Judge Sullivan did in Keepseagle, Deft Memo at 42-43; or granting “hybrid” certification provisionally now, (b)(2) for liability and (b)(3) for remedy, id. at 44, Deft Reply at 20.
The Keepseagle approach, certifying a plaintiff class only under Rule 23(b)(2) “without first determining if plaintiffs' claims for monetary relief predominate over their equitable claims,” has been seriously questioned by a panel of the Court of Appeals, see In re Veneman, 309 F.3d 789, 795 (D.C. Cir. 2002). The idea of provisional “hybrid” certification is problematical as well and is implicitly called into question by In re Veneman’s focus on the potential due process issue that arises if a no-opt-out (b)(2) suit is settled and an absent member of the plaintiff class then seeks to bring her own individual action for damages. Id. at 796, and see Ticor Title Ins. Co. v. Brown, 511 U.S. 117 (1994).
Because of those concerns, and my own my very clear view of the (b)(3) “predominance” issue that must be dealt with sooner or later in this case, I see no point in (b)(2) certification, unless it would be to “create the sort of highstakes situation that puts ‘substantial pressure on the defendant to settle independent of the merits of the plaintiffs' claims,’” In re Lorazepam & Clorazepate Antitrust Litig., 239 F.3d 98, 102 (D.C. Cir. 2002) (citing Blair v. Equifax Check Services, Inc., 181 F.3d 832, 834 (7th Cir. 1999) -- and that, I decline to do.
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Case 1:00-cv-02502-RBW Document 66 Filed 09/29/04 Page 13 of 15
If declaratory and injunctive relief were all that plaintiffs sought in this case, class certification would be unnecessary anyway. The adjudication of a claim of gender-based refusals of loans or gender-based refusals to distribute loan application forms brought by one or more individual plaintiffs could yield the injunctive relief these plaintiffs have prayed for (not to mention attorneys’ fees) without class certification: requiring USDA to adopt lending practices in conformity with the requirements of the Equal Credit Opportunity Act and the Administrative Procedure Act, prohibiting USDA from discriminatory lending practices, and mandating an effective system for investigating and timely responding to complaints of gender discrimination. See Third Amended Complaint at 28-30; Deft Memo at 43.
b. Rule 23(b)(3) “Rule 23(b)(3)’s predominance criterion is far more demanding than the commonality requirement of Rule 23(a).” My discussion of that point in Garcia I, 211 F.R.D. 15 at 23-24, and see Garcia II at 21-23, applies in this case exactly as it did to Garcia. Plaintiffs have adduced no evidence, and it is unlikely that they can do so, establishing that it is or ever was actually USDA policy to refuse to give loan application forms to women farmers, and so the adjudication of that claim will almost inevitably involve individual swearing contests. As for loan denials, the plaintiffs themselves have
- 13 -

Case 1:00-cv-02502-RBW Document 66 Filed 09/29/04 Page 14 of 15
identified a number of different reasons given to women farmers, “ranging from alleged overt discrimination to failure to meet program qualifications regarding collateral, poor credit, or insufficient income.” Deft Memo at 12-13 and nn. 7-9. To repeat an observation I made in Garcia II, at 22-23:
“The history of the Pigford (Black farmers) class action litigation amply demonstrates that the certification of a plaintiff class to resolve decades of disputes about loans made or not made . . . 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 . . .), would be only the beginning of a lengthy and difficult process in which, as it turns out, it is the ‘questions affecting only individual members’ that predominate.” It is not an improper peek into the merits, cf. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974), see Wagner v. Taylor, 836 F.2d 578, 587 (D.C.Cir. 1987), to review the procedural history of the Pigford case and to recall the record of Mavity v. Glickman, 1:00-cv-02518-JR (D.D.C.), and to conclude, as I have, that questions of fact common to members of the putative subclasses do not predominate over questions affecting only individual members in these USDA farm loan cases.
CONCLUSION As in Garcia, I recognize that this order denying class certification, together with my earlier ruling that plaintiffs’ claim of failure to investigate did not state a claim under the ECOA or the APA, fundamentally alters the posture of this case.
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Case 1:00-cv-02502-RBW Document 66 Filed 09/29/04 Page 15 of 15

I will accordingly order proceedings in this court stayed so that

plaintiffs may seek appellate review of the class certification

question, see Fed. R. Civ. P. 23(f), and, if asked to do so, I

will certify my order of December 13, 2001, for interlocutory

appeal.

*

*

*

*

*

For the reasons set forth above it is ORDERED that

plaintiffs’ motion for class certification [54]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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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROSEMARY LOVE, et al.,
Plaintiffs,
v.
CHARLES F. CONNOR, Acting Secretary, U.S. Department of Agriculture,
Defendant.

: : : : : Civil Action No. 00-2502 (JR) : : : : :

MEMORANDUM

This case is here on remand from the Court of Appeals

for “further development” of the merits of the plaintiffs’ claims

under the APA. Love v. Johanns, 439 F.3d 723, 732-33 (D.C. Cir.

2006); Garcia v. Johanns, 444 F.3d 625, 636-637 (D.C. Cir. 2006)

(companion case). The facts have been stated elsewhere and will

be summarized only briefly here.

Plaintiffs are women farmers who allege discrimination

by USDA in the administration of its farm benefit programs, and

who further complain that USDA utterly failed to process or

investigate their discrimination complaints when they filed them

with the agency many years ago. There is little dispute that

USDA dismantled its civil rights investigation program between

the early 1980's and the mid-1990's, and did so without informing

farmers that their discrimination complaints would be either

ignored or summarily denied. See generally USDA Civil Rights

Action Team Report: Civil Rights at the U.S. Dept. of

Agriculture, [80, Exhibit 3]; 144 Cong. Rec. S11,433 (Sen. Robb). When Congress learned of this state of affairs, it extended for two years the period of limitations for any cause of action that a plaintiff might bring to redress claims she had filed with USDA in an “eligible complaint.” See Pub. L. No. 105-277, 112 Stat. 2681-30, Title VII, Sec. 741 (codified at 7 U.S.C. § 2279 Note) (hereafter “§ 741”). Eligible complaints were defined as complaints filed with USDA between 1981 and 1996 that complained of violations of the Equal Credit Opportunity Act (ECOA), 15 U.S.C. § 1691 et seq., or of discrimination in the administration of a commodity assistance or disaster relief program. See § 741(e). Plaintiffs filed this action days before that extended period ran out. They seek relief both for USDA’s alleged discrimination and for USDA’s failure to investigate.
In earlier proceedings, I denied a motion to certify a plaintiff class alleging discrimination in violation of ECOA but found that some individual plaintiffs may have viable ECOA claims. I also dismissed plaintiffs’ attempt to bring their failure to investigate claim under ECOA. The Court of Appeals affirmed these rulings. Love, 439 F.3d at 728-732 (D.C. Cir. 2006). What remains on this remand is the question whether plaintiffs’ failure to investigate claim can be brought under the APA, and whether certain ancillary claims of discrimination in
- 2 -

the administration of non-credit benefits can proceed under the APA as well.
Analysis A. The Regulatory Regime
The regulations that bear upon this case have changed over time. In 1981, departmental regulations stated that persons could file discrimination complaints, that they would be handled “in accordance with the procedures established . . . for the handling of complaints or appeals . . . which are not based on discrimination,” and that the “investigative function . . . shall be discharged by the Office of the Inspector General in the manner determined by the Inspector General.” See 31 Fed. Reg. 8175. In 1985, this regulation was amended to replace the Office of the Inspector General with the Assistant Secretary for Administration, but the provision that the investigative function would be discharged “in the manner determined by the Assistant Secretary” was unchanged. See 50 Fed. Reg. 25687.
In 1989, the provision that discrimination complaints would be processed in the same manner as other complaints disappeared.1 Also, the regulation was amended to read: “The Director, Office of Advocacy and Enterprise, will make determinations as to the merits of complaints under this subpart
1 Apparently to no effect. No procedures for complaints “not based on discrimination” have been identified by either party.
- 3 -

and as to corrective actions required to resolve the complaints.” See 54 Fed. Reg. 31163 (emphasis added). The commentary that accompanied publication of the final rule noted that this change was intended to “authorize” the Office of Advocacy and Enterprise to investigate and make determinations on complaints, and to clarify delegations of authority. Id.
In 1999, after Congress passed § 741 and after the expiration of the period Congress had established for “eligible complaints,” the regulations were amended again. References to the Office of Advocacy and Enterprise were replaced with references to the Office of Civil Rights, and a provision that the “complain[ant] will be notified of the final determination on his or her complaint” was added. See 64 Fed. Reg. 66709; 7 C.F.R. § 15d.4. Also in 1999, the Department promulgated an internal “departmental regulation” specifying, apparently for the first time, the manner in which investigations would be conducted. See Nondiscrimination in USDA-Conducted Programs and Activities, DR-4330-3 [Garcia Dkt. 150, Exhibit 15].
The evolution of these regulations sheds at least some light on the question whether they imposed a duty to investigate discrimination claims at the time that plaintiffs filed their eligible complaints, or instead only “authorized” such investigations and described the manner in which they would be carried out. Although I find that to be an interesting
- 4 -

question,2 the parties evidently do not. The government may even have implicitly conceded that the regulations did impose a duty to investigate – focusing its argument instead on the assertion that its exercise of that duty is unreviewable for lack of manageable standards. See Webster v. Doe, 486 U.S. 592 (1988); Heckler v. Cheney, 470 U.S. 821 (1985); Slyper v. Attorney General, 827 F.2d 821 (D.C. Cir. 1987).
In any event, both questions – whether the regulations required an investigation and whether investigation decisions are unreviewable – are beside the point, because even if plaintiffs have an APA claim under the 1999 regulations, that claim is barred by the existence of an adequate alternative remedy at law.
B. Adequate Alternative Remedy The APA provides for judicial review only where
plaintiffs have “no other adequate remedy in a court.” 5 U.S.C. § 704. The definitive interpretation of this section comes from Bowen v. Massachusetts, 487 U.S. 879 (1988), where the Supreme Court cited Attorney General Clark’s manual on the APA for the proposition that § 704 “does not provide additional judicial remedies in situations where the Congress has provided special

2

I doubt that regulatory language describing which

office “will” investigate complaints necessarily creates a

judicially enforceable entitlement to an investigation, much less

an entitlement to the “effective system for investigating and

timely responding to complaints” that plaintiffs ask me to forge

and oversee by injunction. [78] at 29.

- 5 -

and adequate review procedures.” Id. at 903. In this case, it is clear that Congress has expressly addressed the exact injury of which plaintiffs complain, and provided a “special” and “adequate” remedy for their wrong.
The remedy that Congress fashioned to deal with years of neglect and malfeasance by the Department of Agriculture was “special” because it was an express response to the injuries of these very plaintiffs. The “special” intent of Congress appears on the face of the Congressional Record, see 144 Cong. Rec. S11,433 (Sen. Robb), and is made self-evident by the definition of “eligible complaint” and the limitation of the extension remedy to those persons who actually filed complaints that had been neglected.
The special remedy Congress provided is also plainly “adequate.” Not only did it extend all applicable periods of limitation for those prejudiced by agency inaction, but it also allowed any eligible complainant to “seek a determination on the merits of the eligible complaint by the Department of Agriculture” – in other words, to take up her complaint again with the agency. § 741(b). The legislation required the agency to process such renewed complaints within 180 days if possible, required the agency to award appropriate relief, and required the agency to afford a hearing on the record before making a determination. § 741(b)(1)-(3). Congress also provided for de
- 6 -

novo review of any such determination in federal court. § 741(c). In short, Congress’s remedy allowed any member of the group plaintiffs seek to represent to renew her complaint with the agency and to get her long-delayed investigation conducted before going to court to vindicate her underlying claim of discrimination if the agency’s determination was not entirely to her liking. Congress did not require exhaustion of this newlyenacted procedure, however, and no plaintiff states that she resorted to it before joining this action.
Even in the absence of the “special and adequate” procedures Congress enacted to remedy plaintiffs’ particular injuries, circuit precedent precludes an APA suit against an agency charged with overseeing and policing discrimination where a direct cause of action for discrimination exists. The issue has been brought again and again to the D.C. Circuit, and it has repeatedly reaffirmed its en banc decision in Council of and for the Blind v. Regan, 709 F.2d 1521 (1983).
Council of and for the Blind denied APA review of the alleged failure of federal officers to terminate the federal funding of discriminating entities because direct suits for discrimination against state and local governments were an adequate remedy. The court was troubled by a hypothetical world in which every instance of agency recalcitrance would require a court to enter an injunction or contempt order. See Council of
- 7 -

and for the Blind, 709 F.2d at 1532. It rejected the suggestion
of amicus that it oversee “an investigation of the specific and
ongoing practices of [the agency],” noting that such a role would
be “more properly conducted by a Congressional subcommittee as
part of its oversight function.” Id. at 1533.
Two considered opinions of then-Judge Ruth Bader
Ginsburg endorsed and elaborated upon the reasoning of Council of
and for the Blind. In Coker v. Sullivan, 902 F.2d 84 (D.C. Cir.
1990), Judge Ginsburg noted the circuit’s
previously expressed hesitation to position this court as supreme supervisor of federal agency enforcement, a role more effectively performed by the Executive under congressional scrutiny. See Council of and for the Blind, 709 F.2d at 1532. As we explained in that case, the APA specifically provides that, if other remedies are adequate, federal courts will not oversee the overseer.
Id. at 89. The basis for this rule is not only the language of
the APA, but a concern about traversing unnecessarily into
territory beyond the institutional competence of the courts –
especially where traditional suits at law are available to remedy
the core injury at issue.
In Coker, eligible families had sued to compel the
Department of Health and Human Services to monitor states’
compliance with the requirements of the Emergency Assistance (EA)
program. The court concluded that direct suits for assistance
grants were an adequate remedy foreclosing oversight relief
- 8 -

against the federal government under the APA. The court noted that “the critical injury plaintiffs allege is the denial of EA to eligible families,” Coker, 902 F.2d at 90 n.5, and reiterated that, under Council of and for the Blind, the APA bars “suits where a plaintiff’s injury may be remedied in another action, even if that remedy would have no effect upon the challenged agency action.” Id. (internal quotation omitted). The application of that holding to this case, where “the critical injury plaintiffs allege” is only a different kind of government benefit, is plain.
In Women’s Equity Action League (WEAL) v. Cavazos, 906 F.2d 742 (D.C. Cir. 1990), Judge Ginsburg reiterated her Coker position. WEAL finally terminated twenty years of litigation in which the district court had come to serve “as nationwide overseer or pacer of procedures government agencies use to enforce civil rights prescriptions.” Id. at 744. The court held that direct suits for discrimination against educational institutions constituted an adequate remedy precluding APA review of the enforcement and oversight work of the Department of Education. The court made clear that although the alternative of “[s]uits directly against the discriminating entities may be more arduous, and less effective in providing systemic relief,” they were still “an adequate, even if imperfect, remedy.” Id. at 751. See also Washington Legal Foundation v. Alexander, 984 F.2d 483
- 9 -

(D.C. Cir. 1993) (direct action under Title VI was adequate remedy precluding review under the APA even if the remedies under Title VI and the APA would be markedly different); Nat’l Wrestling Coaches Assoc. v. Dept. of Ed., 366 F.3d 930 (D.C. Cir. 2004) (direct action under Title IX was adequate remedy precluding review under the APA).
The rule that emerges from this unbroken line of circuit decisions is that, where a victim of discrimination can sue directly to remedy her injury, no action will lie under the APA for failure to adequately investigate, monitor, or police that discrimination.
Plaintiffs’ attempt to distinguish that rule, and the Council of and for the Blind line of cases, is unpersuasive. It relies chiefly on McKenna v. Weinberger, 729 F.2d 783 (D.C. Cir. 1984). The plaintiff in McKenna claimed that a government agency discriminated against her by firing her and that it also failed to follow regulations related to her firing – for example, it failed to give notice two weeks in advance of termination. The court allowed her APA claim and her discrimination claim to go forward simultaneously, id. at 791, but it did not even cite to Council of and for the Blind, and it noted that McKenna’s “claim of arbitrary treatment [was] entirely independent of her discrimination claim.” McKenna, 729 F.2d at 791. The independence of the two claims distinguishes McKenna, and not the
- 10 -

Council of and for the Blind line of cases, from the case at bar, for whatever can be said of plaintiffs’ APA claim here, it is certainly not “entirely independent” of their underlying claims of discrimination.
Plaintiffs also rely heavily on the fact that Council of and for the Blind and WEAL concerned discrimination by third parties rather than the government. Yet this fact is legally irrelevant. As the cases make clear, what matters is whether the injury can be remedied in a non-APA suit, not the identity of the target in that potential alternative action. See, e.g., Washington Legal Foundation v. Alexander, 984 F.2d at 486; Coker v. Sullivan, 902 F.2d at 90 n.5.
C. Non-Credit Benefits A small remaining issue between the parties is the
viability of claims under the APA for discrimination in the administration of non-credit benefits. Such claims cannot be brought under ECOA because they are not related to credit transactions, and defendant has not argued that these alleged acts of discrimination can be remedied under another federal law. Section 704 of the APA thus does not appear to be implicated. The Council of and for the Blind cases are also inapplicable because this APA action complains directly of discrimination, not of failure to investigate or police discrimination. Yet even if an APA action could be maintained for these non-credit instances
- 11 -

of discrimination, there appears to be no mention in the third

amended complaint of a plaintiff who actually suffered such

discrimination. See [78]. There is also no proper motion

pending to amend the complaint to demonstrate that any named

plaintiff has standing to litigate such a claim. There is thus

no reason to allow this additional APA cause of action to be

maintained at this time.

*

*

*

*

*

An appropriate order accompanies this memorandum.

JAMES ROBERTSON United States District Judge

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 Case 1:00-cv-02502-RBW Document 160 Filed 07/13/12 Page 1 of 47

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RoseMary Love P.O. Box 455 Harlem, MT 57526
and
Lind Marie Bara-Weaver 4845 Belle Terre Parkway C-8 Palm Coast, FL 32164
and
Margaret Odom P.O. Box 143 Sardis, GA 30456
and
Gail Lennon P.O. Boxx80 Lookout, CA 96054
and
Joyce L. Acomb 8317 State Route 63 N Dansville, NY 14437
and
Edith L. Scruggs 1106 Brentwood Pine Bluff, AR 71601
and
Maryland B. Wynne 9209 Dyson Road Pine Bluff, AR 71603
and
LDR/l386993.2 LDR/l386993.2

Case Number 1:00CV02502
Judge: Walton, J.
FOURTH AMENDED AND SUPPLEMENTAL COMPLAINT

Case 1:00-cv-02502-RBW Document 160 Filed 07/13/12 Page 2 of 47
Joyce A. King 211 Dan Gill Road Dumas, AR 71639
and Phyllis L. Robertson 318 S. Persimmon Street Pine Bluff, AR 71601
and Mary L. Brown 1306 6th Street Winter Haven, FL 33880 ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
Plaintiffs, vs. TOM VILSACK, Secretary THE UNITED STATES DEPARTMENT OF AGRICULTURE 14th and Independence Avenue, S.W. Washington, D.C. 20250,
Defendant.
FOURTH AMENDED AND SUPPLEMENTAL COMPLAINT (FOR DECLARATORY JUDGMENT, VIOLATIONS OF EQUAL CREDIT
OPPORTUNITY ACT, ADMINISTRATIVE PROCEDURE ACT, FIFTH AMENDMENT OF U.S. CONSTITUTION, AND OTHER RELIEF)
2
LDR/l386993.2

Case 1:00-cv-02502-RBW Document 160 Filed 07/13/12 Page 3 of 47
The representative and individual plaintiffs listed in the caption ("plaintiffs"), on behalf offtthheemmsselves and all others similarly situated, complain of defendant as follows: 11
NATURE OF THE CASE The Department of Agriculture (the "Department" or "USDA") administers a nationwide program which makes loans to undercapitalized farmers at favorable terms. From 1981 through 1996 and October 19, 1998 to the present, women have been denied the opportunity to apply for these loans because of gender discrimination, were denied loans after having applied because of gender discrimination, and when loans have been granted, experienced delays in receiving the loans, or difficulty in obtaining loan servicing, or received less than the loan amount needed, or less servicing than needed, or were refused other loans, because of gender discrimination. When, in response, plaintiffs complained to USDA, 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. This nationwide pattern of discrimination against women has deprived them of equal and fair access to farm loans and loan servicing, and of consideration of their administrative complaints, resulting in substantial damages to them. Moreover, USDA offered and is implementing voluntary administrative claims programs to adjudicate the claims of members of other minority groups who suffered similar discrimination, and has arbitrarily refused to offer equivalent terms to women, further depriving them of equal protection and due process.
JURISDICTION 1. Jurisdiction is founded upon 5 U.S..Cc. §§ 702-703, 15 U.S.C. § 1691, 15 U.S.C § 1691e, 28 U.S.C. § 133311,,28 U.S.C. § 13433,,28 U.S.C. § 2201, and 28 U.S.C. § 2202.
11 While plaintiffs include in this Fourth Amended and Supplemental Complaint allegations concerning class representation, plaintiffs intend to pursue class certification only with respect to Counts III through V herein. Plaintiffs do not intend to pursue class certification to the extent that it has already been rejected in this case.
3
LDRJ/3 86993.2

Case 1:00-cv-02502-RBW Document 160 Filed 07/13/12 Page 4 of 47
VENUE 2. Venue lies in this judicial district pursuant to 28 U.S.C. § 1391(b) and (e).
PARTIES 3. Plaintiff RoseMary Love is a woman and has operated ranches in Blaine and Glacier Counties, Montana. She started raising sheep with her husband in 1975, and at the height of their operation, in 1983, they were raising approximately 3,300 sheep. 4. In 1978, following a devastating flood in the area, the Loves began dealing with the Farm Service Agency, or its predecessor, the Farm and Home Agency (collectively here, "FSA"). 5. Ms. Love applied for a 1982 farm operating loan, and she completed the ranch's Farm and Home Plan in the Fall of 1981. But by June 1, 1982, the Blaine County FSA office had still not finished processing it, having revised it 4 times in the interim. Then, when the loan was finally approved, it was both late (funds were not received until the end of July) and provided Ms. Love with approximately $100,000 less than needed to operate the ranch. FSA also imposed unreasonable and unnecessary demands on Ms. Love as conditions of the loan. 6. Then, in May 1983, FSA improperly accelerated all the Loves' loans, demanding payment in full of the entire principal and interest in 30 days. This forced the Loves into Chapter 11 bankruptcy. 7. On December 16, 1988, Ms. Love applied for loan servicing with the FSA. On March 2, 1989, she was notified that the State FSA office had determined that the Loves were eligible to receive loan servicing, but they did not actually receive any. 8. While all these adverse actions were being conducted against Ms. Love, similarly situated male farmers were receiving substantial loan servicing benefits to allow them to deal
4
LDRl/386993.2

Case 1:00-cv-02502-RBW Document 160 Filed 07/13/12 Page 5 of 47
with the stresses caused by natural disasters, low commodity prices, and record high interest rates. A prime example is Neil Johnson (and his family), doing business as the Johnson Cattle company of Glacier County, who received loans in the same time frame as the Loves. In 1981, FSA deemed him eligible for low interest limited resource loans, provided him with an emergency loan in 1985, and forgave $2 million in debt in 1989.
9. Ms. Love filed a complaint with the Department in May 1993, and a complaint with USDA's Office of Civil Rights ("OCR") on April 10, 1997. The case was investigated in 1998 and the USDA investigator indicated to her that he had found evidence of unfair treatment. However, in June 2000, the Director of OCR denied Ms. Love any administrative relief.
10. To the extent Ms. Love's claims arose during the "Claims Period" covered by the USDA's administrative claims program offered to women farmers who have been subjected to gender discrimination in the granting of farm loans and loan servicing, that program discriminatorily and arbitrarily denies her the opportunity to apply for relief under the terms available to similarly situated members of other minority groups.
11. Plaintiff Lind Marie Bara-Weaver is a woman and farmed for more than 20 years in Virginia, where she raised Welch ponies, holly trees, and worms.
12. In October 1984, Ms. Bara-Weaver attempted to apply for farm ownership and operating loans at the Loudon County FSA office in Leesburg, Virginia for assistance in purchasing and operating a 16.5 acre farm. At the FSA office, the loan officer, Mr. Faulk, informed Ms. Bara-Weaver that neither funds nor forms were available and would not give her an application. A month or so later, she went back to the Leesburg FSA office, and was told a second time that neither funds nor forms were available. But when Ms. Bara-Weaver's husband then called that FSA office, an application form was mailed to him. Ms. Bara-Weaver filled out
5
LDR/386993.2

Case 1:00-cv-02502-RBW Document 160 Filed 07/13/12 Page 6 of 47
that form as the sole borrower and delivered it to Mr. Faulk at the Leesburg FSA office. Two days later her application was denied without explanation.
13. In the Summer of 1988, Ms. Bara-Weaver again attempted to apply for a farm operating loan through the Loudon County FSA office. Although she was told that an application would be mailed to her, she never received one. She had to go to the FSA office in person to obtain an application, with which the office did not offer any assistance. She submitted her application to Mr. Reid, the loan officer in Loudon County. He, however, told Ms. Bara-Weaver that women could not run farms. He called her patronizing names like "cutie" and "honey," and made sexual advances toward her. As part of the loan application process, Ms. Bara-Weaver's property had to be appraised by Mr. Reid. During the appraisal visit, Mr. Reid again made sexual advances toward her, which Ms. Bara-Weaver again rejected. Her loan application was denied.
14. Ms. Bara-Weaver made formal complaints to the FSA state office in Richmond and to the USDA Office of the Inspector General in Washington, D.C., but never got a response to her complaints.
15. In 1992, Ms. Bara-Weaver's equine breeding stock was poisoned by contaminated feed. Ms. Bara-Weaver applied for an operating loan to help with veterinarian expenses and special feed, but her application was denied. She was told that FSA did not provide loans for such expenses.
16. In January 1998, after her husband's death, Ms. Bara-Weaver attempted to refinance the farm through a trust for her daughter, and sought FSA financing at the Fredericksburg FSA office. She was told that USDA did not deal with trusts, despite the fact that USDA program regulations specifically refer to trusts.
6
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Case 1:00-cv-02502-RBW Document 160 Filed 07/13/12 Page 7 of 47
17. Additionally, in 2000, after Ms. Bara-Weaver relocated to Florida, she visited the Flager County FSA office to request an application for a farm ownership loan to assist in the purchase of a new 70-acre farm there. On her first two visits, she was unable to obtain an application, and when she finally got one on her third visit, she was offered no help in completing the application. When she brought it back to the office, a male loan officer told her that the business plan would not work and that her farm would not be profitable. He asked her how she expected to farm without a man around, and then right in front of Ms. Bara-Weaver, he threw her application into the waste basket.
18. To the extent Ms. Bara-Weaver's claims arose during the "Claims Period" covered by USDA's administrative claims program offered to women farmers who have been subjected to gender discrimination in the granting of farm loans and loan servicing, that program discriminatorily and arbitrarily denies her the opportunity to apply for relief under the terms available to similarly situated members of other minority groups.
19. Plaintiff Margaret aOddoormn is a woman farmer and resident of Sardis, Georgia. She raised cattle and row crops on a large farm for almost 20 years.
20. In December 1991, Ms. aOddoormn applied for a farm operating loan at the Waynesboro, Georgia FSA office in Burke County and was denied. She was told by FSA loan. officer Alphonzo Andrews that she did not qualify as a beginning farmer, and that she would not be able to get a loan from that office until she had been farming for a year, even though she had farmed with her husband for years.
21. As a result, Ms. Oaddoormn in 1992 could only farm a small portion of her land. The next year, she again applied for an operating loan at the same FSA office, and was again denied. She then hand-delivered a complaint to the USDA State Director, Gene Carr, at the State Office
7
LDRl/386993.2

Case 1:00-cv-02502-RBW Document 160 Filed 07/13/12 Page 8 of 47
in Athens, Georgia. Mr. Carr and three loan servicing specialists met with Ms. Odom that same day to discuss her complaint, and the next day Mr. Andrews called her and informed her that she had been approved for the loan.
22. In the following year, 1994, Ms. Odom applied for farm ownership and operating loans at the Waynesboro FSA office. She was denied for both, but appealed the denials to the USDA National Appeals Division ("NAD"). NAD ruled in her favor.
23. Based on the NAD decision, in 1995, Ms. Odom went back to FSA to reapply for the same loans that had been wrongfully denied to her in 1994. She was told she had to fill out new applications, which she did. This time her applications were denied for farming in an "unworkmanlike manner." She appealed the 1995 decision as well, and again, NAD ruled in her favor.
24. In 1996, Ms. Odom tried to get loan servicing to try to reduce her loan debt, but she was told she was not eligible for any loan servicing. In 1997, and again in 1998, Ms. Odom reapplied for farm operating and ownership loans, and her applications were likewise denied.
25. Because FSA had discriminatorily denied Ms. Odom's loans applications for years, despite NAD rulings in her favor, Ms. Odom's finances were severely strained. In 1998, FSA denied her the debt restructuring for which she had applied.
26. Ms. Odom is aware of male farmers who received loans from FSA at the time she was denied loans.
27. Ms. Odom complained multiple times to USDA about the wrongful denial of her farm loan applications. She filed at least four civil rights complaints with USDA alleging gender discrimination. To date, USDA has not resolved all of these complaints.
8
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28. To the extent Ms. Odom's claims arose during the "Claims Period" covered by USDA's administrative claims program offered to women farmers who have been subjected to gender discrimination in the granting of farm loans and loan servicing, that program discriminatorily and arbitrarily denies her the opportunity to apply for relief under the terms available to similarly situated members of other minority groups.
29. Plaintiff Gail Lennon is a woman and resident of Lookout, California who operated a ranch in Day, California where she raised crops, pigs, and cows. In July 1983, Ms. Lennon and her husband applied for farm ownership and operating loans at the Modoc County FSA office. She needed the loans to purchase a ranch in neighboring Lassen County, where she planned to expand her cattle and crops base. FSA demanded excessive collateral for the loans (more than twice the amount of the loans). In 1984, the loans were granted, but the funds were placed in a supervised account, which meant that the funds could not be released for any purpose without the consent of FSA. Ms. Lennon is aware of male farmers who received loans without excessive collateral and restricted access to the funds.
30. Pending the processing of these USDA loans, County Supervisor Lloyd Leighton promised Ms. Lennon that (a) if she obtained a short-term loan from the local production credit association that said loan would be paid out of her USDA loan funds, and (b) Ms. Lennon would not be required to make payments on the USDA loans until 1986. USDA did not keep these promises. In 1985, the Modoc County Supervisor Jim Van Ness improperly canceled $18,240 of Ms. Lennon's operating loan without her consent or knowledge and required that she apply for another operating loan. Though he approved the loan, he subsequently recommended foreclosure and denied Ms. Lennon access to the operating funds.
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31. The documents for the 1985 loans listed incorrect interest and payment amounts, which Ms. Lennon has spent years attempting to correct but which instead have just led to more accumulation of debt and foreclosure notices. Forced into extreme financial difficulties due to FSA, on numerous occasions beginning in 1984, Ms. Lennon requested FSA loan servicing, including debt set-aside, deferrals, and interest rate reduction. FSA denied Ms. Lennon servicing on each occasion, even in 1986, when the NAD ordered the Modoc County Office to provide her with maximum servicing. Ms. Lennon is aware of male farmers who also owed large amounts of money to FSA but did receive servicing of their debts, which Ms. Lennon never received.
32. After years of being denied any type of servicing, in 1997 Ms. Lennon filed a civil rights complaint with the Department alleging gender discrimination. The Department finally responded to the complaint years later, but only to say that it was unable to handle the case.
33. To the extent Ms. Lennon's claims arose during the "Claims Period" covered by USDA's administrative claims program offered to women farmers who have been subjected to gender discrimination in the granting of farm loans and loan servicing, that program discriminatorily and arbitrarily denies her the opportunity to apply for relief under the terms available to similarly situated members of other minority groups.
34. Plaintiff Joyce Acomb is a woman who operated a 190-acre farm in Livingston County, New York, growing corn and raising livestock. Between 1978 and 1984, Ms. Acomb received annual farm operating loans averaging $100,000 per year, which were held in a supervised account. She made her payments on those loans to FSA without a problem, but in 1981, Mr. William Humphrey, the FSA County Supervisor, refused to allow Ms. Acomb to use any of the proceeds from the sales of her livestock, hogs, or crops to repay another loan she had
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received from the Commodity Credit Corporation ("CCC"). Because Ms. Acomb could not repay her CCC loan without those proceeds, CCC sued her, thus creating significant financial hardship for Ms. Acomb and her family. The case was ultimately dismissed when a judge found FSA's refusal to release her proceeds had relieved Ms. Acomb of her obligation.
35. Thereafter, in 1985, when Ms. Acomb applied for an annual operating loan, it was denied. This denial was followed by a letter from Mr. Humphrey stating that he would not release any sale proceeds to her, and that any money she made by selling her security (the hogs, livestock, and com) must be applied to her FSA loans. Mr. Humphrey then accused her of illegally selling her hogs, which resulted in the foreclosure of her farm in 1996.
36. Ms. Acomb filed a civil rights complaint with the USDA alleging discrimination. The USDA responded that it found no evidence of discrimination after reviewing only a portion of her file.
37. To the extent Ms. Acomb's claims arose during the "Claims Period" covered by USDA's administrative claims program offered to women farmers who have been subjected to gender discrimination in the granting of farm loans and loan servicing, that program discriminatorily and arbitrarily denies her the opportunity to apply for relief under the terms available to similarly situated members of other minority groups.
38. Plaintiff Mary L. Brown is a woman who farmed 100 acres of peanuts, cotton, com, and tobacco in Fitzgerald, Georgia. She had over 15 years of experience when she approached the FSA. In 1985, she applied for an operating loan, to be used for general expenses. She waited for quite a while after submitting her application, but did not hear anything from the FSA office. When she called to check on her application, she was told she was not qualified for a loan. Unsatisfied with that explanation, she went back to the office and spoke with a male loan
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officer who expressed surprise that a woman would apply for a farm operating loan for herself. When Ms. Brown pressed him for a more specific reason for the denial of her application, the loan officer offered her none other than she "did not qualify." Because she did not receive the needed operating loan, Ms. Brown was forced to quit farming. Ms. Brown believes that there were men who were able to apply and be accepted for FSA loans at the time she was seeking to apply for a loan. She called the FSA office multiple times to complain, however, the FSA staff refused to speak with her about her complaint.
39. To the extent Ms. Brown's claims arose during the "Claims Period" covered by USDA's administrative claims program offered to women farmers who have been subjected to gender discrimination in the granting of farm loans and loan servicing, that program discriminatorily and arbitrarily denies her the opportunity to apply for relief under the terms available to similarly situated members of other minority groups.
40. Plaintiff Joyce A. King is a woman farmer who wished to raise soybeans on the 40 acres she leased in Lincoln County, Arkansas. In January 1983, she went to the FSA office in Star City, Arkansas to obtain a farm loan operating application.. She was told it was too early, and she did not receive an application. So she returned to that office shortly thereafter, in February or March of that year, but was then told it was too late to apply for funds. She then complained to the county supervisor, Mr. Ben Reynolds. Mr. Reynolds refused to help and informed her that "women were not cut out for farming" because they were a risk and could not make a profit.
41. To the extent Ms. King's claims arose during the "Claims Period" covered by USDA's administrative claims program offered to women farmers who have been subjected to gender discrimination in the granting of farm loans and loan servicing, that program
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discriminatorily and arbitrarily denies her the opportunity to apply for relief under the terms available to similarly situated members of other minority groups.
42. Plaintiff Phyllis L. Robertson is a woman farmer in Arkansas who sought a farm operating loan to raise soybeans on her leased land. She had many years of experience. On several occasions in 1982 and 1983, she went to the FSA office in Lincoln County, Arkansas and attempted to obtain an application. She was repeatedly told, however, that no applications were available. Determined to obtain an application, she began to visit the office frequently but was told again and again that there were no applications available. Ms. Robertson knew that around this time a male farmer, Lee Owens, had not only received an application, but had also received an operating loan. On at least three occasions she tried to speak to a manager about not being able to obtain an application, but was only able to speak to the area manager once. When she spoke with him, Ms. Robertson complained that as a woman she was refused an application, while men were able to get applications. He insisted that all Ms. Robertson had to do was come to the office and pick up an application. She began visiting the loan office twice a week, but still never received an application. On one occasion, she witnessed a male farmer receive an application, but when she confronted the receptionist about this, the receptionist told her it was the last one.
43. To the extent Ms. Robertson's claims arose during the "Claims Period" covered by USDA's administrative claims program offered to women farmers who have been subjected to gender discrimination in the granting of farm loans and loan servicing, that program discriminatorily and arbitrarily denies her the opportunity to apply for relief under the terms available to similarly situated members of other minority groups.
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44. Plaintiff Edith Scruggs is a woman farmer who has a farm in Lincoln County, Arkansas and has been farming for her entire life. In 1983, she went to her local FSA office to apply for an operating loan. A loan officer gave her an application, but no assistance in completing the application. After she completed the application, a male loan officer interviewed her and made clear he did not think that women could farm. He told her that women cannot be serious about trying to farm, and that it was a joke that she was actually trying to farm for her living. He did not take her seriously when she offered her house and farm equipment as collateral, and he actually laughed at her. Then, after not hearing anything about her application for several months, she received a notice that her application had been rejected. Ms. Scruggs went back to the Lincoln County FSA office to demand an explanation for the rejection and was told there was not enough money. She was aware that male farmers in the area were receiving farm operating loans. During her return visit to the FSA office, she complained about being treated differently than male farmers who had applied for loans from FSA.
45. To the extent Ms. Scruggs's claims arose during the "Claims Period" covered by USDA's administrative claims program offered to women farmers who have been subjected to gender discrimination in the granting of farm loans and loan servicing, that program discriminatorily and arbitrarily denies her the opportunity to apply for relief under the terms available to similarly situated members of other minority groups.
46. Plaintiff Maryland B. Wynne is a woman farmer in Pine Bluff, Arkansas, who was several times rejected for farm operating loans. She had a great deal of experience when she first approached the FSA office in Star City, Arkansas in the Winter of 1983 about a small operating loan. She was forced to wait an entire day and then return the next day in order to obtain an application, which the receptionist only reluctantly provided. After completing the
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application with no assistance from the office, the county supervilsor Mr. Floyd Gaylord informed her that she would have to put up her house, car, and several other assets worth $57,000 as collateral for the $2,000 loan. Reluctantly, Ms. Wynne complied. But as months passed, she did not receive the loan funds. So she went back to the office to speak to Mr. Gaylord again, and he told her that all the loan funds had been exhausted, that he did not believe women could farm, and that women were wasting their time in farming and applying for farm loans. While waiting for the loan, Ms. Wynne was compelled to plant her seeds late in the season and thus had a low yield. This process was repeated every year for the next six years: she would apply for an operating loan, the FSA Office would drag its feet in processing her loan application, her planting would be delayed, ultimately she would not get the loan and she would have a low crop yield. In 1987, Ms. Wynne tried to obtain a larger (though still modest) operating loan of $6,000, but Mr. Gaylord laughed in her face. Because of the lack of operating loans and the resulting poor production, Ms. Wynne was forced to stop farming in 1990. Throughout the years she was denied loans, Ms. Wynne was aware that Mr. Gaylord was actually soliciting loan applications from male farmers and helping them complete the complicated applications.
47. Ms. Wynne knew of men who applied for loans from FSA at the same time she did, with similar farming experience and acreage. The men received farms loans but she did not. Ms. Wynne complained to the county supervisor and alleged gender discrimination.
48. To the extent Ms. Wynne's claims arose during the "Claims Period" covered by USDA's administrative claims program offered to women farmers who have been subjected to gender discrimination in the granting of farm loans and loan servicing, that program
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discriminatorily and arbitrarily denies her the opportunity to apply for relief under the terms available to similarly situated members of other minority groups.
49. Defendant Tom Vilsack is Secretary of the Department and is the federal official responsible for the administration of the statutes, regulations, and programs which are the focus of this action. On information and belief, Mr. Vilsack has the authority to settle disputes against the Department, and he was involved in the creation and administration of certain administrative claims programs for African-American and Native American farmers, and in the offer of a different, significantly lesser program to female and Hispanic farmers.
THE DEPARTMENT'S FARM LOAN PROGRAMS 50. FSA provides farm loans and other farm credit benefits, commodity program benefits (such as deficiency payments, price support loans, Conservation Reserve Program ("CRP") benefits), and disaster payments to U.S. farmers. The agency was created in 1994 as a result of a reorganization of USDA, primarily by the merger of the Agricultural Stabilization and Conservation Service ("ASCS"), which previously had handled commodity program benefits, price support loans, CRP payments, disaster payments, and related services, with the Farmers' Home Administration ("FmHA"), which previously had provided farm loans and other farm credit benefits. 51. FmHA had been created to provide loans, credit, and technical assistance for farmers. FmHA made loans directly to farmers or guaranteed the loans made to farmers by private, commercial lenders. These loans included "farm ownership" and "operating" loans, as well as loans that "restructure" existing loans and "emergency disaster" loans. FmHA's key responsibilities were to work with small, minority, and disadvantaged farmers - farmers who
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could not get credit elsewhere, and to assist these farmers in developing their financial plans and loan applications.
52. Defendant Vilsack is responsible for the administration of the FSA. FSA, like its predecessors FmHA and ASCS, administers the federal farm programs through a three-tiered system consisting of (1) county offices and committees, (2) state offices and committees, and (3) the NAD, a federal level of review in Washington, D.C. The local county committees consist of producers from counties who have been elected by other producers in those counties; they oversee the county offices. There is also a county supervisor in each office. The state committees consist of producers from each state selected by the Secretary of USDA; they oversee the state offices. At the federal level, the NAD renders final determinations of administrative appeals. (Prior to the 1994 consolidation, FmHA had its own administrative appeal process.)
53. The Minority and Socially Disadvantaged Program Offices within USDA have the primary responsibility for coordinating USDA programs serving minorities and the socially disadvantaged. USDA classifies women as minorities and as socially disadvantaged.
54. When a farmer or prospective farmer applies for any federal farm loan, she goes to her county FSA office (formerly the FmHA office) and fills out a Farm and Home Plan, a financial plan for the farm, along with her loan application. Assistance and guidance are often critical for the success of the application because of the complexity of the programs and forms.. Indeed, regulations require that USDA officials assist applicants in preparing the appropriate paperwork to apply for farm loans. The application process is governed by regulations found at 7 C.F.R. § 1910.3, et seq.
55. At all relevant times, the county committee and the county supervisor have exercised broad discretion in connection with the loan. For example, when the federal farm loan
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application with its supporting documents is completed, it is presented to the county committee. The committee makes an initial eligibility determination based upon the criteria in 7 C.PF.R. § 1941.12(a) (operating loans), § 1943.12(a) (ownership loans), or § 764.4 (emergency loans), many of which are subjective. The application is then reviewed by the county supervisor, who evaluates the feasibility of the applicant's Farm and Home Plan. If the county supervisor approves the applicant for participation, the loan is processed. However, the local FSA county offices have virtually unfettered discretion in reviewing loan applications and granting or denying them because many of the criteria for granting or denying loans are largely SsuUbbjjeeccttive and, as a result, susceptible to arbitrary application.
56. If an FSA loan or loan servicing is denied on discriminatory grounds, the applicant can file a complaint of discrimination with the USDA through the FSA Civil Rights Office (for FmHA, 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").
WHAT USDA DID IN RESPONSE TO COMPLAINTS OF DISCRIMINATION 57. Unbeknownst to plaintiffs, the enforcement capability of EO and OCREA was severely curtailed in 1983, leaving USDA with virtually no ability to investigate discrimination complaints. In a May 25, 1997 Richmond News Dispatch article and interview of Lloyd Wright, Director of USDA's Office of Civil Rights, Mr. Wright stated that no systematic probes or investigations into farmer allegations of discrimination in the administration of USDA loan programs had been conducted since 1983, when the Civil Rights investigative staff was disbanded. In a January 5, 1999 New York Times article, Rosalind Gray, who succeeded Mr. Wright as head of the Office of Civil Rights, stated that USDA "would agree that its procedures
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ImII handling bias claims had been flawed." Further evidence of USDA's willful failure to investigate discrimination complaints is evident in the February 27, 1997 Office of Inspector General Report ("OIG Report") and the February 1997 Civil Rights Action Team Report ("CRAT"), among other documents.
58. On March 10, 2000, USDA's Office of Inspector General released its seventh audit report, "Office of Civil Rights Status of the Implementation of Recommendations Made in Prior Evaluations of Program Complaints - Phase VII ("OIG Report VII"). The report acknowledged that the Office of Civil Rights' processing of civil rights complaints remained flawed: "This is our seventh attempt to provide [OCR] 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 1 (emphasis in original). "[N]o significant changes in how complaints are processed have been made." OIG Report VII at i (emphasis omitted).
59. During the relevant time period, OCR or its predecessor offices were legally obligated to investigate complaints of discrimination, make findings and, if appropriate, attempt conciliation with the complainants. In its 1997 OIG Report, the Office of the Inspector General found that FSA and OCREA failed to conduct investigations or otherwise follow proper procedures. See OIG Report at 1-2. Since the release of the OIG Report in 1997, upon information and belief, OCR processes and procedures have similarly failed to adequately address complaints of discrimination.
60. In 2003, the U.S. Equal Employment Opportunity Commission ("EEOC") found that USDA still failed to adequately address complaints of discrimination. In a February 23, 220003 report of its on-site review of USDA's compliance with equal employment opportunity statutes,
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rules, regulations, and directives ("EEOC Report"), the EEOC concluded that "[d]elays of processing EEO complaints, the absence of effective oversight of EEO programs, and the lack of proper separation between the Office of General Counsel and the Office of Civil Rights, has severely impacted the integrity, efficiency, and professionalism of the Office of Civil Rights, the programs it administers, and its staff." EEOC Report at 21.
61. USDA has codified regulations, 7 C.F.R. Part 15 -"N"Noonnddisisccrriimmiinnaattiion," which state USDA's 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.
62. The February 27, 1997 OIG Report addressed complaints of discrimination within FSA as well as ten other agencies within USDA. OIG found, inter alia, that the discrimination complaint process within FSA lacked integrity and accountability, was without a tracking system, had no process for reconciliation, was in disorder, did not 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 of unresolved complaints were over a decade old. OIG found no management oversight within FSA with respect to the handling of civil rights complaints.
63. At the same time that OIG released its report in February 1997, USDA also released the CRAT Report condemning USDA's lack of civil rights enforcement and accountability as a cause oftthe drastic decline in the number of minority farmers.
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64. In the CRAT Report, the USDA admitted to certain disparate treatment of
minority and small 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 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).
65. USDA admitted in the CRAT Report that discrimination complaints at USDA
were often ignored, and that farmers reported that even when there was a finding of
discrimination, USDA refused to pay damages. CRAT Report at 22-23.
66. USDA admitted in the CRAT Report that USDA's 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.
67. USDA admitted in the CRAT Report that a lack of diversity in FSA county
offices combined with a lack of outreach to small and limited-resource farmers directly affects
the participation of minorities in USDA programs. CRAT Report at 26-27. Similarly, USDA
admitted that the lack of diversity at USDA adversely affects program delivery to minorities and
women. CRAT Report at 45.
68. USDA admitted that cultural insensitivity interferes with female participation:
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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 m agriculture.

CRAT Report at 27.

69. On September 29, 1997, USDA's Office of Inspector General issued Phase II of

the OIG Report on Civil Rights Issues, entitled "Minority Participation In Farm Service

Agency's Farm Loan Prooggrraammss-- 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.

70. On September 30, 1998, the USDA's Office of Inspector General released its

"Report to the Secretary on Civil Rights Issssuueess-- Phase V" ("OIG Report V") which found that

significant problems within OCR persisted:

a. "We found that 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 the Secretary.

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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
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still in disarray, providing no decisive leadership and making little attempt to correct the mistakes of the past. We noted with considerable concern that after 20 months [OCR] has made 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 data base [OCR] uses to report the status of cases is unreliable and full of errors, and the files it keeps to store needed documentation are slovenly and unmanaged. Forty complaint .ffiillees could not be found, and another 130 complaints that were listed in USDA agency files were not recorded in [OCR]'s data base. 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 Vat iii.
e. "The absence of formal procedures and accurate records raises questions about due care within the complaints resolution process. We found critical quality control steps missing at every stage o/ftthe 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 adjudicators, who must determine whether discrimination occurred, were student interns. Legal staffmembers with the Office of General Counsel (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 oftthe 616 cases of unresolved backlog had bottlenecked in the adjudication unit." OIG Report Vat iii (emphasis added).
71. Upon information and belief, this systemic pattern of ineffectiveness has
continued. The 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 1 (emphasis in original).
b. "Based on the findings of our current review on [OCR]'s poor record of responding to our past recommendations, it
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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 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 unresolved. 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 ImII USDA programs." OIG Report VII at 14.
72. 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. Units within USDA's OCR "'"'do 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;
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d. "Data entered into the system 1ISs unverified and unreliable." !Id. at 20; and
e. "OCR's current interpretation of what is a complaint and when it is officially received undercounts the actual number of complaints being made to OCR and provides a distorted picture of complaint activity." !Id. 73. In sum, USDA's willful disregard of and failure to properly investigate discrimination complaints from women began with the disbanding of civil rights enforcement functions back in 1983, and continues today. Even after February 1997, when the enforcement staff of the OCR was re-established, USDA has failed to afford meaningful investigation and review of complaints of discrimination. STATUTE OF LIMITATIONS FOR LENDING DISCRIMINATION
CLAIMS IS EXTENDED 74. On October 21, 1998, President Clinton signed into law 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). Said legislation extends the statute of limitations for plaintiffs in this case, and the running of the statute of limitations has been further stayed by order of this Court.
THE HISTORY OF RELATED DISCRIMINATION CASES 75. Plaintiffs filed this action in 2000. Lawsuits had been filed in 1997, 1999, and 2000 against USDA on behalf of other minority groups of farmers. The complaint filed in this case, and those filed on behalf of African-American, Native American, and Hispanic farmers and ranchers respectively, included virtually identical allegations that the USDA routinely discriminated in its farm benefit programs on the basis of race, ethnicity, and gender, and failed to investigate the claims of farmers who filed discrimination complaints with the agency.
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76. The first of four virtually identical minority farmer cases seeking redress for the USDA's discrimination, Pigford v. Glickman, was filed on behalf of African-American farmers in the United States District Court for the District of Columbia on August 28, 1997. The Pigford plaintiffs claimed that USDA had discriminated against African-American farmers for decades, denying their applications, delaying the processing of their applications, or approving them for insufficient amounts or with restrictive conditions. On October 9, 1998, the trial court initially certified the case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. Thereafter, on April 14, 1999, the trial court again certified the case as a class action for settlement purposes, this time pursuant to Rule 23(b)(3).
77. On November 24, 1999, Native American farmers brought a virtually identical suit against the USDA in the United States District Court for the District of Columbia, styled Keepseagle v. Glickman. The complaint in Keepseagle echoed the allegations set forth in the Pigford complaint. On September 28, 2001, the trial court certified the case as a class action, based upon USDA's well-documented and admitted refusal to investigate discrimination complaints filed with it by Native American farmers. The class was certified under Rule 23(b)(2), for injunctive and declaratory relief only.
78. On October 13,,22000, Hispanic farmers filed a third virtually identical class action suit in the United States District Court for the District of Columbia, styled Garcia v. Glickman, alleging that the USDA, just as it did with African-American and Native American farmers, discriminated against Hispanic farmers by also denying them access to USDA's farm credit and non-credit farm benefit programs in violation of the ECOA and the APA, and that USDA refused, and still refuses, to investigate their complaints of discrimination in those programs.
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Unlike the judges in the African-American and Native American farmers' cases, the judge in the Hispanic farmers' case refused to certify the case as a class action.
79. On October 19, 2000, plaintiffs brought the instant action, originally styled Love v. Glickman. This fourth virtually identical class action suit filed in the United States District Court for the District of Columbia alleged the same substantive claims as did the AfricanAmerican, Native American, and Hispanic farmers' cases. Plaintiffs brought this case on behalf of women farmers who farmed or attempted to farm and were discriminated against on the basis of gender in obtaining a farm loan, including the servicing and continuation of a loan from USDA, during the period from January 1, 1981 through December 31, 1996, or from the period October 19, 1998 through the present, and timely complained about such treatment. The same judge who presided over the Hispanic farmers' lawsuit refused to certify this case as a class action.
80. USDA has acknowledged that the cases brought by women, Hispanic, Native American and African-American farmers present "virtually identical claims against the USDA on behalf of different minority groups," and in doing so indicated that the conflict among the class certification of the actions may warrant court review "to ensure that similarly-situated minority groups are treated consistently." See USDA's Response to Plaintiffs' Petition for Permission to Take An Interlocutory Appeal, Garcia v.. Vi/sack, D.C. Cir. Dkt. No.. 04-8008, at 19-20 (Oct. 2004). Yet now, USDA's sole basis for instituting a less favorable claims program for women (and Hispanic) farmers is the varying class certification decisions.
81. In 1999, two years after the Pigford case was filed, USDA and the Pigford plaintiffs entered a consent decree. See generally Pigford v. Glickman, 185 F.R.D. 82 (D.D.C.
r 1999) (approving consent decree). The consent decree in "Pigford F' established a two-track
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dispute resolution system. Under Track A, African-American farmers who satisfied a specified burden of proof would be paid what the Court characterized as a "virtually automatic" $50,000, plus granted certain loan forgiveness, and the government would pay the taxes due on the damage award. Alternatively, African-American farmers could elect a "Track B" process for damage claims greater than $50,000 and, by satisfying a higher burden of proof, recover unlimited damages. At the end of 2010, over $1 billion had been disbursed to more than 15,000 African-American farmers. Under the Pigford I consent decree, the government forgave all outstanding loans that were determined to be affected by discrimination proven by successful claimants. There was no limit on the total damages or debt relief awarded, and no specific documentary evidence was required. Claimants who chose Track A could be represented by class or lead counsel for free. The government paid damages and debt relief out of the federal Judgment Fund, a pool of money administered by DOJ to cover damage claims against the federal government.
82. On May 22 and June 18, 2008, Congress enacted two statutes, together known as the Food, Conservation, and Energy Act of 2008, Pub. L. 110-234, 122 Stat. 923; Pub. L. 110246, 122 Stat. 1651 ("2008 Farm Bill"). Section 14011 ofthe 2008 Farm Bill urged the USDA to settle pending discrimination lawsuits "in a just and expeditious manner." Specifically, Section 14011 reads: "It is the sense of Congress that all pending claims and class actions brought against the Department of Agriculture by socially disadvantaged farmers or ranchers . . . including Native American, Hispanic, and female farmers or ranchers based on racial, ethnic, or gender discrimination in farm program participation should be resolved in an expeditious and just manner." (emphasis added).
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83. In addition, Section 14012 of the 2008 Farm Bill provided relief to AfricanAmerican farmers who unsuccessfully sought entry to the initial Pigford settlement under paragraph 5(g) of the Pigford Consent Decree, which permitted late filings only in the event of extraordinary circumstances beyond a farmer's control. Specifically, Section 14012(b) of the 2008 Farm Bill provided that "[a]ny Pigford claimant who has not previously obtained a determination on the merits of a Pigford claim may, in a civil action brought in the United States District Court for the District of Columbia, obtain that determination." Section 14012(a)(4) defined "Pigford claimant" to mean "an individual who previously submitted a late-filing request under [paragraph] 5(g) of the [Pigford Consent Decree]." Pursuant to Section 14012 of the 2008 Farm Bill, as of January 1, 2010, over 28,000 plaintiffs had filed individual claims in 17 complaints in the United States District Court for the District of Columbia. These cases were consolidated, and they collectively became known as "Pigford 1II1.." To date, no class has been certified in any of the 17 cases, other than for settlement purposes.
84. After President Obama took office, the federal government chose to re-examine the benefits provided by Section 14012 of the 2008 Farm Bill to the African-American farmers who missed the filing deadline to participate in the original Pigford settlement. On May 6, 2009, the Obama Administration and defendant announced that the government would provide an additional $1.25 billion to cover the claims of "late-filer" African-American farmers for past discriminatory treatment. This funding was a mandatory spending provision included in the 2010 Budget to compensate African-American farmers who missed the filing deadlines of the original Pigford I settlement.
85. USDA entered a settlement agreement with the Pigford II plaintiffs on February 18,,220010. The settlement defines the "settlement class" as individuals who submitted late-filing
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requests under the Pigford consent decree between October 12, 1999, and June 19,,22008, and did not obtain a determination on the merits of their discrimination complaints. Because the congressional appropriation to fund the Pigford II settlement was capped (at $1.25 billion), the settlement limits amounts paid out under Track A and Track B to up to $50,000 and up to $250,000, respectively. The $50,000 award under Track A may be reduced pro rata based on the number of prevailing claimants under that Track, and Track B claimants may prove the amount of their actual damages up to $250,000. Moreover, amounts paid for debt relief reduce the amount available to pay damages to victims in compensation for the discrimination they suffered. If the amount of money allocated to pay debt relief is insufficient to relieve farmers of the total outstanding balance on their affected loans, any unpaid balance remains a debt of the farmer and continues to accrue interest. In addition, the tax payment provided by the government may not be sufficient to cover all taxes due as a result of an award. Other than the differences described in this paragraph, the terms are those that governed under the Pigford I consent decree, and the Pigford II claimants participate in the same administrative claims process. Claimants need not provide any specific documentary evidence, and Track A claimants may be represented by class or lead counsel for free.
86. As a result of the Pigford I consent decree and Pigford II settlement, over $2.25 billion have either been paid or allocated to settle the discrimination claims of African-American farmers.
87. On November 1, 2010, USDA reached a settlement with the Native American farmers. The settlement includes a damage award of approximately $680 million and $80 million in debt forgiveness to Native American farmers who also suffered systematic discrimination, although, upon information and belief, discrimination less pervasive and severe than that
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experienced by female farmers. The combined amount of $760 million equals the amount of damages claimed by the Native American farmers in the report submitted by their damages expert. The government, as it had for African-American farmers, agreed to provide Native American farmers with a low-cost, two-track dispute resolution process. Like the Pigford II settlement, the $50,000 award under Track A may be reduced pro rata based on the number of prevailing claimants under that track, and Track B claimants may receive the amount of their actual damages up to $250,000. Iftthe $80 million allocated for debt relief is insufficient, despite the estimate of the Keepseagle plaintiffs' expert, debt forgiveness will be reduced pro rata. The same tax relief will be awarded to Native American claimants as is awarded to African-American claimants under Pigford II. Claimants need not provide any specific documentary evidence, and Track A claimants may be represented by class or lead counsel for free.
USDA'S ADMINISTRATIVE CLAIMS PROGRAM FOR WOMEN 88. Defendant has announced that it will offer an administrative claims program for women (and Hispanic) farmers who have been the victims of discrimination in the granting of farm loans and loan servicing by USDA. But the program announced by USDA for women (and Hispanic) farmers is significantly inferior to the administrative programs offered to AfricanAmerican and Native American farmers who suffered similar discrimination and filed virtually identical complaints. 89. On May 25,,220010, again on February 25,,220011, and thereafter, defendant publicly announced its administrative claims program that would be available to female (and Hispanic) farmers who suffered discrimination in connection with USDA's loan programs. USDA has filed with the Court its "Framework" document describing the program (filed on January 20, 2012), and a draft of the "Claim Form" ·,that claimants will fill out to obtain relief through the program
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(filed on April 2, 2012). These two documents, which represent the most recent publicly released program documentation, are attached hereto as Exhibit 1. USDA has already retained a claims administrator, and has represented repeatedly that the program is final and will commence imminently. The government has represented that the program for female farmers may provide a remedy for successful claimants for discrimination suffered during the period from January 1, 1981 to December 31,,119996 and/or from October 19, 1998 to October 19,,220000.
90. The proposed claims program that is available to women farmers who have suffered discrimination is significantly less favorable and the burdens for recovery are more onerous than the programs available to African-American and Native American farmers who suffered similar discrimination. Defendant proposes that female and Hispanic farmers share a total possible recovery of approximately $1.33 billion, with the supposed possibility for a greater pool of awards if women (and Hispanics) under a certain aspect of the program can meet the high evidentiary burdens. The potential pool for awards to women and Hispanic farmers is only twice the amount the government has provided for Native American farmers, although female farmers and Hispanic farmers outnumber Native American farmers 19 to 1. The pool of funds available for awards to women and Hispanic farmers is just over half of the amount awarded to African-American farmers, although female and Hispanic farmers outnumber African-American farmers 27 to 1. These figures are based upon the most recent census, the 2007 Census of Agriculture, which lists under the category of "all operators" 985,182 women farmers, 82,462 Hispanic farmers, 55,889 Native American farmers, and 39,697 African-American farmers. The same census lists 306,207 female principal farm operators, 55,570 Hispanic principal farm operators, 30,599 African-American principal farm operators, and 34,706 Native American principal farm operators.
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91. Under the program being offered by the government, female (and Hispanic) farmers will have three "Tiers" of recovery: Tier 1(a), which allows for recovery of up to $50,000 (subject to pro rata reduction); Tier 1l((bb), which allows for recovery of up to $250,000 of actual damages shown (subject to pro rata reduction); and Tier 2, which allows for recovery of a flat $50,000 if the claimant can provide copies of loan documents and complaints to government officials originally submitted up to 30 years ago.
92. All female (and Hispanic) "constructive applicants" (those who attempted to apply for loans but were discouraged or turned away due to discrimination) may only apply under Tier 1(a). These constructive applicants will have to provide: (a) a sworn, written eyewitness statement from a witness to the discriminatory incident many years ago; (b) a copy of a complaint filed within one year of the discriminatory incident; or (c) a letter or other document to or from a non-family member written within one year of the incident detailing what occurred. African-American and Native American constructive applicants do not need to provide these documents in order to receive awards in connection with the USDA-sponsored claims programs created for their benefit. Many female (and Hispanic) claimants will thus be subjected to more onerous evidentiary requirements than similarly situated members of other minority groups. There is no valid or rational basis for this discriminatory and adverse treatment of women (and Hispanic) constructive applicants in the government's claims programs.
93. Women (and Hispanic) farmers applying under Tier 1l((bb), which allows for recovery of up to $250,000 in actual damages, also face higher evidentiary burdens than are faced by similarly situated African-American and Native American farmers applying for similar recoveries. The Claim Form filed with the Court on April 2, 2012 states that female (and Hispanic) farmers applying under Tier 1l(b) must provide: (1) a copy of a discrimination
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complaint sent to USDA; and (2) a copy of a loan application or document from USDA showing submission. African-American and Native American farmers applying for up to $250,000 of actual damages did not necessarily have to provide these documents. There is no valid or rational basis for this discriminatory and adverse treatment of women (and Hispanic) Tier 1l((b) claimants in the government's claims programs.
94. Under the program being offered by the government, there is a $160 million cap on the debt relief USDA will provide to successful women farmer claimants. Depending on the number of successful claimants, women farmers may have to share a pro rata portion (along with Hispanic farmers) of the $160 million in debt relief and USDA will not fully cancel debts that exceed the pro rata amount. The debt relief offered to African-American and Native American farmers was greater, and there is no valid or rational basis for this discriminatory and adverse treatment of women (and Hispanic) farmers.
95. Moreover, unlike the counsel provisions for African-American and Native American farmers, no female (or Hispanic) claimant will have the assistance of counsel built into the administrative claims program. Rather, all female (and Hispanic) applicants will have to pay any attorney hired to assist them in the claims process, and defendant further seeks to limit (to $1,500 under Tiers 1l((a) and 2) each claimant's payment to an attorney. There is no valid or rational basis for this discriminatory treatment of women (and Hispanic) claimants, and the lack of legal counsel will dramatically and adversely impact the ability of claimants to understand their options and the parameters of the government's claims program, and their ability to lodge successful claims.
96. Unlike the programs created for African-American and Native-American claimants, as a condition for the submission of a claim, women claimants will be required to
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execute a broad release of all credit-related discrimination claims against USDA before a claimant even knows whether her claim has been accepted for consideration on the merits. There is no valid or rational basis for this discriminatory and adverse treatment of women (and Hispanic) claimants in the government's claims programs.
97. Defendants have impermissibly conditioned the potential claim benefits they have offered to women farmers on their waiver of the following constitutionally protected rights: (1) plaintiffs' waiver and release of all of their claims and potential claims, impermissibly including claims that are not addressed in the government's administrative process; (2) plaintiffs not having access to free legal counsel, as is available to African-American and Native American claimants; and (3) plaintiffs limiting the legal fees they can pay to the counsel that they privately select and retain to no more than $1,500.
98. Despite the like pattern and practice of discrimination against African-American, Native American, female, and Hispanic farmers, defendant has not been fair in settling the claims of minority farmers, all of whom USDA similarly victimized. Defendant has intentionally proceeded unfairly, unequally, and disproportionately, favoring African-American and Native American farmers in the settlement of their claims while disfavoring similarly situated female farmers in the settlement of their virtually identical claims.
99. The government is providing substantial benefits to members of one minority group to redress discrimination, while it knowingly refuses similar benefits to similarly situated members of another minority group who undeniably suffered the same or worse discrimination at the hands of the government. The government's favoritism of certain groups of minority farmers, over other groups who are intentionally disfavored in the administration of justice, denies those
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disfavored minority groups equal protection of the laws in violation of the Fifth Amendment of the United States Constitution, and does so without any valid or rational basis.
100. The Constitution further forbids the government from intentionally offering a process for the recovery of settlement benefits that favors members of one minority group, while denying a similar process to members of another minority group, where the government has undeniably discriminated against all members of the differently treated groups in the same manner and to the same extent and inflicted similar injury on the minority farmers in each group. The USDA's substantially less favorable and more onerous program for women farmers, who have been subjected to the same, if not worse, discrimination than other minority groups of farmers, uses gender to deprive women of the due process to which they are entitled under the Fifth Amendment of the United States Constitution.
101. Requiring plaintiffs to sign a broad release of all credit-related discrimination claims against the U.S. Government and USDA as a condition of participation deprives plaintiffs of their legal rights to bring discrimination claims (those covered and not covered by the administrative claims program) with no rational basis and without due process.
102. Defendant's refusal to settle fully and comprehensively the women farmers' claims on materially the same terms as those on which defendant has agreed to settle the very same claims of African-American and Native American farmers is intentional and continues USDA's persistent discrimination against women farmers on the basis of gender in violation of plaintiffs' rights to due process and equal treatment under law in the administration ofjustice.
103. Defendant is obligated to offer a program for the settlement of women farmers' claims on terms similar to those it has provided to African-American and Native American farmers. Defendant has arbitrarily and unlawfully withheld from women (and Hispanic) farmers
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the chance to apply for and obtain relief from agency discrimination on an equitable basis with other minority groups.
104. The denial of class certification in this lawsuit does not provide a rational basis for such disparate and unequal treatment of women farmers on the one hand and AfricanAmerican and Native American farmers on the other hand, as these three groups are similarly situated victims of goverrnumnent discrimination. Defendant voluntarily agreed to settle with African-American farmers in Pigford II as a "settlement class." The Keepseagle case was certified as a class only for injunctive and declaratory relief, and the government represented that such certification was vulnerable upon review following the rulings in this case and in the Hispanic farmers' case, yet the goverrnumnent never challenged the limited certification in Keepseagle and in fact voluntarily agreed to provide $760 million in monetary relief to Native American farmers.
105. In addition, the manner in which defendant has sought to settle all of the minority farmers' cases renders the issue of class certification completely irrelevant and a pretext for discrimination. While there are important, discriminatory differences between the settlements offered to each minority group, at the core of each program offered by defendant is an individualized dispute resolution process. No claimant under any settlement can recover anything without first individually satisfying the requisite burden of proof for the applicable dispute resolution track.
CLASS ACTION ALLEGATIONS 106. Plaintiffs bring this class action on behalf of women farmers who wish to apply for relief through USDA's administrative claims program for women farmers, but who, due to USDA's decisions in offering a different program for women (and Hispanic) farmers, do not
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have the opportunity to apply for relief on equally beneficial terms to those offered by USDA to similarly situated African-American and Native American farmers.
107. As it pertains to Counts III through V below, this action is brought and may properly be 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), 23(b)(2) and/or 23(b)(3). This action satisfies the numerosity, commonality, typicality, adequacy, and predominance and superiority requirements of those provisions.
108. The class is so numerous that the individual joinder of all its members is impracticable. Upon information and belief, there are more than 300,000 women principal farm operators in the United States, and nearly one million total women farm operators. USDA's administrative claims program seeks to address discrimination suffered by women who farmed or attempted to farm and were discriminated against on the basis of gender in obtaining a farm loan or loan servicing from USDA between January 1, 1981 and December 31, 1996 and/or between October 19, 1998 and October 19, 2000, and timely complained about such treatment. On information and belief, thousands of women farmers may allege discrimination during these periods and wish to apply for relief through USDA's administrative claims program.
109. Common questions of law and fact exist as to all members of the class and predominate over any questions affecting only individual members of the class. These common legal and factual questions arise from one central issue, which does not vary from class member to class member and which may be determined without reference to the individual circumstances of any particular class member: USDA's decision to deprive women (and Hispanic) farmers of the opportunity to apply for and obtain relief for past agency discrimination on an equitable basis
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with similarly situated African-American and Native American farmers. This decision has only perpetuated the discrimination women farmers have suffered at the hands of USDA.
110. Additional common questions include: (a) whether USDA's decision to offer women farmers a less favorable administrative claims program violates their equal protection rights under the Fifth Amendment of the United States Constitution; (b) whether USDA's decision to offer women farmers a less favorable administrative claims program and one that requires them to give up a breadth of legal rights in order to participate violates their rights to due process under the Fifth Amendment of the United States Constitution; and (c) whether USDA's decision to offer women farmers a less favorable administrative claims program is arbitrary, capricious, and an abuse of discretion, in violation of the Administrative Procedure Act, 5 U.S.C. 701, et seq., and whether the Court shall compel the agency to offer an equitable program under that Act. 111. Plaintiffs' claims are typical ofthe claims of the members of the class, all of whom have been denied equal protection and due process due to USDA's arbitrary and unlawful decision to deprive them of the opportunity to apply for and obtain relief for past agency discrimination on an equitable basis with similarly situated African-American and Native American farmers. 112. 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
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the class. Both the named plaintiffs and their counsel have advocated for women farmers who faced discrimination at the hands of USDA for over a decade.
113. A class action is superior to other available methods for the fair and efficient adjudication ofthis litigation since individual litigation of class members' claims regarding USDA's administrative claims program as described in this Complaint is impracticable. The class action device presents an efficient, orderly way for one Court to adjudicate plaintiffs' and class members' claims in a single forum. Individual litigation would further present a potential for inconsistent or contradictory judgments in multiple courts and would increase the delay and expense to all parties and the court system in resolving the legal and factual issues of this case. By contrast, the class action device presents far fewer management difficulties and provides the benefits of single adjudication of a single problem.
114. The claims asserted in Counts III through V of this action are alternatively certifiable under the provisions of Federal Rules of Civil Procedure 23(b)((1I), 23(b)(2), and 23(b)(3) because:
(a) the prosecution of separate actions by the individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual class members, thus establishing incompatible standards of conduct for defendant;
(b) defendant has acted on grounds generally applicable to the class, thereby making appropriate final declaratory relief with respect to the class as a whole; and
(c) questions of law and fact common to class members predominate over any questions affecting only individual members, and a class action is superior to other methods to fairly and efficiently adjudicate plaintiffs' and class members claims with respect to Counts III through V below.
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COUNT I (Declaratory Judgment) 115. Plaintiffs, on behalf of themselves and all others similarly situated, re-allege all paragraphs above as if fully set forth herein. 116. An actual controversy exists between plaintiffs and class members and defendant as to their rights with respect to defendant's farm programs.
COUNT II (Violation of Equal Credit Opportunity Act) 117. Plaintiffs, on behalf of themselves and all others similarly situated, reallege all paragraphs above as if fully set forth herein. 118. During the period from January 1,,119981 through December 31,,119996 or the period from October 19, 1998 through the present, plaintiffs and class members attempted to apply for loans or loan servicing, or applied for loans or loan servicing from USDA. 119. Plaintiffs and class members were eligible for the loans or loan servicing that they attempted to apply for or applied for, but nonetheless they were denied; and/or plaintiffs and class members experienced overt gender discrimination when they attempted to apply for or applied for loans or loan servicing, and they were denied the loans or loan servicing they sought. 120. USDA discriminatorily denied, based on plaintiffs' and class members' gender, plaintiffs' and class members' loan application requests, loans, and/or loan servicing. 121. Plaintiffs and class members timely complained about USDA's actions. 122. USDA's acts of denying plaintiffs' and class members' loans and loan servicing and systematically failing to properly process their discrimination complaints was gender discrimination and contrary to the requirements of the Equal Credit Opportunity Act, 15 U.S.C. § 1691(a).
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COUNT III
(Violation of Equal Protection under the Fifth Amendment of the U.S. Constitution; Injunctive Relief)
123. Plaintiffs, on behalf of themselves and all others similarly situated, reallege all paragraphs above as if fully set forth herein.
124. USDA's claims administration program for women farmers has the discriminatory effect of treating plaintiffs and class members, as women farmers, less favorably than African-American and Native American farmers who suffered similar discrimination by USDA and brought virtually identical discrimination claims against USDA.
125. USDA has a discriminatory purpose in its claims administration program for women farmers: to treat women farmers less favorably than similarly situated African-American and Native American farmers, who suffered similar discrimination.
126. USDA's disparate treatment of plaintiffs and class members, as women farmers, in its claims administration program, in contrast to its treatment of similarly situated AfricanAmerican and Native American farmers, deprives plaintiffs and class members of equal protection in violation of the Fifth Amendment of the United States Constitution.
COUNT IV
(Violation of Due Prroocess under the Fifth Amendment of the U.S. Constitution; Injunctive Relief)
127. Plaintiffs, on behalf of themselves and all others similarly situated, reallege all paragraphs above as if fully set forth herein.
128. USDA's claims administration program for women farmers is arbitrary, unreasonable, and contrary to the government's legitimate, and legally-mandated, interest in treating all minorities in a nondiscriminatory manner.
129. USDA lacks legitimate justification for treating similarly situated members of different minority groups differently with regard to the claims programs.
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130. USDA's disparate treatment of plaintiffs and class members, as women farmers, in its claims administration program, in contrast to its treatment of similarly situated AfricanAmerican and Native American farmers who suffered similar discrimination, deprives plaintiffs and class members of due process in violation of the Fifth Amendment of the United States Constitution.
COOUUNNTTV (Violation of Unconstitutional Conditions Doctrine) 131. Plaintiffs, on behalf of themselves and all others similarly situated, reallege all paragraphs above as if fully set forth herein. 132. Defendants may not condition the receipt of a government benefit on the waiver of a constitutionally protected right. The fact that the government is not required to provide the benefit offered does not allow the government to apply a condition upon the receipt of that benefit in an unconstitutional manner. 133. Defendants have offered plaintiffs a potential benefit through the claims process that is conditioned upon: (1) plaintiffs' waiver and release of all of their claims and potential claims, impermissibly including claims that are not addressed in the government's administrative process; (2) plaintiffs not having access to free legal counsel, as is available to AfricanAmerican and Native American claimants; and (3) plaintiffs limiting the legal fees they can pay to the counsel that they privately select and retain to no more than $1,500. 134. Such conditions constitute mandatory waivers of constitutionally protected rights. 135. In conditioning the potential benefit on any of these waivers, Defendants impermissibly violate plaintiffs' constitutional rights.
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COUNT VI (Violation of Administrative Procedure Act; Injunctive Relief) 136. Plaintiffs, on behalf of themselves and all others similarly situated, reallege all paragraphs above as if fully set forth herein. 137. USDA's claims administration program for women farmers constitutes final agency action, and plaintiffs and class members have no other adequate remedy in court. 138. USDA's disparate treatment of plaintiffs and class members, as women farmers, in its claims administration program, in contrast to its treatment of similarly situated AfricanAmerican and Native American farmers who suffered similar discrimination, is arbitrary and capricious and violates the constitutional rights of plaintiffs and class members. 139. USDA has unreasonably withheld from plaintiffs and class members, as women farmers, the opportunity to apply for and obtain relief for past agency discrimination on an equitable basis with other minority groups. USDA's conduct related to its claims administration program is in violation 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 described in this Complaint exist at the USDA and that they are unlawful; 2. issue a permanent injunction prohibiting USDA, its officers, agents, employees and successors, from engaging in the discriminatory lending practices alleged herein, including but not limited to: (a) refusing applications to, or otherwise deterring, women farmers from applying for farm loans; (b) applying more stringent underwriting standards or otherwise discriminatorily denying loans to women who are otherwise qualified; (c) providing inadequate or less assistance to women farmers in completing farm loan applications andl/or farm and home
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plans; (d) granting loans to women on differential and less advantageous terms than similarly situated male farmers; and (e) discriminatorily denying women servicing on their loans, or providing less advantageous servicing to women farmers than that offered to similarly situated male farmers;
3. issue a permanent mandatory injunction requiring that the USDA adopt lending practices in conformity with the requirements of the Equal Credit Opportunity Act;
4. issue an Order mandating that USDA remedy its discriminatory practices, such as: (a) implementation of a procedure whereby denials of female farmer loan applications are subject to secondary review from an independent reviewing body with authority to reverse an initial rejection decision; (b) implementation of a program designed to provide specific assistance to female farm loan applicants in completing loan applications and apprising female farmers of their rights under ECOA and USDA regulations; and (c) implementation of a program designed to review USDA farm loan practices in the aggregate, through sampling or other methods, to assure that women and male farmers are being treated similarly and equally in the entire loan process;
5. 1issssue an Order mandating that USDA institute an effective system for investigating and timely responding to complaints of gender discrimination in connection with the provision of applications for the granting and servicing of farm loans;
6. issue a permanent mandatory injunction requiring that the USDA adopt recordkeeping practices that are in conformity with the requirements of the Equal Credit Opportunity Act and that otherwise permit future monitoring of the USDA's treatment ofwwoomen farmers;
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7. Issue an Order mandating that USDA implement a voluntary administrative

claims program for women farmers with material terms that are equally beneficial to those

offered to African-American and Native American farmers with similar claims of discrimination,

including but not limited to: (a) not imposing on women farmers a higher standard than required

of other minority farmers in order to be granted an award; (b) not imposing limitations on

women farmers' use oflleeggal counsel; (c) providing free legal advice and counsel to claimants as

part of the program; and (d) not requiring women farmers to broadly release all credit-related

discrimination claims against USDA before notice of receipt of their claim and confirmation that

their claim will be considered on the merits;

8. for those plaintiffs who do not choose to have their claims adjudicated in the

administrative claims program, award compensatory damages appropriate to the proof at trial;

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

and

10. order such other and further relief as the Court deems just and proper.

Dated: July 13, 2012

Respectfully submitted,

LDR/l386993.2

/Is/ Barbara S. Wahl Marc L. Fleischaker #004333 Barbara S. Wahl #297978 Kristine J. Dunne #47148 ARENT FOX LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5339 Telephone: (202) 857-6000 Facsimile: (202) 857-6395 fleischaker .marc@arentfox.com, wahl. barbara@arentfox.com, dunne.kristine@arentfox.com
Roderic V.O. Boggs Emily Brittain Read
46

Case 1:00-cv-02502-RBW Document 160 Filed 07/13/12 Page 47 of 47
WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, N..WW..- Suite 400 Washington, D.C. 20036 Telephone: (202) 319-1000 Facsimile: (202) 319-1010 Alexander John Pires, Jrr..# 185009 PIRES COOLEY
4401 Q Street, N.W.
Washington, D.C. 20007 Telephone: (202) 333-1134 Facsimile: (202) 338-3635 Philip Fraaaass# 211219 STINSON MORRISON HECKER LLP 1150 18th StreeettN.W., Suite 800 Washington, DC 20036-3845 Telephone: (202) 572-9904 Facsimile: (202) 572-9946 Counselfor Plaintiffs
47
LDR/l3 86993.2

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 1 of 41
Exhibit 1

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 2 of 41 Case 1:00-cv-02502-RBW Document 155-1 Filed 01/20/12 Page 1 of 19
January 133,,22012
FRAMEWORK FOR HISPANIC OR FEMALE FARMERS' CLAIMS PROCESS
I. PURPOSE
The United States is establishing a voluntary administrative claims process (Claims Process) for farmers who submit timely claims alleging discrimination by USDA, due to their being Hispanic or female, in responding to their applications for farm loans or loan servicing from 1981 to 2000. 1
A. Cash Pavments and Other Relief
Successful claimants will be eligible for a cash payment and debt relief on eligible farmloan debt. Some claimants will also be eligible for tax relief as described below. Claimants must elect to proceed under one of the following Tiers, each of which has different requirements and potential awards.
1. Tier 2 Payments
A Tier 2 payment of $50,000, plus tax relief on that award and debt relief from USDA on eligible farm loans, is available to those claimants who apply for such a payment, submit certain documentation, and prove the claim by substantial evidence, as provided in Section VIJlI. There is no limit to the number of claimants Wwl1lOo may qualify for Tier 2 payments, and no cap on the aggregate dollar amount of awards that may be paid to prevailing claimants under Tier 2. While there is no cap, if the total amounts paid under Tier 2 are less than $100 million, the balance will be available for awards under Tier le(a). There is a cap on the total dollar amount of debt relieffor prevailing claimants as specified in paragraph D below. Claimants who fail to prove their Tier 2 claims will automatically be reviewed for a Tier 1(a) payment.
2. Tier I Paayymmeenntsts-- Tier 1l((a) and Tier 1l((b)
Tier lI(a)
A Tier le(a) payment is available to any claimant who lacks certain documentation regarding his or her claim but can prove the claim by substantial evidence. Each successful Tier le(a) claimant will receive a cash award of up to $50,000, as provided in Section VIII, plus tax relief on that award, and debt relief from USDA on eligible farm loans. Total payments of cash awards and tax relief under Tier lI((a) are subject to a cap of$1.13 billion, plus the balances, ifaanny, from the $100 million funds described in paragraphs 1I and 3. The cash award for each successful claimant will be the same dollar amount. Due to the total cap, the dollar amount may be reduced pro rata from $50,000

1
J

See

Section

VIII

below

for

the

Relevant

Period

when

claimants

must

have

farmed

or

attempted

to

farm

for this Program to apply.

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 3 of 41 Case 1:00-cv-02502-RBW Document 155-1 Filed 01/20/12 Page 2 of 19
January 13,,22012
depending on the number of successful claimants. There is a cap on the total dollar amount of debt relief for prevailing claimants as specified in paragraph D below.
Tier l(b)
A Tier l(b) payment of up to $250,000 for proven actual damages, plus debt relief from USDA on eligible farm loans, is available to those claimants who apply for such a payment, submit documentary evidence admissible under the Federal Rules of Evidence, and prove the claim by a preponderance oftthe evidence. No tax relief will be provided under Tier l(b). Total payments under Tier l(b) are subject to a $100 million cap. If the total amounts paid under Tier 1(b) are less than $1100 million, the balance will be available for awards under Tier le(a). Because aggregate Tier 1(b) payments are subject to a cap, depending on the total number of successful Tier l(b) claimants, the actual damage award for each Tier 1l((b) successful claimant may be reduced on a pro rata basis (Li.e., by a percentage necessary to bring the total amount ofTTier l(b) payments within the $100 million cap). There is a cap on the total dollar amount of debt relief for prevailing claimants as specified in paragraph D below.
B. Deferring and Withholding of Payments Due to Audits
Payments on individual claims under any Tier may be deferred upon commencement of an audit and withheld as the result of an audit. The pro rata calculation to be made to determine the final amount of each cash payment in Tiers le(a) and 1l((b) will take into account any payments being withheld because of ongoing audits, as discussed in Section X below. Ifaat the conclusion oftthe audit process, any payments are not owed on claims that were initiated, additional payments will be made to successful claimants on a pro rata basis unless each such payment would be less than $20, in which case no additional payments will be made. A similar process for determining the amounts to be provided will apply with respect to debt relief, but without an automatic exception for amounts below $20.
cC. Tax Relief
Under Tiers 1(a) and 2, tax relief will be provided on behalf of each successful claimant, paid directly to the Internal Revenue Service, in a lump sum at the fixed rate of2255%% of the cash award, and 255% oftthe outstanding principal amount of any debt relief provided by USDA. The amount of tax relief on debt relief will exclude interest accrued on the debt. The amount ofttax relief provided to a claimant is not intended to offset completely all taxes that he or she may owe on the cash award or debt relief. No tax reliefwill be provided to claimants under Tier 1(b).
D. Debt Relief
A total of$160 million in debt reliefwill be available from USDA to successful claimants in Tiers 1l((aa), 1l((bb), and 2, but only for eligible debt as described in Section IX below. If the total dollar amounts of debt relief sought by successful claimants on
2

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January 13,,22012
eligible debt exceed this cap, USDA will not fully cancel all such debts, and debt relief will be reduced on a pro rata basis, as discussed in Section IX.
E. Sources of Funding
Cash awards and tax relief will be paid from the Judgment Fund. USDA will pay all other costs, including debt relief, costs associated with outreach and the provision of notice, and the administration and adjudication of claims. USDA will implement debt relief to successful claimants, and cover any related administrative costs associated with debt cancellation.
F. Claims Period
Claimants will have 180 days frormn the opening date oftthe Claims Period, to be announced by USDA, within which to file a complete Claims Package with the Claims Administrator. An additional period will be permitted for the completion of Claims Packages determined by the Administrator to be timely but incomplete, as described below.
G. Timing of Payments
Payments under Tier 2 will be made as soon as practicable after a final decision is made that the claimant has prevailed on the claim. Due to the caps, payments under Tier le(a) and Tier l(b) will not be made until all payments are made under Tier 2, and until final decisions are made on all claims under Tier le(a) and Tier l(b). At that time, it will be determined when payments under Tier lI((a) and Tier lI(b) will be paid, and ifsso, whether they need to be pro rated due to the total caps. That calculation will take account of any payments being withheld because of ongoing audits, as discussed in Section X below.
II. NOTICE
A. Outreach
USDA and its contractors will design a process to notify fermnale and Hispanic farmers of the availability of this Claims Process. A Claims Package will be provided, in a manner consistent with applicable attorney ethical requirements, to community advocacy groups and to persons who express interest in the Program.
Information about this program will be broadcast via mail and media outreach, and efforts will be made through meetings and direct contacts with community advocacy groups, stakeholders, and potential claimants, to inform potential claimants about the claims process and collect potential claimants' names and contact information.
3

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January 13,,22012
B. Claims Package and Additional Information
The Claims Administrator will send a Claims Package to any person who indicates an interest in the Program.
III. THE CLAIMS ADMINISTRATOR
The Administrator will:
• Establish and manage all aspects of the claims processing center. • Distribute the Claims Package forms (including the Claim Form, the
Settlement Agreement, and the Stipulation of Dismissal). • Operate a toll-free helpline that responds to inquiries by claimants or
interested parties, or inquiries referred by USDA, and refers relevant questions to the Claims Adjudicator. • Manage all documents and information to help ensure the privacy of individual claimants. • Receive claims packages submitted by claimants. • Manage all communications with claimants (including letters) related to Claims Packages. • Provide USDA, on a rolling basis, with lists of claimants. • Determine whether a Claims Package that was submitted is timely and complete and notify claimants of these determinations. • Forward to the Adjudicator for processing and resolution all timely and complete Claims Packages. • Manage contacts with claimants after the submission of a Claims Package, and ensure that questions from claimants are addressed by the Administrator or the Adjudicator, as appropriate. • Construct a comprehensive web-based tracking database to manage Claims Packages through the entire process from initial contact to the Adjudicator's decision. • Design and maintain the claims process website and implement all necessary updates. • Coordinate the payment process.
IV. THE CLAIMS ADJUDICATOR
The Adjudicator will:
• Review each Claims Package that the Administrator has deemed timely and complete, and require claimants to submit additional documentation and evidence if, in the Adjudicator's judgment, the additional documentation and evidence would be necessary or helpful in deciding the merits of the claim, or ifthe Adjudicator suspects fraud regarding the claim.
4

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January 13,,22012
• Retain an experienced agricultural economist as a "Tier 1(b) Expert" to assist the Adjudicator in assessing economic damages claims made by claimants under Tier 1(b).
• Issue a final decision granting or denying the claim. • For any claims that are denied a Tier 2 payment, review such claims under
Tier le(a). • For each successful claimant, identify all outstanding USDA loans and
determine which loans are eligible for debt relief and which are not eligible. • Notify in writing both successful and unsuccessful claimants of the results of their adjudications. • At the appropriate time, make a cash award to successful claimants. • Establish fraud controls and monitor and oversee audits as discussed below to ensure the integrity of the Claims Process. • Issue periodic reports to USDA on the progress of the Claims Process and the results of adjudications.
V. REQUIRED PROCEDURES
A. Claims Package
Any person who wishes to participate in the Claims Process must execute a Settlement Agreement, in the form provided in the Claims Package, waiving all claims oflleenndding discrimination during the relevant period, and must submit an original, completed Claims Package along with the executed Settlement Agreement to the Administrator by priority mail, or by first class mail postage prepaid, post-marked within the allowed time-period, specifying under which Tier (Li.e., Tier 2, Tier le(a), or Tier l(b)) the claimant is applying.
If a claimant has any claims pending against USDA in any court or administrative proceeding alleging lending discrimination during the relevant period, including without limitation Love v. Vilsack, No. 00-2502 (D.D.C.); and Garcia v. Vilsack, No. 00-2445 (D.D.C.), the claimant must also execute and submit to the Administrator a stipulation of dismissal with prejudice. For Claims Packages that have been forwarded to the Adjudicator, the Administrator will file the stipulation of dismissal in the court or other tribunal within thirty days of forwarding the Claims Package.
B. Irrevocability
No claimant whose Claims Package is forwarded to the Adjudicator may under any circumstances or for any reason rescind the Settlement Agreement or initiate or pursue a claim against USDA in any court or administrative proceeding arising out of or relating to allegations of lending discrimination during the relevant period.
5

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January 133,,2012
C. Release of Liability
Any individual who executes a Settlement Agreement and whose Claims Package is forwarded to the Adjudicator will be releasing and forever discharging the United States, USDA, and any of their administrators or successors, depmattmcnts, agencies, or establishments, and any officers, employees, agents, or successors oftthe United States or any such department, agency, or establishment from any claims oflleennding discrimination during the Relevant Period that were raised, or could have been raised, in any court or administrative proceeding.
If a Claims Package is rejected by the Administrator as untimely, the claimant's claims against USDA will not be released. If a Claims Package is determined by the Administrator to be timely but incomplete, and the claimant does not submit a complete Claims Package as described in Section VIIr(B) below within the time allowed, the Settlement Agreement will be rescinded, and the claimant's claims against USDA will not be released.
D. Voluntary Participation
No person is required to participate in the Claims Process, and each person may seek counsel. The United States reserves the right to assert any available defenses in any administrative or court proceeding against any person who does not participate in this Process or whose claim is disallowed because it is untimely or incomplete.
E. Oaths Under Penalty of Perjury
1. Oath by Claimant
A claimant who participates in the Claims Process must swear under oath with respect to the claim submitted as follows: "I swear under penalty of perjury that the information contained in the foregoing Claim Form is true and correct, and that any documents submitted along with the claim form are true and accurate copies." Claimants who knowingly and willfully falsify facts, make materially false statements or representations, or otherwise violate 18 U.S.C. § 1001, are subject to the penalties provided therein, including fines and imprisonment. Claimants who make false, fictitious, or fraudulent claims may also be subject to fines or imprisonment as provided in 18 U.S.C. § 287.
2. Oath by Attorney
An attorney filing a claim on behalf of a claimant shall swear, under penalty of perjury, that: "to the best of the attorney's knowledge, information, and belief formed after an inquiry reasonable under the circumstances, the claim is supported by existing law and the factual contentions have evidentiary support."
6

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January 13,,22012
VI. STATUTE OF LIMITATIONS AND MORATORIUM
A. The Statute offLLiimmiittaations
The Government intends to file a motion seeking to end the tolling of the statute of limitations presently in effect for potential plaintiffs in the Love and Garcia cases at an appropriate time after the last day of the Claims Period. In order to participate in the Program, claimants must have submitted a completed Claims Package during the Claims Period discussed above, regardless ofwwhhen the Government's motion is filed and decided. If a Claims Package is rejected by the Admiinnistrator as untimely or incomplete, the Government will not agree to further extend the tolling of the statute of limitations.
B. Stay offPPrroocceeeedings
USDA will request that the stay of proceedings in Love and Garcia remain in effect for each plaintiff and putative plaintiff in these cases who elects to participate in the Claims Process until thirty (30) days after final decisions on claims have been made and the monetary awards have been paid.
C. Moratorium on USDA Collection Actions for Claimants
USDA will refrain from foreclosing on real or chattel property owned by a claimant who submits a claims package to the Administrator or accelerating the claimant's loan account before the claim is dismissed or adjudicated; however, USDA may take any action up to but not including foreclosure or acceleration that is necessary to protect its interests. Subject to statutory and regulatory limitations including the Consolidated Farm and Rural Development Act moratorium authority under Section 331A(b), during the Claims Period, interest will not accrue, and no offsets will bce taken, on eligible farm loans held by persons who the Administrator finds submitted a timely and complete Claims Package. Interest accrual and offsets will continue on all other USDA loans. USDA retains the option of liquidating real or chattel property under an order from a court or under operation of applicable law, or, in cases of perishable collateral, when USDA determines that immediate action is necessary.
VII. DECISIONMAKING PROCESS
A. Determinations as to Timeliness
The Administrator will send a letter to each claimant who submitted a Claims Package after the Claims Period expired, indicating that the Claims Package has been rejected as untimely and that this determination is final. No further information will be requested or accepted by the Administrator from a claimant with an untimely claim.
7

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January 133,,22012
B. Determinations as to Completeness
For each Claims Package that the Administrator determines is timely filed, the Administrator shall determine whether it is complete. To be complete, a claims package must include the following information:
• Complete responses to all questions on the Claim Form.
• All necessary documentation establishing that the claimant meets the Claims
Process criteria as discussed in Section vVmHI below.
• An executed Settlement Agreement, and if applicable, a signed Stipulation of Dismissal with Prejudice of any and all actions filed in any court or other tribunal based upon the claims asserted in the Claims Process established by this Framework.
• A signed Claim Form, authorizing the release to USDA, the Administrator, and the Adjudicator of all information necessary to verify the allegations contained in the Claim Form, and certifying the truth and accuracy of the information provided under penalty of perjury. The necessary information may include, where the Adjudicator or an authorized auditor under Section X below determines it to be appropriate, Schedule F of the claimant's tax returns, or a reasonable alternative, for purposes of determining whether the claimant has previously identified farming income.
If the Administrator determines that a Claims Package is timely and complete, the Administrator will notify the claimant in writing, and will forward the Claims Package to the Adjudicator for resolution.
If the Administrator determines that a Claims Package is timely but incomplete, the Administrator will notify the claimant or, if represented, his or her counsel, as to what is missing, and provide the claimant an opportunity, until the expiration of the 180-day Claims Period, to submit a complete Claims Package. For Claims Packages that were submitted during the last thirty days oftthe Claims Period and were determined to be incomplete, the deadline to submit a complete Claims Package will be thirty days after the Administrator issues notice that the Claims Package was incomplete.
]lfthe Administrator determines that a timely Claims Package filed by a claimant who applies for a Tier 2 payment is incomplete under Tier 2 but is complete under Tier le(a), the Administrator will accept the Claims Package for consideration under Tier le(a), and will inform the claimant that the package is incomplete under Tier 2, and that unless the additional information is submitted during the Claims Period for the Claim to be considered under Tier 2, it will instead be considered under Tier le(a). Unsuccessful Tier l(b) claims will not be considered under any other Tier.
8

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January 133,,22012
C. Final Decisions
There will be no hearings by the Administrator, the Adjudicator, or USDA. USDA is not required to provide information, documents, or discovery to putative claimants, the Administrator, or the Adjudicator. USDA has the right, but not the obligation, to submit information to the Adjudicator in response to any claim filed.
The Adjudicator's decision on a claim (including a constructive application claim) will be based solely on the materials submitted by the claimant in the Claims Package and any materials that USDA may provide in response.
Once a decision has been issued, the claimant will be informed of the decision in writing within a reasonable time.
There will be no appeals available to claimants or USDA to challenge decisions made by the Administrator or the Adjudicator, including without limitation the Administrator's decision whether a claims package is timely and complete, the Adjudicator's decision on a claim, or the Adjudicator's decision as to the amount of debt eligible for debt relief.
VIII. CLAIMS DETERMINATIONS
Claimants are limited to female or Hispanic farmers who applied for a farm loan or farm loan servicing and who allegedly experienced discrimination, or their lawfully recognized representatives, or, if deceased, their estates. A claim brought by a person who is otherwise eligible for the Claims Process, who applied for a loan as a sole proprietorship or with his or her spouse as a co-applicant of a qualified joint venture as defined under I.R.S. regulations,2 is also cognizable. A claim brought by or on behalf of any other legal entity, or by guarantors, is not cognizable.
A. Tier 2 Payments
For each timely and complete Claims Package that seeks a Tier 2 payment, the Claims Adjudicator will determine whether the claimant meets the following criteria by substantial evidence:3

22 A qualified joint venture is eligible where (1) the only members of the joint operation are the claimant and his or her spouse, both of whom who applied jointly for FSA credit; (2) the claimant materially participated in the farm operation, and actively provided both management and labor as well as operating funds; (3) both married persons elected not to be treated as a partnership and assumed unlimited personal liability for all debts; and (4) the claimant allegedly experienced discrimination. A qualified joint venture does not include state law entities such as a limited partnership or a limited liability company.

3 3

"Substantial

evidence"

is

defined

as

such

relevant

evidence

appearing

in

the

record

that

a

reasonable

person might accept as adequate to sSuUpppp0O1lt a conclusion after taking into account other evidence that fairly

detracts from that conclusion.

9

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January 133,,2012

• The claimant is a female or Hispanic natural person. • IJfHHiissppanic, the claimant farmed, or attempted to farm, between January 1, 1981,
and December 31, 1996, or between October 13, 1998, and October 13, 2000; or if female, the claimant farmed, or attempted to farm, between January 1, 1981, and December 31,,1199996, or between October 19, 1998, and October 19,2000 (collectively, Relevant Period).
• The claimant owned or leased farm land during the Relevant Period or attempted to own or lease farm land during the Relevant Period.
• The claimant submitted an application (and supporting documents) to USDA for one or more farm loans or farm-loan servicciinngg44 during the Relevant Period. The claimant must (a) provide either a copy of the loan application and supporting documents, or correspondence or other documents from USDA acknowledging receipt of, or otherwise reflecting the submission of, the application, and (b) authenticate such evidence by a sworn statement from the claimant under penalty of perjury. A claim of constructive application (in which the claimant allegedly attempted to apply but was discouraged by the agency) cannot be made under Tier
2.
• At the time the claimant applied for the loan or loan servicing, he or she met all applicable USDA regulatory requirements for the loan or loan servicing.
• The farm loan or farm-loan servicing for which the claimant applied was denied, provided late, approved for a lesser amolulnt than requested, or encumbered by a restrictive condition, or USDA failed to provide an appropriate loan service.
• The USDA action was due to discrimination against the claimant, based on being Hispanic or female. The claimant mlulst set forth specific facts that support the conclusion that the USDA action was due to such discrimination. Conclusory statements, formulaic allegations, and general impressions will not be sufficient. Facts showing only that a Hispanic or female claimant was denied a loan or loan servicing (or received a loan or loan servicing on less favorable terms than requested) will not satisfy this element. Instead, the claimant must present specific facts that show by substantial evidence that the USDA action was due to discrimination based on the claimant being Hispanic or female.
• USDA's treatment of the loan or loan servicing application caused economic damage to the claimant. The claimant need not specify or prove the precise amount of such damage.
• The claimant filed a written complaint with USDA on or before July 1, 1997, either individually or through a representative, alleging discrimination by USDA in response to an application for a loan or loan servicing, based on being Hispanic or female. Alternatively, the written complaint was filed on or before July 1, 1997, with a U.S. Government official. In order to meet the requirement of having filed a timely written complaint, the claimant must provide a copy ofa timely written complaint to USDA or a U.S. Government official, or of a

4 4

The

Program

is

limited

to

applications

for

credit

from

the

FSA

(or

its

predecessor

agencies)

under

the

Operating Loan (OL) program (excluding Youth Loans), Farm Ownership (FOa) loan program, Emergency

(EM) loan program, Economic Emergency (EE) loan program, or Soil and Water (SW) loan program.

10

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January 1l33, 2012
document or correspondence from USDA or the relevant U.S. Government agency acknowledging receipt (or otherwise reflecting the filing) of such complaint, and authenticate such evidence by a sworn statement from the claimant.
B. Tier le(a) Payments
For each timely and complete Claims Package that seeks a Tier 1(a) payment or was deemed ineligible for a Tier 2 payment, the Claims Adjudicator will determine whether the claimant meets the following criteria by substantial evidence:
• The claimant is a female or Hispanic natural person. • IffHHiissppanic, the claimant farmed, or attempted to farm, between January 1, 1981,
and December 31, 1996, or between October 13, 1998, and October 13, 2000; or ifffeemmale, the claimant farmed, or attempted to farm, between January 1, 1981, and December 31,,1199996, or between October 19, 1998, and October 19,2000 (collectively, Relevant Period). • The claimant owned or leased farm land during the Relevant Period or attempted to own or lease farm land during the Relevant Period. • The claimant applied for one or more farm loans or farm-loan servicing5 at a specifically identified USDA office during the Relevant Period. • At the time the claimant applied for the loan or loan servicing, he or she met all applicable USDA regulatory requirements for the loan or loan servicing. • The farm loan or farm-loan servicing for which the claimant applied was denied, provided late, approved for a lesser amount than requested, or encumbered by a restrictive condition, or USDDA failed to provide an appropriate loan service. • The USDA action was due to discrimination against the claimant, based on being Hispanic or female. • USDA's treatment oftthe loan or loan servicing application caused economic damage to the claimant. • The claimant filed an administrative discrimination complaint with USDA on or before July 1, 1997, either individually or through a representative, alleging discrimination by USDA in response to an application for a loan or loan servicing, based on being Hispanic or female. In determining whether a complaint was forwarded to USDA by a representative, the Claims Adjudicator shall consider all of the available evidence, including representations made to the claimant and "presumptions of regularity that attach to the conduct of government officials."
For any claimant who did not actually apply for a farm loan and whose claim is based on an allegation off""ccoonnssttrructive application," a claimant must establish, by substantial evidence, each oftthe following criteria:

5 5

See note 4 for the loan programs

involved.

11

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Case 1:00-cv-02502-RBW Document 155-1 Filed 01/20/12 Page 12 of 19
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• The claimant is a female or Hispanic natural person, and farmed, or attempted to farm, during the Relevant Period.
• The claimant owned or leased specifically identified farm land during the Relevant Period or attempted to own or lease specifically identified farm land during the Relevant Period.
• The claimant made a bona fide effort to apply for one or more farm loans or farm-loan servicing during the relevant period.
• At the time the claimant attempted to apply for the loan or loan servicing, he or she met the eligibility criteria for the loan or loan servicing under the USDA's rules.
• Such attempt to apply must be established by a complaint detailing each of the following elements:
o Time period of the effort to apply; o Type of loan sought; o Type of operation planned, and how those plans were consistent
with farming operations in that county/area in that year; o Physical location of the FSA or FmHA county office where the
loan was sought; o The names of other commercial or agricultural banks in the area
from which the claimant unsuccessfully sought a loan.
• USDA actively discouraged the application. Active discouragement may be established by evidence, already held by the claimant, that a specifically identified USDA official indicated that, at the time the claimant wanted to apply:
o there were no funds available and therefore no application would be provided;
o there were no application forms available; o USDA was not accepting or processing applications; or o the claimant would not qualify for a loan or loan servicing and
therefore should not apply.
• The USDA action was due to discrimination against the claimant based on being Hispanic or female.
Claimants seeking relief under the constructive application provisions will be required to submit, in addition to the evidence required above, at a minimum:
• A sworn, verified, or notarized written witness statement from someone who witnessed the alleged incident; or
• A contemporaneous written complaint of that incident filed with USDA, either individually or through a representative, within one (1) year oftthe alleged discriminatory action. The phrase "filed with USDA" shall encompass complaints lodged with other persons if evidence establishes that the recipient of
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Case 1:00-cv-02502-RBW Document 155-1 Filed 01/20/12 Page 13 of 19
January 13,,22012
the complaint forwarded it to USDA. In determining whether a complaint was forwarded to USDA, the Claims Adjudicator shall consider all of the available evidence, including representations made to the claimant and presumptions of regUullarity that attach to the conduct of government officials; or
• A letter or other document from a non-family member to a claimant, or from a claimant to a non-family member, that was written and dated within one (1) year of the alleged discriminatory action, and that supports the contention that the claimant made a bona fide effort to apply for a farm loan or loan servicing; that he or she had a farm business plan which included specific crops, equipment, and the general location of the acreage; and that the USDA official actively discouraged the application in the manner alleged by the claimant.
C. Tier l(b) Payments
1. For each timely and complete Claims Package that seeks a Tier 1I((b) payment, the Claims Adjudicator will determine whether the claimant has established, by a preponderance oftthe evidence6 and through independent documentary evidence admissible under the Federal Rules offEEvviiddence, each of the following elements:
a. The claimant is a female or Hispanic natural person. b. If Hispanic, the claimant farmed, or attempted to farm, between January 1I, 1981,
and December 31, 1199996, or between October 13,,119998, and October 133,,22000; or if female, the claimant farmed, or attempted to farm, between January 1I, 1981, and December 31, 1996, or between October 19, 1998, and October 19,2000 (collectively, Relevant Period). The claimant owned or leased farm land during the Relevant Period or attempted to own or lease farm land. c. The claimant submitted an application (and supporting documents) to USDA for one or more farm loans or farm loan servicing during the Relevant Period. A claim of constructive application cannot be made under Tier 1I((b). d. The farm loan for which the claimant applied was denied, provided late, approved for a lJesser amount than requested, encumbered by a restrictive condition, or USDA failed to provide an appropriate loan service. e. The treatment of the claimant's loan application by USDA was less favorable than that accorded a specificcaaIlJly identified, similarly situated non-Hispanic Caucasian farmer (ifthe claimant is Hispanic) or male farmer (if the claimant is female). f. USDA's treatment of the loan or loan servicing application caused economic damage to the claimant. g. The claimant complained of discrimination to an official of the United States Government during the period January L 1981, through June 30,,119997 or during the periods October 13, 1998 through Octoobbee1,· 13,,2000 (Hispanic farmers) or

6 6

A

"preponderance

of the

evidence"

is

such

relevant

evidence

as

is

necessary

to

prove

something is more likely true than not true.

13

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 15 of 41 Case 1:00-cv-02502-RBW Document 155-1 Filed 01/20/12 Page 14 of 19
January 13,,22012
October 19,,119998 through October 19,2000 (female farmers) regarding USDA's treatment of him or her in response to the application.
2. Notwithstanding the requirement that each element in Tier 1l((b) be established by a preponderance of the evidence and with independent documentary evidence admissible under the Federal Rules of Evidence,
a. Subparts (e) and (g) above may be established by a preponderance oftthe evidence with a sworn statement based on personal knowledge by an individual who is not a member oftthe claimant's family.
b. The claimant's loan application and supporting documents forming the basis of the claimant's claim are deemed admissible under the Federal Rules of Evidence upon a sworn statement by the claimant that the loan application and supporting documents were submitted to FSA contemporaneously with the date oftthe complete application. FSA documents that were provided to the claimant in response to the claimant's loan application are also deemed admissible under the Federal Rules of Evidence upon a sworn statement by the claimant that he or she received the FSA documents in response to the claimant's loan application contemporaneously with the date oftthe response; and
c. Nothing in this Section precludes a claimant from submitting expert testimony to explain the independent documentary evidence submitted by the claimant with respect to subpart (f) above.
3. Once the Claimant has submitted independent documentary evidence admissible under the Federal Rules of Evidence or evidence as provided for above in paragraph 2, above, on each element, the Claims Adjudicator may consider the materials submitted by the claimant, the opinion and analysis by the Adjudicator's Tier l(b) Expert, as provided in Section IV, and any other information or material deemed appropriate for consideration by the Claims Adjudicator.
4. If, in the Adjudicator's judgment, additional docll!mmeennttaattiiooln1 and evidence would be necessary or helpful in deciding the merits of a particular claim, or iftthe Adjudicator suspects fraud regarding a particular claim, the Adjudicator may require that the claimant provide additional documentation and evidence. A claimant's inability to provide the requested additional documentation or evidence shall not require a rejection of that claimant's claim.
IX. DEBT RELIEF
A. Debt ReliefEElliiggibility Criteria
No claimant whose Claims Package is rejected by the Administrator or whose claim is denied by the Adjudicator, or who the Adjudicator finds does not have eligible farm-loan debt, will receive any debt relief. USDA will assist the Adjudicator, to the extent USDA
14

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 16 of 41 Case 1:00-cv-02502-RBW Document 155-1 Filed 01/20/12 Page 15 of 19
January 13,,22012
deems it necessary, to identify all farm-loan debts accrued by a claimant during the Relevant Period that are subject to relief. Each claimant must also make a good faith attempt to identify on the Claim Form any outstanding FSA farm loans, by year of obligation and by loan number, held by the claimant.
For each successful claimant who seeks debt relief, the Adjudicator will determine whether the claimant has established, by substantial evidence, each of the following:
• Relevant Period: The farm-loan debt at issue must have been obligated, rescheduled, re-amortized, or serviced during the Relevant Period; and
• Nexus Between Successful Claim and the Loan at Issue:
o The claimant must show unfair treatment in any aspect of a credit transaction concerning the loan application at issue; and
o There must be a causal connection between the act(s) of discrimination by USDA forming the basis of claimant's successful claim and the adverse credit action(s) on the debt at issue.
B. Forward-Sweep Provision
If the Adjudicator determines that a nexus exists between a claimant's successful credit discrimination claim and the adverse credit actions o01n1 a debt as described above, then USDA will, subject to the total cap on debt relief, discharge or reduce the claimant's outstanding debt to USDA that was incurred during the Relevant Period under, or affected by, the program(s) that was/were the subject of the credit claim(s) resolved in the claimant's favor by the Adjudicator, and that was issued after the earliest loan as to which discrimination was found.
This "forward-sweep" approach to debt relief will therefore require the Adjudicator to identify the following with respect to the claimant:
(1) Each loan or loan application that was under or affected by the act(s) that formed the basis of claimant's successful credit claim, and that is not the subject of an adverse administrative decision that has become final or an adverse federal or state court judgment that has become final; and
(2) All subsequent loans in the same loan program(s) until the end of the Relevant Period.?7

7 7

For

example,

if the

Adjudicator

finds

in

favor

of

a

claimant

with

respect

to

a

Farm

Operating

Loan

application that USDA denied in 1994, and USDA then made a Farm Operating Loan to the same claimant

for the same property in 1995, the 1995 loan will be discharged even though the claimant did not allege

discrimination with respect to it.

15

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January 13,,22012
Claimants cannot appeal the Adjudicator's decision as to which debts are eligible for debt relief. USDA will provide debt relief as described in paragraph C below only for those debts identified by the Adjudicator as eligible for debt relief and subject to the forward sweep provisions. Claimants will remain responsible for continuing timely payments on any debts that are not identified as eligible for debt rceliefby the Adjudicator, and USDA
wiIlIl be permitted to initiate or continue collection actions on such debts.
C. Debt Relief Procedures
In providing debt relief to successful claimants, USDA will not make any monetary payments. Rather, to the extent the $160 million cap on debt relief allows, USDA will provide such relief by administratively cancelling the entire debt or part oftthe debt for eligible loans obligated within the Relevant Period, including the principal amount, accrued interest, and any cost items associated with the program loan.
Debt relief will be applied to accounts only after all claims have been adjudicated. If USDA determines that it is necessary to reduce the amounts of debt relief on eligible debt due to the $160 million total cap, USDA will attempt to fully cancel as many eligible debts as possible for claimants who have more than one debt eligible for relief. If USDA is unable to fully cancel all such debts because the debt relief awarded exceeds the cap, USDA may, in its discretion, partially cancel eligible debts, or service and/lor restructure such debts. Claimants will remain responsible for continuing timely payments on any remaining debts.
D. Offsets ofCCaash Awards
If debt relief is reduced due to the total cap, cash awmds paid to successful claimants under Tier le(a), Tier l(b), or Tier 2 will not be offset by any remaining debt on eligible farm loans. Cash awards paid under Tier le(a), Tier l(b) or Tier 2 will, however, be subject to offset for other Government debts (such as child support or back taxes) under the Treasury Offset Program.
E. Future Eligibility
Any debt relief provided by USDA through this Claims Process will not affect an individual's future eligibility for USDA programs. Such relief will not be treated as prior debt forgiveness to the claimant. USDA will identify all persons who receive such debt relief in the direct loan database, and the debt forgiven.
X. FRAUD PREVENTION
A. Reviews, Audits, and Monitoring
The claims materials will make clear that USDA will take whatever actions it deems appropriate to review, audit, and monitor the proceedings, including submission of responses to Claims Packages in selected cases, and 1he Department of Justice may
16

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January 13,,22012
monitor proceedings as it deems appropriate. If the Adjudicator suspects fraud regarding a particular claim, the Adjudicator may require that the claimant provide additional documentation or information.
1. Reviews for Fraud and Unlawful Activity
Reviews will be conducted at USDA's sole discretion to deter and identify fraud, identity theft, and other possible criminal activities. Such reviews may include, without limitation, verifying the identity of the claimant, the truthfulness of allegations contained in the Claims Package, the location oftthe claimed farm property or farm business, and whether there are unusual concentrations of claims in particular areas. USDA may take any actions it deems appropriate based on its review, including referral to its Inspector General, or to the Department of Justice. In cases of suspected fraud, the Department of Justice may take any action it deems appropriate.
2. Performance Audits
Within 180 days oftthe adjudication of selected claims, and subsequently as appropriate, the Secretary of Agriculture will request that the Inspector General of the Department of Agriculture conduct a performance audit of adjudicated claims to determine if the claims review process is adequate and functioning as prescribed, and to ensure that funds are distributed only to eligible applicants. Audit reports will be provided as deemed appropriate to the Secretary of Agriculture and the Attorney General.
For the purposes of conducting the performance audit, the Inspector General shall have access, upon request, to the Claims Administrator, the Claims Adjudicator, and related officials, and to any information and records generated, used., or received by them, including but not limited to names and addresses.
3. Monitoring for Efficiency of the Claims Process
USDA will monitor and oversee the efficiency of the Administrator's actions.
4. Timing of Payments
Payments to claimants who are selected for audits will be withheld until the audit is complete and there has been no finding of fraud, identity theft, or other criminal activity. Performance audits or audits for efficiency of the claims process will not affect the timing of payments made to successful claimants.
B. Referrals
Referrals of any claims that appear fraudulent must be made by USDA and/or the Adjudicator to USDA's Inspector General, who will refer claims as appropriate to the Department of Justice, the appropriate US Attorney's Office, or another appropriate law enforcement agency. The Department of Justice and/or an appropriate US Attorney's
17

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 19 of 41 Case 1:00-cv-02502-RBW Document 155-1 Filed 01/20/12 Page 18 of 19
January 13,,22012
Office may on their own initiative consider claims that appear fraudulent and/or refer them to an appropriate law enforcement authority.
C. Transparency
In order to ensure full transparency of the administration of claims, the Claims Administrator shall provide to the Secretary of Agriculture, the Inspector General of USDA, and the Attorney General, any requested information regarding claims determinations and the distribution of funds.
D. Government Accountabilitvy Office
Either upon his own initiative or at USDA's request, the Comptroller General of the United States may evaluate the internal controls (including internal controls concerning fraud and abuse) created to carry out the Claims Process, and may report to Congress on the results of this evaluation. Solely for purposes of conducting the evaluation, the Comptroller General shall have access, upon request, to the Claims Administrator, the Claims Adjudicator, and related officials, appointed in connection with the Claims Process, and to any information and records generated, used, or received by them, including names and addressces.
E. Consent to Disclosure
Claimants consent to the disclosure of information and documents associated with claims to government agencies and officials and contractors for the purposes described in Section X.
XI. ATTORNEYS' FEES
Any attorneys' fees must be paid directly by the claimant. Such fees paid out of the cash award for Tier 2 or Tier le(a) shall not exceed $1,500 per claimant. For Tier l(b), such fees paid out of the cash award shall not exceed 8% of the Tier l(b) cash award.
No attorneys' fees will be paid to claimants or their counsel by USDA or the Department of Justice, or any other agency or department of the United States. The amount of cash awards will not be increased for those claimants who are represented by an attorney. No claimant is required to retain an attorney, and neither USDA, the Administrator, nor the Adjudicator will recommend that a claimant retain counnsseellor retain a specific attorney or law firm, or discourage a claimant from obtaining counnsseellor using a specific attorney or law firm. However, if claimants have legal questions, they are advised to consult with counnsseellor another legal service provider.
18

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 20 of 41 Case 1:00-cv-02502-RBW Document 155-1 Filed 01/20/12 Page 19 of 19
January 13,,22012
XII. DUAL MEMBERSHIP ISSUES
A. Single Recovery
A farmer who is both Hispanic and female is limited to a single claim in this Claims Process. A farmer whose family member or corporation or entity has been compensated for the same underlying claim as alleged in the Claim Form in an administrative or court proceeding or through a settlement may not recover in the Claims Process. If more than one claimant operates a single farm operation, recovery is limited to one claim.
B. Other Legal Actions
Any farmer who would otherwise be eligible to participate in this Claims Process, but who also asserted claims in any other administrative or civil proceeding alleging lending discrimination by USDA during the Relevant Period and who received a final resolution ofhhis or her claim, or who has not complied with the terms of Part V.D, will not be eligible to participate in this Claims Process. The Administrator will obtain the names of all persons who file claims under this Claims Process and who previously received Final Agency Decisions, Court Orders o01r' dismissals, or any other final resolutions of their claims. The Claims Admiinnistrator will also be provided with the names of all participants in the ADR processes in the cases in the United States District Court for the District of Columbia entitled Timothy C. Pigford v. Glickman, Nos. 97-1978, 98-1693 (D.D.C.) (Pigford I); In re: Black Farmers Discrimination Litigation, No. 08-0511 (D.D.C.) (Pigford II); and Marilyn Keepseagle v. Thomas Vilsack, No. 99-3119 (D.D.C.) (Keepseagle). Claims Packages submitted for consideration in this claims process by persons who participated in Pigford I or Pigford II will be disallowed by the Claims Administrator. Native American farmers who are also Hispanic or female cannot participate in both this Claims Process and any claims process created in Keepseagle with respect to the same underlying claim of discrimination.
XIII. DISCLAIMER
This document provides general guidance and does not confer any rights upon potential claimants or bind USDA or the United States in any way. Before the Claims Period commences, the United States reserves the right unilaterally to modify the terms of this Program or the contents of this document.
19

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 21 of 41 Case 1:00-cv-02502-RBW Document 157-1 Filed 04/02/12 Page 1 of 21

PART 1: CLAIMANT INFORMATION
Please provide the tfollowing intormation regarding the person who seeks to participate in this claims process ("claimant").

I I I I First Name I I I I I I I I I I I I DMIl ;rL:=:a-'=s1tFlNr-=a=mil1ielr'-=---r1-r--lr-1.l-----rr'1l--.r1--.-1r-1---.-1r--1,-.--r-1--r-1I-'.-.1.I-,'--1-".--1--.'--1".',---',1I

Business Name, if applicable
I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I
Mailing Address, including apartment, unit or box number
I I I I I I I I I I I I I I I I I I I I I I I I I 1I I 1I 1I I 1I 1I 1I 1I I

City

State

Zip

I I I 1I I I I I I I I I I I I I 1I I I I I I I I I I C~D i~=-Ir1l--.'--1-_,'_-_1_1",_'-_-_-',1I

SSN or Taxpayer ID Number

Date of Birth

I I 1I 1I I I I I I I IITTJJ--C~D--1I I I I I

Phone Number

Alternate Phone Number

I I I I1--1I I I I1--1I I I I I I I I I1--1I I I I1--1I I I I I

Email Address (optional)

I I I II I I I II I I I II II I I I I I I II I II I I I I I I I I I I I I I

Please attach a photocopy of two (2) forms of identification for the claimant. A list of acceptable forms of identification can be found in your Claims Package.

CLAIMANTS WHO ARE DECEASED OR UNABLE TO SUBMIT A CLAIM DUE TO A DISABILITY

If you are submitting a claim on behalf of a clairtnant who is deceased or unable to submit a claim ciuue to a disability, please

provide information regarding the claimant in the section above and also provide the following information regarding

yourself.

D 1I 1I I First Name

I

I

I

I

1I I

I

I

I

I

I

I

I

MIl
D

F~La=IstI1IN~1aI.m"::e:".-.".I--,."1"-I--..-1r-l--r-l--r.-I1-_,".-.I.-1--',-I1---.r--1I--r'--11-.'---1-.'---1-rr--1I"-.----11"-,'-----',11I

Business Name, if applicable

I I I I 1I 1I I 1I I 1I 1I I I I I I 1I I III I 1I I 1I I I I I I I I I I I I

Mailing Address, including apartment, unit or box number

II 1I II I 1I I II I I I I I I I I I II I I 1I I I II II II I I I I I II I I I I

City

State

Zip

I I I I 1I I I I I I I I I I I I I I I I I I I I I I [IJ i~=-Ir11l--.'---11-_,'_-__11",_'-_-_-',11I

SSN or Taxpayer ID Number

Date of Birth

II I I I II II I I I I IITTJJ--C~D--1I I I I I

Phone Number

Alternate Phone Number

I I I I1--1I I I I1--1I I I I I I II I I1--1I II I I1--1I I I II I

Email Address (optional)

I I I I I I I II I I I I II I I I I I II I I I I I I II I I I I I I I I I

1

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 22 of 41 Case 1:00-cv-02502-RBW Document 157-1 Filed 04/02/12 Page 2 of 21

Are you the Claimant's Legal Representative?

oYes
D

If you are the claimant's representative, you must submit the Court Crder appointing you as the claimant's legal representative or executor of the will, power of attorney documents, or other proof of guardianship. If not, explain below why you seek to submit this claim on behalf of the claimant.

No
D

If you are submitting claim on behalf of a deceased claimant, you must submit a copy of the death certificate and answer the following questions:

Is the Claimant's death certificate included with this Claim Form? If an estate exists for the Claimant, please provide the Estate Taxpayer ID Number:

Yes

No

D D

2

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 23 of 41 Case 1:00-cv-02502-RBW Document 157-1 Filed 04/02/12 Page 3 of 21

PART 2: ACKNNOOWWLLEEDDGGEEMMEENNTTSS-- INFORMATION YOU MUST UNDERSTAND AND AGREE TO
In order to participate in this claims process, you must agree to the following requirements. After you review each requirement, please indicate whether you agree by checking the box to the right of it.

1. Your claim(s) will be processed by the Administrator and will be decided by the Adjudicator, and their decisions will be binding and final. You waive the right to seek review of these determinations in any court or before any tribunal.

DYes, I agree.

2. In order to participate in the claims process, you must waive all claims of lending discrimination against USDA that arose during the time period covered by the claims process. If you are claiming discrimination based on being Hispanic, that time period is between January 1, 1981, and December 31, 1996, or between October 13, 1998, and October 13, 2000. If you are claiming discrimination based on being a woman, that time period is between January DYes, 1, 1981, and December 31, 1996, or between October 19, 1998, and October I agree 19, 2000. You must dismiss with prejudice any claims against USDA in any court or administrative proceeding alleging the same discrimination as alleged in this Claim Form. You cannot file another case based on the same claim(s) in any court or before any tribunal.

3. If your claim is approved, you may receive a cash award of up to $250,000., depending upon the Tier under which you seek to recover. If you currently have debt with USDA/Farm Service Agency from the time period in question 2 (above), you may also be eligible for debt relief for part or all of that debt. Such relief may not cancel your remaining debts to USDA/FSA in full.

DYes, I agree.

4. If your claim is approved, an additional payment may be made on your behalf to the IRS to reduce the taxes you may owe on the cash award and any debt relief you receive, depending upon the Tier under which you seek to recover. This payment is not intended to completely offset all taxes that you may owe as a result of a successful claim. It is your responsibility to pay any taxes that result from a successful claim.

DYes, I agree.

5. You must complete the claim form and provide all necessary documentation.

DYes, I agree.

6. If you are both Hispanic and female, you can file only one claim in this claims process. If your claim is approved, you can receive only one recovery through the claims process.

DYes, I agree.

3

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 24 of 41 Case 1:00-cv-02502-RBW Document 157-1 Filed 04/02/12 Page 4 of 21

7. If more than one claimant operates a single farm operation, only one claim can DOYves,

be filed, and only one recovery is available through the claims process.

I agree.

8. No claim will be accepted if you, your spouse, or anyone on your behalf participated in any of the following cases or settlements: Pigford v. Glickman, Nos. 97-1978, 98-1693 (D.D.C.) (I11iPigford"); In re Black Farmers Discrimination Litigation, No. 08-0511 (D.D.C.) (I11iPigford I1I/""); Keepseagle v. Vi/sack, No. 993119 (D.DD.C.) (I11iKeepseagle").

DOYves, I agree.

PART 3: DESCRIPTION OF TIERS
There are three tiers for payments.
TIER l(a). To be eligible for payment under Tier 1l((aa)), you must establish the elements by substantial evidence. If you establish the elements for Tier 1l((aa)), you will receive:
• A cash award of up to $50,000, depending on the number of successful claims; • Debt relief from USDA for some or all of your eligible USDA/FSA Farm Loan Program debt; and • A tax payment to the IRS of 25% of the total of the cash award and debt relief. The dollar amount of Tier 1l((aa) cash awards will be the same for each successful claimant, and will be determined after all Tier 1l((aa) claims have been adjudicated. The dollar amount for each award is subject to reduction from $50,000 depending on the total number of successful claims under Tier 1l((aa)). No payments will be made under Tier 1l((aa) until all Tier 1l((aa) claims have been decided. Tier l(a) is the only Tier under which claimants who sought to apply for a USDA loan but were actively discouraged from submitting an application may be eligible for payment.

TIER l(b). To be eligible for payment under Tier 1l((bb)), you must establish the elements by a preponderance of the evidence and (except as provided below) through independent documentary evidence admissible under the Federal Rules of Evidence. You must also: 1) provide a copy of your application for USDA loan assistance, or a document from USDA showing that you submitted an application; 2) provide a copy of a discrimination complaint that was sent to USDA prior to July 1, 1997; and 3) set forth specific facts showing that the USDA action was due to discrimination. Your loan application and supporting documents forming the basis of your claim are deemed admissible under the Federal Rules of Evidence upon a sworn statement by you that these documents were submitted to USDA contemporaneously with the date of the complete application. USDA documents that were provided to you in response to your loan application are also deemed admissible under the federal Rules of Evidence upon a sworn statement by you that your received these USDA documents in response to your loan
4

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 25 of 41 Case 1:00-cv-02502-RBW Document 157-1 Filed 04/02/12 Page 5 of 21

application contemporaneously with the date of the response. If you establish the elements for Tier 1l((bb)), you will receive:
• A cash award of up to $250,000 for proven actual damages; and • Debt relief from USDA for some or all of your eligible USDA/FSA Farm Loan Program debt. • No tax payment will be made. Total payments under Tier 1l((bb) are subject to a $100 million cap, and awards may be reduced from $250,000 on a pro-rata basis depending on the number of successful claimants and the total dollar amounts of their actual damages.
TIER 2. To be eligible for payment under Tier 2, you must establish the elements by substantial evidence, and also provide: 1) a copy of your application for USDA loan assistance, or a document from USDA showing that you submitted an application; and 2) a copy of a discrimination complaint that was sent to USDA prior to July 1, 1997. If you meet the elements for Tier 2, you will receive:
• A $50,000 cash award; • Debt relief from USDA for some or all of your eligible USDA/FSA Farm Loan Program
debt; and • A tax payment to the IRS of 25% of the total of the cash award and debt relief.

In Part 4 below, you must select one of these Tiers. PART 33 -- CLAIM INFORMATION
A. IDENTITY Are you Hispanic/ Latino?

oYES NO
D 0D

Are you female?

oYES NO
D 0D

B. WHEN DID YOU OPERATE, OR ATTEMPT TO OPEARTE, A FARM? If you are Hispanic/ Latino or female, did you farm, or attempt to farm, between January 1, 1981, and December 31, 1996?
YES NO 5

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 26 of 41 Case 1:00-cv-02502-RBW Document 157-1 Filed 04/02/12 Page 6 of 21
D D
If you are Hispanic/Latinao, did you farm or attemptto farm between October 13, 1998, and October 13, 2000?
YES NO
D D
If you are female, did you farm or attempt to farm between October 19, 1998 and October 19, 2000?7
YES NO
D D
If you answered "Yes" to any part of question B above, please describe your farming operation or your attempt to farm, including the type and amount of crops and/or livestock. (Attach additional pages if necessary):
C. WHEN AND WHERE DID YOU OWN OR LEASE, OR ATTEMPT TO OWN OR LEASE, FARM LAND? If you are Hispanic/Latinao or female, did you own or lease, or attempt to own or lease, farm or
ranch land between January 1, 1981, and December 31, 1996?7 YES NO
D D
If you are Hispanic/Latinao, did you own or lease, or attempt to own or lease, farm or ranch land between October 13, 1998, and October 13, 2000?7 YES NO
D D
If you are female, did you own or lease, or attempt to own or lease, farm or ranch land between October 19, 1998, and October 19,,220000?7 YES NO
D D
6

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 27 of 41 Case 1:00-cv-02502-RBW Document 157-1 Filed 04/02/12 Page 7 of 21
Please check each box that applies: o0 Owned o0 Attempted to Own
o Leased o0 Attempted to Lease
If you answered "Yes" to any part of Question C above, please describe in detail the farm or ranch land that you owned or leased or attempted to own or lease, including the location (the full address, the crossroads, and/or legal the description are acceptable), the type of land, and the acreage. (Attach additional pages if necessary). If available, please provide any documentation of your ownership interest in agricultural land such as a deed, a leases an easement, a purchase agreement, equipment receipts, or other evidence that you participated in a USDA farm program. (Attach additional pages if necessary).
D. DID YOU COMPLETE AND SUUBBMMIIT AA LLOAN APPPLLICATION TO USDA? Did you complete and submit a written application to USDA for one or more specific farm loans
or for farm loan servicing during any of the following periods: If you are Hispanic/Latinao or female, between January 1, 1981, and December 31, 19967?
oYES NO
D 0D
If you are Hispanic/Latinao, between October 13, 1998, and October 13, 20007? OR
oYES NO
D 0D
If you are female, between October 19, 1998, and October 19, 20007?
oYES NO
D 0D
If you answered "Yes" to any part of Question D, did you withdraw the application before
USDA made a decision on the application? YES NO
D D
7

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 28 of 41 Case 1:00-cv-02502-RBW Document 157-1 Filed 04/02/12 Page 8 of 21
TIER 1l((bb) and TIER 2 ONLY: IF YOU SEEK PAYMENT UNDER TIER 1l((bb) OR TIER 2, AND YOU ANSWERED "YES" TO ANY PART OF QUESTION D0, YOU 1I\\IIUUSST ATT/\CH A COOPpYy OF THE APPLICATION OR CORRESPONDENCE OR OTHER DOCUMENTS FROM USDA ACKNOWLEDGING RECEIPT OF, OR REFLECTING THE SUBMISSION OF, THE APPLICATION; AND YOU MUST ALSO ATIACH A SWORN STATEMENT, SIGNED UNDER THE PENALTY OF PERJURY, SWEARING THAT THE DOCUMENT IS AUTHENTIC, AND STATING WHEN YOU SUBMITTED TO USDA, OR WHEN YOU RECEIVED IT FROM USDA. ATTEMPTED APPLLIICCAATTIOIONN- TIER li(a) ONLY
IF YOU SEEK PAYMENT UNDER TIER 1l((aa) AND YOU ANSWERED NO TO ALL PARTS OF QUESTION D, did you attempt to submit a written application to USDA for one or more specific farm loan or for farm loan servicing during any of the following periods:
If you are Hispanic/Latinao or female, between January 1, 1981, and December 31, 1996? YES NO
D D
If you are Hispanic/Latinao, between October 13, 1998, and October 13, 2000? OR YES NO
D D
If you are female, between October 19, 1998, and October 19, 2000? YES NO
D D
For each attempt to apply, please provide the following information: The year(s) and month(s) you attempted to apply;
How you planned to use the funds (i.e., identify crops, livestock, equipment, acreage, etc.);
8

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 29 of 41 Case 1:00-cv-02502-RBW Document 157-1 Filed 04/02/12 Page 9 of 21
The location of the FSA or FmHA county office where you sought the loan(s);
The name of any commercial or agricultural banks in the area where you unsuccessfully sought a loan(s).

When you attempted to apply, did a USDA official state that:

(a) there were no funds available and therefore no application would be provided;

(b) there were no application forms available;

oYES NO
D 0D

(c) USDA was not accepting or processing applications; OR

oYES NO
D 0D

oYES NO
D 0D
(d) you would not qualify for a loan or loan servicing and therefore should not apply?

oYES NO
D 0D

If you answered "Yes" to any of the subparts (a) through (d) above, please describe in detail each incident. (Attach additional pages if necessary):

9

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If you answered "Yess"'' to any of the subparts (a) through (d) abovr:!, you must attach one of the following documents:

a sworn, verified, or notarized written witness statement from someone who witnessed the alleged incident;

OR

a contemporaneous written complaint of that incident filed with the USDA, either individually or through a representative, within one (1) year of the alleged discriminatory action;

OR

a letter or other document from a non-family member to you, or from you to a nonfamily member, that was written and dated within one year of the alleged discriminatory action, and that supports your contention that you made a bona fide effort to apply for a farm loan or loan servicing; that you had a farm business plan which included specific crops, eqUuiipment, and the general location of the acreage; and that the USDA official actively discouraged the application in the manner you allege.

A complaint "filed with the USDA" includes a complaint lodged with another person if evidence establishes that the recipient of the complaint forwarded it to USDA. The Claims Adjudicator will consider all available evidence, including representations made to you and presumptions of regularity that attach to the conduct of government officials.

E. IN WHAT CAPACITY DID YOU APPLY?

If you applied or attempted to apply for USDA farm credit, did you do so:

For yourself (individually)?

YES NO
D D

As a sole proprietor?

YES NO
D D

On behalf of a corporation, business partnership, or other business entity? YES NO
D D

10

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 31 of 41 Case 1:00-cv-02502-RBW Document 157-1 Filed 04/02/12 Page 11 of 21

IIff ssoo,, pplleeaassee ssppeecciiffyy tthhee e entin ty _t i_t_ y_ - -_-_-_- -_-_-_-_ - -_-_-

With a spouse or other co-applicant?

oYES NO
0 D

If you applied with a spouse or any other co-applicant, please provide the following information:

CO-APPLICANT INFFOORRMMAATTIOIONN-- FOR CLAIMANTS WHO APPLIED FOR USDA LOANS WITH ANY OTHER PERSON(S)

If applicable, list each individual who was, or would have been, a co-applicant to the loan application that is the subject of this claim of unfavorable treatment.
F1irrsst Co-Applicant's Name (First, Middle, Last)
1--·-

--------- -- - - -
Co-Applicant's Social Security/Taxpayer IJ..DD. Number

F1irrsst Co--AApppp1l1iccaant s MMaa1l1ll1nngAAddddrreessss//CCitvr;;'State/ZLip

First Co-Applicant's Phone Number

Relationship to Claimant (if any)

__-_// __ // ___-_-_-
Co-Applicant's Date of Birth

Second COo--AApppplliicant's Name (First, Middle, Last) Number

--
Co-Applicant'SSociaTSecurity/Taxpayer IJ..DD.

Second COo--AApppplliicant's Mailing Adadaress/!COittyy!/State!/Zlip

Co-Applicant's Phone Number

Relationship to Claimant (if any)

__ -___/! __ // ___-_-_Co-Applicant's Date of Birth

Iif you had more than two co-applicants, please provide the same categories of information for all other co-applicants on extra pages.

11

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If you applied with a spouse, you must also answer the following questions: Were you and your spouse the only operators of the farm business?
YES NO
0D DD
Did you yourself materially participate in the farm operation and actively provide both labor and management as well as operating funds?
YES NO
0D DD
Were you yourself the primary applicant for the farm loan or loan servicing? YES NO
0D DD
Did you list your spouse as a co-borrower on the application for a USDA farm loan or loan servicing?
YES NO
0D DD
Did both you and your spouse elect not to be treated as a partnership under State law?
YES NO
0D DD

F. WHAT TYPE OF LOAN(S) DID YOU SEEK FROM USDA?

Identify the type of farm loan(s) and the approximate loan amounts for which you applied or sought to apply to USDA:

D0 D0 Operating Loan (OL) _ _ _ _ __

Farm Ownership Loan (FO) - _ _ -_-

D0 SSooiill aanndd WWaatteerr ((SSWW)) - _- _- _- _-_-_-_-_ 0D 0D Emergency Loan (EM)

Economic Emergency (EE) _ _ __

12

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 33 of 41 Case 1:00-cv-02502-RBW Document 157-1 Filed 04/02/12 Page 13 of 21
When did you apply for the loan, and where was the USDA office located? (Attach additional pages if necessary).

G. DID YOU MEET THE BASIC USDA LOAN ELIGIBILITY REQUIREMENTS?
At the time you applied or attempted to apply for a USDA farm loan:
Did you have prior experience owning a farm, running a farm, working on a farm, or managing a farm business?
YES NO
D D
If you answered "YES" above, please describe the prior farm experience(s). (Attach additional pages if necessary).

Were you: a citizen of the United States? or

YES

NO

D D

a legal resident alien?

YES NO
D D

If you were not a U.S. citizen or a legal resident alien, please explain your status when you applied.

13

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 34 of 41 Case 1:00-cv-02502-RBW Document 157-1 Filed 04/02/12 Page 14 of21

Were you over 18 years old and capable of making legal decisions?

Were you delinquent on any Federal debt?

YES NO
D D
YES NO
D D

Had you ever received debt forgiveness from USDA?

YES NO
D D

If you received debt forgiveness, please list all instances when USDA provided loan forgiveness or writedowns of the loans other than as a result of a resolution of a discrimination claim. (Attach additional pages if necessary).

Had you ever been convicted of planting, cultivating, growing, producing, harvesting, or storing a controlled substance under federal or state law?
YES NO
D D
If you had been convicted of any such offense, please provide a brief narrative that explains the circumstances. (Attach additional pages if necessary.
H. WHAT WAS THE RESULT OF THE LOAN APPLICATION? If you completed and submitted a farm loan application to USDA, do any of the following
apply? You were denied for the farm loan(s) you applied for or attempted to apply for. YES NO 14

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 35 of 41 Case 1:00-cv-02502-RBW Document 157-1 Filed 04/02/12 Page 15 of 21
D D0

You were approved for a loan amount that was less than you requested. YES NO
DD 0D

The loans you were approved for had restrictive conditions

YES NO
D D

USDA failed to provide appropriate loan servicing on your existing USDA loans. YES NO
D D

If you answered ('1/YES" to any subpart of Question H, please provide specific facts concerning USDA's response to the loan or loan servicing application. (Attach additional sheets if necessary.)

I. DO YOU BELIEVE THAT USDA DISCRIMINATED AGAINST YOU? Do you believe that USDA discriminated against you because you are Hispanic or Latino? YES NO
D D
Do you believe that USDA discriminated against you because you are female? YES NO
D D
If you seek payment under Tier 2, you must set forth specific facts showing that USDA's action was due to discrimination. Conclusory statements, formulaic allegations/l and general impressions will not suffice. (Attach additional pages if necessary).
15

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For Tier 1l((bb} claimants only. If you seek payment under Tier 1l((bb}}, do you believe that USDA's treatment of the loan application was less favorable than that accorded a similarly situated non-Hispanic Caucasian farmer (if Hispanic}), or a similarly situated male farmer (if female})?
YES NO
D D
If you seek payment under Tier 1l((bb}}, please (1) identify the similarly situated farmer(s}; (2) explain in detail how you were similarly situated with respect to your farm operation; and (3}) describe how USDA's treatment of your loan application was less favorable than that accorded to the farmer. You may establish this element with a sworn statement based on personal knowledge by an individual who is not a member of your family. (Attach additional pages if necessary.)
J. DID YOU SUFFER ECONOMIC DAMAGE? Did USDA's treatment of the loan or loan servicing application(s} or of the attempt to apply, cause economic damage to you?
YES NO
D D
If you answered "YES" to Question J, please explain the type of economic damages that you suffered. (Attach additional sheets if necessary.)
If you seek payment under Tier 1l((bb)), please specify the amount of damages you suffered and the facts involved. Please also provide below any documentary evidence supporting the amount of economic damages being claimed. To satisfy the documentation requirement for Tier 1l((bb)), you are permitted to provide the written testimony of an expert witness that you hire to help support their damages claim.
16

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 37 of 41 Case 1:00-cv-02502-RBW Document 157-1 Filed 04/02/12 Page 17 of 21
K. DID YOU FILE A DISCRIMINATION COMPLAINT WITH USDA? Did you file a written complaint of discrimination with USDA or with a U.S. Government official on or before July 1,,119997, either individually or through a representative, regarding USDA's treatment of the loan application(s)?
oYES NO
0 0
If you answered "YES," state when you filed the complaint, which Government official or agency you filed it with, and the outcome (if any).
IF YOU SEEK PAYMENT UNDER TIER 1l((bb} OR TIER 2 AND YOU ANSWERED "YES" TO QUESTION K, YOU MUST ATTACH A COPY OF THE COMPLAINT. If you seek payment under Tier 1l((bb)), you may attach a sworn statement based on personal knowledge by an individual who is not a3 member of your family. L. HAVE YOU FILED A COMPLAINT IN COURT REGARDING USDA LENDING DISCRIMINATION? Have you filed a complaint of discrimination against USDA in any court or tribunal regarding a loan application?
oYES NO
0 0
If you answered "YES," please provide the following information: ii.. DDaattee ooff yyoouurr ccoouurrtt c coo mpm lainpt _l a_i_ n t_-_ - -_ - -_- -_ ii. Name of court or tribunal, and Docket N Numubem r _b_e_r_ - -_- -_-_- -_ iii. Has your complaint been adjudicated, resolved or dismissed?
oYES NO
0 0
If available, please attach copies of your court complaint, any dismissal of that complaint, and/or any final decision regarding your complaint.
17

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 38 of 41 Case 1:00-cv-02502-RBW Document 157-1 Filed 04/02/12 Page 18 of 21
M. HAS YOUR SPOUSE, OTHER FAMILY MEMBER, OR OTHER PERSON ON YOUR BEHALF PARTICIPATED IN ANOTHER USDA SETILEMENT PROGRAM?
Has your spouse or any other family member, or any other person acting on your behalf filed a claim with USDA or in a court or tribunal, or participated in a settlement seeking relief for discrimination, concerning the loan or loan service at issue in this claim?
YES NO
D D
If you answered "YES," please provide the case number, a copy of the claim if available, or any other information regarding that claim and any final decision on it. (Attach additional pages if necessary).

N. DO YOU HAVE OUTSTANDING USDA FARM LOAN PROGRAM DEBT? Are you seeking relief of outstanding USDA/FSA farm loan program debt? YES NO
D D
If so, please provide as much of the following information as possible regarding your outstanding USDA/FSA Farm Loan Program debt: (Attach additional pages if necessary)

USDA/FSA Case Number

Llooaan Program Llooaan or Llooaan Type Number
(OOLl, FO, EM, EE, SW)

Year Loan Obtained

USDA/FSA County Office Where Loan Obtained

Outstanding Balance on Llooaan

18

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If you have outstanding debt, you must complete the Authorization to Disclose Debt Information Form included in the Claims Package. PART 4: TIER SELECTION YOU MUST SELECT ONE OF THE FOLLOWING TIERS: 1l((aa)), 1li(bb)), or 2. After reviewing the descriptions of the Tiers in Part 5 and the claim requirements in Part 6 above, please check one box to select the Tier under which you seek to recover. ONCE YOU SUBMIT THE CLAIM FORM, YOUR SELECTION IS FINAL AND CANNOT BE CHANGED. However, persons who select Tier 2 and are not eligible for an award under that Tier will automatically be considered for an award under Tier 1l((aa)). I SELECT:
Do TIER 1l((aa)).
Do TIER 1l((bb)). OR
oD TIIEERR2.
ADDITIONAL INFORMATION Please provide any additional information or documentation that you believe is relevant to your claims (attach additional sheets if necessary):
19

Case 1:00-cv-02502-RBW Document 160-1 Filed 07/13/12 Page 40 of 41 Case 1:00-cv-02502-RBW Document 157-1 Filed 04/02/12 Page 20 of 21

DECLARATION
CLAIMANT'S DECLARATION
Pursuant to 28 U.S.C. § 1746, I swear under penalty of perjury that the information contained in the foregoing claim form is true and correct, and that any documents submitted along with the claim form are true and accurate copies of such documents.

Signature of Claimant/Submitter

Date

If the claim is filed by an attorney on behalf of a claimant:
To the best of the attorney's knowledge, information, and belief formed after an inquiry reasonable under the circumstances, the claim is supported by existing law, and the factual contentions have evidentiary support.
Signed under penalty of perjury.

Signature of Attorney Firm Name (if applicable) Mailing Address

Date

City

State

Zip Code

20

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APPLICATION CHECKLIST

o0 Proof of Identtity Photocopies of Two forms of Identification

For Persons Submitting A Claim On Behalf Of Another Person
o0 Proof of Legal Representation o0 Death Certificate, if applicable

Settlement Agreement

oo00

Settlement Agreement and Waiver Stipulation of Dismissal with Prejudice

o0 Tier Election: I selected either Tier l(a), Tier l(b), or Tier 2 o0 I did not select more than one

Claim Information

o D D o

Documentation of farm land ownership interest, if available Copy of the Loan Application or a USDA document reflecting submission

of application, if available, and a sworn statement authenticating such

document (required for Tier 1li(bb) and Tier 2 only)

D o

Copy of the discrimination complaint or a USDA document reflecting the

filing of such complaint, if available, and a sworn statement

authenticating such document (required for Tier l(ib) and Tier 2 only)

o D D D o o

Copies of the Court Complaint, Dismissal, and/or Decision, if available Documentation of prior claims against USDA, if applicable Authorization to Disclose Debt Form, if Debt Relief is requested

Attempted Application (Tier l(a) Only})
o0 A Sworn, Verified, or notarized witness statement, OR o0 A Contemporaneous Written Discrimination Complaint to USDA, OR o0 A document from a non-family member to you, or from you to a non-
family member that supports your contentions.

21

 
 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ROSEMARY LOVE, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 00-2502 (RBW)

)

TOM J. VILSACK,

)

Secretary, United States Department of )

Agriculture,

)

)

Defendant.

)

____________________________________)

MEMORANDUM OPINION

The plaintiffs in this civil action are female farmers who allege that the United States

Department of Agriculture (“USDA”) discriminated against them on the basis of gender by

denying them “equal and fair access to farm loans and loan servicing, and of consideration of

their administrative complaints.” Fourth Amended and Supplemental Complaint (“Am.

Compl.”) at 3. Most relevant for present purposes, the plaintiffs also claim that the “USDA

offered and is implementing voluntary administrative claims programs to adjudicate the claims

of members of other minority groups who suffered similar discrimination,” but “has arbitrarily

refused to offer equivalent terms to women, further depriving them of equal protection and due

process.” Id. Currently before the Court is the USDA’s motion to dismiss Counts III through VI of the fourth amended complaint. Upon careful consideration of the parties’ submissions,1 the Court concludes for the following reasons that the USDA’s motion must be granted.2

1 In addition to the filings already identified, the Court considered the following submissions in rendering its decision: the Memorandum in Support of Defendant’s Motion to Dismiss Counts III through VI of Plaintiffs’ Fourth Amended and Supplemental Complaint (“Def.’s Mem.”); the Plaintiffs’ Memorandum in Opposition to Defendant’s Motion to Dismiss Counts III through VI of Plaintiffs’ Fourth Amended and Supplemental Complaint, and in (continued . . . )

I. BACKGROUND
Between 1997 and 2000, African-American, Native American, Hispanic, and female
farmers filed four similar class action lawsuits alleging that “the USDA routinely discriminated
in its farm benefit programs on the basis of race, ethnicity, and gender, and failed to investigate
the claims of farmers who filed discrimination complaints with the agency.” Am. Compl. ¶ 75;
see Pigford v. Glickman, Nos. 97-1978, 98-1693 (D.D.C.) (“Pigford I”) (African-American
farmers); Keepseagle v. Vilsack, No. 99-3119 (D.D.C.) (Native American farmers); Garcia v.
Vilsack, No. 00-2445 (D.D.C.) (Hispanic farmers); Love v. Vilsack, No. 00-02502 (D.D.C.)
(female farmers). A brief overview of those cases is necessary to understand the claims that are
the subject of the USDA’s motion to dismiss.
On October 9, 1998, Judge Paul L. Friedman of this Court certified Pigford I as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) for purposes of liability.3 Pigford v.
Glickman, 182 F.R.D. 341, 352 (D.D.C. 1998). Judge Friedman later vacated his original class certification order on January 5, 1999, and certified a new class pursuant to Rule 23(b)(3).4
Pigford v. Glickman, 185 F.R.D. 82, 92 (D.D.C. 1999). Following the Court’s class certification
rulings, the parties in Pigford I negotiated a class-wide settlement, which Judge Friedman
( . . . continued) Support of Plaintiffs’ Motion for Partial Summary Judgment as to Counts III through VI (“Pls.’ Opp’n”); and the Reply Memorandum in Support of USDA’s Motion to Dismiss Counts III-VI of Plaintiffs’ Fourth Amended and Supplemental Complaint (“Def.’s Reply”). 2 The Court is contemporaneously issuing on this date a Memorandum Opinion in Cantu v. United States, No. 11541 (D.D.C.), which addresses claims of Hispanic farmers similar to those asserted in this case. 3 Rule 23(b)(2) permits class certification where, among other things, “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). 4 Rule 23(b)(3) permits class certification where, among other things, “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
2

approved in a consent decree issued on April 14, 1999. Id. at 113. The Pigford I consent decree “did not provide for the automatic payment of damages to any plaintiff”; rather, “it established a non-judicial mechanism,” i.e., an administrative claims process, “by which each class member would have an opportunity to demonstrate that he or she had been the victim of past discrimination by the USDA and therefore was entitled to compensatory damages.” In re Black Farmers Discrim. Litig., 856 F. Supp. 2d 1, 9 (D.D.C. 2011).
The Pigford I consent decree imposed a deadline for African-American farmers to submit their claims for administrative adjudication, id. at 10, and many farmers tried, unsuccessfully, to file claim packages after the deadline expired, id. at 11. To address this problem, “Congress resurrected the claims of those who had unsuccessfully petitioned the Arbitrator for permission to submit late claim packages” by enacting “the Food, Conservation, and Energy Act of 2008.” Id. This Act provides that “[a]ny Pigford claimant who has not previously obtained a determination on the merits of a Pigford claim may, in a civil action brought in the United States District Court for the District of Columbia, obtain that determination.” Pub. L. 110–234, § 14012(b), 122 Stat. 923, 1448 (2008). After the Act became effective, thousands of AfricanAmerican farmers filed suit in this Court. In re Black Farmers, 856 F. Supp. 2d at 13. Those cases are collectively known as Pigford II. Id. The parties in Pigford II reached a class-wide settlement agreement on February 18, 2010, id., which Judge Friedman approved, id. at 42. The settlement agreement largely maintained the administrative claims process utilized in Pigford I, with some modifications. Id. at 22.
Keepseagle proceeded much like Pigford I, albeit at a different pace. Judge Emmet G. Sullivan of this Court certified that case as a class action pursuant to Rule 23(b)(2). See Keepseagle v. Veneman, No. 99-03119, 2001 WL 34676944, at *1 (D.D.C. Dec. 12, 2001).
3

Nine years later, in 2010, the parties reached a class-wide settlement agreement, which Judge Sullivan approved. See Keepseagle v. Veneman, No. 99-03119, ECF No. 577 (D.D.C. Nov. 1, 2010) (order granting preliminary approval of settlement). The settlement agreement in Keepseagle established an administrative claims process for Native American farmers that was similar, though not identical, to the process established in Pigford I. See Am. Compl. ¶ 87; Def.’s Mem. at 4.
This case and Garcia followed a different path. Judge James Robertson, a former member of this Court, denied the plaintiffs’ motions for class certification in both actions.5 See 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); 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). And the USDA has not offered to settle the cases on a class basis pursuant to Rule 23, as it had in the Pigford and Keepseagle cases. See Am. Compl. ¶¶ 102-104. The USDA has, however, developed a different administrative claims process for female and Hispanic farmers. See id. ¶ 88; Cantu v. United States, No. 11-541, ECF No. 46 ¶ 51 (D.D.C.).
On July 13, 2012, the plaintiffs, with leave of the Court, filed their fourth amended complaint. Counts III through VI of the fourth amended complaint challenge the administrative claims process established for female farmers on the ground that it “is significantly inferior to the administrative programs offered to African-American and Native American farmers who suffered similar discrimination and filed virtually identical complaints.” Am. Compl. ¶¶ 88, 123139. Claiming that this disparity is the result of gender discrimination, the plaintiffs assert that the USDA’s administrative claims process violates the equal protection and due process
5 Upon Judge Robertson’s retirement from the Court, this case and Garcia were reassigned to the undersigned member of the Court.
4

guarantees of the Fifth Amendment to the United States Constitution, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2) (2006). See id. ¶¶ 123-139.
The USDA has now moved to dismiss Counts III through VI of the fourth amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).6
II. STANDARD OF REVIEW Rule 12(b)(1) allows a party to move to dismiss “for lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). When a defendant moves to dismiss under Rule 12(b)(1), “the plaintiff[] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction.” Biton v. Palestinian Interim Self-Gov’t Auth., 310 F. Supp. 2d 172, 176 (D.D.C. 2004); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A court considering a Rule 12(b)(1) motion must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting [a] plaintiff the benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). However, “the district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)).
III. ANALYSIS In moving to dismiss for lack of subject-matter jurisdiction, the USDA argues, among other things, that the plaintiffs lack standing to challenge the administrative claims process. Def.’s Mem. at 10. For the reasons that follow, the Court agrees.
6 Because the Court grants the defendants’ motion on jurisdictional grounds under Rule 12(b)(1), it does not consider the defendants’ arguments urging dismissal pursuant to Rule 12(b)(6).
5

“Because Article III limits the constitutional role of the federal judiciary to resolving
cases and controversies, a showing of standing ‘is an essential and unchanging’ predicate to any
exercise of [federal] jurisdiction.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir.
1996) (en banc) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “‘The
irreducible constitutional minimum of standing contains three elements: (1) injury-in-fact, (2)
causation, and (3) redressability.’” Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C.
Cir. 2011) (citation omitted). “‘Thus, to establish standing, a litigant must demonstrate a
personal injury fairly traceable to the [opposing party’s] allegedly unlawful conduct [that is]
likely to be redressed by the requested relief.’” Id. (citation omitted). “The absence of any one
of these three elements defeats standing.” Newdow v. Roberts, 603 F.3d 1002, 1010 (D.C. Cir.
2010).
The injury asserted by the plaintiffs is that the administrative claims process established
for female farmers is “more onerous” than the “claims programs offered to similarly situated
African-American and Native American farmers,” and thus the plaintiffs “are unable to compete
for a benefit offered by the government on equal footing with other groups.” Pls.’ Opp’n at 16.
As redress for this alleged injury, the plaintiffs ask the Court to
issue an Order mandating that [the] USDA implement a voluntary administrative claims program for women farmers with material terms that are equally beneficial to those offered to African-American and Native American farmers with similar claims of discrimination, including but not limited to: (a) not imposing on women farmers a higher standard than required of other minority farmers in order to be granted an award; (b) not imposing limitations on women farmers’ use of legal counsel; (c) providing free legal advice and counsel to claimants as part of the program; and (d) not requiring women farmers to broadly release all credit-related discrimination claims against [the] USDA before notice of receipt of their claim and confirmation that their claim will be considered on the merits.
Am. Compl. at 46 (emphasis in original). The plaintiffs also seek a declaratory judgment that the
USDA’s administrative claims process is unlawful. Id. at 44.
6

The parties’ standing arguments focus on whether the plaintiffs have satisfied the first element of Article III standing—injury-in-fact. According to the USDA, the plaintiffs “have suffered no harm whatsoever as a result of” the administrative claims process “because their participation in it is strictly optional, not mandatory.” Def.’s Mem. at 11 (emphasis omitted). The plaintiffs characterize the USDA’s position as “meritless,” and contend that “courts regularly entertain challenges to government programs and benefits in which individual participation is ‘voluntary.’” Pls.’ Opp’n at 17.
The Court need not address these arguments because, even assuming the plaintiffs have established a sufficient injury-in-fact, they have failed on the final element of the standing test— redressability.7 To satisfy this element, a plaintiff must show in the first instance that the court is capable of granting the relief sought. See Newdow, 603 F.3d at 1010-11 (plaintiffs could not establish redressability because “[i]t [was] impossible for th[e] court to grant [their requested] relief”); Swan v. Clinton, 100 F.3d 973, 976 (D.C. Cir. 1996) (indicating that the “‘redressability’ element of standing” entails the question of “whether a federal court has the power to grant [the plaintiff’s requested] relief”); Lozansky v. Obama, 841 F. Supp. 2d 124, 132 (D.D.C. 2012) (“Plaintiffs . . . lack standing because the Court cannot issue the requested writ of mandamus, and thus cannot redress the [claimed] injury.”). Here, the primary relief sought by the plaintiffs is “an injunction compelling [the] USDA to offer women farmers a program comparable to those offered to African-American and Native American farmers.” Pls.’ Opp’n at 17; see Am. Compl. at 46. But it is settled law that “[a] judge may not coerce a party into settling.” Gevas v. Ghosh, 566 F.3d 717, 719 (7th Cir. 2009); accord In re NLO, Inc., 5 F.3d
7 Because “[t]he federal courts are under an independent obligation to examine their own jurisdiction,” and because “standing ‘is perhaps the most important of [the jurisdictional] doctrines,’” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)), the Court is not limited to the arguments raised in the parties’ briefs in evaluating whether the plaintiffs have Article III standing.
7

154, 157 (6th Cir. 1993); Newton v. A.C. & S., Inc., 918 F.2d 1121, 1128 (3d Cir. 1990); G. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989) (en banc); In re Ashcroft, 888 F.2d 546, 547 (8th Cir. 1989) (per curiam); Kothe v. Smith, 771 F.2d 667, 669 (2d Cir. 1985); Del Rio v. Northern Blower Co., 574 F.2d 23, 26 (1st Cir. 1978); see also MacLeod v. D.C. Transit Sys., Inc., 283 F.2d 194, 195 n.1 (D.C. Cir. 1960) (indicating that a trial judge may “convey[] his views about [a] settlement [offer] to the litigants’ counsel . . . who [are] free to accept or reject the [j]udge’s views,” so long as the judge does not “in any way [bring] ‘pressure’ on the parties” to settle). Coercing parties to settle is not only beyond a federal court’s authority, but also is prohibited by the ethical rules that govern the conduct of federal judges. See Code of Conduct for United States Judges Cannon 3A(4) (Commentary) (“A judge may encourage and seek to facilitate settlement but should not act in a manner that coerces any party into surrendering the right to have the controversy resolved by the courts.”). And in cases, such as this one, “in which the United States is interested,” only designated government officials and agencies are “authorized to settle litigation.” United States v. LaCroix, 166 F.3d 921, 923 (7th Cir. 1999). Issuing the plaintiffs’ requested injunction compelling the USDA to make a specific settlement offer to the plaintiffs would improperly “transfer the litigant’s authority to th[is] judge,” in violation of the Court’s duty to “respect th[e] decision[s] . . . made by those in the Executive Branch of government entitled to manage litigation.” Id. Because this Court is powerless to compel the USDA to settle with the plaintiffs in any particular manner or on any particular terms, it cannot grant the injunctive relief requested by the plaintiffs.
The plaintiffs also appear to seek a declaratory judgment that the USDA’s administrative claims process is unconstitutional and violative of the APA. See Am. Compl. at 44. While the Court has authority to grant such relief, see Declaratory Judgment Act, 28 U.S.C. § 2201 (2006);
8

APA, 5 U.S.C. § 706(2), a question remains as to whether granting this relief would actually redress the plaintiffs’ alleged injury, see Newdow, 603 F.3d at 1011 (the plaintiffs’ “second redressability problem is that declaratory and injunctive relief against the defendants . . . would not prevent the claimed injury”). As previously noted, the plaintiffs’ claimed injury is the USDA’s denial of equal treatment to the plaintiffs in settling their discrimination claims, as compared to the settlement offers the USDA provided to similarly-situated African-American and Native American farmers. Pls.’ Opp’n at 16. The District of Columbia Circuit has recognized that there are “two remedial alternatives” to redress an equal protection injury such as the one asserted in this case: (1) wholesale invalidation of the government action, or (2) extension of the government benefit to those aggrieved by the exclusion. See Jacobs v. Barr, 959 F.2d 313, 317 (D.C. Cir. 1992) (quoting Heckler v. Matthews, 465 U.S. 728, 738-39 (1984)). Neither type of relief would be afforded to the plaintiffs by a ruling holding the USDA’s administrative claims process in this case unlawful and setting it aside. Indeed, such a ruling would not (and could not) invalidate the settlement offers provided by the USDA to AfricanAmerican and Native American farmers, nor would it (or could it) compel the USDA, for the reasons set forth above, to make an equivalent settlement offer to the plaintiffs. In other words, it would not provide either of the two forms of relief that would redress the plaintiffs’ alleged equal protection injury. See id. The ruling would merely place the plaintiffs in the position they were in prior to the settlement offer made by the USDA. Thus, the plaintiffs’ requested declaratory relief would not redress the injury they claim.
IV. CONCLUSION For the foregoing reasons, the Court concludes that the plaintiffs have failed to satisfy the redressability element of Article III standing with respect to their claims challenging the USDA’s
9

administrative claims process. Accordingly, the Court grants the USDA’s motion to dismiss Counts III through VI of the fourth amended complaint for lack of subject-matter jurisdiction.
SO ORDERED this 11th day of December, 2012.8 REGGIE B. WALTON United States District Judge
8 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
10

 
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 6, 2006

Decided March 3, 2006

No. 04-5449

ROSEMARY LOVE, ET AL., APPELLANTS

v.

MICHAEL JOHANNS, SECRETARY, U.S. DEPARTMENT OF AGRICULTURE APPELLEE

Consolidated with 05-5084

Appeals from the United States District Court for the District of Columbia (No. 00cv02502)

Marc L. Fleischaker argued the cause for appellants. With him on the briefs were Barbara S. Wahl and Kristine J. Dunne.
Pamela Coukos and Michael Foreman were on the brief of amici curiae The Impact Fund, et al. in support of appellants. Steven A. Skalet entered an appearance.

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2
Dina R. Lassow and Paul M. Smith were on the brief of amici curiae National Women’s Law Center and National Partnership for Women & Families in support of appellants.
Charles W. Scarborough, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, and Robert M. Loeb, Attorney.
Shay Dvoretzky argued the cause for amicus curiae Chamber of Commerce of the United States of America in support of appellee. With him on the brief were Glen D. Nager, Jason J. Jarvis, and Robin S. Conrad.
Before: SENTELLE and HENDERSON, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: Rosemary Love and nine other female farmers appeal from the denial of their motion for class certification. Appellants claim, on behalf of themselves and “not less than 3,000” similarly situated women, that the United States Department of Agriculture (“USDA” or “the Department”) discriminatorily administered its lending programs, and that the Department failed to process and properly investigate women’s discrimination complaints over the last quarter-century. Because we conclude the District Court did not abuse its discretion in denying the Appellants’ motion for class certification and did not err in dismissing the failure-toinvestigate claim, we affirm in part. However, because the Appellants’ claim under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (“APA”), remains largely unbriefed, we remand in part.

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I. INTRODUCTION
The Appellants allege the USDA has engaged in a nationwide “pattern or practice” of discrimination, dating back to 1981.1 Specifically, the Appellants’ first claim—hereinafter the “discrimination claim”—is that the Department violated the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691-1691f (“ECOA” or “the Act”) by employing subjective loan-making criteria, which enabled decentralized decision-makers to discriminate amongst loan applicants on the basis of gender. The Appellants’ second claim—hereinafter the “failure-toinvestigate claim”—is that the Department violated both ECOA and the APA by systematically dismantling its complaintprocessing systems and failing to investigate discrimination claims filed by women farmers.
A
The USDA administers its farm loan and subsidy programs through the Farm Service Agency (“FSA”).2 The FSA makes several different types of loans, including “farm ownership” loans, which assist farmers in buying or improving farm
1 ECOA claims are generally governed by a two-year statute of limitations. See 15 U.S.C. § 1691e(f). However, in light of Pigford v. Glickman, 182 F.R.D. 341 (D.D.C. 1998), Congress retroactively extended the limitations period for certain claims, including those raised by the Appellants. See Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act of 1999, Pub. L. No. 105-277, 112 Stat. 2681 (codified at 7 U.S.C. § 2279 note).
2 Prior to January 1, 2000, the FSA was named the Farmers Home Administration. See 60 Fed. Reg. 23030, 23035 (1995). Throughout this opinion, we use “FSA” to refer to both entities.

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property, 7 C.F.R. pt. 1943, “operating” loans, which provide credit and management assistance to help farmers run their farms, id. pt. 1941, and “emergency” loans, which help farmers resume operations after a disaster, id. pt. 1945. Under the USDA’s regulations, a farmer seeking a farm credit or benefit must first ask the Department for a loan application, which the USDA is required to disburse. See id. § 1910.4(b) (“All persons requesting an application will be provided [one].”).
After receiving an application, a farmer is then required to submit her completed application to a local county committee, the members of which are selected by other farmers from that county. See Pigford v. Glickman, 206 F.3d 1212, 1214 (D.C. Cir. 2000). The local county committee initially determines whether the applicant is eligible for the program, and USDA staff members ultimately grant or deny the application. See 7 C.F.R. §§ 1910.5, 1910.4(i). The USDA has promulgated criteria upon which the local committees are to rely in making eligibility decisions, including citizenship, legal capacity, education and farming experience, farm size, inability to obtain sufficient credit elsewhere, and “character” (which emphasizes credit history and reliability). See id. §§ 1941.12 (operating loan criteria), 1943.12(a) (ownership loan criteria), 764.4 (emergency loan criteria).
Any farmer who believes the USDA denied her application for a program loan or benefit on the basis of gender or any other prohibited basis may file a civil rights complaint with the Secretary of the USDA and/or the USDA’s Office of Civil Rights (“OCR”). See id. § 15.6. The Department and/or OCR may then conduct an investigation and institute compliance proceedings, if needed. See id. §§ 15.8-.10. To effectuate compliance, the Secretary may refer the matter to the Department of Justice or institute any other applicable proceedings under state or local law. Id. § 15.8(a).

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If a farmer is dissatisfied with the USDA’s response to her discrimination complaint, she may sue in federal court under ECOA. The Act makes it “unlawful for any 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). ECOA creates a private right of action against creditors, including the United States, who violate its antidiscrimination provisions, and it makes such creditors “liable 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.” Id. § 1691e(a). Exhaustion of administrative remedies is not required before an ECOA suit may be filed, and prevailing Appellants may recover attorney’s fees. Id. § 1691e(d).
B
The Appellants filed a three-count complaint in the United States District Court for the District of Columbia, seeking $3 billion in money damages under ECOA, as well as both compensatory and equitable relief under the APA and the Declaratory Judgment Act, 28 U.S.C. § 2201(a). To buttress their claims, the Appellants filed 1,823 declarations, which purported to show that the Department “allowed, indeed supported, unconscionable disparate impact [through USDA’s lending programs] around the country.” The Appellants’ statistics expert, Patrick M. O’Brien, also filed a report, which purported to provide empirical evidence of “the adverse affects [sic] of a discriminatory system.” The Department moved to dismiss the complaint under FED. R. CIV. P. 12(b)(6), and the Appellants moved for class certification under FED. R. CIV. P. 23.

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Before ruling on the propriety of class certification, the District Court dismissed the Appellants’ failure-to-investigate claim on three grounds. First, the District Court concluded that the USDA’s failure to investigate the Appellants’ complaints did not constitute a “credit transaction” within the meaning of ECOA, 15 U.S.C. § 1691(a). Second, the court held the APA’s “abuse of discretion” standard does not cover the USDA’s failure to investigate Appellants’ complaints because ECOA provided an alternative “adequate remedy.” Third, the District Court concluded Appellants’ claims for money damages arising from the USDA’s failure to investigate their complaints are barred by the doctrine of sovereign immunity.
In light of the court’s dismissal of the failure-toinvestigate claim, the Appellants based their motion for class certification solely upon their discrimination claim. Accordingly, the Appellants filed an amended complaint, along with a renewed motion for certification of two subclasses. “Subclass 1” consists of female farmers who asked for loan application forms but did not receive them. “Subclass 2” consists of female farmers who received, completed, and submitted their loan application forms but did not garner a loan. The amended complaint also dropped the Appellants’ demand for $3 billion in damages and asked only for “compensatory damages appropriate for proof at trial.”
The District Court denied the Appellants’ renewed motion to certify the class on three grounds. First, the court concluded that the Appellants failed to satisfy Rule 23(a)’s commonality requirement because there had not “been a substantial showing that would permit the inference that members of the class suffered from a common policy of discrimination that pervaded all of the challenged decisions.” Second, the court concluded that the class could not be certified under Rule 23(b)(2) because the claims for monetary relief

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predominated over the claims for equitable relief. Third, the court concluded the class could not be certified under Rule 23(b)(3) for the same reason it did not satisfy Rule 23(a)’s commonality requirement: The Appellants “adduced no evidence . . . establishing that it is or ever was actually USDA policy to refuse to give loan application forms to women,” and individual justifications for any loan denials would predominate over questions common to the putative class.
The District Court stayed the proceedings so that the Appellants could seek interlocutory review of the denial of class certification on their discrimination claim, as well as the dismissal of their failure-to-investigate claim. In our discretion, we granted the Appellants’ petitions for interlocutory review of the class certification denial. We have jurisdiction over the District Court’s dismissal of their failure-to-investigate claim under 28 U.S.C. § 1292(b). See FED. R. CIV. P. 23(f); In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 105-06 (D.C. Cir. 2002). The parties (with the help of three amici curiae) then fully briefed and argued both issues before a merits panel. Compare In re Veneman, 309 F.3d 789, 791 (D.C. Cir. 2002) (denying a 23(f) petition “because the critical questions required to resolve it are entirely unbriefed”).
II. DISCRIMINATION CLAIM
Appellants’ first assignment of error is that the District Court erroneously declined to certify their putative class as to the “discrimination claim.” To justify class certification, Appellants must first satisfy four threshold requirements, demonstrating 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

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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.
FED. R. CIV. P. 23(a). If all four prerequisites under Rule 23(a) are met, then Appellants must also show that their claims fit within one of the subsections of Rule 23(b). See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613-16 (1997). Rules 23(b)(2) and (b)(3)—the two subsections at issue in this case—have different requirements depending primarily on the nature of the relief sought: Certification under the former is appropriate where a class seeks declaratory or injunctive relief, while certification under the latter is appropriate where, inter alia, the “‘final relief relates exclusively or predominantly to money damages.’” In re Veneman, 309 F.3d at 792 (quoting FED. R. CIV. P. 23(b)(2) advisory committee notes).
The District Court declined to certify the class because the Appellants failed to show “commonality” under Rule 23(a)(2), and they failed to meet the requirements of Rule 23(b)(2) or 23(b)(3). Because we conclude the District Court neither erred as a matter of law nor abused its discretion in finding the putative class members lack “commonality” under Rule 23(a)(2), we affirm without considering whether certification would also be improper under Rule 23(b).
A
Appellants argue that the District Court erred by failing to find commonality within Subclass 1 under Rule 23(a)(2). We review the District Court’s decision for abuse of discretion. See Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C. Cir. 1994); Wagner v. Taylor, 836 F.2d 578, 586 (D.C. Cir. 1987).
Each member of Subclass 1 allegedly requested an application for a farm loan and had her request denied.

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Although the District Court recognized that “[p]laintiffs have assembled an impressive collection of sworn statements asserting that a great many women have been flatly refused . . . loan application forms,” it nonetheless declined to certify Subclass 1. The court noted that the Appellants’ declarations “might have been sufficient to support certification of subclasses of women who suffered discrimination at the hands of particular county committees,” but variations between the declarations precluded a finding of “commonality” for purposes of a nationwide class action.
The Appellants concede that the Department offered varying reasons for denying their requests, but Appellants argue these variations are irrelevant “because there is no basis for refusing to distribute loan applications to requestors, pursuant to USDA’s own regulations.” See 7 C.F.R. § 1910.4(b) (“All persons requesting an application will be provided [one].”). Appellants further concede that they have no statistical proof that women’s requests for loan applications were treated differently from men’s. Nevertheless, Appellants assert that a mountain of anecdotes proves that their claims are “not mere coincidence.” In the absence of any data to the contrary, the Appellants claim, the District Court should have presumed that 622 aggrieved women’s declarations warranted the certification of the class.
We disagree. As we have previously noted:
[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. . . . While in a case alleging intentional discrimination, such as this one, a plaintiff need not isolate the particular practice and prove that such practice caused the discrimination, plaintiffs must make a significant showing to permit the court to infer that members of the class suffered from a

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common policy of discrimination that pervaded all of the employer’s challenged employment decisions.
Hartman, 19 F.3d at 1472 (emphasis in original). Thus, commonality under Rule 23(a) requires a named 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.” Id. Hartman’s “common policy” requirement is consistent with the Supreme Court’s teaching in General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147 (1982). There the Court noted:
Conceptually, there is a wide gap between (a) an individual’s claim that he has been [discriminated against], 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 . . . . For respondent to bridge that gap, he must prove much more than the validity of his own claim.
Id. at 157-58.
The District Court did not abuse its discretion in concluding that Appellants failed to “bridge th[e] gap” between their individual claims and Hartman’s “common policy” requirement. Some members of Subclass 1 (namely, the 622 declarants) offered anecdotal evidence that they were personally denied loan applications, and some of those same women reported discriminatory treatment by USDA officials. For example, the declarants allege that USDA officials told them “they were too early to apply for a loan, too late to apply for a loan, that they need not bother filling out an application because they were not

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eligible to receive a loan, or that their husbands should apply.” Appellants’ Br. at 11. Certainly these allegations may give the declarants standing to bring individual suits. However, the declarants’ allegations did not require the District Court to infer the existence of a “common policy of discrimination” that affected the non-declarants, as well. The bald allegation that the declarants and non-declarants alike are unified by a “common policy” of gender discrimination is insufficient to show the District Court abused its discretion under Hartman and Falcon.
As the Appellants candidly admit, there is no evidence that women were more likely than men to be refused loan applications. See Appellants’ Br. at 13. Moreover, the declarants’ anecdotal accounts differ widely, and their complaints of discrimination are interspersed with nondiscriminatory evidence and innocuous explanations. Compare Joint Appendix (“J.A.”) 538 (“I was told there were no f[u]nds available.”), and J.A. 540 (“I was told that there were no funds or applications available.”), with J.A. 536 (A USDA official “told me that farming business was too risky for women.”). Thus, even taking as true all of the declarants’ factual allegations, the District Court was nevertheless left to wonder whether some of the declarants (to say nothing of the silent, non-declarants) were victimized by gender discrimination. Because the Appellants failed to “bridge th[e] gap” between their individual and class-wide claims, we cannot fault the District Court for refusing to take a leap of faith.
A recent case from the Sixth Circuit illustrates our point. In Reeb v. Ohio Dep’t of Rehab. & Corr., — F.3d —, 2006 WL 162836 (6th Cir. Jan. 24, 2006), four female prison guards filed a putative class action against their employer, alleging it violated Title VII by treating them differently from the male guards. Seeking to represent all past and present female employees at the prison, the named plaintiffs claimed to have

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been the victim of the defendant’s “general policy” of discrimination on the basis of sex. The district court certified the class and found Rule 23(a)’s commonality requirement met “[b]ecause the issue of whether the Defendant violated Title VII will be common to the class.” Id. at *5 (internal quotation marks and citation omitted). The appeals court reversed for an abuse of discretion because “[i]f this were the test, every plaintiff seeking to certify a class in a Title VII action would be entitled to that certification.” Id.; see also Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 571 (6th Cir. 2004) (“Conclusory allegations and general assertions of discrimination are not sufficient to establish commonality.” (citing Falcon, 457 U.S. at 157)); Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998) (“It is not every common question that will suffice [to show commonality], however; at a sufficiently abstract level of generalization, almost any set of claims can be said to display commonality. What we are looking for is a common issue the resolution of which will advance the litigation.”).
After conducting a “rigorous analysis” of the Appellants’ claims under Rule 23(a), Hartman, 19 F.3d at 1473, the District Court in this case exercised its considered judgment and concluded that class certification would not advance the litigation. Cf. Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999) (chronicling the arduous process of handling a similar case as a class action). Even if Subclass 1 were certified, the District Court concluded, the outcome of this case would nevertheless turn on a series of individualized inquiries into application-distribution practices in more than 2,700 FSA offices across the country over the last quarter-century. Unlike the Reeb court, we need not consider whether the contrary conclusion would have constituted an abuse of discretion. For present purposes, it is sufficient to note that while it might not be reversible error to certify a subclass under these or similar circumstances, see Chiang v. Veneman, 385 F.3d 256, 265-66

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(3d Cir. 2004) (affirming the certification of a class akin to Subclass 1), it is also not an abuse of discretion for the District Court to refuse to do so, see Eubanks v. Billington, 110 F.3d 87, 96 (D.C. Cir. 1997).
We hasten to emphasize that we do not hold that anecdotal evidence alone is inherently insufficient to justify class certification. In this case, however, the District Court did not abuse its discretion by refusing to certify Subclass 1 for lack of commonality under Rule 23(a)(2) on the diverse affidavits before it, and the large number of silent, potential class plaintiffs. As a result, we have no occasion to consider the District Court’s alternative holdings under Rule 23(b).3 See Amchem, 521 U.S. at 613-14.
B
Appellants mount a two-prong challenge to the District Court’s analysis of Subclass 2, which comprises women applicants who were allegedly denied farm loans on the basis of their gender. The District Court concluded that the geographic dispersal and decentralized organization of the USDA’s loan offices “cut[] against any inference for class action commonality.” Moreover, the court noted that the Department offered a wide array of objective, highly individualized justifications (such as the “failure to meet collateral requirements, poor credit, [and] insufficient income”) for denying the Appellants’ loan requests. Appellants first claim the District Court erred as a matter of law. Second, Appellants claim the District Court abused its discretion by ignoring the facts. We address (and reject) each claim in turn.
3 Even were we to consider Rule 23(b), the similar lack of “generally applicable grounds” under (b)(2) and “predominance” under (b)(3) would doom the certification. See pp. 7-8, supra.

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1
Appellants argue that the District Court erred as a matter of law in its evaluation of commonality within Subclass 2. In Appellants’ view, “[t]he District Court created its own entirely new standard for determining how subjective a system must be in order to demonstrate a common policy of discrimination.” Appellants argue that Subclass 2 is unified by the USDA’s policy of delegating standardless discretion to local loan-making officers, and “[t]his Court” has held that “a common policy [of discrimination] exist[s] when significantly subjective decisionmaking operates on a national basis with discriminatory results.” Accordingly, Appellants criticize “the District Court’s substitution” of its own legal standard—which Appellants dub a “subjectivity spectrum”—“in lieu of well-established precedent.” Our review of the question of law is de novo. See, e.g., Gov’t of Rwanda v. Johnson, 409 F.3d 368, 372 (D.C. Cir. 2005).
Appellants are wrong about the law of “[t]his Court.” We have never held that subjective decision-making processes require a district court to find commonality for purposes of class certification. See, e.g., Hartman, 19 F.3d 1472 (holding plaintiffs’ challenge to the defendant’s “subjective” decisionmaking did not warrant a finding of commonality: “While plaintiffs’ statistics may have demonstrated that discrimination against women applicants to the six [] job categories was afoot, nothing in the record so far permits the additional inference that class members suffered a common injury.” (emphasis in original)); see also Wagner, 836 F.2d at 594-95. The District Court’s application of Hartman was not erroneous as a matter of law.

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2
Appellants next argue that the District Court abused its discretion by failing to properly consider evidence of commonality within Subclass 2. Appellants rely on 859 declarations from disappointed female loan applicants, who “attested that they were denied loans based upon their gender.” However, by the Appellants’ own count, 41% of these declarants have no idea why their loan applications were denied. See Appellants’ Br. at 21 (asserting that 27% received “no official written response” to their loan applications, while an additional 14% received “the equivalent of no response”). The District Court was well within the bounds of its discretion to find a lack of commonality where two out of every five of the Appellants’ own declarants—to say nothing of the silent nondeclarants—would be forced to prove at trial that individual reasons for their loan denials were not pretextual (e.g., one woman had poor credit, another had no collateral, a third was victimized by gender discrimination, etc.). For the same reasons that justified the District Court’s conclusion that Subclass 1 does not exhibit “commonality,” the record in this case does not compel the conclusion that the USDA discriminated against women across the class, even if some individual declarants in Subclass 2 properly stated a discrimination claim. See Hartman, 19 F.3d at 1472.
Appellants’ efforts to demonstrate commonality through rudimentary statistics are equally unavailing. Appellants’ statistics expert, Patrick O’Brien, admits that his analysis does not account for the possibility that women receive fewer loans because they apply for fewer loans, and he recognizes that women may receive smaller loans because they operate smaller farms. Moreover, there are countless other, non-discriminatory explanations for any patterns in the USDA’s lending data. For example, women may have relatively less credit than men;

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women may have relatively less wealth than men; or women may apply for loans at a younger—and thus riskier—age than men. 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, e.g., WILLIAM H. GREENE, ECONOMETRIC ANALYSIS 100-01, 147-60 (4th ed. 2000); Frank T. Denton, The Significance of Significance: Rhetorical Aspects of Statistical Hypothesis Testing in Economics, in THE CONSEQUENCES OF ECONOMIC RHETORIC 163 (Arjo Klamer, Donald N. McCloskey & Robert M. Solow eds., 1988). The Appellants’ expert concedes that “[n]o statistical tests for significance were done” on his data. Compare Bazemore v. Friday, 478 U.S. 385, 399 n.9 (1986) (holding the Appellants’ empirical evidence of discrimination was admissible to show disparate treatment because it showed “statistically significant” disparities).
Given the numerous shortcomings in the Appellants’ efforts to show commonality within Subclass 2, the District Court did not abuse its discretion in denying the Appellants’ certification motion under Rule 23(a)(2). Accordingly, we have no occasion to consider the District Court’s alternative holdings under Rule 23(b). See Amchem, 521 U.S. at 613-14.
III. FAILURE-TO-INVESTIGATE CLAIM
Appellants’ final argument is that the District Court erred in dismissing their “failure-to-investigate” claim prior to ruling on their motion for class certification. The District Court concluded the USDA’s alleged failure to investigate Appellants’ complaints is not reviewable under ECOA, which makes it “unlawful for any creditor to discriminate against any applicant with respect to any aspect of a credit transaction” on the basis

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of sex. 15 U.S.C. § 1691(a) (emphasis added). The court concluded, as a matter “of course,” that a failure to investigate does not fit within the plain meaning of a “credit transaction.” The District Court further concluded that Appellants’ failure-toinvestigate claim is not reviewable under the APA because ECOA provides an adequate alternative remedy. See 5 U.S.C. § 704 (limiting the applicability of the APA to a “final agency action for which there is no other adequate remedy in a court”).
Appellants argue the District Court erred under both ECOA and the APA. First, the Appellants urge us to construe liberally the meaning of a “credit transaction” under 15 U.S.C. § 1691(a) and to hold their failure-to-investigate claim is reviewable under ECOA. Alternatively, the Appellants argue their claim is reviewable under the APA because the USDA’s regulations empower aggrieved applicants to file discrimination claims, which the Department is legally obligated to investigate. Our review is de novo. See, e.g., Johnson, 409 F.3d at 372.
We first reject the Appellants’ argument under ECOA because even a liberal interpretation of “credit transaction” does not encompass “failure to investigate a discrimination complaint.” Cf. Bissette v. Colonial Mortgage Corp. of D.C., 477 F.2d 1245, 1247 (D.C. Cir. 1973) (noting “‘liberal construction’ and interpretation based on legislative purpose can only go so far. Where the meaning of the statute and regulations is clear, a contrary reading would become destruction of the statutory scheme.”). True, the phrase “credit transaction” is not without ambiguity, but it is not a normal understanding of those words in the English language that they would include the failure to investigate complaints of discrimination in an underlying event even if the underlying event falls within the meaning of the phrase “credit transaction.”

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Again, there is a certain ambiguity in the term. The Department has gone to the trouble of issuing a defining regulation. See 12 C.F.R. § 202.2(m). The regulatory scheme of which that is a part may become the stuff of APA litigation upon remand, but so far as an action at law based on this section of the ECOA, that simply is not within the plain meaning of the statute.
This leaves the Appellants’ claim that the USDA’s failures to investigate discrimination claims are reviewable under the APA for another day. We follow this course of nonaction because the record is little developed on that argument, and the parties’ briefs have given short-shrift to the issue before us. As our review of this claim is discretionary in the first place, and as the order certifying the 12(b)(6) ruling for interlocutory review was without prejudice to further decision by the merits panel of this court, we decline to exercise our discretion and remand the APA claim for further proceedings in the District Court. See In re Veneman, 309 F.3d at 796.
CONCLUSION
For the reasons stated above, the District Court’s denial of the Appellants’ motion for class certification is affirmed. The District Court’s dismissal of the Appellants’ failure-toinvestigate claim under ECOA is affirmed, but its dismissal of the Appellants’ failure-to-investigate claim under the APA is remanded.
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).

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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.

 
 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ROSEMARY LOVE, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 00-2502 (RBW)

)

THOMAS J. VILSACK,

)

Secretary, United States

)

Department of Agriculture,

)

)

Defendant.

)

____________________________________)

MEMORANDUM OPINION The plaintiffs in this civil action are female farmers who allege that the United States Department of Agriculture (“USDA”) discriminated against them on the basis of gender in the administration of its farm loan and disaster benefit programs, and that it failed to timely resolve their discrimination complaints. Fourth Amended and Supplemental Complaint at 3. 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 Motion of Black Farmers and Agriculturalists Association, Inc. 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 Garcia v. Vilsack, No. 00-2445 (D.D.C. filed Oct. 13, 2000), which addresses claims of Hispanic 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 Garcia v. Vilsack.3 See 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); 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). 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 Status Report at 1, ECF No. 155; Defendant’s Eighth Status Report at 1, Garcia, No. 00-2445 (D.D.C. Jan. 20, 2012), ECF No. 218. Participation in the administrative claims process is conditioned on dismissal of a farmer’s legal claims against the USDA. See Defendant’s Status Report, Exhibit (“Ex.”) 1 (Framework for Hispanic or Female Farmers’ Claims Process) at 6, ECF No. 155-1; Defendant’s Eighth Status Report, Ex. 1 (Framework for Hispanic or Female Farmers’ Claims Process) at 6, Garcia, No. 00-2445 (D.D.C. Jan. 20, 2012), ECF No. 218-1.
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 Garcia 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 Garcia.
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 parties in Pigford I negotiated a class-wide settlement, which Judge Friedman approved in a consent decree issued on April 14, 1999. Id. at 113. The Pigford I consent decree 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.”
5

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 6 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 its prior opinion in this case, Love v. Vilsack, 908 F. Supp. 2d 139 (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 3–5, 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 19, 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, see Pls.’ Opp’n at 3–4, 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 Garcia, 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. 112; Defendant’s Status Report at 1, Garcia, No. 00-2445 (D.D.C. Sept. 27, 2010), ECF No. 181. The claims process was finalized in January 2012. See Defendant’s Status Report at 1, ECF No. 155; Defendant’s Eighth Status Report at 1, Garcia, No. 00-2445 (D.D.C. Jan. 20, 2012), ECF No. 218. 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 5. 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-02502-RBW Document 248 Filed 06/08/15 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

ROSEMARY LOVE, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

TOM VILSACK, Secretary of the United )

States Department of Agriculture,

)

)

Defendant.

)

)

Civil Action No. 00-2502 (RBW/JMF)

USDA’S 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-02502-RBW Document 248 Filed 06/08/15 Page 2 of 3
plaintiff in Garcia v. Vilsack, No. 1:00-cv-2445 (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 Garcia 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 Garcia and Cantu. The Government continues to submit all additional prevailing claims to Treasury on a rolling basis.
-2-

Case 1:00-cv-02502-RBW Document 248 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).

DATED: June 8, 2015

Respectfully submitted,
BENJAMIN C. MIZER Principal Deputy Assistant Attorney General
VINCENT H. COHEN Acting United States Attorney
LESLEY FARBY Assistant Director
/s/ Peter T. Wechsler PETER T. WECHSLER (MA 550339) Senior Counsel United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20530 Tel.: (202) 514-2705 Fax: (202) 616-8470 Email: peter.wechsler@usdoj.gov
Counsel for Defendant

-3-

Case 1:00-cv-02H5is0p2an-iRc aBnWd WoDmeoncFuamrmeernst&2R4a8nc-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-02502-RBW Document 261 Filed 12/23/15 Page 1 of 1

~niteb ~httes Qlourt of j\ppea:ls
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 15-5152
Guadalupe L. Garcia, For himself and on behalf of G.A. Garcia and Sons Farm, et al.,
Appellees
v.
Thomas J. Vilsack, Secretary, The United States Department of Agriculture,
Appellee Black Farmers and Agriculturalists Association, Inc.,
Appellant Consolidated with 15-5156

September Term, 2015
1 : 00-cv-02445-RBW 1 :00-cv-02502-RBW
Filed On: October 30, 2015

MANDATE

Punuant to 1lla p!'O'IIIoione of fed. R. App.Pftl.41(a)

ISSUED:

;z. 1 -zz.-,zoJ?

BY:(~d_A~7 -~

ATUI:IIEDB = II!Dendlne ~ _ Opjnion order an costa

~--,.JJI;l-.1~

BEFORE: Brown, Srinivasan, and Wilkins, Circuit Judges

ORDER

Upon consideration of the motion to dismiss, the opposition thereto, and the reply, it is

ORDERED that the motion to dismiss be granted. Because this court previously affirmed the district court's orders denying appellant's motions to intervene, Garcia v. Vilsack, No. 14-5175, Love v. Vilsack, No. 14-5185 (D.C. Cir. Nov. 18, 2014) (Rogers, Kavanaugh, Pillard, JJ.), cert. denied, No. 14-1435 (U.S. Oct. 5, 2015), appellant lacks standing to appeal. See United States v. British Am. Tobacco Australia Servs., 437 F.3d 1235, 1240 (D.C. Cir. 2006) ("We have stated many times that failed intervenors may not appeal District Court actions to which they are not a party."); United States v. LTV Corp., 746 F.2d 51 (D.C. Cir.1984).

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk

is directed to withhold issuance of the mandate herein until seven days after resolution

of any timely petition for rehearing or petition for rehearing en bane. See Fed. R. App.

P. 41 (b); D.C. Cir. Rule 41.

Per Curiam

A true copy United States Court of Appeals

for the District of Columbia Circuit
By~ Deputy Clerk

 
 Case 1:00-cv-02502-RBW Document 260 Filed 11/09/15 Page 1 of 1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ROSEMARY LOVE, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 00-2502 (RBW)

)

THOMAS VILSACK, Secretary, United )

States Department of Agriculture,

)

)

Defendant.

)

____________________________________)

ORDER

Before the Court is the Motion of Putative Intervenor Black Farmers and Agriculturalists

Association, Inc. for an Immediate Stay Pending Appeal, ECF No. 253, requesting that this

Court stay this case “pending resolution by the United States Supreme Court of Case No. 14-

1435, BFAA v. Vilsack, concerning whether [the Black Farmers and Agriculturalists

Association, Inc. (“BFAA”)] was entitled to intervene in the above captioned action[].”

According to a notice filed by the defendants in this case, the United States Supreme Court

denied BFAA’s petition for certiorari in that matter on October 5, 2015. USDA’s Notice

Regarding BFAA’s Motion for Stay, ECF No. 255 at 1. Accordingly, it is hereby

ORDERED that the putative intervenor’s motion to stay is DENIED AS MOOT. SO ORDERED this 9th day of November, 2015.

REGGIE B. WALTON United States District Judge

 
 Case 1:00-cv-02502-RBW Document 269 Filed 11/14/16 Page 1 of 14

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ROSEMARY LOVE, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 00-2502 (RBW)

)

THOMAS VILSACK, Secretary, United )

States Department of Agriculture,

)

)

Defendant.

)

____________________________________)

ORDER

The plaintiffs in this civil action are female farmers who allege that the United States

Department of Agriculture (“USDA”) discriminated against them on the basis of their gender by

denying them “equal and fair access to farm loans and loan servicing, and of consideration of

their administrative complaints.” Fourth Amended and Supplemental Complaint (“Am.

Compl.”) at 3. The plaintiffs also claim that the “USDA offered and is implementing voluntary

administrative claims programs to adjudicate the claims of members of other minority groups

who suffered similar discrimination,” but “has arbitrarily refused to offer equivalent terms to

women, further depriving them of equal protection and due process.” Id. Currently before the

Court are the Plaintiffs’ Motion to Dismiss Pursuant to Fed. R. Civ. P. 41(a)(2), ECF. No. 223

(“Pls.’ Mot. to Dismiss”), the Plaintiffs’ Motion to Reinstate Counts III Through VI of their

Fourth Amended and Supplemental Copmplaint [sic], ECF No. 230 (“Pls.’ Mot. to Reinstate”),

and the Plaintiffs’ Motion for an Award of Fees, Costs, and Expenses, ECF No. 198 (“Pls.’

Case 1:00-cv-02502-RBW Document 269 Filed 11/14/16 Page 2 of 14
Mot. for Fees”). Upon careful consideration of the parties’ submissions,1 the Court concludes
for the following reasons that the plaintiffs’ motion to dismiss must be granted in part and denied
in part, and that their motion to reinstate must be denied.2 The Court declines to rule at this time
on the plaintiffs’ motion for attorneys’ fees in anticipation that this Order may prompt one or
more parties to amend their arguments regarding that motion.
I. BACKGROUND
Between 1997 and 2000, African-American, Native American, Hispanic, and female
farmers filed four similar class action lawsuits alleging that “the USDA routinely discriminated
[against them] in its farm benefit programs on the basis of [their] race, ethnicity, and gender, and
failed to investigate the claims of farmers who filed discrimination complaints with the agency.”
Am. Compl. ¶ 75; see Pigford v. Glickman, Nos. 97-1978, 98-1693 (D.D.C.) (“Pigford I”)
(African-American farmers); Keepseagle v. Vilsack, No. 99-3119 (D.D.C.) (Native American
farmers); Garcia v. Vilsack, No. 00-2445 (D.D.C.) (Hispanic farmers); Love v. Vilsack, No. 00-
02502 (D.D.C.) (female farmers).
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. Pigford v.
Glickman, 182 F.R.D. 341, 352 (D.D.C. 1998). Judge Friedman later vacated his original class
1 In addition to the filings already identified, the Court considered the following submissions in rendering its decision: (1) the Plaintiffs’ Memorandumin Support of Motion to Dismiss (“Pls.’ Dismissal Mem.”); (2) the USDA’s Responseto Plaintiffs’ Motion to Dismiss (“Gov’t Dismissal Opp’n”); (3) the Reply in Support of Plaintiffs’ Motion to Dismiss (“Pls.’ Dismissal Reply”); (4) the Plaintiffs’ Memorandumin Support of Motion to Reinstate Counts III Through VI of Their Fourth Amended and Supplemental Copmplaint [sic] (“Pls.’ Reinstatement Mem.”); (5) the USDA’s Opposition to Plaintiffs’ Motion to Resinstate [sic] Claims (“Gov’t Reinstatement Opp’n”); and (6) the Plaintiffs’ Reply in Support of Motion to Reinstate Counts III Through VI of their Fourth Amended and Supplemental Copmplaint [sic] (“Pls.’ Reinstatement Reply”). 2 Also technically pending before the Court are several motions that are clearly moot given the passage of time and the procedural posture of this case: the intervenor-plaintiffs’ Motion to Intervene, ECF No. 124 (filed Mar. 23, 2011); the plaintiffs’ Motion for Leave to File a Third Amended Class Action Complaint, ECF No. 50 (filed Apr. 14, 2003); and the Plaintiffs’ Supplemental Motion to Certify Class, ECF No. 36 (filed Feb. 11, 2002). For housekeeping purposes, thesemotions will all be denied as moot.
2

Case 1:00-cv-02502-RBW Document 269 Filed 11/14/16 Page 3 of 14
certification order on January 5, 1999, and certified a new class pursuant to Rule 23(b)(3). Pigford v. Glickman, 185 F.R.D. 82, 92 (D.D.C. 1999). Following Judge Friedman’s revised class certification rulings, the parties in Pigford I negotiated a class-wide settlement, which Judge Friedman approved in a consent decree issued on April 14, 1999. Id. at 113. The Pigford I consent decree “did not provide for the automatic payment of damages to any plaintiff”; rather, “it established a non-judicial mechanism,” i.e., an administrative claims process, “by which each class member 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 Discrimination Litig., 856 F. Supp. 2d 1, 9 (D.D.C. 2011). The Pigford I consent decree imposed a deadline for African-American farmers to submit their claims for administrative adjudication, id. at 10, and many farmers tried, unsuccessfully, to file claim packages after the deadline expired, id. at 11.
To address this problem, “Congress resurrected the claims of those who had unsuccessfully petitioned the Arbitrator for permission to submit late claim packages” by enacting “the Food, Conservation, and Energy Act of 2008.” Id. This Act provides that “[a]ny Pigford claimant who has not previously obtained a determination on the merits of a Pigford claim may, in a civil action brought in the United States District Court for the District of Columbia, obtain that determination.” Food, Conservation, and Energy Act of 2008, Pub. L. No. 110–234, § 14012(b), 122 Stat. 923, 1448. After the Act became effective, thousands of African-American farmers filed suit in this Court. In re Black Farmers, 856 F. Supp. 2d at 13. Those cases are collectively known as Pigford II. Id. The parties in Pigford II reached a classwide settlement agreement on February 18, 2010, id., which Judge Friedman approved, id. at 42.
3

Case 1:00-cv-02502-RBW Document 269 Filed 11/14/16 Page 4 of 14
The settlement agreement largely maintained the administrative claims process utilized in Pigford I, with some modifications. Id. at 22.
The Keepseagle litigation proceeded much like Pigford I, albeit at a different pace. Judge Emmet G. Sullivan of this Court certified that case as a class action pursuant to Rule 23(b)(2). See Keepseagle v. Veneman, No. 99-3119, 2001 WL 34676944, at *1 (D.D.C. 2001). Nine years later, in 2010, the parties reached a class-wide settlement agreement, which Judge Sullivan approved. See Order, Keepseagle v. Veneman, No. 99-3119, ECF No. 577 (granting preliminary approval of settlement). The settlement agreement in Keepseagle also established an administrative claims process for Native American farmers that was similar, though not identical, to the process established in Pigford II. See Cantu v. United States, 565 F. App’x 7, 8 (D.C. Cir. 2014).
This case and the Garcia case followed a different path. Judge James Robertson, a former member of this Court, denied the plaintiffs’ motions for class certification in both Garcia and Love.3 See 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); 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). And the USDA has not offered to settle these cases on a class basis pursuant to Rule 23, as it had in the Pigford and Keepseagle cases. See Am. Compl. ¶¶ 102–04. The USDA did, however, develop a different administrative claims process for female and Hispanic farmers. See id. ¶ 88; Am. Compl. ¶ 51, Cantu v. United States, No. 11-541, ECF No. 46.
On July 13, 2012, the plaintiffs, with leave of Court, filed their fourth amended Complaint. Counts I and II of the fourth amended Complaint concern the USDA’s alleged
3 Upon JudgeRobertson’s retirement fromthe Court, this case and Garcia were reassigned to the undersigned member of the Court.
4

Case 1:00-cv-02502-RBW Document 269 Filed 11/14/16 Page 5 of 14
discrimination prior to 2000, in connection with its lending programs, Am. Compl. ¶¶ 115–22; Pls.’ Dismissal Mem. at 4, while Counts III through VI challenge the administrative claims process established for female farmers on the ground that it “is significantly inferior to the administrative programs offered to African-American and Native American farmers who suffered similar discrimination and filed virtually identical complaints,” Am. Compl. ¶¶ 88, 123–39. Claiming that this disparity is the result of gender discrimination, the plaintiffs assert that the USDA’s administrative claims process violates the equal protection and due process guarantees of the Fifth Amendment to the United States Constitution, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2) (2012). See id. ¶¶ 123–39.
On December 11, 2012, the Court granted the USDA’s motion to dismiss Counts III through VI for lack of jurisdiction on the grounds that the plaintiffs lacked standing. Memorandum Opinion at 1, 9–10, ECF No. 176. In its Memorandum Opinion, the Court noted that it was “contemporaneously issuing on this date a Memorandum Opinion in Cantu v. United States, No. 11-541, which addresses claims of Hispanic farmers similar to those asserted in this case.” Id. at 2 n.2. The plaintiffs in this action did not appeal the Court’s decision dismissing Counts III through VI, but the plaintiffs in Cantu did file an appeal. See Docket; Cantu v. United States, 565 F. App’x 7 (D.C. Cir. 2014).
In Cantu, the District of Columbia Circuit agreed that the Court “lacked authority to enjoin the government to provide appellants with a class settlement identical” to those plaintiffs in comparator cases. Cantu, 565 F. App’x at 9. Nevertheless, the Circuit reversed and remanded the case, stating that the plaintiffs also “seek a declaration and injunction prohibiting the government from offering them a claims process tainted by racial considerations” and that this Court “could
5

Case 1:00-cv-02502-RBW Document 269 Filed 11/14/16 Page 6 of 14
have granted relief by ordering the government not to act toward appellants based on unlawful racial grounds.” Id.
After the District of Columbia Circuit issued its decision in Cantu, the plaintiffs in this action filed their motion to reinstate Counts III through VI of the fourth amended Complaint on the grounds that these claims are “nearly identical [to those] brought by Hispanic farmers in Cantu v. United States [ ],” and the District of Columbia Circuit had “recently reversed the dismissal of the claims in Cantu.” Pls.’ Mot. to Reinstate at 1. Furthermore, eight of the ten plaintiffs4 (“the eight plaintiffs”) filed their instant motion to dismiss Counts I (Declaratory Judgment) and II (Violation of Equal Credit Opportunity Act) of the fourth amended Complaint on the grounds that their duly submitted stipulations of dismissal with prejudice were not signed by all parties, and thus did not effect a final dismissal under Rule 41(a). Pls.’ Mot. to Dismiss at 1–2; Pls.’ Dismissal Mem. at 3.
While the plaintiffs’ motion to dismiss and their motion to reinstate were pending, the Court issued an Order in Cantu on remand dismissing all of the Cantu plaintiffs’ claims. Order at 13, Cantu v. United States, No. 11-541, ECF No. 77. In that Order, the Court concluded
that the Circuit’s most recent decision in this case precludes the plaintiffs’ claims set forth in Counts Two through Five of the First Amended Complaint. The remaining count (Count One), which asserts an equal protection claim, fails to state a claim that is plausible on its face because the plaintiffs have not proffered any evidence that suggests a discriminatory purpose by the defendants for the actions challenged by the plaintiffs. Id.
4 These eight plaintiffs havechosen “to resolve their claims against the[USDA] through theadministrative claims programset up by USDA.” Plaintiffs’ Notice Regarding Litigation Election, ECF No. 187, at 2. The ninth plaintiff “elected not to file a claim in the administrativeclaims program, and also not to continue to pursueher claims in this litigation.” Id. at 3. Finally, plaintiffs’ counsel were unable to contact thefinal named plaintiff before the expiration of the Court’s deadline. Id.; seealso Minute Order, April 2, 2013 (ordering the plaintiffs’ counsel to “identify each
(continued . . . )
6

Case 1:00-cv-02502-RBW Document 269 Filed 11/14/16 Page 7 of 14
II. STANDARDS OF REVIEW Plaintiffs’ motion to dismiss falls under Federal Rule of Civil Procedure 41(a), which governs voluntary dismissals. The Rule provides in part: (1) By the Plaintiff.
(A) Without a Court Order. . . . [T]he plaintiff may dismiss an action without a court order by filing:
*** (ii) a stipulation of dismissal signed by all parties who have appeared. (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits. Fed. R. Civ. P. 41(a). “A joint stipulation under Rule 41(a)(1)(A)(ii) is self-executing; a separate court order is not required.” Am. Ctr. for Civil Justice v. Ambush, 49 F. Supp. 3d 24, 25 (D.D.C. 2014) (citing In re Wolf, 842 F.2d 464, 466 (D.C. Cir. 1988)). The plaintiffs’ motion to reinstate falls under Federal Rule of Civil Procedure 60(b). Rule 60(b) provides that “[o]n motion and just terms, the court may relieve a party . . . from a final judgment, order, or proceeding” for any of several specified reasons, including “any [ ] reason that justifies relief.” Fed. R. Civ. P. 60(b). “[U]nder Rule 60(b) the trial judge must strike a ‘delicate balance between the sanctity of final judgments . . . and the incessant command of a court’s conscience that justice be done in light of all the facts.’” Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988) (quoting Good Luck Nursing Home,
(continued . . . ) 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.”).
7

Case 1:00-cv-02502-RBW Document 269 Filed 11/14/16 Page 8 of 14
Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)) (emphasis in original)). A district court
violates Rule 60(b) only if an order issued pursuant to the Rule constitutes an error of law or
amounts to an abuse of discretion. Id. (citations omitted).
III. DISCUSSION
A. The Motion to Re instate Counts III Through VI
The Court concludes that its March 1, 2016 Order in Cantu forecloses the survival of
Counts III through VI of the plaintiffs’ fourth amended Complaint, and thus it would be futile to
reinstate those claims as the plaintiffs request. As stated above, in that Order, the Court dismissed
the Cantu plaintiffs’ claims against the USDA and other government defendants. Order at 13,
Cantu v. United States, No. 11-541, ECF No. 77. Those claims were the following:
Count One: alleged violations of the equal protection component of the due process clause of the Fifth Amendment because, “based on differences of race, [the d]efendants have provided the African-American and Native American farmers with higher compensation allocations in settlement benefits, and with far more favorable procedural measures to realize those benefits, than they have offered to the Hispanic farmers,” id. at 9 (internal citations and quotation marks omitted);
Count Two: alleged “violations of the due process clause of the Fifth Amendment because the ADR Framework provide[d] no independent, fair, and impartial oversight in the administration of the claims process,” id. at 8 (internal citations and quotation marks omitted);
Count Three: alleged “violations of the Unconstitutional Conditions doctrine because the ADR Framework provided to the plaintiffs requires them to release all of their claims against the defendants, does not offer the possibility of judicial supervision of the claims process, and does not afford the plaintiffs representation through class counsel,” id. (internal citations and quotation marks omitted);
Count Four: alleged “that the particular terms of the ADR Framework violate the APA because the terms are less favorable than settlement benefits afforded to another racial group and are therefore inherently arbitrary and capricious and not in accordance with the law,” id. (internal citations and quotation marks omitted); and
Count Five: alleged “that the defendants violated the APA because their decision not to offer a settlement program substantially equivalent to that which they
8

Case 1:00-cv-02502-RBW Document 269 Filed 11/14/16 Page 9 of 14
provided to the African-American and Native American farmers . . . amount[s] to the unlawful withholding and unreasonable delay of agency action,” id. (internal citations and quotation marks omitted).
In Cantu, the Court determined that Counts Two through Five “impermissibly s[ought] to
modify particular terms of the settlement agreement,” and because the Court “lack[ed] authority
to enjoin the government to provide appellants with a class settlement identical to those in Pigford
II and Keepseagle,” it dismissed those claims “as each s[ought] a remedy beyond this Court’s
authority.” Order at 8–9, Cantu v. United States, No. 11-541, ECF No. 77 (footnotes omitted)
(quoting Cantu v. United States, 565 F. App’x 7, 9 (D.C. Cir. 2014)).
Counts III through VI of the Love plaintiffs’ fourth amended Complaint are the following:
Count III: alleges violations of the equal protection component of the due process clause of the Fifth Amendment because the “USDA’s claims administration program for women farmers has the discriminatory effect of treating . . . women farmers[] less favorably than African-American and Native American farmers who suffered similar discrimination by USDA and brought virtually identical discrimination claims against USDA.” Am. Compl. ¶ 124. In this count, the plaintiffs also allege that the USDA “has a discriminatory purpose . . . to treat women farmers less favorably” than the African-American and Native American farmers. Id. ¶ 125;
Count IV: alleges violations of the Due Process Clause of the Fifth Amendment because the “USDA’s claims administration program for women farmers is arbitrary, unreasonable, and contrary to the government’s legitimate, and legallymandated, interest in treating all minorities in a nondiscriminatory manner.” Id. ¶ 128;
Count V: alleges violations of the Unconstitutional Conditions doctrine because the USDA conditioned participation in the claims process on the plaintiffs’ “waiver and release of all of their claims and potential claims,” bars the plaintiffs’ “access to free legal counsel,” and limits the legal fees they can pay private counsel, all which “constitute mandatory waivers of constitutionally protected rights.” Id. ¶ 133–34; and
Count VI: alleges violations of the APA because the USDA’s “disparate treatment of plaintiffs . . . in its claims administration program, in contrast to its treatment of similarly situated African-American and Native American farmers who suffered similar discrimination, is arbitrary and capricious.” Id. ¶ 138.
9

Case 1:00-cv-02502-RBW Document 269 Filed 11/14/16 Page 10 of 14
The Court concludes that Counts IV through VI also seek to modify the USDA’s claims
administration program. The plaintiffs have conceded that these counts are “nearly identical” to
the corresponding counts in Cantu. Pls.’ Reinstatement Mem. at 2. Because these counts seek a
modification of a settlement agreement, they cannot be reinstated because, like Counts Two
through Five in Cantu, they seek a remedy that this Court does not have the authority to provide.
See Order at 8–9, Cantu v. United States, No. 11-541, ECF No. 77.
Count III of the Love plaintiffs’ fourth amended Complaint is also “nearly identical” to
Count One of the Cantu plaintiffs’ Complaint. See Pls.’ Reinstatement Mem. at 2. The Court in
Cantu determined that Count One required dismissal for the following reasons:
Simply put, the plaintiffs’ First Amended Complaint is devoid of any factual allegations that would support an inference of discriminatory purpose in the defendants’ decision to offer the settlement terms set forth in the ADR Framework. Instead, the plaintiffs merely point to the fact that the defendants employed different litigation tactics in the Pigford and Keepseagle cases, and that the defendants offered “inferior” terms in the plaintiffs’ ADR process as compared to those offered to other races. But these contentions, standing alone, are insufficient to establish an equal protection claim because they merely constitute “disproportionate impact” on the plaintiffs, and do nothing to demonstrate a “discriminatory purpose” on the part of the defendants.
Moreover, it is undisputed that the plaintiffs in each of the comparator cases received class certification under Federal Rule of Civil Procedure 23(b)(2), whereas the plaintiffs here did not. As the defendants explain, “[a]ll claims against the government require a case-specific evaluation of litigation risks, including the strength of the claims asserted and the procedural posture,” and any difference in the defendants’ treatment of the plaintiffs here is “understandable (and entirely proper) given that the financial exposure the government faced in Garcia and Love (where class certification was denied) was much lower than the potential exposure it faced in the Pigford cases and in Ke[e]pseagle (where classes were certified).” This significant difference in the relative posture of the plaintiffs’ claims constitutes an “obvious alternative explanation” such that “discrimination is not a plausible conclusion.”
Order at 10–13, Cantu v. United States, No. 11-541, ECF No. 77 (internal citations and footnote
omitted). Accordingly, the Court concluded that Count One in Cantu failed to state a plausible
10

Case 1:00-cv-02502-RBW Document 269 Filed 11/14/16 Page 11 of 14
claim because the plaintiffs failed to “proffer[] any evidence that suggests a discriminatory purpose by the defendants,” id. at 13, which “is required to show a violation of the Equal Protection Clause,” id. at 9 (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977)).
The Love plaintiffs’ fourth amended Complaint, like the complaint in Cantu, lacks factual allegations supporting an inference of the USDA’s discriminatory purpose in the administrative claims program. Rather, like the complaint in Cantu, each of the Love plaintiffs alleges that the administrative claims program “discriminatorily and arbitrarily denies her the opportunity to apply for relief under the terms available to similarly situated members of other minority groups.” Am. Compl. ¶¶ 10, 18, 28, 33, 37, 41, 43, 45, 48. The plaintiffs detail how the claims program for female farmers is less favorable than those for the Native American and Hispanic farmers, see id. ¶¶ 90, 92, 94–96, 98, but do not assert any factual allegations suggesting any discriminatory purpose on the part of the USDA. In fact, the plaintiffs concede that the “USDA’s sole basis for instituting a less favorable claims program for women (and Hispanic) farmers is the varying class certification decisions.” Id. ¶ 80. As the Court explained in Cantu, “[th]e significant difference in the relative posture of the plaintiffs’ claims constitutes an ‘obvious alternative explanation’ such that ‘discrimination is not a plausible conclusion.’” Order at 11, Cantu v. United States, No. 11-541, ECF No. 77 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 682 (2009)). Moreover, the fact that the administrative claims program for women was less favorable than what was provided to other minority groups “merely constitute[s] ‘disproportionate impact’ on the plaintiffs, and do[es] nothing to demonstrate a ‘discriminatory purpose’ on the part of the [USDA].” Id. at 10 (citing Lewis v. Casey, 518 U.S. 343, 375 (1996); Ross Learning, Inc. v. Riley, 960 F. Supp. 1238, 1245 (E.D. Mich. 1997)). Accordingly, the
11

Case 1:00-cv-02502-RBW Document 269 Filed 11/14/16 Page 12 of 14
Court declines to exercise its discretion to reinstate Counts III through VI of the fourth amended Complaint because each count fails to state a plausible claim for relief. B. The Motion to Dismiss
The eight plaintiffs also seek an order from the Court dismissing with prejudice Counts I and II of the fourth amended Complaint, but leaving intact Counts III through VI. Pls.’ Mot. to Dismiss at 1. The eight plaintiffs state that their duly submitted stipulations of dismissal with prejudice were not signed by all parties, and thus did not effect a final dismissal under Rule 41(a). Id. at 1–2; Pls.’ Dismissal Mem. at 3. The eight plaintiffs also asserted in their motion to reinstate that Counts III through VI of their fourth amended Complaint remain intact because the stipulations of dismissal “w[ere] not to include any claims pertaining to the administrative claims process itself (such as Counts III through VI of the Fourth Amended and Supplemental Complaint—Counts that, at the time [the p]laintiffs submitted their stipulations, had been dismissed by the Court).” Pls.’ Dismissal Mem. at 2. The USDA responds that the stipulations were effective and dismissed all of the plaintiffs’ claims with prejudice, and thus none of their claims should be reinstated. Gov’t Dismissal Opp’n at 1.
Given that the parties agree that Counts I and II should be (or already are) dismissed, and in light of the Court’s decision that Counts III through VI fail to state a plausible claim for relief, the Court concludes that the dispute over whether some or all of the plaintiffs’ claims have already been dismissed pursuant to the stipulations of dismissal is moot. Accordingly, for purposes of finality, the Court will grant the plaintiffs’ request to dismiss Counts I and II, and deny their request in this motion to reinstate Counts III through VI. As a result, all of the plaintiffs’ claims are dismissed with prejudice.
12

Case 1:00-cv-02502-RBW Document 269 Filed 11/14/16 Page 13 of 14
C. The Motion for Attorneys’ Fees Also before the Court is the Plaintiffs’ Motion for an Award of Fees, Costs, and Expenses,
ECF No. 198.5 In light of the Court’s rulings in this Order, and anticipating that this Order may prompt one or more parties to amend their arguments regarding the pending motion for fees, the Court will afford the parties an opportunity to notify the Court of their intent to supplement their briefs. Accordingly, any party wishing to supplement their submissions on the pending motion for fees shall file a notice on or before [14 days after this Order is issued], so that the Court may set a briefing schedule.
CONCLUSION For the foregoing reasons, the Court grants the plaintiffs’ motion to dismiss Counts I and II of the fourth amended Complaint, but declines to reinstate Counts III through VI of the fourth amended Complaint because each count fails to state a plausible claim for relief. Accordingly, it is hereby ORDERED that the Plaintiffs’ Motion to Dismiss Pursuant to Fed. R. Civ. P. 41(a)(2), ECF No. 223, is GRANTED IN PART AND DENIED IN PART. Specifically, the plaintiffs’ request to dismiss Counts I and II of the fourth amended complaint is granted, but their request to reinstate Counts III through VI of the fourth amended Complaint is denied. It is further ORDERED that the Plaintiffs’ Motion to Reinstate Counts III Through VI of their Fourth Amended and Supplemental Copmplaint [sic], ECF No. 230, is DENIED. It is further ORDERED that all of the plaintiffs’ claims are DISMISSED. It is further
5 The plaintiffs also filed an accompanying Motion for Order to File Document Under Seal, ECF No. 199 (“Mot. to File”). This document is an exhibit to their motion for fees, and contains PriceWaterhouseCoopers’ Billing Rate & Associate Salary Survey, which includes “highly confidential” information. Mot. to File at 1. The Court will grant this motion.
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Case 1:00-cv-02502-RBW Document 269 Filed 11/14/16 Page 14 of 14
ORDERED that any party wishing to supplement their submissions regarding the Plaintiffs’ Motion for an Award of Fees, Costs, and Expenses, ECF No. 198, shall file a notice of their intent to do so on or before November 30, 2016. It is further
ORDERED that the Plaintiffs’ Motion to File Document Under Seal, ECF No. 199, is GRANTED. It is further
ORDERED that the intervenor-plaintiffs’ Motion to Intervene, ECF No. 124, is DENIED AS MOOT. It is further
ORDERED that the plaintiffs’ Motion for Leave to File a Third Amended Class Action Complaint, ECF No. 50, is DENIED AS MOOT. It is further
ORDERED that the Plaintiffs’ Supplemental Motion to Certify Class, ECF No. 36, is DENIED AS MOOT.
SO ORDERED this 14th day of November, 2016. REGGIE B. WALTON United States District Judge
14

 
 Case 1:00-cv-02502-RBW Document 278 Filed 05/07/18 Page 1 of 9

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ROSEMARY LOVE, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 00-2502 (RBW)

)

SONNY PERDUE, Secretary, United

)

States Department of Agriculture,1

)

0F0F

)

Defendant.

)

____________________________________)

ORDER

The plaintiffs in this civil action are eight female farmers2 who alleged, inter alia, that the 1F1F

United States Department of Agriculture (“USDA”) engaged in credit-related discrimination

against them on the basis of their gender. See Fourth Amended and Supplemental Complaint

(“4th Am. Compl.”) at 3, ECF No. 160. On November 14, 2016, the Court denied the plaintiffs’

motion to reinstate Counts III through VI of the fourth Amended Complaint and granted their

request to dismiss the first two counts of the fourth Amended Complaint. See Order at 12 (Nov.

14, 2016), ECF No. 269. Currently pending before the Court is the Plaintiffs’ Motion for an

Award of Fees, Costs, and Expenses (“Pls.’ Mot.”), ECF No. 198. Upon careful consideration of

1 Pursuant to Federal Rule of Civil Procedure 25(d), Sonny Perdue has been automatically substituted as the defendant in this matter.
2 Ten plaintiffs are listed on the Fourth Amended Complaint. See Fourth Amended and Supplemental Complaint at 1–2, ECF No. 160. Eight of these plaintiffs chose to resolve their claims through the United States Department of Agriculture’s administrative claims process described infra, one elected to not file an administrative claim nor to continue to pursue her claims in this suit, and one could not be reached by counsel. See Order at 6 n.4 (Nov. 14, 2016), ECF No. 269.

Case 1:00-cv-02502-RBW Document 278 Filed 05/07/18 Page 2 of 9
the parties’ submissions,3 the Court concludes for the following reasons that it must deny the 2F2F
plaintiffs’ motion. I. BACKGROUND
The Court discussed the factual background pertinent to this case in its prior Order, see Order at 2–6 (Nov. 14, 2016), ECF No. 269, and will not reiterate the lengthy procedural history of this case again here. Relevant to this motion, the Court notes that the plaintiffs’ motion for class certification was denied in both this case and in Garcia v. Veneman, see id. at 4 (first citing 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); then citing 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)), a case involving a putative class of Hispanic farmers asserting similar discrimination claims, see id. at 2. Although “the USDA [did] not offer[] to settle these cases on a class basis pursuant to Rule 23, . . . [t]he USDA did, however, develop a[n] [ ] administrative claims process for female and Hispanic farmers.” Id. at 4 (internal citation omitted). After “all of the plaintiffs’ claims [we]re dismissed with prejudice” as a result of the Court’s November 14, 2016 Order, id. at 12, the Court afforded both parties an opportunity to provide supplemental briefing on the plaintiffs’ pending motion for attorneys’ fees, costs, and expenses (collectively, “fees”), see Min. Order (Nov. 30, 2016) (setting supplemental briefing schedule).
3 In addition to the filings already identified, the Court considered the following submissions in rendering its decision: (1) the Plaintiffs’ Memorandum of Points and Authorities in Support of Their Motion for an Award of Fees, Costs, and Expenses (“Pls.’ Mem.”); (2) the Defendant’s Opposition to Plaintiffs’ Motion for an Award of Fees, Costs, and Expenses (“Def.’s Opp’n”); (3) the Plaintiffs’ Reply in Support of Their Motion for an Award of Fees, Costs, and Expenses (“Pls.’ Reply”); (4) the Plaintiffs’ Amendment and Supplement to Motion for an Award of Fees, Costs, and Expenses (“Pls.’ Supp. Mem.”); (5) the Defendant’s Supplemental Response to Plaintiffs’ Motion for Attorney[s’] Fees, Costs, and Expenses (“Def.’s Supp. Resp.”); (6) the Plaintiffs’ Reply in Support of
(continued) . . .
2

Case 1:00-cv-02502-RBW Document 278 Filed 05/07/18 Page 3 of 9
II. STANDARD OF REVIEW “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Thus, under Article III’s case or controversy requirement, federal courts may only decide “real and substantial controvers[ies].” North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937)). Compliant with this limitation, federal courts have no jurisdiction over cases that have become moot, see Worth v. Jackson, 451 F.3d 854, 857 (D.C. Cir. 2006), nor over claims against the United States for which the government has not waived its sovereign immunity, see Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C. Cir. 2003) (stating that “sovereign immunity is jurisdictional in nature”). “The Court has ‘an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority,’” Lindell v. Landis Corp. 401(k) Plan, 640 F. Supp. 2d 11, 14 (D.D.C. 2009) (quoting Abu Ali v. Gonzales, 387 F. Supp. 2d 16, 17 (D.D.C. 2005)), and “[c]laims that have been resolved by earlier settlement agreements, and therefore present no ongoing controversy, are moot,” Pigford v. Vilsack, 75 F. Supp. 3d 462, 466 (D.D.C. 2014).
III. ANALYSIS A. The USDA’s Sovereign Immunity
The USDA argues that, “[a]s a threshold matter, this Court lacks jurisdiction to award attorney[s’] fees and expenses to [the] plaintiffs from the government absent an express waiver of sovereign immunity.” Def.’s Supp. Resp. at 14 (citing Consol. Edison Co. v. Bodman, 445 F.3d 438, 446 (D.C. Cir. 2006)). The Court disagrees.
(continued . . . ) Motion for an Award of Fees, Costs, and Expenses, as Amended and Supplemented (“Pls.’ Supp. Reply”); (7) the Framework for Hispanic or Female Farmers’ Claims Process, ECF No. 155-1 (“Framework”); and (8) the USDA Hispanic and Women Farms and Ranchers Settlement Agreement, ECF No. 275-1 (“Settlement Agreement”).
3

Case 1:00-cv-02502-RBW Document 278 Filed 05/07/18 Page 4 of 9
The plaintiffs seek a fees award under the common fund doctrine4 or, in the alternative, 3F3F
under the Equal Credit Opportunity Act and the Equal Access to Justice Act, see Pls.’ Mot. at 1; see also Pls.’ Supp. Mem. at 9, arguing that the United States has waived its sovereign immunity for awards under all three options, see Pls.’ Supp. Reply at 2–3. For several reasons the Court accepts the plaintiffs’ waiver position.
First, the District of Columbia Circuit made clear in Commonwealth of Puerto Rico v. Heckler that the Equal Access to Justice Act “waived the federal government’s sovereign immunity for attorney[s’] fee awards encompassed under common law exceptions to the American rule, including the ‘common fund’ exception.” 745 F.2d 709, 711 (D.C. Cir. 1984), abrogated on other grounds as recognized in Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1267 n.3 (D.C. Cir. 1993). Second, the Equal Credit Opportunity Act expressly provides for attorneys’ fees and costs, see 15 U.S.C. § 1691e(d) (“In the case of any successful action under [this statute], the costs of the action, together with a reasonable attorney’s fee as determined by the court, shall be added to any damages awarded by the court under [this statute].”), and the Equal Access to Justice Act states that “[t]he United States shall be liable for such fees and expenses to the same extent that any other party would be liable . . . under the terms of any statute which specifically provides for such an award,” 28 U.S.C. § 2412(b), thereby incorporating the Equal Credit Opportunity Act’s fees and costs provision and waiving the government’s sovereign immunity. Moreover, the USDA’s sovereign immunity argument is
4 The common fund doctrine “allows a party who creates, preserves, or increases the value of a fund in which others have an ownership interest to be reimbursed from that fund for litigation expenses incurred, including counsel fees.” Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1265 (D.C. Cir. 1993). “The common-fund doctrine reflects the traditional practice in courts of equity, and it stands as a well-recognized exception to the general principle that requires every litigant to bear his own attorney[s’] fees.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) (internal citation omitted) (first citing Trustees v. Greenough, 105 U.S. 527, 532–37 (1882); then citing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 257–58 (1975)).
4

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belied by the fact that the awards granted by the USDA’s administrative claims process are funded through the Judgment Fund, see Framework § I(E) (“Cash awards and tax relief will be paid from the Judgment Fund.”), which “is only accessible when the United States has waived its sovereign immunity,” Vivian S. Chu & Brian T. Yeh, Cong. Research Serv., R42835, The Judgment Fund: History, Administration, and Common Usage 1 (2013); see also Trout v. Garrett, 891 F.2d 332, 335 (D.C. Cir. 1989) (characterizing the Judgment Fund as “‘a mechanism for facilitating payment of judgments’ rendered on claims authorized by another statute” (quoting Rosenfeld v. United States, 859 F.2d 717, 727 (9th Cir. 1988))). Accordingly, the Court concludes that because the Equal Access to Justice Act waived the government’s sovereign immunity with regard to the fees requested in this action, either under the common fund doctrine or as provided by the Equal Credit Opportunity Act, the Court has jurisdiction over the plaintiffs’ motion. B. The Framework and Settlement Agreement
The USDA next argues that the Framework establishing the USDA’s administrative claims process and the Settlement Agreement signed by each claimant as a part of that process bar any fees award. See Def.’s Supp. Resp. at 5 (stating that the plaintiffs “waived their right to seek any fees from the government as a condition of participation” in the claims process). The plaintiffs disagree, arguing that “[t]he form [S]ettlement [A]greement stated that individuals would not seek attorneys’ fees beyond those allowed under the Framework describing the administrative claims process, but the Framework only limited the amount of attorneys’ fees in connection with individuals’ filing of administrative claims (in most cases, the limit was $1,500).” Pls.’ Supp. Reply at 7. According to the plaintiffs, “[i]t would be unreasonable to construe the [S]ettlement [A]greement and Framework to limit, not only fees recoverable for
5

Case 1:00-cv-02502-RBW Document 278 Filed 05/07/18 Page 6 of 9
work specifically performed in connection with the filing of claims in that process, but for nearly 20,000 hours of work performed in connection with this lawsuit over the course of [seventeen] years.” Id.
Courts “interpret a settlement agreement under contract law.” Keepseagle v. Perdue, 856 F.3d 1039, 1047 (D.C. Cir. 2017) (quoting Gonzalez v. Dep’t of Labor, 609 F.3d 451, 457 (D.C. Cir. 2010)). First, the Court must “determine whether the disputed language is unambiguous.” Id. (quoting Armenian Assembly of Am., Inc. v. Cafesjian, 758 F.3d 265, 278 (D.C. Cir. 2014)). If so, “a court will assume that the meaning ordinarily ascribed to those words reflects the intention of the parties.” Pigford, 75 F. Supp. 3d at 467 (quoting Pigford v. Schafer, 536 F. Supp. 2d 1, 10 (D.D.C. 2008)); see also Halldorson v. Sandi Grp., 934 F. Supp. 2d 147, 152–53 (D.D.C. 2013) (“Where a contract is clear and unambiguous on its face, its plain language controls in determining the parties’ intentions.”). If the contract’s language is ambiguous, the Court must determine “what a reasonable person in the position of the parties would have thought the disputed language meant.” Keepseagle, 856 F.3d at 1047 (quoting Cafesjian, 758 F.3d at 278).
In Pigford, a law firm filed a petition for fees related to its representation of a class member’s Track B arbitration claim. See 75 F. Supp. 3d at 464–65. “The Pigford case arose from decades of racial discrimination by the [USDA] and local county commissioners in administering farm loans and benefits to African American farmers.” Id. at 465. The USDA filed a motion to dismiss the law firm’s fee petition on the grounds that it was barred by a settlement agreement between the USDA and the law firm. See id. The Court agreed with the USDA, concluding that “the unambiguous language of the [a]greement provide[d] for the ‘full and final settlement’ of ‘any and all claims’ for attorney[s’] fees, costs, and expenses related to
6

Case 1:00-cv-02502-RBW Document 278 Filed 05/07/18 Page 7 of 9
the Pigford class action, specifically including any claim for fees, costs, and expenses related to
Track B arbitrations.” Id. at 467. The Court also noted that “the [a]greement’s settlement of
‘any and all’ fee claims ‘related in any way to any aspect’ of these actions for work performed
through March 20, 2003, squarely encompasse[d] [the law firm’s] work.” Id. at 467–68.
Consequently, the Court granted the USDA’s motion to dismiss and denied the fee petition as
moot. See id. at 469; see also Stewart v. Rubin, 948 F. Supp. 1077, 1106 (D.D.C. 1996)
(denying an attorney’s request for a fee award in a class action because, among other reasons,
“the Settlement Agreement fixes the amount of attorneys’ fees that [the] defendant is obligated to
pay”).
With the guidance provided by Pigford, the Court turns to the Framework and Settlement
Agreement in this case. Section XI of the Framework, entitled “Attorneys’ Fees,” provides in its
entirely that:
Any attorneys’ fees must be paid directly by the claimant. Such fees paid out of the cash award for Tier 2 or Tier 1(a) shall not exceed $1,500 per claimant. For Tier 1(b), such fees paid out of the cash award shall not exceed 8% of the Tier 1(b) cash award.
No attorneys’ fees will be paid to claimants or their counsel by [the] USDA or the Department of Justice, or any other agency or department of the United States. The amount of cash awards will not be increased for those claimants who are represented by an attorney. No claimant is required to retain an attorney, and neither [the] USDA, the [claims] Administrator, nor the Adjudicator [of the claim] will recommend that a claimant retain counsel or retain a specific attorney or law firm, or discourage a claimant from obtaining counsel or using a specific attorney or law firm. However, if claimants have legal questions, they are advised to consult with counsel or another legal service provider.
Framework § XI. Based solely upon consideration of the Framework, the plaintiffs’ argument
that the Framework’s language regarding attorneys’ fees is limited to fees incurred pursuant to
the filing of administrative claims, see Pls.’ Supp. Reply at 7, could conceivably have merit
because the Framework’s discussion of fees appears limited to the administrative claims process,
7

Case 1:00-cv-02502-RBW Document 278 Filed 05/07/18 Page 8 of 9
with no mention of this suit or other litigation arising out of credit-related discrimination, see
Framework § XI. However, upon consideration of the Settlement Agreement signed by each
administrative claimant, the Court cannot come to that conclusion.
The Settlement Agreement defines a “claimant” as “a farmer who alleges credit-related
discrimination due to being female or Hispanic by [the] USDA during [certain] time periods,”
and provides that “[i]t is in the [p]arties’ mutual interests to resolve such allegations and claims
through the Claims Process.” Settlement Agreement at 1. It also provides that “[i]f any claims
of credit-related discrimination by [the c]laimant against [the] USDA are pending in any court or
administrative proceeding, this Claim Package must [ ] include a signed Stipulation or Notice of
Dismissal with Prejudice, whichever is appropriate, for such claims.” Id. ¶ 1.
The Settlement Agreement further provides the following relevant language regarding
attorneys’ fees, expenses, and costs:
3. Release. In exchange for the consideration described in the foregoing Paragraphs, [the c]laimant . . . hereby release[s] and forever discharge[s] the United States[ and the] USDA . . . from any credit-related discrimination claims, whether known or unknown, suspected or unsuspected, for compensation or damages, attorneys’ fees, expenses or costs incurred. If a Claim Package is rejected by the [claims] Administrator as untimely, or is determined by the Administrator to be timely but incomplete, and [the c]laimant does not submit a complete Claim Package within the time allowed under the Framework, such claims against [the] USDA will not be released.
4. Merger. The Terms of this Agreement constitute the entire agreement of the Parties with respect to compensation or damages, attorneys’ fees, expenses and costs; and no statement, remark, agreement, or understanding, oral or written, that is not contained herein shall be recognized or enforced.
Id. ¶¶ 3–4 (emphases added). The Court concludes that the unambiguous intent of the Settlement
Agreement was to resolve claims of credit-related discrimination through the Claims Process in
lieu of litigation, see id. at 1, and notes the broad language of the Settlement Agreement, which,
first, “constitute[s] the entire agreement . . . with respect to . . . attorneys’ fees,” id. ¶ 4 (emphasis
8

Case 1:00-cv-02502-RBW Document 278 Filed 05/07/18 Page 9 of 9
added), and second, releases the USDA “from any credit-related discrimination claims, . . . for compensation or damages, attorneys’ fees, expenses or costs incurred,” id. ¶ 3 (emphasis added). Accordingly, the Court concludes that the plaintiffs’ motion for fees is mooted by the Settlement Agreement that each plaintiff signed as part of the claims process. See Pigford, 75 F. Supp. 3d at 469 (concluding that the law firm’s fee petition was mooted by its settlement agreement with the USDA); see also Hershon v. Gibraltar Bldg. & Loan Ass’n, Inc., 864 F.2d 848, 852 (D.C. Cir. 1989) (concluding that a settlement agreement releasing and discharging “any and all [c]laims” was unambiguous).5
4F4F
IV. CONCLUSION For the foregoing reasons, it is hereby ORDERED that the Plaintiffs’ Motion for an Award of Fees, Costs, and Expenses, ECF No. 198, is DENIED. SO ORDERED this 7th day of May, 2018.
REGGIE B. WALTON United States District Judge
5 Because the Court concludes that the plaintiffs’ motion is mooted by the Settlement Agreement, it need not consider the parties’ arguments regarding whether the plaintiffs are entitled to fees under the common fund doctrine or, in the alternative, under the Equal Credit Opportunity Act and the Equal Access to Justice Act. See Nat’l Fed’n of Blind v. U.S. Dep’t of Transp., 827 F.3d 51, 54 (D.C. Cir. 2016) (declining to consider the parties’ arguments on the merits after concluding that the district court lacked jurisdiction).
9

 
 Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 1 of 44
CLOSED,TYPE−E
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:00−cv−02502−RBW

LOVE et al v. VENEMAN Assigned to: Judge Reggie B. Walton Cases: 1:13−cv−00761−RBW
1:14−cv−01454−RBW Case in other court: USCA−DC, 00−02502
USCA−DC, 04−05449 USCA, 08−05135 USCA, 14−05185 Cause: 15:1681 Fair Credit Reporting Act Plaintiff
ROSEMARY LOVE

Date Filed: 10/19/2000 Date Terminated: 12/18/2012 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant
represented by Alexander John Pires , Jr. PIRES COOLEY 4401 Q Street, NW Washington, DC 20007 (202) 905−6706 Fax: (202) 333−1134 Email: farmerslawyer@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison L. Andersen ARENT FOX LLP 1717 K Street, NW Washington, DC 20006 (202) 857−6191 Fax: (202) 857−6395 Email: alison.andersen@arentfox.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barbara S. Wahl ARENT FOX LLP 1717 K Street, NW Washington, DC 20006 (202) 857−6415 Fax: (202) 857−6395 Email: barbara.wahl@arentfox.com LEAD ATTORNEY
Marc L. Fleischaker ARENT FOX, LLP 1717 K Street, N.W. Washington, DC 20036−5342 (202) 857−6053 Fax: (202) 715−8483 Email: marc.fleischaker@arentfox.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
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

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 2 of 44

Email: phil@phillipfraaslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca S. Behravesh ARENT FOX KINTNER PLOTKIN & KAHN, PLLC 1050 Connecticut Avenue NW Washington, DC 20036−5339 (202) 857−6281 Fax: (202) 857−6395 Email: behravesh.rebecca@arentfox.com TERMINATED: 07/28/2003 LEAD ATTORNEY

Roderic VonOesen Boggs WASHINGTON LAWYERS' COMMITTEE 11 Dupont Circle, NW Suite 400 Washington, DC 20036−1207 (202) 319−1010 Fax: 202−319−1000 Email: rod_boggs@washlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily B. Read 354 Westbiru Drive Riva, MD 21140 (703) 774−4894 Email: emilybread@gmail.com TERMINATED: 10/17/2012

Kristine J. Dunne ARENT FOX LLP 1717 K Street, NW Washington, DC 20036−5342 (202) 857−6385 Fax: (202) 857−6395 Email: dunne.kristine@arentfox.com TERMINATED: 10/27/2015

Susan E. Huhta OUTTEN & GOLDEN, LLP 601 Massachusetts Avenue, NW 2nd Floor West Suite Washington, DC 20001 (202) 847−4400 Fax: (646) 509−2097 Email: shuhta@outtengolden.com TERMINATED: 06/17/2011

Plaintiff LIND MARIE BARA−WEAVER

represented by Alexander John Pires , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison L. Andersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 3 of 44

Barbara S. Wahl (See above for address) LEAD ATTORNEY

Marc L. Fleischaker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Rebecca S. Behravesh (See above for address) TERMINATED: 07/28/2003 LEAD ATTORNEY

Roderic VonOesen Boggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily B. Read (See above for address) TERMINATED: 10/17/2012

Kristine J. Dunne (See above for address) TERMINATED: 10/27/2015

Susan E. Huhta (See above for address) TERMINATED: 06/17/2011

Plaintiff MARGARET ODOM

represented by Alexander John Pires , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison L. Andersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara S. Wahl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marc L. Fleischaker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Rebecca S. Behravesh (See above for address)

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 4 of 44

TERMINATED: 07/28/2003 LEAD ATTORNEY

Roderic VonOesen Boggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily B. Read (See above for address) TERMINATED: 10/17/2012

Kristine J. Dunne (See above for address) TERMINATED: 10/27/2015

Susan E. Huhta (See above for address) TERMINATED: 06/17/2011

Plaintiff GAIL LENNON

represented by Alexander John Pires , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison L. Andersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara S. Wahl (See above for address) LEAD ATTORNEY

Marc L. Fleischaker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Rebecca S. Behravesh (See above for address) TERMINATED: 07/28/2003 LEAD ATTORNEY

Roderic VonOesen Boggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily B. Read (See above for address) TERMINATED: 10/17/2012

Kristine J. Dunne (See above for address) TERMINATED: 10/27/2015

Susan E. Huhta

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 5 of 44

(See above for address) TERMINATED: 06/17/2011

Plaintiff
JAMES MURNION TERMINATED: 07/28/2003

represented by Alexander John Pires , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marc L. Fleischaker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Emily B. Read (See above for address) TERMINATED: 10/17/2012

Kristine J. Dunne (See above for address) TERMINATED: 10/27/2015

Plaintiff
JOANN NEUZIL TERMINATED: 07/28/2003

represented by Alexander John Pires , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marc L. Fleischaker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Emily B. Read (See above for address) TERMINATED: 10/17/2012

Kristine J. Dunne (See above for address) TERMINATED: 10/27/2015

Plaintiff JOYCE L. ACOMB

represented by Alison L. Andersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara S. Wahl (See above for address) LEAD ATTORNEY

Roderic VonOesen Boggs (See above for address)

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 6 of 44

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander John Pires , Jr. (See above for address) ATTORNEY TO BE NOTICED

Emily B. Read (See above for address) TERMINATED: 10/17/2012

Kristine J. Dunne (See above for address) TERMINATED: 10/27/2015

Marc L. Fleischaker (See above for address) ATTORNEY TO BE NOTICED

Susan E. Huhta (See above for address) TERMINATED: 06/17/2011

Plaintiff EDITH L. SCRUGGS

represented by Alison L. Andersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara S. Wahl (See above for address) LEAD ATTORNEY

Roderic VonOesen Boggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander John Pires , Jr. (See above for address) ATTORNEY TO BE NOTICED

Emily B. Read (See above for address) TERMINATED: 10/17/2012

Kristine J. Dunne (See above for address) TERMINATED: 10/27/2015

Marc L. Fleischaker (See above for address) ATTORNEY TO BE NOTICED

Susan E. Huhta (See above for address) TERMINATED: 06/17/2011

Plaintiff MARYLAND B. WYNNE

represented by Alison L. Andersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 7 of 44

Barbara S. Wahl (See above for address) LEAD ATTORNEY

Roderic VonOesen Boggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander John Pires , Jr. (See above for address) ATTORNEY TO BE NOTICED

Emily B. Read (See above for address) TERMINATED: 10/17/2012

Kristine J. Dunne (See above for address) TERMINATED: 10/27/2015

Marc L. Fleischaker (See above for address) ATTORNEY TO BE NOTICED

Susan E. Huhta (See above for address) TERMINATED: 06/17/2011

Plaintiff JOYCE A. KING

represented by Alison L. Andersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara S. Wahl (See above for address) LEAD ATTORNEY

Roderic VonOesen Boggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander John Pires , Jr. (See above for address) ATTORNEY TO BE NOTICED

Emily B. Read (See above for address) TERMINATED: 10/17/2012

Kristine J. Dunne (See above for address) TERMINATED: 10/27/2015

Marc L. Fleischaker (See above for address) ATTORNEY TO BE NOTICED

Susan E. Huhta (See above for address) TERMINATED: 06/17/2011

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 8 of 44

Plaintiff PHYLLIS L. ROBERTSON

represented by Alison L. Andersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara S. Wahl (See above for address) LEAD ATTORNEY

Roderic VonOesen Boggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander John Pires , Jr. (See above for address) ATTORNEY TO BE NOTICED

Emily B. Read (See above for address) TERMINATED: 10/17/2012

Kristine J. Dunne (See above for address) TERMINATED: 10/27/2015

Marc L. Fleischaker (See above for address) ATTORNEY TO BE NOTICED

Susan E. Huhta (See above for address) TERMINATED: 06/17/2011

Plaintiff
MARY L. BROWN on behalf of themselves and all others similarly situated

represented by Alison L. Andersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara S. Wahl (See above for address) LEAD ATTORNEY

Alexander John Pires , Jr. (See above for address) ATTORNEY TO BE NOTICED

Emily B. Read (See above for address) TERMINATED: 10/17/2012

Kristine J. Dunne (See above for address) TERMINATED: 10/27/2015

Marc L. Fleischaker (See above for address) ATTORNEY TO BE NOTICED

Susan E. Huhta (See above for address) TERMINATED: 06/17/2011

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 9 of 44 ATTORNEY TO BE NOTICED

V. Consol Plaintiff PHILLIP L. FRAAS

V. Defendant DAN GLICKMAN TERMINATED: 02/27/2001
Defendant ANN VENEMAN TERMINATED: 11/04/2009

represented by Carlotta Porter Wells U.S. Department of Justice Civil Division 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 514−4522 Fax: (202) 616−8470 Email: carlotta.wells@usdoj.gov TERMINATED: 02/25/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T. Quinlivan UNITED STATES ATTORNEY'S OFFICE John Joseph Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748−3606 Fax: (617) 748−3969 Email: mark.quinlivan@usdoj.gov (Inactive) TERMINATED: 09/10/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carlotta Porter Wells (See above for address) TERMINATED: 02/25/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark T. Quinlivan (See above for address) TERMINATED: 09/10/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter T. Wechsler U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street NW Room 12506 Washington, DC 20005 (202) 514−2705 Fax: (202) 616−8470 Email: peter.wechsler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Z. Rabinovitz

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 10 of 44

U.S. DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Avenue, NW Washington, DC 20001 (202) 353−7633 Fax: (202) 616−8202 Email: joshua.rabinovitz@usdoj.gov TERMINATED: 05/12/2006

Thomas William Millet U.S. DEPARTMENT OF JUSTICE Civil Division 901 E Street, NW Washington, DC 20530 (202) 514−3313 Fax: (202) 616−8202 Email: thomas.millet@usdoj.gov TERMINATED: 12/28/2004 ATTORNEY TO BE NOTICED

Defendant
THOMAS J. VILSACK Secretary, United States Department of Agriculture

represented by Peter T. Wechsler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Sitcov U.S. DEPARTMENT OF JUSTICE Federal Programs Branch, Civil Division 20 Massachusetts Avenue, NW Washington, DC 20001 (202) 514−1944 Fax: (202) 616−8187 Email: michael.sitcov@usdoj.gov ATTORNEY TO BE NOTICED

Movant BARBARA E, ADAMS

represented by Benjamin G. Chew BROWN RUDNICK LLP 601 Thirteenth Street, NW Suite 600S Washington, DC 20005 (202) 536−1785 Fax: (202) 536−1701 Email: bchew@brownrudnick.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anurag Varma AKIN GUMP STRAUSS HAUER & FELD LLP 1333 New Hampshire Avenue, NW Washington, DC 20036 (202) 887−4222 Fax: (202) 887−4288 Email: avarma@akingump.com ATTORNEY TO BE NOTICED

Kristen Marie Jarvis Johnson PATTON BOGGS, LLP 2550 M Street, NW Washington, DC 20037 (202) 457−5227 Fax: (202) 457−6482

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 11 of 44

Email: kmjohnson@pattonboggs.com ATTORNEY TO BE NOTICED

Movant CHRISTINE BRAYBOY ANDERSON

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant GLADYS SCOTT ANDERSON

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant SHIRLEY L. BARNETT

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant SHIRLEY BARNETT

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant DOROTHY MAE BARR

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant JEANETTE BARR

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant JUDY BARR

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant NINA F. BEAUCHAMP

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant RUTH ANN BELL

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant SARAH NADINE BELL

represented by

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 12 of 44

Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant CLAUDIA JEAN BLANDING

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant ELIZABETH BLANDING

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant JULIA FAYE BLANDING

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant DICY DELORIS BLOUNT

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant BARBARA ANN BONNER

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant ROSA BOLLING BONNER

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant BETTY BROWN BOSIER

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant EMMA BELL BOWMAN

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant ANNIE MAE BRADLEY

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 13 of 44

Movant ANNETTE C. BRAYBOY

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant DOROTHY L. BROWN

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant FLORA M. BROWN

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant GENEVA C. BROWN

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant LEAR H. BROWN

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant MARSHA LINDA BROWN

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
MARSHA LINDA BROWN representing Garner

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant JANET LEE BRYANT

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant JOAN M. BURGESS

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant MELISSA ANN BURGESS

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 14 of 44

Movant ULA DEAN BURGESS
Movant WENDY LATISA BURGESS
Movant WILLA DEAN BURGESS
Movant OLA B. CALDWELL
Movant MARY LEE CAMERON
Movant CLEMENTINE VIRGINIA CARR−NEWKIRK
Movant LIZZIE CARROLL
Movant CHERYL LASHAUNTA CARSTARPHEN
Movant BARBARA WILLIAMS CARTER
Movant MARY LEE CARTER

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 15 of 44

ATTORNEY TO BE NOTICED

Movant MAE BELL CAUSLEY

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant SANDRA A. MAYFIELD CHRISTIAN

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant SANDRA A. CHRISTIAN

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant LINDA COE

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant JOYCE MARIE WADE COLE

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant QUINCESS MARGARET COLLINS

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant BONITA ANTOINETTE CONWELL

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant BONITA CONWELL

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant MARY M. CONYERS

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant MAGGIE EVE COOPER

represented by Benjamin G. Chew (See above for address)

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 16 of 44

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant ALL MOVANTS

represented by Benjamin G. Chew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anurag Varma (See above for address) ATTORNEY TO BE NOTICED

Kristen Marie Jarvis Johnson (See above for address) ATTORNEY TO BE NOTICED

Movant
BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. TERMINATED: 06/13/2014

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

Date Filed 10/19/2000
10/19/2000
10/19/2000 10/25/2000 12/15/2000 12/18/2000

# Docket Text
1 COMPLAINT against DAN GLICKMAN ( Filing fee $150 ). Filed by GAIL LENNON, ROSEMARY LOVE, JAMES MURNION, MARGARET ODOM; exhibits (A−G)not scanned; can be found in the Clerk's Office. (adc) Modified on 3/5/2001 (adc, ). (Entered: 03/05/2001)
2 NOTICE of related case: Case related to Case No(s): 00−2445 by GAIL LENNON, ROSEMARY LOVE, JAMES MURNION, MARGARET ODOM. (adc, ) (Entered: 03/05/2001)
SUMMONS (3) Issued as to DAN GLICKMAN, U.S. Attorney and U.S. Attorney General (adc) (Entered: 03/05/2001)
Case Reassigned from Judge Oberdorfer to Judge James Robertson by direction of the Calendar Committee. (adc) (Entered: 03/20/2001)
3 MOTION for Extension of Time to File Answer re 1 to plaintiff's complaint by DAN GLICKMAN. (adc, ) (Entered: 03/20/2001)
4 ORDER granting Motion for Extension of Time to Answer re 1 3 ; defendant shall file a responsive pleading to plaintiffs' complaint on or before 12/29/00 .Signed by Judge James Robertson on 12/18/00. (adc) Modified on 3/20/2001 (adc, ). (Entered: 03/20/2001)

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12/22/2000 12/27/2000
01/11/2001
01/11/2001 01/23/2001 01/25/2001 01/25/2001 01/25/2001
02/02/2001 02/06/2001 02/06/2001 02/06/2001 02/20/2001
02/20/2001
02/20/2001 02/26/2001
02/27/2001

5 MOTION for status conference by GAIL LENNON, ROSEMARY LOVE, JAMES MURNION, MARGARET ODOM. (adc, ) Modified on 3/22/2001 (adc, ). (Entered: 03/22/2001)
6 AMENDED COMPLAINT by plaintiffs ROSEMARY LOVE, LIND MARIE BARA−WEAVER, MARGARET ODOM, GAIL LENNON and JAMES MURNION adding plaintiffs JOANN NEUZIL, LORRAINE DONNA BOERS, ELLA MAE GARNER, JOYCE L. ACOMB, MARGARET STRAUSER, SHERIDAN SYLVESTER, SANDRA BENNETT amending complaint. Filed by JOANN NEUZIL. (adc, ) (Entered: 03/29/2001)
7 MOTION for Leave to File a memorandum of law in excess of forty−five pages; exhibits (4) and Exhibit (memorandum of points and authorities in support of defendant's motion to dismiss and to strike class action allegations by DAN GLICKMAN. (adc, ) (Entered: 03/29/2001)
8 MOTION to Dismiss and, MOTION to Strike class action allegations by DAN GLICKMAN. (adc, ) (Entered: 03/29/2001)
9 MOTION for Extension of Time to File plaintiff's motion for class certification by LIND MARIE BARA−WEAVER, GAIL LENNON, ROSEMARY LOVE, JAMES MURNION, JOANN NEUZIL, MARGARET ODOM. (adc, ) (Entered: 04/02/2001)
10 ORDER granting Motion for Extension of Time to File motion for class certification 9 ; motion due 2/20/01 . Signed by Judge James Robertson on 1/25/01. (adc, ) (Entered: 04/02/2001)
Set Deadlines: Motion for class certification due by 2/20/2001. (adc) (Entered: 04/02/2001)
11 Consent MOTION for Extension of Time to File Response re 8 to defendants' motion to dismiss and to strike class action allegations by LIND MARIE BARA−WEAVER, GAIL LENNON, ROSEMARY LOVE, JAMES MURNION, JOANN NEUZIL, MARGARET ODOM. (adc, ) Modified on 4/2/2001 (adc, ). (Entered: 04/02/2001)
Calendar Entry Status Conference set for 2/6/2001 10:00 AM before Judge James Robertson in Courtroom 16. (adc) (Entered: 04/02/2001)
12 ORDER granting Motion for Leave to File 7 . Signed by Judge James Robertson on February 6,2001. (adc) (Entered: 04/05/2001)
13 ORDER granting Motion for Extension of Time to File Response re 11 . Signed by Judge James Robertson on February 6, 2001. (adc) (Entered: 04/05/2001)
Minute Entry: Status Conference held on 2/6/2001 before James Robertson. OTBP. (Court Reporter Dennis Dinkel.) (adc) (Entered: 04/05/2001)
14 MOTION for Leave to File second amended class action complaint by LIND MARIE BARA−WEAVER, GAIL LENNON, ROSEMARY LOVE, JAMES MURNION, JOANN NEUZIL, MARGARET ODOM; EXHIBIT (SECOND CLASS ACTION AMENDED COMPLAINT−HELD BY DOCKET CLERK). (adc) Modified on 4/6/2001 (adc). (Entered: 04/06/2001)
15 MOTION to Certify Class by LIND MARIE BARA−WEAVER, GAIL LENNON, ROSEMARY LOVE, JAMES MURNION, JOANN NEUZIL, MARGARET ODOM. (Attachments: # 1memorandum of points and authorities # 2 Exhibits (A−D)(adc) Modified on 4/6/2001 (adc). (Entered: 04/06/2001)
16 MOTION for Preliminary Injunction by LIND MARIE BARA−WEAVER, GAIL LENNON, ROSEMARY LOVE, JAMES MURNION, JOANN NEUZIL, MARGARET ODOM. (Attachments: # 1)(adc, ) (Entered: 04/06/2001)
17 RESPONSE in Opposition re 8 to defendant's motion to dismiss and to strike class action allegations filed by LIND MARIE BARA−WEAVER, GAIL LENNON, ROSEMARY LOVE, JAMES MURNION, JOANN NEUZIL, MARGARET ODOM. (Attachments: # 1 Exhibit)(adc, ) (Entered: 04/06/2001)
18 RESPONSE in Opposition re 16 plaintiffs' motion for preliminary injunction filed by ANN VENEMAN. (Attachments: # 1 Exhibit)(adc, ) (Entered: 04/06/2001)

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03/02/2001 03/05/2001 03/05/2001 03/07/2001 03/09/2001 03/13/2001 05/02/2001 05/07/2001 05/21/2001 05/21/2001
12/07/2001 12/13/2001 12/13/2001 12/31/2001 01/04/2002 01/17/2002 01/22/2002 01/23/2002 02/05/2002 02/06/2002

19 ORDER denying Motion for Preliminary Injunction 16 . Signed by Judge James Robertson on 3/2/01. (adc, ) (Entered: 04/06/2001)
21 MOTION for Extension of Time to File a reply in support of defendant's motion to dismiss and to strike class action allegations by ANN VENEMAN. Replies due by 3/9/2001. (adc, ) (Entered: 04/06/2001)
22 RESPONSE in Opposition re 14 plaintiffs' motion for leave to file second amended class action complaint filed by ANN VENEMAN. (adc, ) (Entered: 04/06/2001)
20 ORDER granting defendants' motion to extend time to reply to defendant's motion to dismiss; reply due 3/9/01 . Signed by Judge James Robertson on 3/7/01. (adc, ) Modified on 4/6/2001 (adc, ). (Entered: 04/06/2001)
23 REPLY to Response to Motion re 8 to dismiss and to strike class action allegations filed by ANN VENEMAN. (Attachments: # 1 Exhibit)(adc, ) (Entered: 04/06/2001)
27 NOTICE of filing of Transcript for dates 2/6/01 of status conference. (adc, ) Modified on 5/14/2001 to change event from Transcript to Notice. (pao, ). (Entered: 04/06/2001)
25 ORDER establishing procedures for electronic filing. Signed by Judge James Robertson on May 2, 2001. (MT, ) (Entered: 05/02/2001)
26 MOTION for Hearing for Status Conference by ROSEMARY LOVE. (Pires, Alexander) (Entered: 05/07/2001)
ORDER granting Motion for Hearing 26 , granting Motion for Hearing 5 , granting Motion for Extension of Time to File 21 Signed by Judge Robertson on 5/21/01. (Robertson, James) (Entered: 05/21/2001)
Minute Entry: STATUS CONFERENCE held on 5/21/2001 before Judge James Robertson: plaintiff sought advise from the Court regarding an order issued in related case before Judge Paul Friedman and the obligation of plaintiff in both cases; Court to rule on pending motion to dismiss without oral argument.(Court Reporter Dennis Dinkel.) (jeb,) Modified on 5/21/2001 (jeb, ). (Entered: 05/21/2001)
Minute Entry: Status conference and motions hearing set for 1/10/2002 04:30 PM before Judge James Robertson in Courtroom 16, Sixth Floor. (mlp,) (Entered: 12/09/2001)
28 MEMORANDUM re defendant's motion to dismiss 8 . Signed by Judge James Robertson on December 13, 2001. (MT) (Entered: 12/13/2001)
29 ORDER granting in part and denying in part defendant's motion to dismiss 8 AND setting status conference for January 10, 2002 at 4:30 p.m. Signed by Judge James Robertson on December 13, 2001. (MT) (Entered: 12/13/2001)
30 Unopposed MOTION for Extension of Time to File Answer re 29 by ANN VENEMAN. (Quinlivan, Mark) (Entered: 12/31/2001)
31 ORDER granting defendant's unopposed motion for extension of time to January 21, 2002 to file an answer 30 . Signed by Judge James Robertson on January 4, 2002.(MT) (Entered: 01/04/2002)
32 NOTICE of Appearance of Avis E. Buchanan and Susan E. Huhta by all plaintiffs (Huhta, Susan) (Entered: 01/17/2002)
33 ANSWER to Second Amended Complaint 14 by ANN VENEMAN. (Quinlivan, Mark) Modified on 1/22/2002 (pao). (Entered: 01/22/2002)
34 NOTICE of Appearance of Marc L. Fleischaker by all plaintiffs (Fleischaker, Marc) (Entered: 01/23/2002)
Reset Hearing: Class certification hearing set for 3/20/2002 at 09:30 AM before Judge James Robertson in location posted in the lobby on the first floor. (mlp,) (Entered: 02/05/2002)
35 NOTICE of Appearance for Rebecca E. Silberbogen by all plaintiffs (Silberbogen, Rebecca) (Entered: 02/06/2002)

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02/11/2002
02/19/2002 03/13/2002 03/14/2002 03/14/2002 03/18/2002
03/19/2002 03/20/2002 04/25/2002 05/09/2002 05/21/2002 05/22/2002 05/24/2002

36 Supplemental MOTION to Certify Class by LIND MARIE BARA−WEAVER, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM. (Attachments: # 1 Exhibit Ex. 1 CRAT Report pp 1−46# 2 Exhibit Ex. 1 CRAT Report pp 47−77# 3 Exhibit Ex. 1 CRAT Report pp 78−e# 4 Exhibit Ex. 2 Declaration of R Anderson# 5 Exhibit Ex. 3 Declaration of G Anthony# 6 Exhibit Ex. 4 Declaration of F Bell# 7 Exhibit Ex. 5 Declaration of B Bunting# 8 Exhibit Ex. 6 Declaration of B Goins# 9 Exhibit Ex. 7 Declaration of V Howell# 10 Exhibit Ex. 8 Declaration of R Jackson# 11 Exhibit Ex. 9 Declaration of D James# 12 Exhibit Ex. 10 Declaration of S Johnson# 13 Exhibit Ex. 11 Declaration of T Journey# 14 Exhibit Ex. 12 Declaration of G Lennon−1# 15 Exhibit Ex. 13 Declaration of G Lennon−2# 16 Exhibit Ex. 14 Declaration of R Love# 17 Exhibit Ex. 15 Declaration of C Mank# 18 Exhibit Ex. 16 Declaration of O McDonald# 19 Exhibit Ex. 17 Declaration of B Puckett# 20 Exhibit Ex. 18 Declaration of Y Sprawling# 21 Exhibit Ex. 19 Keepseagle# 22 Exhibit Ex. 20 Declaration of L Holloway# 23 Exhibit Ex. 21 Declaration of R King# 24 Exhibit Ex. 22 Declaration of M Wade# 25 Exhibit Ex. 23 Declaration of S McDonald# 26 Exhibit Ex. 24 Declaration of J Halim# 27 Exhibit Ex. 25 Declaration of M Odom# 28 Exhibit Ex. 26 Declaration of Y Mizell# 29 Exhibit Ex. 27 Declaration of D Walker# 30 Exhibit Ex. 28 Declaration of L Bara Weaver# 31 Exhibit Ex. 29 Declaration of S Sherrod# 32 Exhibit Ex. 30 Declaration of D Graham# 33 Exhibit Ex. 31 Declaration of C Gray# 34 Exhibit Ex. 32 Declaration of I Slachetka# 35 Exhibit Ex. 33 Declaration of R Paulk# 36 Exhibit Ex. 34 Declaration of D Farrell)(Silberbogen, Rebecca) (Entered: 02/11/2002)
37 NOTICE of Change of Address by Alexander John Pires Jr. (Pires, Alexander) (Entered: 02/19/2002)
38 Memorandum in Opposition to Motion re 36 filed by ANN VENEMAN. (Attachments: # 1 [Proposed] Order)(Quinlivan, Mark) (Entered: 03/13/2002)
39 NOTICE of Appearance of Barbara S. Wahl by all plaintiffs (Silberbogen, Rebecca) (Entered: 03/14/2002)
42 NOTICE of exhibit attachments by ANN VENEMAN (aet, ) (Entered: 03/25/2002)
40 REPLY in Support of Motion re 36 for Class Certification filed by LIND MARIE BARA−WEAVER, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM. (Attachments: # 1 Exhibit One − Declaration of Michelle A. Pilgrim# 2 Exhibit Two − Declaration of Annie L. Brown# 3 Exhibit Three − Declaration of Melvina Douglas# 4 Exhibit Four − Declaration of Laner Maloy# 5 Exhibit Five − Declaration of Tonya E. Gilchrist# 6 Exhibit Six − Declaration of Regina G. Ramey)(Fleischaker, Marc) (Entered: 03/18/2002)
41 NOTICE of Appearance of Kristine J. Dunne by all plaintiffs (Dunne, Kristine) (Entered: 03/19/2002)
Minute Entry: Class certification hearing held on 3/20/2002 before Judge James Robertson: the Court withholds its decision at this time; parties are to develop a discovery plan within 30 days; a discovery conference is set for 4/25/2002 02:00 PM before Judge James Robertson in chambers.(Court Reporter Dennis Dinkel) (mlp,) (Entered: 03/20/2002)
Minute Entry: Discovery conference held in chambers on 4/25/2002 before Judge James Robertson; further discovery conference is set for 5/8/2002 04:45 PM before Judge James Robertson in chambers.(Not reported.) (mlp,) (Entered: 04/26/2002)
Calendar Entry, Set/Reset Hearings: Discovery conference is reset for 5/22/2002 04:30 PM in chambers, Room 6315, on the Sixth Floor, before Judge James Robertson. (mlp) (Entered: 05/09/2002)
43 TRANSCRIPT for dates 3/20/02 ; Court Reporter: Dennis A. Dinkel. (nmr, ) (Entered: 05/22/2002)
Minute Entry: Discovery conference held on 5/22/2002 before Judge James Robertson in chambers.(Not Reported) (mlp) (Entered: 06/24/2002)
44 ORDER setting schedule for discovery and motions as to class certification. A date for oral argument of class certification motion will be set after supplemental submissions have been filed. Signed by Judge James Robertson on May 24, 2002. (MT) (Entered:

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06/20/2002 06/24/2002 08/19/2002 11/12/2002
11/13/2002 11/15/2002 11/25/2002 04/14/2003
04/25/2003 05/02/2003
07/11/2003 07/23/2003 07/28/2003 07/28/2003
08/26/2003 01/16/2004

05/24/2002)
45 MOTION to Withdraw as Attorney by Avis E. Buchanan by ROSEMARY LOVE. (Huhta, Susan) (Entered: 06/20/2002)
MINUTE ENTRY: Court grants motion of Avis E. Buchanan to withdraw 45 . Signed by Judge James Robertson on June 24, 2002. (MT) (Entered: 06/24/2002)
46 NOTICE of Change of Address by Phillip L. Fraas (nmr, ) (Entered: 08/20/2002)
47 ENTERED IN ERROR..... MOTION for Protective Order Stipulated Privacy Act by ANN VENEMAN. (Quinlivan, Mark) Modified on 11/13/2002 (bcs, ). (Entered: 11/12/2002)
48 STIPULATION Privacy Act Protective Order by ANN VENEMAN. (Quinlivan, Mark) (Entered: 11/13/2002)
MINUTE ENTRY: Court approves and "so orders" stipulation 48 . Signed by Judge James Robertson on November 15, 2002. (MT) (Entered: 11/15/2002)
49 NOTICE of Change of Address by Mark Thomas Quinlivan (Quinlivan, Mark) (Entered: 11/25/2002)
50 MOTION for Leave to File A Third Amended Complaint by LIND MARIE BARA−WEAVER, GAIL LENNON, ROSEMARY LOVE, JAMES MURNION, JOANN NEUZIL, MARGARET ODOM. (Attachments: # 1 Exhibit Third Amended Complaint)(Dunne, Kristine) (Entered: 04/14/2003)
51 Memorandum in opposition to motion re 50 filed by ANN VENEMAN. (Quinlivan, Mark) (Entered: 04/25/2003)
52 REPLY to opposition to motion re 50 leave to file a Third Amended Complaint filed by LIND MARIE BARA−WEAVER, GAIL LENNON, ROSEMARY LOVE, JAMES MURNION, JOANN NEUZIL, MARGARET ODOM. (Dunne, Kristine) (Entered: 05/02/2003)
Calendar Entry, Set/Reset Hearings: Status Conference set for 7/18/2003 02:00 PM in Courtroom 18 before Judge James Robertson. (dam, ) (Entered: 07/11/2003)
Set/Reset Hearings: Status Conference set for 7/28/2003 05:00 PM in Courtroom 18 before James Robertson. (dam, ) (Entered: 07/23/2003)
Minute Entry for proceedings held before Judge James Robertson : Status Conference held on 7/28/2003. (Court Reporter Dennis Dinkel.) (dam, ) (Entered: 01/02/2004)
78 Third AMENDED COMPLAINT against ANN VENEMAN filed by GAIL LENNON, JOYCE L. ACOMB, EDITH L. SCRUGGS, MARYLAND B. WYNNE, JOYCE A. KING, PHYLLIS L. ROBERTSON, MARY L. BROWN, ROSEMARY LOVE, LIND MARIE BARA−WEAVER, MARGARET ODOM.(lc, ) (Entered: 05/19/2006)
53 NOTICE OF TRANSCRIPT FILED for status hearing dates 7/28/03. (bcs, ) (Entered: 09/02/2003)
54 MOTION to Certify Class by LIND MARIE BARA−WEAVER, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM. (Attachments: # 1 Text of Proposed Order # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Exhibit # 13 Exhibit # 14 Exhibit # 15 Exhibit # 16 Exhibit # 17 Exhibit # 18 Exhibit # 19 Exhibit # 20 Exhibit # 21 Exhibit # 22 Exhibit # 23 Exhibit # 24 Exhibit # 25 Exhibit # 26 Exhibit # 27 Exhibit # 28 Exhibit # 29 Exhibit # 30 Exhibit # 31 Exhibit # 32 Exhibit # 33 Exhibit # 34 Exhibit # 35 Exhibit # 36 Exhibit # 37 Exhibit # 38 Exhibit # 39 Exhibit # 40 Exhibit # 41 Exhibit # 42 Exhibit # 43 Exhibit # 44 Exhibit # 45 Exhibit # 46 Exhibit # 47 Exhibit # 48 Exhibit # 49 Exhibit # 50 Exhibit # 51 Exhibit # 52 Exhibit # 53 Exhibit # 54 Exhibit # 55 Exhibit # 56 Exhibit # 57 Exhibit # 58 Exhibit # 59 Exhibit # 60 Exhibit # 61 Exhibit # 62 Exhibit # 63 Exhibit # 64 Exhibit # 65 Exhibit # 66 Exhibit # 67 Exhibit # 68 Exhibit # 69 Exhibit # 70 Exhibit # 71 Exhibit # 72 Exhibit # 73 Exhibit # 74 Exhibit # 75 Exhibit # 76 Exhibit # 77 Exhibit # 78 Exhibit # 79 Exhibit # 80 Exhibit # 81 Exhibit # 82 Notice Regarding Exhibit 2 Attachment# 83 Exhibit)(Dunne, Kristine) (Entered: 01/16/2004)

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 21 of 44

02/12/2004 02/20/2004 02/20/2004 02/23/2004 02/23/2004 04/01/2004 04/01/2004 05/03/2004
05/03/2004
05/13/2004 05/21/2004 09/10/2004 09/29/2004 12/01/2004 12/06/2004 12/17/2004
12/22/2004
12/27/2004

55 MOTION to Establish a Briefing Schedule by LIND MARIE BARA−WEAVER, GAIL LENNON, ROSEMARY LOVE, JOANN NEUZIL, MARGARET ODOM. (Attachments: # 1 Text of Proposed Order)(Dunne, Kristine) (Entered: 02/12/2004)
56 STIPULATION and Order by LIND MARIE BARA−WEAVER, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM. (Dunne, Kristine) (Entered: 02/20/2004)
57 WITHDRAWAL of Motion by LIND MARIE BARA−WEAVER, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM Praecipe. (Dunne, Kristine) (Entered: 02/20/2004)
MINUTE ENTRY: Court approves stipulated briefing schedule 56 for class certification motion. Signed by Judge James Robertson on February 23, 2004. (MT) (Entered: 02/23/2004)
58 NOTICE of Appearance by Thomas William Millet on behalf of ANN VENEMAN (Millet, Thomas) (Entered: 02/23/2004)
59 Memorandum in opposition to motion re 54 class certification filed by ANN VENEMAN. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6)(Millet, Thomas) (Entered: 04/01/2004)
60 MOTION to Strike Expert Report of Lou Ann Kling by ANN VENEMAN. (Attachments: # 1 # 2)(Millet, Thomas) (Entered: 04/01/2004)
61 Memorandum in opposition to motion re 60 striking the expert report of Lou Ann Kling filed by LIND MARIE BARA−WEAVER, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM. (Attachments: # 1 Exhibit One)(Silberbogen, Rebecca) (Entered: 05/03/2004)
62 REPLY to opposition to motion re 54 class certification filed by LIND MARIE BARA−WEAVER, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Exhibit)(Silberbogen, Rebecca) (Entered: 05/03/2004)
63 REPLY to opposition to motion re 60 Defendant'sMotion to Strike filed by ANN VENEMAN. (Quinlivan, Mark) (Entered: 05/13/2004)
64 ORDER denying motion to strike expert testimony 60 . Signed by Judge James Robertson on May 21, 2004. (MT) (Entered: 05/21/2004)
65 NOTICE of Appearance by Joshua Z. Rabinovitz on behalf of ANN VENEMAN (Rabinovitz, Joshua) (Entered: 09/10/2004)
66 MEMORANDUM ORDER denying plaintiffs' motion to certify class 4 . Further proceedings in this case are stayed pending further order of the Court. Signed by Judge James Robertson on September 29, 2004. (MT) (Entered: 09/29/2004)
67 MOTION for Certificate of Appealability by LIND MARIE BARA−WEAVER, GAIL LENNON, ROSEMARY LOVE, JOANN NEUZIL, MARGARET ODOM. (Attachments: # 1 Exhibit)(Dunne, Kristine) (Entered: 12/01/2004)
68 ORDER Signed by Judge James Robertson on 12/3/2004. (dam, ) (Entered: 12/06/2004)
70 ORDER of USCA (certified copy) as to 69 Notice of Interlocutory Appeal filed by ROSEMARY LOVE,, LIND MARIE BARA−WEAVER,, MARGARET ODOM,, GAIL LENNON,, JAMES MURNION,, JOANN NEUZIL; It is hereby ordered that the petition for permission to take an interlocutory appeal be granted; USCA#04−8010 (jsc) (Entered: 12/28/2004)
69 NOTICE OF INTERLOCUTORY APPEAL as to 28 Memorandum & Opinion, 29 Order on Motion to Dismiss by GAIL LENNON, JAMES MURNION, JOANN NEUZIL, ROSEMARY LOVE, LIND MARIE BARA−WEAVER, MARGARET ODOM. Filing fee $ 255, receipt number 130537. (lc, ) (Entered: 12/27/2004)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 69 Notice of Interlocutory Appeal (lc, ) (Entered: 12/27/2004)

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 22 of 44

01/03/2005
02/23/2005 02/24/2005
03/01/2005
03/09/2005 03/24/2005 04/06/2005 04/26/2006
04/28/2006 05/12/2006 05/12/2006 05/18/2006 05/19/2006 07/10/2006
07/31/2006 08/09/2006 08/15/2006

USCA Case Number 04−5449 for 69 Notice of Interlocutory Appeal filed by ROSEMARY LOVE,, LIND MARIE BARA−WEAVER,, MARGARET ODOM,, GAIL LENNON,, JAMES MURNION,, JOANN NEUZIL,. (lc, ) (Entered: 01/11/2005)
73 NOTICE OF APPEAL as to 68 Order by GAIL LENNON, JAMES MURNION, JOANN NEUZIL, ROSEMARY LOVE, LIND MARIE BARA−WEAVER, MARGARET ODOM. Filing fee $ 0.00. (lc, ) (Entered: 03/24/2005)
71 ORDER of USCA (certified copy) as to 69 Notice of Interlocutory Appeal filed by ROSEMARY LOVE,, LIND MARIE BARA−WEAVER,, MARGARET ODOM,, GAIL LENNON,, JAMES MURNION,, JOANN NEUZIL; It is hereby ordered that the petition for permission to take an interlocutory appeal be granted; USCA#04−8011 (jsc) (Entered: 03/02/2005)
72 USCA Appeal Fees received $ 255 receipt number 132402 re 69 Notice of Interlocutory Appeal filed by ROSEMARY LOVE,, LIND MARIE BARA−WEAVER,, MARGARET ODOM,, GAIL LENNON,, JAMES MURNION,, JOANN NEUZIL, (lc, ) (Entered: 03/09/2005)
Supplemental Record on Appeal transmitted to US Court of Appeals re 69 Notice of Interlocutory Appeal (lc, ) (Entered: 03/09/2005)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 73 Notice of Appeal (lc, ) (Entered: 03/24/2005)
74 USCA Case Number 00−2502 for 73 Notice of Appeal filed by ROSEMARY LOVE,, LIND MARIE BARA−WEAVER,, MARGARET ODOM,, GAIL LENNON,, JAMES MURNION,, JOANN NEUZIL,. (lc, ) (Entered: 04/13/2005)
75 USCA JUDGMENT (certified copy) as to 73 Notice of Appeal filed by ROSEMARY LOVE,, LIND MARIE BARA−WEAVER,, MARGARET ODOM,, GAIL LENNON,, JAMES MURNION,, JOANN NEUZIL; It is hereby ordered and adjudged and the judgment of the District Court appealed from in these causes is hereby affirmed in part and remanded in part, in accordance with the opinion of the court filed herein this date; USCA#04−5449 (jsc) (Entered: 05/09/2006)
Set Hearings: Status Conference set for 5/11/2006 10:00 AM in Courtroom 23A before Judge James Robertson. (alr, ) (Entered: 04/28/2006)
76 NOTICE of Appearance by Carlotta Poter Wells on behalf of ANN VENEMAN (Wells, Carlotta) (Entered: 05/12/2006)
Minute Entry for proceedings held before Judge James Robertson : Status Conference held on 5/12/2006. (Counsel for defendant not present) (Court Reporter Rebecca Stonestreet.) (alr, ) (Entered: 05/12/2006)
77 NOTICE (Proposed Order) by GAIL LENNON, ROSEMARY LOVE, LIND MARIE BARA−WEAVER, MARGARET ODOM (Dunne, Kristine) (Entered: 05/18/2006)
79 ORDER TO FILE AND SERVE BRIEF AND STAYING CASE. Signed by Judge James Robertson on 5/19/2006. (alr, ) (Entered: 05/23/2006)
80 MEMORANDUM by GAIL LENNON, JOYCE L. ACOMB, EDITH L. SCRUGGS, MARYLAND B. WYNNE, JOYCE A. KING, PHYLLIS L. ROBERTSON, MARY L. BROWN, ROSEMARY LOVE, LIND MARIE BARA−WEAVER, MARGARET ODOM. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit)(Dunne, Kristine) (Entered: 07/10/2006)
81 NOTICE of Change of Address by Phillip L. Fraas (Fraas, Phillip) (Entered: 07/31/2006)
82 RESPONSE to 80 Plaintiffs brief in support of claims based on APA filed by ANN VENEMAN. (Wells, Carlotta) Modified on 8/10/2006 (lc, ). (Entered: 08/09/2006)
83 TRANSCRIPT of Proceedings held on May 11, 2006 Status Conference before Judge James Robertston. 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)

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 23 of 44

09/08/2006 09/08/2006
03/12/2007 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

84 REPLY re 80 Memorandum, Plaintiffs' Reply Brief in Support of Claims Based on the Administrative Procedure Act filed by GAIL LENNON, JOYCE L. ACOMB, EDITH L. SCRUGGS, MARYLAND B. WYNNE, JOYCE A. KING, PHYLLIS L. ROBERTSON, MARY L. BROWN, ROSEMARY LOVE, LIND MARIE BARA−WEAVER, MARGARET ODOM. (Dunne, Kristine) (Entered: 09/08/2006)
85 ERRATA REGARDING PLAINTIFFS' REPLY BRIEF IN SUPPORT OF CLAIMS BASED ON THE ADMINISTRATIVE PROCEDURE ACT by GAIL LENNON, JOYCE L. ACOMB, EDITH L. SCRUGGS, MARYLAND B. WYNNE, JOYCE A. KING, PHYLLIS L. ROBERTSON, MARY L. BROWN, ROSEMARY LOVE, LIND MARIE BARA−WEAVER, MARGARET ODOM 80 Memorandum, filed by ROSEMARY LOVE,, LIND MARIE BARA−WEAVER,, MARGARET ODOM,, GAIL LENNON,, JOYCE L. ACOMB,, MARY L. BROWN,, EDITH L. SCRUGGS,, MARYLAND B. WYNNE,, JOYCE A. KING,, PHYLLIS L. ROBERTSON,. (Attachments: # 1 Plaintiffs' Corrected Reply Brief in Support of Claims Based on the Administrative Procedure Act)(Dunne, Kristine) (Entered: 09/08/2006)
86 MOTION for Order Status Conference by GAIL LENNON, JOYCE L. ACOMB, EDITH L. SCRUGGS, MARYLAND B. WYNNE, JOYCE A. KING, PHYLLIS L. ROBERTSON, MARY L. BROWN, ROSEMARY LOVE, LIND MARIE BARA−WEAVER, MARGARET ODOM (Dunne, Kristine) (Entered: 03/12/2007)
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)
87 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. (lc, ) (Entered: 05/01/2007)
88 SUPPLEMENTAL MEMORANDUM to 80 Plaintiffs' Claim Arising Under the Administrative Procedure Act filed by GAIL LENNON, JOYCE L. ACOMB, EDITH L. SCRUGGS, MARYLAND B. WYNNE, JOYCE A. KING, PHYLLIS L. ROBERTSON, MARY L. BROWN, ROSEMARY LOVE, LIND MARIE BARA−WEAVER, MARGARET ODOM. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit)(Wahl, Barbara) Modified on 5/4/2007 (lc, ). (Entered: 05/03/2007)
89 NOTICE TO COUNSEL. Signed by Judge James Robertson on August 28, 2007. (MT) (Entered: 08/28/2007)
90 Consent MOTION for Extension of Time to September 18, 2007 to submit supplemental briefs and Order by ROSEMARY LOVE (Wahl, Barbara) (Entered: 08/31/2007)
MINUTE ORDER granting plaintiffs' consented motion for extension of time 90 to September 18, 2007. Signed by Judge James Robertson on September 4, 2007. (MT) (Entered: 09/04/2007)
91 SUPPLEMENTAL MEMORANDUM re 80 to Support Opposition to Plaintiffs' Request for APA Review filed by ANN VENEMAN. (Wells, Carlotta) Modified on 9/19/2007 (lc, ). (Entered: 09/18/2007)
92 MEMORANDUM re 80 by GAIL LENNON, JAMES MURNION, JOYCE L. ACOMB, EDITH L. SCRUGGS, MARYLAND B. WYNNE, JOYCE A. KING, PHYLLIS L. ROBERTSON, MARY L. BROWN, JOANN NEUZIL, ROSEMARY LOVE, LIND MARIE BARA−WEAVER, MARGARET ODOM. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Wahl, Barbara) Modified on 9/19/2007 (lc, ). (Entered: 09/18/2007)
93 MEMORANDUM. Signed by Judge James Robertson on November 30, 2007. (MT) (Entered: 11/30/2007)

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 24 of 44

11/30/2007 12/01/2007
12/04/2007 12/04/2007 12/07/2007 12/11/2007 12/14/2007
12/28/2007 01/02/2008 01/02/2008 01/10/2008
01/16/2008 01/16/2008 01/17/2008 02/01/2008
04/29/2008

94 ORDER that plaintiffs' claims under the Administrative Procedure Act are dismissed. Signed by Judge James Robertson on November 30, 2007. (MT) (Entered: 11/30/2007)
95 Emergency MOTION to Stay Proceedings by GAIL LENNON, JOYCE L. ACOMB, EDITH L. SCRUGGS, MARYLAND B. WYNNE, JOYCE A. KING, PHYLLIS L. ROBERTSON, MARY L. BROWN, JOANN NEUZIL, ROSEMARY LOVE, LIND MARIE BARA−WEAVER, MARGARET ODOM (Attachments: # 1 Text of Proposed Order)(Dunne, Kristine) (Entered: 12/01/2007)
96 ORDER granting motion to continue the existing stay 95 . The stay will continue until further order of this Court. Signed by Judge James Robertson on December 4, 2007. (MT) (Entered: 12/04/2007)
97 MOTION for Reconsideration re 96 Order on Motion to Stay (Motion for Partial Reconsideration of Court's 12/4/07 Order Granting Indefinite Stay) by ANN VENEMAN (Wells, Carlotta) (Entered: 12/04/2007)
98 ORDER denying without prejudice defendant's motion for reconsideration 97 . 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)
99 MOTION for Certification for interlocatory appeal and to Amend November 30, 2007 Order by GAIL LENNON, JOYCE L. ACOMB, EDITH L. SCRUGGS, MARYLAND B. WYNNE, JOYCE A. KING, PHYLLIS L. ROBERTSON, MARY L. BROWN, ROSEMARY LOVE, LIND MARIE BARA−WEAVER, MARGARET ODOM (Attachments: # 1 Text of Proposed Order)(Dunne, Kristine) (Entered: 12/14/2007)
100 Memorandum in opposition to re 99 MOTION for Certification for interlocatory appeal and to Amend November 30, 2007 Order filed by DAN GLICKMAN. (Wells, Carlotta) (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)
101 REPLY to opposition to motion re 99 MOTION for Certification for interlocatory appeal and to Amend November 30, 2007 Order filed by GAIL LENNON, JOYCE L. ACOMB, EDITH L. SCRUGGS, MARYLAND B. WYNNE, JOYCE A. KING, PHYLLIS L. ROBERTSON, MARY L. BROWN, JOANN NEUZIL, ROSEMARY LOVE, LIND MARIE BARA−WEAVER, MARGARET ODOM. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit)(Dunne, Kristine) (Entered: 01/10/2008)
102 ORDER granting plaintiffs' motion to certify for interlocutory appeal 99 . All District Court proceedings in this case 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)
103 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. (Transcript lodged with 00−2445). (lc, ) (Entered: 02/04/2008)
104 NOTICE OF APPEAL by GAIL LENNON, JOYCE L. ACOMB, EDITH L. SCRUGGS, MARYLAND B. WYNNE, JOYCE A. KING, PHYLLIS L. ROBERTSON, MARY L. BROWN, ROSEMARY LOVE, LIND MARIE BARA−WEAVER, MARGARET ODOM. Filing fee $ 455, receipt number 4616011961. Fee Status: Fee Paid. Parties have been notified. (tg, ) (Entered: 05/01/2008)

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 25 of 44

05/01/2008 05/15/2008 11/21/2008 07/08/2009
07/10/2009 07/24/2009
07/27/2009 07/27/2009 09/15/2009 11/04/2009 11/09/2009
11/13/2009 02/02/2010 02/18/2010 02/25/2010 06/03/2010

Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 104 Notice of Appeal, (tg, ) (Entered: 05/01/2008)
USCA Case Number 08−5135 for 104 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. (tg, ) (Entered: 05/16/2008)
105 NOTICE of Change of Address by Phillip L. Fraas (Fraas, Phillip) (Entered: 11/21/2008)
106 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)
Set Hearings: Status Conference set for 7/29/2009 at 10:30 AM in Courtroom 23A before Judge James Robertson. (cp, ) (Entered: 07/10/2009)
107 Consent MOTION to Continue the Status Conference by GAIL LENNON, JOYCE L. ACOMB, EDITH L. SCRUGGS, MARYLAND B. WYNNE, JOYCE A. KING, PHYLLIS L. ROBERTSON, MARY L. BROWN, ROSEMARY LOVE, LIND MARIE BARA−WEAVER, MARGARET ODOM (Dunne, Kristine) (Entered: 07/24/2009)
MINUTE ORDER granting consented motion to continue 107 the status conference currently set for July 29, 2009. The Clerk is directed to reset the status conference to September 15, 2009 at 3:30 p.m. Signed by Judge James Robertson on July 27, 2009. (MT) (Entered: 07/27/2009)
Reset Hearings: Status Conference reset to 9/15/2009 at 3:30 PM in Courtroom 23A before Judge James Robertson. (cp, ) (Entered: 07/27/2009)
Minute Entry for proceedings held before Judge James Robertson: Status Conference held on 9/15/2009. Parties request an additional 60 days to attempt to settle case. Status Conference set for 11/23/2009 at 10:30 AM in Courtroom 23A before Judge James Robertson. (Court Reporter Rebecca Stonestreet) (zcp, ) (Entered: 09/17/2009)
108 NOTICE of Appearance by Peter T. Wechsler on behalf of ANN VENEMAN (Wechsler, Peter) (Entered: 11/04/2009)
109 MOTION to Continue Status Conference by GAIL LENNON, JOYCE L. ACOMB, EDITH L. SCRUGGS, MARYLAND B. WYNNE, JOYCE A. KING, PHYLLIS L. ROBERTSON, MARY L. BROWN, ROSEMARY LOVE, LIND MARIE BARA−WEAVER, MARGARET ODOM (Attachments: # 1 Text of Proposed Order)(Dunne, Kristine) (Entered: 11/09/2009)
MINUTE ORDER granting plaintiffs' motion to continue 11/23/2009 status conference 109 . Counsel are to advise the Court when certiorari is granted or denied. Signed by Judge James Robertson on November 13, 2009. (MT) (Entered: 11/13/2009)
Set/Reset Hearings: Status Conference set for 2/10/2010 at 10:30 AM in Courtroom 23A before Judge James Robertson. (tr) (Entered: 02/02/2010)
Set/Reset Hearings: Status Conference set for February 10, 2010 at 10:30 AM has been Rescheduled for 2/25/2010 at 11:30 AM in Courtroom 23A before Judge James Robertson due to last weeks inclement weather conditions. (tr) (Entered: 02/18/2010)
Minute Entry for proceedings held before Judge James Robertson: Status Conference held on 2/25/2010. (Court Reporter: Rebecca Stonestreet) (cdw) (Entered: 02/25/2010)
110 Case reassigned to Judge Reggie B. Walton. Judge James Robertson no longer assigned to the case. (ds) (Entered: 06/03/2010)

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 26 of 44

06/25/2010 07/16/2010 07/19/2010
09/23/2010 09/24/2010 09/24/2010 10/18/2010 10/26/2010 10/26/2010 10/26/2010 11/04/2010
11/18/2010 11/23/2010
12/03/2010

Set/Reset Hearings: Status Conference set for 7/16/2010 09:00 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt, ) (Entered: 06/25/2010)
Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 7/16/2010, (Further Status Conference set for 9/24/2010 09:00 AM in Courtroom 16 before Judge Reggie B. Walton.). (Court Reporter Cathryn Jones.) (mpt, ) (Entered: 07/16/2010)
111 ORDER. For the reasons set forth in this order, the stay in this case shall remain in place and this case shall be administratively closed pending the completion of the settlement negotiations. However, if no stipulation of settlement has been filed with the Court by September 24, 2010, the parties shall appear before this Court for a status conference on September 24, 2010, at 9 a.m. in Courtroom 16 of the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue, N.W., Washington, D.C. 20001. Signed by Judge Reggie B. Walton on 07/19/10. (lcrbw2) (Entered: 07/19/2010)
112 STATUS REPORT by TOM VILSACK. (Wechsler, Peter) (Entered: 09/23/2010)
Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 9/24/2010. Status Conference set for 10/26/2010 at 09:00 AM in Courtroom 16 before Judge Reggie B. Walton. (Court Reporter Cathryn Jones) (ad) (Entered: 09/24/2010)
113 ORDER. The parties shall appear before the Court for a status conference at 9:00 a.m. on October 26, 2010. Signed by Judge Reggie B. Walton on 9/24/2010 (lcrbw1). (Entered: 09/24/2010)
114 STATUS REPORT Second by TOM VILSACK. (Wechsler, Peter) (Entered: 10/18/2010)
Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 10/26/2010. A Further Status Conference is set for 12/03/2010 at 10:30 AM in Courtroom 16 before Judge Reggie B. Walton. (Court Reporter Cathryn Jones) (ad) (Entered: 10/26/2010)
115 ORDER. The parties shall appear before the Court for a further status conference at 10:30 a.m. on December 3, 2010. Signed by Judge Reggie B. Walton on 10/26/2010 (lcrbw1). (Entered: 10/26/2010)
Set/Reset Hearings: Status Conference scheduled for 12/3/2010 at 10:30 A.M. in Courtroom 16, Sixth Floor, before Judge Reggie B. Walton. (tg, ) (Entered: 10/26/2010)
116 MOTION for Court Review and Supervision of Financial Distribution to Women Farmers, MOTION to Appoint Counsel by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D)(Wahl, Barbara) (Entered: 11/04/2010)
117 Memorandum in opposition to re 116 MOTION Motion for Court Review and Supervision of Financial Distribution to Women Farmers MOTION to Appoint Counsel filed by TOM VILSACK. (Sitcov, Michael) (Entered: 11/18/2010)
118 REPLY to opposition to motion re 116 MOTION Motion for Court Review and Supervision of Financial Distribution to Women Farmers MOTION to Appoint Counsel filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Wahl, Barbara) (Entered: 11/23/2010)
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 02:00 PM in Courtroom 16 before Judge Reggie B. Walton. (Court Reporter Cathryn Jones) (ad) (Entered: 12/03/2010)

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 27 of 44

12/03/2010 01/14/2011 01/14/2011 02/02/2011
02/22/2011 02/25/2011 03/23/2011
03/29/2011 04/01/2011

119 ORDER denying 116 Motion for Court Review and Supervision of Financial Distribution to Women Farmers, and for Appointment of Lead Counsel. The plaintiffs' Motion for Court Review and Supervision of Financial Distribution to Women Farmers, and for Appointment of Lead Counsel is denied. Furthermore, the parties shall appear before the Court for a further status conference at 2:00 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 11:00 AM in Courtroom 16 before Judge Reggie B. Walton. (Court Reporter Cathryn Jones) (ad) (Entered: 01/14/2011)
120 ORDER. The parties shall appear before the Court for a further status conference at 11:00 a.m. on April 15, 2011. Signed by Judge Reggie B. Walton on 1/14/2011 (lcrbw1). (Entered: 01/14/2011)
121 TRANSCRIPT OF PROCEEDINGS before Judge Reggie B. Walton held on December 3, 2010; Page Numbers: 1 − 10. 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)
122 STATUS REPORT by TOM VILSACK. (Wechsler, Peter) (Entered: 02/22/2011)
123 STATUS REPORT of Plaintiffs by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Wahl, Barbara) (Entered: 02/25/2011)
124 MOTION to Intervene as Plaintiffs by BARBARA E, ADAMS, CHRISTINE BRAYBOY ANDERSON, GLADYS SCOTT ANDERSON, SHIRLEY L. BARNETT, DOROTHY MAE BARR, JEANETTE BARR, JUDY BARR, NINA F. BEAUCHAMP, RUTH ANN BELL, SARAH NADINE BELL, CLAUDIA JEAN BLANDING, ELIZABETH BLANDING, JULIA FAYE BLANDING, DICY DELORIS BLOUNT, BARBARA ANN BONNER, ROSA BOLLING BONNER, BETTY BROWN BOSIER, EMMA BELL BOWMAN, ANNIE MAE BRADLEY, ANNETTE C. BRAYBOY, DOROTHY L. BROWN, FLORA M. BROWN, GENEVA C. BROWN, LEAR H. BROWN, MARSHA LINDA BROWN, MARSHA LINDA BROWN, JANET LEE BRYANT, JOAN M. BURGESS, MELISSA ANN BURGESS, ULA DEAN BURGESS, WENDY LATISA BURGESS, WILLA DEAN BURGESS, OLA B. CALDWELL, MARY LEE CAMERON, CLEMENTINE VIRGINIA CARR−NEWKIRK, LIZZIE CARROLL, CHERYL LASHAUNTA CARSTARPHEN, BARBARA WILLIAMS CARTER, MARY LEE CARTER, MAE BELL CAUSLEY, SANDRA A. MAYFIELD CHRISTIAN, SANDRA A. CHRISTIAN, LINDA COE, JOYCE MARIE WADE COLE, QUINCESS MARGARET COLLINS, BONITA ANTOINETTE CONWELL, MARY M. CONYERS, MAGGIE EVE COOPER, ALL MOVANTS (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Text of Proposed Order, # 5 Notice of Motion, # 6 Certificate of Service)(znmw, ) (Entered: 03/28/2011)
125 NOTICE of receipt of service by TOM VILSACK (Attachments: # 1 Exhibit notice of electronic filing)(Wechsler, Peter) (Entered: 03/29/2011)
126 ERRATA REGARDING MEMORANDUM OF POINTS AN AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO INTERVENE by ALL MOVANTS.

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04/01/2011 04/01/2011 04/05/2011 04/11/2011 04/11/2011 04/12/2011 04/13/2011 04/13/2011 04/15/2011
04/15/2011 04/21/2011 04/28/2011

(Attachments: # 1 Certificate of Service)(Chew, Benjamin) (Entered: 04/01/2011)
127 MEMORANDUM re 124 , 126 Errata filed by ALL MOVANTS by ALL MOVANTS. (Chew, Benjamin) Modified to add additional linkage on 4/4/2011 (td, ). (Entered: 04/01/2011)
128 NOTICE of Service by ALL MOVANTS re 125 Notice (Other) (Attachments: # 1 Exhibit Attachment, # 2 Certificate of Service)(Chew, Benjamin) (Entered: 04/01/2011)
129 Memorandum in opposition to re 124 MOTION to Intervene filed by TOM VILSACK. (Wechsler, Peter) (Entered: 04/05/2011)
130 ENTERED IN ERROR. . . . .NOTICE of Appearance of Alison Lima Andersen by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE (Wahl, Barbara) Modified on 4/12/2011 (td, ). (Entered: 04/11/2011)
131 RESPONSE re 124 MOTION to Intervene filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Attachments: # 1 Exhibit 1 Part 1, # 2 Exhibit 1 Part 2)(Wahl, Barbara) (Entered: 04/11/2011)
NOTICE OF ERROR re 130 Notice (Other); emailed to wahlb@arentfox.com, cc'd 15 associated attorneys −− The PDF file you docketed contained errors: 1. Invalid attorney signature, 2. Please refile document, 3. Alison Lima Andersen must use her ECF Login and password to file this document (td, ) (Entered: 04/12/2011)
132 ORDER. The parties, as well as the movants, shall appear before the Court for a hearing on the merits of the Motion to Intervene at 11:00 a.m. on April 15, 2011. This motions hearing will coincide with the status conference already scheduled for the same date and time. Signed by Judge Reggie B. Walton on 4/13/2011 (lcrbw1). (Entered: 04/13/2011)
133 REPLY re 129 Memorandum in Opposition, 131 Response to Document, filed by ALL MOVANTS. (Attachments: # 1 Certificate of Service)(Chew, Benjamin) (Entered: 04/13/2011)
134 ORDER. The Motion to Intervene filed by approximately 286 individuals on March 23, 2011, is held in abeyance until further order of the Court. Furthermore, this case shall remain stayed until further order of the Court. Finally, the parties, as well as the movants, shall appear before the Court at 9:15 a.m. on June 23, 2011, for a further status conference and hearing on the merits of the Motion to Intervene. Signed by Judge Reggie B. Walton on 4/15/2011 (lcrbw1). (Entered: 04/15/2011)
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 09:15 AM in Courtroom 16 before Judge Reggie B. Walton.). (Court Reporter Cathryn Jones.) (mpt, ) (Entered: 04/15/2011)
135 MOTION Plaintiffs' Consent Motion to Reschedule Status Conference by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE (Attachments: # 1 Text of Proposed Order)(Wahl, Barbara) (Entered: 04/21/2011)
MINUTE ORDER granting 135 Motion to Reschedule Status Conference. The Court having considered the Plaintiffs' Consent 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 9:15 a.m. on June 23, 2011, is now scheduled for 11:30 a.m. on July 15, 2011. Signed by Judge Reggie B. Walton on 4/28/2011 (lcrbw1). (Entered: 04/28/2011)

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04/28/2011 06/17/2011
06/27/2011 07/08/2011 07/12/2011 07/15/2011
07/15/2011 07/27/2011
07/27/2011
09/13/2011 09/15/2011 09/15/2011
10/14/2011 10/14/2011 10/14/2011
10/18/2011 10/21/2011

Set/Reset Hearings: Status Conference reset for 7/15/2011 11:30 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt, ) (Entered: 04/28/2011)
136 NOTICE OF WITHDRAWAL OF APPEARANCE as to JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, JAMES MURNION, JOANN NEUZIL, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. Attorney Susan E. Huhta terminated. (Huhta, Susan) (Entered: 06/17/2011)
137 NOTICE of Appearance by Emily Brittain Read on behalf of All Plaintiffs (Read, Emily) (Entered: 06/27/2011)
138 STATUS REPORT by TOM VILSACK. (Wechsler, Peter) (Entered: 07/08/2011)
139 Unopposed MOTION to Continue July 15 Status Conference by TOM VILSACK (Attachments: # 1 Text of Proposed Order)(Wechsler, Peter) (Entered: 07/12/2011)
MINUTE ORDER granting 139 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 10:00 a.m. on July 27, 2011. Signed by Judge Reggie B. Walton on 7/15/2011 (lcrbw1). (Entered: 07/15/2011)
Set/Reset Hearings: Status Conference reset for 7/27/2011 10:00 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt, ) (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 10:00 AM in Courtroom 16 before Judge Reggie B. Walton.). (Court Reporter Cathryn Jones.) (mpt, ) (Entered: 07/27/2011)
140 ORDER. The Motion to Intervene filed by approximately 286 individuals on March 23, 2011, shall continue to be held in abeyance until further order of the Court. This case shall remain stayed until further order of the Court. Finally, the parties, as well as the movants, shall appear before the Court at 10:00 a.m. on September 16, 2011, for a further status conference and hearing on the merits of the Motion to Intervene. Signed by Judge Reggie B. Walton on 7/27/2011 (lcrbw1). (Entered: 07/27/2011)
141 STATUS REPORT by TOM VILSACK. (Attachments: # 1 Exhibit A)(Wechsler, Peter) (Entered: 09/13/2011)
Set/Reset Hearings: Status Conference originally set for 9/16/11 was reset for 10/21/2011 10:30 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 10:00 a.m. on September 16, 2011, is CONTINUED to 10:30 a.m. on October 21, 2011. Signed by Judge Reggie B. Walton on 9−15−11 (lcrbw3). (Entered: 09/15/2011)
142 NOTICE of Appearance by Kristen Marie Johnson on behalf of BARBARA E, ADAMS, ALL MOVANTS (Johnson, Kristen) (Entered: 10/14/2011)
143 NOTICE of Appearance by Anurag Varma on behalf of BARBARA E, ADAMS, ALL MOVANTS (Varma, Anurag) (Entered: 10/14/2011)
144 STATUS REPORT of Plaintiffs by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Wahl, Barbara) (Entered: 10/14/2011)
145 STATUS REPORT by TOM VILSACK. (Attachments: # 1 Exhibit A)(Wechsler, Peter) (Entered: 10/18/2011)
146 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

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10/21/2011 11/01/2011
11/01/2011
11/07/2011 11/18/2011 11/22/2011 11/28/2011

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 set for 1/6/2012 10:00 AM not 10:15 AM in Courtroom 16 before Judge Reggie B. Walton.). (Court Reporter Cathryn Jones.) (mpt, ) (Entered: 10/21/2011)
147 TRANSCRIPT OF PROCEEDINGS before Judge Reggie B. Walton held on July 27, 2011; Page Numbers: 1 − 7. 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 11/22/2011. Redacted Transcript Deadline set for 12/2/2011. Release of Transcript Restriction set for 1/30/2012.(Jones, Cathryn) (Entered: 11/01/2011)
148 TRANSCRIPT OF PROCEEDINGS before Judge Reggie B. Walton held on October 21, 2011; Page Numbers: 1 − 57. 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 11/22/2011. Redacted Transcript Deadline set for 12/2/2011. Release of Transcript Restriction set for 1/30/2012.(Jones, Cathryn) (Entered: 11/01/2011)
149 MOTION for Leave to File Fourth Amended and Supplemental Complaint by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE (Attachments: # 1 Exhibit A − Fourth Amended and Supplemental Complaint, # 2 Exhibit B − Transcript of Oct. 21, 2011 Hearing, # 3 Text of Proposed Order)(Wahl, Barbara) (Entered: 11/07/2011)
150 Memorandum in opposition to re 149 MOTION for Leave to File Fourth Amended and Supplemental Complaint filed by TOM VILSACK. (Wechsler, Peter) (Entered: 11/18/2011)
151 Unopposed MOTION for Extension of Time to File Reply in Support of Motion for Leave to File Fourth Amended and Supplemental Complaint by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE (Attachments: # 1 Text of Proposed Order)(Wahl, Barbara) (Entered: 11/22/2011)
MINUTE ORDER granting 151 Motion for Extension of Time. The Court having considered the Plaintiffs' Unopposed Motion for Extension of Time to File Reply in Support of Motion for Leave to File Fourth Amended and Supplemental Complaint, and it appearing that there is good cause to grant the relief requested therein based upon the defendant's consent to the motion, it is ORDERED that the motion is

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 31 of 44

11/29/2011 12/12/2011
01/03/2012 01/03/2012 01/06/2012 01/06/2012 01/20/2012 02/23/2012 03/08/2012
04/02/2012 05/25/2012 06/19/2012

GRANTED. It is further ORDERED that the plaintiffs shall file their reply in support of their pending Motion for Leave to File a Fourth Amended and Supplemental Complaint on or before December 12, 2011. Signed by Judge Reggie B. Walton on 11−28−11 (lcrbw3). (Entered: 11/28/2011)
Set/Reset Deadlines: Reply in Support of Motion for Leave to File Fourth Amended and Supplemental Complaint due by 12/12/2011. (mpt) (Entered: 11/29/2011)
152 REPLY to opposition to motion re 149 MOTION for Leave to File Fourth Amended and Supplemental Complaint filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wahl, Barbara) (Entered: 12/12/2011)
153 MEET AND CONFER STATEMENT. (Wechsler, Peter) (Entered: 01/03/2012)
154 STATUS REPORT regarding meet and confer and efforts to agree on litigation schedule by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (td, ) (Entered: 01/05/2012)
MINUTE ORDER. In accordance with the oral rulings issued by the Court at the hearing held on this same date, it is 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). (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)
155 STATUS REPORT by TOM VILSACK. (Attachments: # 1 Exhibit Framework)(Wechsler, Peter) (Entered: 01/20/2012)
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)
156 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)
157 STATUS REPORT by TOM VILSACK. (Attachments: # 1 Exhibit claim form)(Wechsler, Peter) (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)

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 32 of 44

06/20/2012
06/21/2012 07/13/2012 07/13/2012
07/13/2012 07/16/2012 07/18/2012 07/24/2012
07/25/2012 08/17/2012 08/24/2012

158 ORDER denying 149 Motion for Leave to File. Per the attached Order, the plaintiffs shall amend their complaint on or before July 13, 2012. The plaintiffs' motion in Love v. Vilsack, Civ. No. 00−2502, for leave to file a Fourth Amended Complaint, is denied as moot in light of the foregoing ruling, and given the need to update the complaint to reflect developments subsequent to the filing of the plaintiffs' motion and proposed Fourth Amended Complaint on November 7, 2011. 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 these cases. 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)
159 ENTER IN ERROR.....CASE REFERRED for Report and Recommendation to Magistrate Judge Alan Kay. (sth, ) (Entered: 07/13/2012)
160 Fourth Amended COMPLAINT Fourth Amended and Supplemental Complaint against TOM J. VILSACK ( Filing fee $ 350 receipt number 0090−3002941) filed by PHYLLIS L. ROBERTSON, JOYCE A. KING, GAIL LENNON, EDITH L. SCRUGGS, MARY L. BROWN, JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARYLAND B. WYNNE, MARGARET ODOM, ROSEMARY LOVE. (Attachments: # 1 Exhibit Exhibit 1)(Wahl, Barbara) Modified text on 7/23/2012 (td, ). (Entered: 07/13/2012)
161 CASE REFERRED to Magistrate Judge John M. Facciola for Report and Recommendation. (ls, ) (Entered: 07/16/2012)
NOTICE OF CORRECTED DOCKET ENTRY: re 159 Case Referred to Magistrate Judge was entered in error. This case was inadvertenly assigned to Magistrate Judge Alan Kay. The case is correctly assigned to Magistrate Judge John M. Facciola. (ls, ) (Entered: 07/16/2012)
162 STATUS REPORT by TOM J. VILSACK. (Attachments: # 1 Exhibit claim form)(Wechsler, Peter) (Entered: 07/18/2012)
163 TRANSCRIPT OF PROCEEDINGS before Judge Reggie B. Walton held on June 19, 2012; Page Numbers: 1 − 31. 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 8/14/2012. Redacted Transcript Deadline set for 8/24/2012. Release of Transcript Restriction set for 10/22/2012.(Jones, Cathryn) (Entered: 07/24/2012)
164 ORDER re referral to Judge Facciola for a Report and Recommendation. Signed by Magistrate Judge John M. Facciola on 7/25/12. (SP, ) (Entered: 07/25/2012)
Set/Reset Hearings: Status Conference set for 8/24/2012 10:00 AM in Courtroom 6 before Magistrate Judge John M. Facciola. (lcjmf1, ) (Entered: 08/17/2012)
165 Report and Recommendation re 158 Order. Signed by Magistrate Judge John M. Facciola on 8/24/12. (lcjmf1, ) (Entered: 08/24/2012)

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 33 of 44

08/24/2012
08/24/2012 08/30/2012 09/24/2012 10/15/2012
10/15/2012
10/17/2012 11/02/2012 11/14/2012 11/15/2012

MINUTE ORDER. Having considered the Magistrate Judge's Report and Recommendation 165 , 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. Faciola 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)
166 MOTION to Dismiss for Lack of Jurisdiction and failure to state a claim by TOM J. VILSACK (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Wechsler, Peter) (Entered: 09/24/2012)
167 Memorandum in opposition to re 166 MOTION to Dismiss for Lack of Jurisdiction and failure to state a claim filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1 − Declarations of Plaintiffs, # 3 Exhibit 2 − USDA Press Release, # 4 Exhibit 3 − Declaration of Benny Bunting, # 5 Exhibit 4 − Expert Report of Eugene P. Ericksen, # 6 Exhibit 5 − Framework)(Wahl, Barbara) (Entered: 10/15/2012)
168 MOTION for Partial Summary Judgment as to Counts III Through VI by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order, # 4 Exhibit 1 − Declarations of Plaintiffs, # 5 Exhibit 2 − USDA Press Release, # 6 Exhibit 3 − Declaration of Benny Bunting, # 7 Exhibit 4 − Expert Report of Eugene P. Ericksen, # 8 Exhibit 5 − Framework)(Wahl, Barbara) (Entered: 10/15/2012)
169 NOTICE OF SUBSTITUTION OF COUNSEL by Emily Brittain Read on behalf of All Plaintiffs Substituting for attorney Roderic V.O. Boggs (Read, Emily) (Entered: 10/17/2012)
170 MOTION to Stay or Strike (Rule 56(d)) by TOM J. VILSACK (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Wechsler, Peter). Added MOTION to Strike on 11/14/2012 (td, ). (Entered: 11/02/2012)
171 Memorandum in opposition to re 170 MOTION to Stay or Strike (Rule 56(d)) filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A)(Wahl, Barbara) (Entered: 11/14/2012)
172 REPLY to opposition to motion re 166 MOTION to Dismiss for Lack of Jurisdiction and failure to state a claim filed by TOM J. VILSACK. (Wechsler, Peter) (Entered: 11/15/2012)

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 34 of 44

11/19/2012 11/28/2012 12/11/2012
12/11/2012 12/11/2012 12/18/2012 12/18/2012
04/01/2013 04/02/2013

173 REPLY to opposition to motion re 170 MOTION to Stay or Strike (Rule 56(d)) MOTION to Strike filed by TOM J. VILSACK. (Wechsler, Peter) (Entered: 11/19/2012)
174 ORDER granting 170 Motion to Stay; denying 170 Motion to Strike. For the reasons set forth in the attached Order, it is ORDERED that the defendant's motion is GRANTED. It is further ORDERED that the briefing schedule applicable to the plaintiffs' motion for partial summary judgment is STAYED pending resolution of the defendant's motion to dismiss. Signed by Judge Reggie B. Walton on 11−28−12. (lcrbw3) (Entered: 11/28/2012)
175 ORDER granting 166 Motion to Dismiss for Lack of Jurisdiction; denying 168 Motion for Partial Summary Judgment. In accordance with the Memorandum Opinion issued this same date, it is ORDERED that the USDA's motion to dismiss Counts III through VI of the fourth amended complaint for lack of subject−matter jurisdiction is GRANTED. It is further ORDERED that the Plaintiffs' Motion for Summary Judgment as to Counts III through VI of the Plaintiffs' Fourth Amended and Supplemental Complaint is DENIED as moot. It is further ORDERED that the parties shall submit a joint proposed briefing schedule on or before December 18, 2012, governing the filing of any further 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)
176 MEMORANDUM OPINION. 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)
177 NOTICE of Filing of Joint Proposed Schedule by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE (Wahl, Barbara) (Entered: 12/18/2012)
MINUTE ORDER. In accordance with the parties' Proposed Joint Briefing Schedule 177 , 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 plainitffs 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, 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, 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 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 12−18−12. (lcrbw3) (Entered: 12/18/2012)
178 WITHDRAWN PURSUANT TO DOCKET ENTRY NO. 179 . . . . . MOTION to Amend/Correct Order,,,,,, Scheduling Order by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE (Attachments: # 1 Text of Proposed Order)(Dunne, Kristine) Modified on 4/3/2013 (td, ). (Entered: 04/01/2013)
179 WITHDRAWAL of Motion by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE re 178 MOTION to Amend/Correct Order,,,,,, Scheduling Order filed by JOYCE A. KING, MARY L. BROWN, GAIL LENNON, JOYCE L. ACOMB, MARGARET ODOM, PHYLLIS L. ROBERTSON, LIND

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 35 of 44

04/02/2013 04/02/2013
04/04/2013 04/05/2013

MARIE BARA−WEAVER, MARYLAND B. WYNNE, ROSEMARY LOVE, EDITH L. SCRUGGS . (Dunne, Kristine) (Entered: 04/02/2013)
180 Joint MOTION for Extension of Time to , MOTION to Amend/Correct by THOMAS JAMES VILSACK (Attachments: # 1 Text of Proposed Order)(Wechsler, Peter) (Entered: 04/02/2013)
MINUTE ORDER granting 180 Motion for Extension of Time; granting 180 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)
181 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)
182 TRANSCRIPT OF PROCEEDINGS before Magistrate Judge John M. Facciola. Status Conference held on 8/24/2012; Page Numbers: 1−47. Court Reporter/Transcriber Bowles Reporting Service, Court Reporter Email Address : brs−ct@sbcglobal.net.

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.

04/22/2013 04/22/2013
05/02/2013

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)
183 Memorandum in opposition to re 181 MOTION to Intervene filed by THOMAS JAMES VILSACK. (Wechsler, Peter) (Entered: 04/22/2013)
184 Memorandum in opposition to re 181 MOTION to Intervene filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Wahl, Barbara) (Entered: 04/22/2013)
185 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)

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 36 of 44

05/02/2013 05/03/2013 05/06/2013 06/06/2013 06/11/2013
06/11/2013 06/12/2013
08/07/2013 08/08/2013 08/13/2013 09/12/2013
09/13/2013

186 REPLY to opposition to motion re 181 MOTION to Intervene filed by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. (rdj) (Entered: 05/03/2013)
NOTICE OF CORRECTED DOCKET ENTRY: re 185 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 181 pending). (rdj) (Entered: 05/03/2013)
187 NOTICE Regarding Litigation Election by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE (Wahl, Barbara) (Entered: 05/06/2013)
188 MOTION for Extension of Time to File any motion to transfer venue for a named plaintiff by THOMAS JAMES VILSACK (Wechsler, Peter) (Entered: 06/06/2013)
MINUTE ORDER denying 188 Motion for Extension of Time to File. The Court having considered the USDA's Motion for Extension of Time, and it appearing that the motion fails to comply with Local Civil Rules 7(c) and 7(m), it is ORDERED that the motion is DENIED without prejudice. Signed by Judge Reggie B. Walton on 6−11−2013. (lcrbw3) (Entered: 06/11/2013)
189 MOTION for Extension of Time to File any Motion to Transfer Venue by THOMAS JAMES VILSACK (Attachments: # 1 Text of Proposed Order)(Wechsler, Peter) (Entered: 06/11/2013)
MINUTE ORDER granting 189 Motion for Extension of Time. For good cause shown, it is ORDERED that the USDA's Assented−to Motion for Extension of Time is GRANTED. It is further ORDERED that the deadline for the defendant to file any motion to transfer venue as to any remaining named plaintiff be extended until two weeks after the Claims Administrator has made a final determination as to whether the administrative claim filed by Ms. Odom is complete. Signed by Judge Reggie B. Walton on 6−12−2013. (lcrbw3) (Entered: 06/12/2013)
190 WITHDRAWN PURSUANT TO DOCKET ENTRY NO. 191 . . . . .MOTION for Order to End Tolling of Statute of Limitations by THOMAS JAMES VILSACK (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Wechsler, Peter) Modified on 8/8/2013 (td, ). (Entered: 08/07/2013)
191 NOTICE OF WITHDRAWAL OF MOTION by THOMAS JAMES VILSACK re 190 MOTION for Order to End Tolling of Statute of Limitations (Wechsler, Peter) (Entered: 08/08/2013)
192 MOTION for Order to end the tolling of statute of limitations by THOMAS JAMES VILSACK (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Wechsler, Peter) (Entered: 08/13/2013)
193 Memorandum in opposition to re 192 MOTION for Order to end the tolling of statute of limitations filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Attachments: # 1 Text of Proposed Order)(Wahl, Barbara) (Entered: 09/12/2013)
194 TRANSCRIPT OF PROCEEDINGS before Judge Reggie B. Walton held on September 24, 2010; Page Numbers: 1 − 2. 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

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 37 of 44

09/13/2013
09/16/2013 09/20/2013 10/10/2013
10/10/2013 10/10/2013 10/10/2013 10/10/2013
10/15/2013

10/4/2013. Redacted Transcript Deadline set for 10/14/2013. Release of Transcript Restriction set for 12/12/2013.(Jones, Cathryn) (Entered: 09/13/2013)
195 TRANSCRIPT OF PROCEEDINGS before Judge Reggie B. Walton held on October 26, 2010; Page Numbers: 1 − 5. 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 10/4/2013. Redacted Transcript Deadline set for 10/14/2013. Release of Transcript Restriction set for 12/12/2013.(Jones, Cathryn) (Entered: 09/13/2013)
196 NOTICE Regarding Venue by THOMAS JAMES VILSACK (Wechsler, Peter) (Entered: 09/16/2013)
197 REPLY to opposition to motion re 192 MOTION for Order to end the tolling of statute of limitations filed by THOMAS JAMES VILSACK. (Wechsler, Peter) (Entered: 09/20/2013)
198 MOTION for Attorney Fees , Costs, and Expenses by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE (Attachments: # 1 Memorandum in Support, # 2 Exhibit Index of Exhibits, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 2−A, # 6 Exhibit 2−B, # 7 Exhibit 2−C, # 8 Exhibit 2−D, # 9 Exhibit 2−E, # 10 Exhibit 2−F, # 11 Exhibit 2−G, # 12 Exhibit 2−H, # 13 Exhibit 3, # 14 Exhibit 3−A, # 15 Exhibit 4, # 16 Exhibit 4−A, # 17 Exhibit 5, # 18 Exhibit 5−A, # 19 Exhibit 5−B, # 20 Exhibit 5−C, # 21 Text of Proposed Order)(Wahl, Barbara) (Entered: 10/10/2013)
199 MOTION for Order to File Document Under Seal by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE (Attachments: # 1 Text of Proposed Order)(Wahl, Barbara) (Entered: 10/10/2013)
200 MOTION to Stay Proceedings by THOMAS JAMES VILSACK (Attachments: # 1 Text of Proposed Order)(Wechsler, Peter) (Entered: 10/10/2013)
201 LODGED SEALED DOCUMENT filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (This document is SEALED and only available to authorized persons.)(ztd, ) (Entered: 10/10/2013)
202 LARGE ADDITIONAL ATTACHMENT(S) (Exhibits 2−C and 2−G) by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE 198 MOTION for Attorney Fees , Costs, and Expenses 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. (Attachments: # 1 Exhibit)(Wahl, Barbara) (Entered: 10/10/2013)
203 RESPONSE re 200 MOTION to Stay Proceedings filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Wahl, Barbara) (Entered: 10/15/2013)

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 38 of 44

10/16/2013
10/23/2013 10/24/2013
10/25/2013 11/19/2013 11/26/2013 11/26/2013 11/26/2013 11/26/2013 11/26/2013 11/26/2013 11/26/2013 11/26/2013 11/26/2013 12/20/2013
02/28/2014 06/13/2014

MINUTE ORDER granting 200 Motion to Stay. Upon consideration of the Government's Motion for a Stay of Proceedings In Light of the Lapse of Appropriations and the plaintiffs' response to the motion, it is hereby ORDERED that the motion is GRANTED and that all deadlines in this case are STAYED until appropriations are restored. Signed by Judge Reggie B. Walton on October 16, 2013. (lcrbw1, ) (Entered: 10/16/2013)
204 Unopposed MOTION for Scheduling Order by THOMAS JAMES VILSACK (Attachments: # 1 Text of Proposed Order)(Wechsler, Peter) (Entered: 10/23/2013)
MINUTE ORDER granting 204 Motion for Scheduling Order. Upon consideration of the USDA's Unopposed Motion for a Briefing Schedule, it is hereby ORDERED that the motion is GRANTED and the stay previously imposed in this case due to the lapse in appropriations is LIFTED. It is further ORDERED that briefing on the plaintiffs' motion for attorneys' fees shall proceed as follows: the defendant shall file its response to the plaintiffs' motion for fees with respect solely to whether the plaintiffs are eligible for attorneys' fees, costs, and/or expenses, on or before November 20, 2013; and the plaintiffs shall file a reply with respect to this issue on or before December 20, 2013. If the Court determines that the plaintiffs are eligible for an award of attorneys' fees, costs, and/or expenses, the parties will propose a schedule for briefing on the issue of the amount to which the plaintiffs are entitled. Signed by Judge Reggie B. Walton on October 24, 2013. (lcrbw1, ) (Entered: 10/24/2013)
Set/Reset Deadlines: Response due by 11/20/2013; Reply due by 12/20/2013. (mpt, ) (Entered: 10/25/2013)
205 Memorandum in opposition to re 198 MOTION for Attorney Fees , Costs, and Expenses filed by THOMAS JAMES VILSACK. (Wechsler, Peter) (Entered: 11/19/2013)
206 STIPULATION of Dismissal for Bara−Weaver with Prejudice by THOMAS JAMES VILSACK. (Wechsler, Peter) (Entered: 11/26/2013)
207 STIPULATION of Dismissal for King With Prejudice by THOMAS JAMES VILSACK. (Wechsler, Peter) (Entered: 11/26/2013)
208 STIPULATION of Dismissal for Love with Prejudice by THOMAS JAMES VILSACK. (Wechsler, Peter) (Entered: 11/26/2013)
209 STIPULATION of Dismissal for Odom with Prejudice by THOMAS JAMES VILSACK. (Wechsler, Peter) (Entered: 11/26/2013)
210 STIPULATION of Dismissal for Robertson with Prejudice by THOMAS JAMES VILSACK. (Wechsler, Peter) (Entered: 11/26/2013)
211 STIPULATION of Dismissal for Scruggs with Prejudice by THOMAS JAMES VILSACK. (Wechsler, Peter) (Entered: 11/26/2013)
212 STIPULATION of Dismissal by Wynne with Prejudice by THOMAS JAMES VILSACK. (Wechsler, Peter) (Entered: 11/26/2013)
213 ERRATA stipulation for Love of dismissal with prejudice by THOMAS JAMES VILSACK 208 Stipulation of Dismissal filed by THOMAS JAMES VILSACK. (Wechsler, Peter) (Entered: 11/26/2013)
214 STIPULATION of Dismissal for Lennon with prejudice by THOMAS JAMES VILSACK. (Wechsler, Peter) (Entered: 11/26/2013)
215 REPLY to opposition to motion re 198 MOTION for Attorney Fees , Costs, and Expenses filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Wahl, Barbara) (Entered: 12/20/2013)
216 NOTICE of Change in Firm Status by PHILLIP L. FRAAS (Fraas, Phillip) (Entered: 02/28/2014)
217 NOTICE by LIND MARIE BARA−WEAVER, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L.

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 39 of 44

06/13/2014 06/13/2014 06/26/2014 06/26/2014 06/27/2014 07/07/2014
07/07/2014
07/14/2014 07/15/2014 07/18/2014 07/25/2014 07/25/2014
07/30/2014 08/11/2014 08/11/2014

SCRUGGS, MARYLAND B. WYNNE (Attachments: # 1 Exhibit 1)(Wahl, Barbara) (Entered: 06/13/2014)
218 ORDER denying 181 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)
219 MEMORANDUM OPINION. Signed by Judge Reggie B. Walton on June 13, 2014. (lcrbw1) (Entered: 06/13/2014)
220 ENTERED IN ERROR.....NOTICE by THOMAS J. VILSACK (Wechsler, Peter) Modified on 6/27/2014 (jf, ). (Entered: 06/26/2014)
221 RESPONSE re 217 Notice (Other) filed by THOMAS J. VILSACK. (jf, ) (Entered: 06/27/2014)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 220 Notice (Other) was entered in error and refiled by the Clerk's Office under the correct event.(jf, ) (Entered: 06/27/2014)
222 REPLY re 217 Notice (Other) filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Wahl, Barbara) (Entered: 07/07/2014)
223 MOTION to Dismiss Under Fed. R. Civ. Proc. 41(a)(2) by LIND MARIE BARA−WEAVER, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Text of Proposed Order)(Wahl, Barbara) (Entered: 07/07/2014)
224 NOTICE OF APPEAL as to 218 Order on Motion to Intervene, by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC.. Fee Status: No Fee Paid. Parties have been notified. (Robinson, Paul) Modified text on 7/15/2014 (td, ). (Entered: 07/14/2014)
NOTICE OF ERROR re 224 Notice of Appeal to the Federal Circuit; emailed to problaw937@hotmail.com, cc'd 23 associated attorneys −− The PDF file you docketed contained errors: 1. Appeal is for this court and not Federal Circuit. Entry has been edited. (td, ) (Entered: 07/15/2014)
225 RESPONSE re 223 MOTION to Dismiss Under Fed. R. Civ. Proc. 41(a)(2) filed by THOMAS J. VILSACK. (Wechsler, Peter) (Entered: 07/18/2014)
226 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 224 Notice of Appeal. (td, ) (Entered: 07/25/2014)
227 REPLY to opposition to motion re 223 MOTION to Dismiss Under Fed. R. Civ. Proc. 41(a)(2) filed by LIND MARIE BARA−WEAVER, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Attachments: # 1 Exhibit 1)(Wahl, Barbara) (Entered: 07/25/2014)
USCA Case Number 14−5185 for 224 Notice of Appeal to the Federal Circuit filed by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC.. (kb) (Entered: 07/30/2014)
228 USCA Appeal Fees received $ 505 receipt number 4616065203 re 224 Notice of Appeal to the Federal Circuit filed by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. (td, ) (Entered: 08/11/2014)
229 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date 8/8/14 USCA No.: 14−5185 re 228 USCA Appeal Fees. (td, ) (Entered: 08/11/2014)

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 40 of 44

08/14/2014
08/19/2014 08/26/2014
01/15/2015 01/20/2015 01/22/2015 02/09/2015 02/18/2015 03/19/2015 03/25/2015 03/25/2015
04/08/2015
04/08/2015

230 MOTION to Reinstate Counts III through VI of the Fourth Amended and Supplemental Complaint by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Wahl, Barbara) (Entered: 08/14/2014)
231 Memorandum in opposition to re 230 MOTION to Reinstate Counts III through VI of the Fourth Amended and Supplemental Complaint filed by THOMAS J. VILSACK. (Wechsler, Peter) (Entered: 08/19/2014)
232 REPLY to opposition to motion re 230 MOTION to Reinstate Counts III through VI of the Fourth Amended and Supplemental Complaint filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Wahl, Barbara) (Entered: 08/26/2014)
233 MANDATE of USCA (certified copy) as to 224 Notice of Appeal to the Federal Circuit filed by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. ; ORDERED that the motions br granted. USCA Case Number 14−5185. (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 10:00 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 set for 2/25/2015 10:00 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt, ) (Entered: 01/22/2015)
234 NOTICE OF RELATED CASE by THOMAS J. VILSACK. Case related to Case No. 1:00−cv−02502. (Siple, Adam) (Entered: 02/09/2015)
Set/Reset Hearings: Status Conference originally set for 2/25/15 was reset for 3/25/2015 11:30 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt, ) (Entered: 02/18/2015)
235 STATUS REPORT by THOMAS J. VILSACK. (Wechsler, Peter) (Entered: 03/19/2015)
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)
236 ORDER. In accordance with the attached Order and the oral rulings made during the Status Conference held this same day, it is hereby 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)
237 SUPPLEMENTAL MEMORANDUM to re 192 MOTION for Order to end the tolling of statute of limitations filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Wahl, Barbara) (Entered: 04/08/2015)
238 MEMORANDUM re 223 MOTION to Dismiss Under Fed. R. Civ. Proc. 41(a)(2) filed by JOYCE A. KING, GAIL LENNON, MARGARET ODOM, LIND MARIE BARA−WEAVER, PHYLLIS L. ROBERTSON, MARYLAND B. WYNNE, ROSEMARY LOVE, EDITH L. SCRUGGS, 230 MOTION to Reinstate Counts III through VI of the Fourth Amended and Supplemental Complaint 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 by JOYCE

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 41 of 44

04/15/2015 04/15/2015 04/21/2015 04/23/2015
04/27/2015 04/28/2015 05/15/2015
05/21/2015 05/21/2015

L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Wahl, Barbara) (Entered: 04/08/2015)
239 SUPPLEMENTAL MEMORANDUM to in response to plaintiffs' memorandum regarding the tolling of the statute of limitations 237 filed by THOMAS J. VILSACK. (Attachments: # 1 Exhibit A (notice of untimely claim), # 2 Exhibit B (notice of incomplete claim), # 3 Exhibit C (notice of timely and complete claim))(Wechsler, Peter) Modified on 4/16/2015 (td, ). (Entered: 04/15/2015)
240 SUPPLEMENTAL MEMORANDUM to USDA's Response to Plaintiffs' Statement regarding pending motions to dismiss 238 filed by THOMAS J. VILSACK. (Wechsler, Peter) Modified on 4/16/2015 (td, ). (Entered: 04/15/2015)
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)
241 ORDER granting 192 Motion. 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 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. It is further ORDERED that the plaintiffs shall file with the Court and the defendant on or before April 27, 2015, the list of judicial opinions which they cited during the hearing regarding the plaintiffs' position that their stipulations of dismissal were defective at the time of filing. The plaintiffs shall limit this filing to two pages. Signed by Judge Reggie B. Walton on April 23, 2015. (lcrbw1) (Entered: 04/23/2015)
242 SUPPLEMENTAL MEMORANDUM to re 223 MOTION to Dismiss Under Fed. R. Civ. Proc. 41(a)(2) filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Wahl, Barbara) (Entered: 04/27/2015)
243 NOTICE OF SUPPLEMENTAL AUTHORITY by THOMAS J. VILSACK (Wechsler, Peter) (Entered: 04/28/2015)
244 TRANSCRIPT OF PROCEEDINGS before Judge Reggie B. Walton held on April 21, 2015; Page Numbers: 72. Date of Issuance: May 15, 2015. Court Reporter/Transcriber Jan Dickman, Telephone number 202−354−3267, Court Reporter Email Address: JaniceDickmanDCD@gmail.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 www.dcd.uscourts.gov.<P></P> Redaction Request due 6/5/2015. Redacted Transcript Deadline set for 6/15/2015. Release of Transcript Restriction set for 8/13/2015.(Dickman, Janice) (Entered: 05/15/2015)
245 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 241 Order on Motion for Order,,,, 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)
246 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 245 Notice of Appeal to DC Circuit

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 42 of 44

05/28/2015 05/28/2015 06/08/2015 06/11/2015
06/22/2015 06/29/2015
08/20/2015 08/25/2015 09/09/2015 10/06/2015 10/20/2015
10/26/2015 10/27/2015
11/03/2015
11/03/2015

Court. (jf, ) (Entered: 05/21/2015)
USCA Appeal Fees received $ 505 receipt number 4616070409 re 245 Notice of Appeal to DC Circuit Court filed by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. (jf) (Entered: 05/28/2015)
247 Supplemental Record on Appeal transmitted to US Court of Appeals re USCA Appeal Fees ; (jf) (Entered: 05/28/2015)
248 STATUS REPORT by THOMAS J. VILSACK. (Attachments: # 1 Exhibit A (chart of awards))(Wechsler, Peter) (Entered: 06/08/2015)
249 RESPONSE re 248 Status Report and Request for Information, Discovery, and a Hearing filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Wahl, Barbara) (Entered: 06/11/2015)
250 REPLY re 249 Response to Document, Status Report filed by THOMAS J. VILSACK. (Wechsler, Peter) (Entered: 06/22/2015)
251 REPLY re 249 Response to Document, in Support of ECF Document No. 249 filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Attachments: # 1 Exhibit 1)(Wahl, Barbara) (Entered: 06/29/2015)
252 NOTICE of Change of Address by Phillip L. Fraas (Fraas, Phillip) (Entered: 08/20/2015)
253 MOTION to Stay Pending Appeal Immediately by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. (Attachments: # 1 Exhibit)(Robinson, Paul) (Entered: 08/25/2015)
254 Memorandum in opposition to re 253 MOTION to Stay Pending Appeal Immediately filed by THOMAS J. VILSACK. (Wechsler, Peter) (Entered: 09/09/2015)
255 NOTICE re BFAA Motion for Stay by THOMAS J. VILSACK re 253 MOTION to Stay Pending Appeal Immediately (Wechsler, Peter) (Entered: 10/06/2015)
256 Unopposed MOTION to Withdraw as Attorney − Kristine J. Dunne by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, JAMES MURNION, JOANN NEUZIL, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE (Attachments: # 1 Text of Proposed Order)(Dunne, Kristine) (Entered: 10/20/2015)
257 STATUS REPORT by THOMAS J. VILSACK. (Wechsler, Peter) (Entered: 10/26/2015)
MINUTE ORDER granting 256 Motion to Withdraw as Attorney. In light of the defendant's consent, and for good cause shown, it is hereby ORDERED that the plaintiffs' Motion for Leave for Withdrawal of Appearance is GRANTED and Kristine J. Dunne is hereby withdrawn as counsel in the above−captioned action. Signed by Judge Reggie B. Walton on October 27, 2015. (lcrbw1) (Entered: 10/27/2015)
258 NOTICE of Appearance by Alison L. Andersen on behalf of JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE (Andersen, Alison) (Entered: 11/03/2015)
259 RESPONSE re 257 Status Report filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Andersen, Alison) (Entered: 11/03/2015)

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 43 of 44

11/09/2015 12/23/2015
12/30/2015 01/12/2016 01/19/2016 02/26/2016 04/12/2016 04/19/2016 04/22/2016 11/14/2016
11/14/2016 11/28/2016

260 ORDER denying 253 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)
261 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)
262 NOTICE Regarding Letter From Minority Farm Advisory Committee Appointed by USDA by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE (Attachments: # 1 Exhibit A)(Andersen, Alison) (Entered: 12/30/2015)
263 RESPONSE to Plaintiffs' Notice by THOMAS J. VILSACK re 262 Notice (Other), (Wechsler, Peter) Modified on 1/13/2016 event title (td). (Entered: 01/12/2016)
264 REPLY re 262 Notice (Other), Regarding Letter from Minority Farm Advisory Committee filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Andersen, Alison) (Entered: 01/19/2016)
265 NOTICE of Change of Address by Phillip L. Fraas (Fraas, Phillip) (Entered: 02/26/2016)
266 STATUS REPORT by THOMAS J. VILSACK. (Attachments: # 1 Exhibit IG Report)(Wechsler, Peter) (Entered: 04/12/2016)
267 REPLY re 266 Status Report and Renewal of Request for Information, Discovery, and a Hearing filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Andersen, Alison) (Entered: 04/19/2016)
268 REPLY re 267 Reply to Document, Plaintiffs' Response to Status Report filed by THOMAS J. VILSACK. (Wechsler, Peter) (Entered: 04/22/2016)
269 ORDER. For the reasons set forth in the attached Order, it is hereby ORDERED that the Plaintiffs' Motion to Dismiss Pursuant to Fed. R. Civ. P. 41(a) 223 is GRANTED IN PART AND DENIED IN PART. It is further ORDERED that the Plaintiffs' Motion to Reinstate Counts III Through VI of their Fourth Amended and Supplemental Copmplaint [sic] 230 is DENIED. It is further ORDERED that all of the plaintiffs' claims are DISMISSED. It is further ORDERED that any party wishing to supplement their submissions regarding the Plaintiffs' Motion for an Award of Fees, Costs, and Expenses 198 shall file a notice of their intent to do so on or before November 30, 2016. It is further ORDERED that the Plaintiffs' Motion to File Document Under Seal 199 is GRANTED. It is further ORDERED that the intervenor−plaintiffs' Motion to Intervene 124 is DENIED AS MOOT. It is further ORDERED that the plaintiffs' Motion for Leave to File a Third Amended Class Action Complaint 50 is DENIED AS MOOT. It is further ORDERED that the Plaintiffs' Supplemental Motion to Certify Class 36 is DENIED AS MOOT. Signed by Judge Reggie B. Walton on 11/14/16. (lcrbw1) (Entered: 11/14/2016)
Set/Reset Deadlines: Supplemental Memoranda due by 11/30/2016. (hs) (Entered: 11/14/2016)
270 NOTICE re briefing of plaintiffs' motion for attorney fees by THOMAS J. VILSACK re 269 Order on Motion to Dismiss,,,,, Order on Motion for Miscellaneous Relief,,,,, Order on Motion to Certify Class,,,,, Order on Motion for Leave to File,,,,, Order on Motion to Intervene,,,,, Order on Motion for Order,,,, (Wechsler, Peter) (Entered: 11/28/2016)

Case: 1:00-cv-2502 As of: 10/19/2018 02:29 PM EDT 44 of 44

11/30/2016 11/30/2016
11/30/2016 01/13/2017
01/13/2017
01/23/2017 01/23/2017
02/13/2017 02/27/2017 11/01/2017 05/07/2018

271 NOTICE Regarding Motion for an Award of Fees, Costs, and Expenses by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE (Andersen, Alison) (Entered: 11/30/2016)
MINUTE ORDER. Upon consideration of the 271 Plaintiffs' Notice Regarding Motion for an Award of Fees, Costs, and Expenses and the 270 USDA's Notice, and for good cause shown, it is hereby ORDERED that the plaintiffs shall file their supplement to their 198 Plaintiffs' Motion for an Award of Fees, Costs, and Expenses on or before January 13, 2017. It is further ORDERED that the USDA shall file its response on or before February 13, 2017. It is further ORDERED that the plaintiffs shall file their reply on or before February 27, 2017. Signed by Judge Reggie B. Walton on November 30, 2016. (lcrbw1) (Entered: 11/30/2016)
Set/Reset Deadlines: Supplemental Memorandum due by 1/13/2017. Response due by 1/13/2017. Reply due by 2/27/2017. (hs) (Entered: 11/30/2016)
272 SUPPLEMENTAL MEMORANDUM to re 198 MOTION for Attorney Fees , Costs, and Expenses filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Attachments: # 1 Exhibit 1 − Supplemental Declaration of Marc L. Fleischaker, # 2 Index of Exhibits, # 3 Exhibit 1−A, # 4 Exhibit 1−B, # 5 Exhibit 1−C, # 6 Exhibit 1−D, # 7 Exhibit 1−E, # 8 Exhibit 1−F, # 9 Text of Proposed Order)(Wahl, Barbara) (Entered: 01/13/2017)
273 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit E to Supplemental Declaration of Marc L. Fleischaker, # 2 Text of Proposed Order)(Wahl, Barbara) (Entered: 01/13/2017)
MINUTE ORDER. Upon consideration of the 273 Plaintiffs' Motion for Leave to File Document Under Seal, and for good cause shown, it is hereby ORDERED that this motion is GRANTED. It is further ORDERED that Exhibit E to the Supplemental Declaration of Marc L. Fleischaker is FILED UNDER SEAL. Signed by Judge Reggie B. Walton on January 23, 2017. (lcrbw1) (Entered: 01/23/2017)
274 SEALED DOCUMENT (Exhibit E to Supplemental Declaration of Marc L. Fleischaker) filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. re Minute Order filed 1/23/17 on Sealed Motion for Leave to File Document Under Seal,. (This document is SEALED and only available to authorized persons.)(ztd) (Entered: 01/23/2017)
275 SUPPLEMENTAL MEMORANDUM to re 198 MOTION for Attorney Fees , Costs, and Expenses Response filed by THOMAS J. VILSACK. (Attachments: # 1 Exhibit A (settlement agreement))(Wechsler, Peter) (Entered: 02/13/2017)
276 REPLY to opposition to motion re 198 MOTION for Attorney Fees , Costs, and Expenses filed by JOYCE L. ACOMB, LIND MARIE BARA−WEAVER, MARY L. BROWN, JOYCE A. KING, GAIL LENNON, ROSEMARY LOVE, MARGARET ODOM, PHYLLIS L. ROBERTSON, EDITH L. SCRUGGS, MARYLAND B. WYNNE. (Wahl, Barbara) (Entered: 02/27/2017)
277 NOTICE of Change of Address by Phillip L. Fraas (Fraas, Phillip) (Entered: 11/01/2017)
278 ORDER. For the reasons stated in the attached Order, it is hereby ORDERED that the 198 Plaintiffs' Motion for an Award of Fees, Costs, and Expenses is DENIED. Signed by Judge Reggie B. Walton on May 7, 2018. (lcrbw1) (Entered: 05/07/2018)