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`U N I T E D S T A T E S D I S T R I C T C O U R T
`F O R T H E N O R T H E R N D I S T R I C T O F T E X A S
`F O R T W O R T H D I V I S I O N
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`
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`Sid Miller, on behalf of himself and
`others similarly situated,
`
`Plaintiff,
`
`
`
`
`
`
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`v.
`
` Case No. 4:21-cv-00595
`
`Tom Vilsack, in his official capacity as
`Secretary of Agriculture,
`
`
`
`
`
`Defendants.
`
`
`
`PLAINTIFF’S CLASS-ACTION COMPLAINT
`The Supreme Court of the United States said 125 years ago that:
`
`[T]he constitution of the United States, in its present form, forbids, so
`far as civil and political rights are concerned, discrimination by the gen-
`eral government, or by the states, against any citizen because of his race.
`All citizens are equal before the law. The guaranties of life, liberty, and
`property are for all persons, within the jurisdiction of the United States,
`or of any state, without discrimination against any because of their race.
`Those guaranties, when their violation is properly presented in the reg-
`ular course of proceedings, must be enforced in the courts, both of the
`nation and of the state, without reference to considerations based upon
`race.
`
`Gibson v. State of Mississippi, 162 U.S. 565, 591 (1896); see also Bolling v. Sharpe, 347
`
`U.S. 497 (1954) (citing Gibson and holding that segregation in the District of Co-
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`lumbia public schools violated the Due Process Clause of the Fifth Amendment).
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`Equal rights under law is the cornerstone of American constitutional jurispru-
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`dence: the principle that all citizens, regardless of status, wealth, race, color, religion,
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`or creed, have the same rights and are entitled to the same standard of justice. These
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`are the principles etched into our founding documents, fought for on our nation’s
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`battlefields, written into the Gettysburg Address, and delivered from the steps of the
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`Lincoln Memorial by Martin Luther King.
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`As a nation, we are devoted to the task of satisfying these sacred ideals and provid-
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`ing equal rights to citizens of all races, as the Constitution requires. Profound progress
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`has been made, and extraordinary milestones reached, throughout our history, serving
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`as an inspiration to humanity and the nations of the world. Yet, today, the Department
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`of Agriculture lurches America dangerously backward, reversing the clock on Ameri-
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`can progress, and violating our most sacred and revered principles by actively and
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`invidiously discriminating against American citizens solely based upon their race. This
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`is illegal, it is unconstitutional, it is wrong, and it must stop.
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`Indeed, the United States Department of Agriculture administers numerous stat-
`
`utes that provide government aid to “socially disadvantaged farmers and ranchers.”
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`The Department of Agriculture interprets this phrase to include African Americans,
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`Hispanics, Native Americans, Alaskan natives, Asian-Americans, and Pacific Islanders.
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`But white farmers and ranchers are not included within the definition of “socially
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`disadvantaged farmers and ranchers,” making them ineligible for aid under these fed-
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`eral programs.
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`These racial exclusions are patently unconstitutional, and the Court should per-
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`manently enjoin their enforcement. Doing so will promote equal rights under the law
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`for all American citizens and promote efforts to stop racial discrimination, because
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`“[t]he way to stop discrimination on the basis of race is to stop discriminating on the
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`basis of race.” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,
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`748 (2007) (Roberts, C.J., concurring).
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`American citizens today represent a beautiful, complex, and increasingly interwo-
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`ven fabric of racial backgrounds. Government action that tears at that fabric and di-
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`vides its pieces—rather than reinforcing that fabric’s unifying and binding ties—dis-
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`rupts our common progress towards becoming a more perfect union.
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`JURISDICTION AND VENUE
`1. The Court has subject-matter jurisdiction under 28 U.S.C. § 1331 and 28
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`U.S.C. § 1343.
`2. Venue is proper because a substantial part of the events giving rise to the
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`claims occurred in this judicial district. See 28 U.S.C. § 1391(b)(2).
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`PARTIES
`3. Plaintiff Sid Miller is a farmer and rancher who resides in Erath County,
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`Texas. He also serves as Agriculture Commissioner for the State of Texas. Mr. Miller
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`is suing in his capacity as a private citizen, and not on behalf of the State of Texas or
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`the Texas Department of Agriculture.
`4. Defendant Tom Vilsack is the U.S. Secretary of Agriculture. Secretary Vilsack
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`is sued in his official capacity.
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`STATEMENT OF FACTS
`5. Sections 1005 and 1006 of the American Rescue Plan Act of 2021, H.R.
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`1319, 117th Cong. (2021), provide aid to farmers and ranchers who have been
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`harmed by the COVID-19 pandemic—including loan forgiveness up to 120 percent
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`of the value of the loan—but only if they qualify as a “socially disadvantaged farmer
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`or rancher.” See Exhibit 1.
`6. Numerous other federal statutes limit government aid to individuals who
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`qualify as a “socially disadvantaged farmer or rancher.” See, e.g., 7 U.S.C. § 1936(a)
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`(requiring the Secretary of Agriculture to “guarantee a loan made by a private seller
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`of a farm or ranch to a . . . socially disadvantaged farmer or rancher.”); 7 U.S.C.
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`§ 1985(c)(1)(B) (requiring the Secretary of Agriculture to “offer to sell” certain
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`properties to “a qualified beginning farmer or rancher or a socially disadvantaged
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`farmer or rancher at current market value based on a current appraisal” before at-
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`tempting to sell that property at a public sale); 7 U.S.C. § 1627c(d)(5)(C)(i)(II) (re-
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`quiring the Secretary of Agriculture to give preference to applications submitted by
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`“socially disadvantaged farmers or ranchers” when awarding grants).
`7. Federal law defines “socially disadvantaged farmer or rancher” as “a farmer
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`or rancher who is a member of a socially disadvantaged group.” 7 U.S.C.
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`§ 2279(a)(5). “Socially disadvantaged group,” in turn, is defined as:
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`a group whose members have been subjected to racial or ethnic preju-
`dice because of their identity as members of a group without regard to
`their individual qualities.
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`7 U.S.C. § 2279(a)(6).
`8. The Department of Agriculture has adopted a general definition of “socially
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`disadvantaged farmer and rancher” as follows:
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`A socially disadvantaged group is defined as: A farmer or rancher who
`is a member of one or more of the following groups whose members
`have been subjected to racial or ethnic prejudice because of their iden-
`tity as members of a group without regard to their individual qualities:
`• African Americans
`• American Indians
`• Alaskan Natives
`• Asians
`• Hispanics
`• Pacific Islanders
`
`U.S. Department of Agriculture, Farming Opportunities Training and Outreach Grant
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`Program,
`
`https://www.usda.gov/sites/default/files/documents/2501_Fact-
`
`Sheet.pdf (last visited on April 26, 2021) (attached as Exhibit 2).1
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`1. The Department of Agriculture defines the term similarly, with minor variations,
`in various regulations applicable to USDA programs. See, e.g., 7 C.F.R. § 7.3 (ap-
`plicable to the selection and functions of Farm Service Agency state and county
`committees); 7 C.F.R. § 718.2 (applicable to farm marketing quotas, acreage al-
`lotments, and production adjustment); 7 C.F.R. § 760.107(b)(1) (applicable to
`certain Supplemental Agricultural Disaster Assistance Programs); 7 C.F.R.
`§ 636.3 (applicable to the Wildlife Habitat Incentive Program); 7 C.F.R.
`§ 1410.2(b) (applicable to the Conservation Reserve Program); 7 C.F.R.
`§ 1430.402 (applicable to the Dairy Margin Coverage Program).
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`9. Setting aside the propriety of the use of these classifications for benefits, this
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`definition of “socially disadvantaged farmer and rancher” departs from the plain stat-
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`utory text by failing to include white ethnic groups that have unquestionably suffered
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`ethnic prejudice.
`10. Indeed, throughout American history, many white ethnic groups have been
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`subject to “racial or ethnic prejudice because of their identity as members of a group
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`without regard to their individual qualities,” including Irish, Italians, Germans, Jews,
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`and eastern Europeans. Members of these ethnic groups unambiguously qualify as
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`members of a “socially disadvantaged group,” and as “socially disadvantaged farmers
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`or ranchers,” under the plain text of 7 U.S.C. §§ 2279(a)(5)–(6).
`11. In addition, neither the statutes nor the Department of Agriculture defines
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`what percentage of “socially disadvantaged” ancestry is necessary to qualify one as a
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`member of a “socially disadvantaged group.” There are many individuals, such as
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`Homer Plessy and Elizabeth Warren, who have been regarded as racial minorities de-
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`spite having only small traces of minority ancestry.
`12. Mr. Plessy, for example, was one-eighth black, yet he was regarded as black
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`by the government of Louisiana and forbidden to sit in a railroad car reserved for
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`white passengers. See Plessy v. Ferguson, 163 U.S. 537, 538 (1896). Senator Warren
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`has been recognized as a Native American by Harvard Law School and the American
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`Association of Law Schools,2 despite the fact that a recent DNA test showed that any
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`2. See Stephanie Ebbert, Directories Identified Warren as Minority, The Boston
`Globe (April 30, 2012),
`https://web.archive.org/web/20130903193315/http://www.boston.com/ne
`ws/local/massachusetts/articles/2012/04/30/elizabeth_warren_was_listed_as
`_a_minority_professor_in_law_directories_in_the_80s_and_90s (last visited on
`April 26, 2021) (“Elizabeth Warren . . . was listed as a minority professor in Amer-
`ican law school directories for nine years before she landed at Harvard, documents
`show.”); id. (“Elizabeth Warren . . . said Friday she didn’t realize Harvard Law
`School had been promoting her as a Native American faculty member in the
`1990s”).
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`Native American ancestry in Ms. Warren’s lineage would have been 6 to 10 genera-
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`tions ago.3 Yet nothing in the relevant statutes (or in the Department’s purported
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`interpretations of these statutes) establishes a blood-quantum cut-off or defines the
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`amount of “socially disadvantaged” ancestry needed to qualify for aid under any of
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`these federal programs.
`13. Plaintiff Sid Miller is a farmer and rancher. His ancestry is overwhelmingly
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`white, and primarily Scotch-Irish. As is the case with many Americans, his ancestry is
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`not limited to just one racial or ethnic group. Mr. Miller also has approximately 2%
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`African-American ancestry.
`14. The statutes described above, as currently interpreted and enforced by the
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`Department of Agriculture, exclude Mr. Miller from the benefits of programs for “so-
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`cially disadvantaged farmers and ranchers” on account of his race.
`15. Mr. Miller sues on behalf of all farmers and ranchers in the United States
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`who are excluded from the benefits of programs for “socially disadvantaged farmers
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`and ranchers” because of their race or ethnicity.
`
`Claim 1: The Department of Agriculture’s Racial Exclusions
`Violate The Constitution and Title VI
`16. The Constitution prohibits the federal government from discriminating on
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`account of race or ethnicity. See Bolling v. Sharpe, 347 U.S. 497 (1954).
`17. Title VI of the Civil Rights Act of 1964 likewise prohibits discrimination on
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`the grounds of race, color, or national origin in any program that receives federal
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`funds. See 42 U.S.C. § 2000d.
`
`
`3. See Astead W. Herndon, Elizabeth Warren Stands by DNA Test. But Around Her,
`Worries Abound., The New
`York Times
`(Dec.
`8,
`2018),
`https://www.nytimes.com/2018/12/06/us/politics/elizabeth-warren-dna-
`test-2020.html) (“Ms. Warren’s DNA test, which was conducted by the renowned
`geneticist Carlos Bustamante and released by her office, showed strong evidence
`that Ms. Warren has Native American pedigree ‘6–10 generations ago.’”).
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`18. The Department of Agriculture violates the Constitution and Title VI by
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`discriminating on the grounds of race, color, and national origin in administering its
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`programs.
`19. The Court should declare unconstitutional any statute limiting the benefits
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`of federal programs to “socially disadvantaged farmers and ranchers.”
`20. The Court should further declare that the Department violates the Consti-
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`tution and Title VI by excluding individuals and entities from the benefit of federal
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`programs on the grounds of race, color, and national origin, and by discriminating
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`against individuals and entities on this basis, and it should permanently enjoin Secre-
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`tary Vilsack and his successors from implementing any racial exclusions or discrimina-
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`tory racial preferences in the Department’s programs.
`
`Claim 2:
`
`In The Alternative, The Phrase “Socially Disadvantaged
`Group” Must Be Construed, As A Matter Of Statutory
`Interpretation, To Include White Ethnic Groups That
`Have Suffered Past Prejudice And Discrimination
`21. If the Court is unwilling to declare the Department’s racial exclusions and
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`the underlying statutes unconstitutional, then it should at the very least declare that
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`the phrase “socially disadvantaged group” must be construed, as a matter of statutory
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`interpretation, to include ethnic groups of all types that have been subjected to racial
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`and ethnic prejudice, including (but not limited to) Irish, Italians, Germans, Jews,
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`and eastern Europeans.
`22. The statutory text is clear: All “groups whose members have been subjected
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`to racial or ethnic prejudice because of their identity as members of a group without
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`regard to their individual qualities” fall within the definition of “socially disadvantaged
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`group.” 7 U.S.C. § 2279(a)(6). White ethnic groups that have experienced past racial
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`or ethnic prejudice are no less protected by the statute than members of minority
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`groups. Because the text is unambiguous, there is no grounds for “deferring” to any
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`atextual interpretation that the Department might offer. See Digital Realty Trust, Inc.
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`v. Somers, 138 S. Ct. 767, 781–82 (2018).
`23. The Court should therefore declare that the Department of Agriculture’s
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`current interpretation of “socially disadvantaged group” violates the clear and unam-
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`biguous text of 7 U.S.C. § 2279(a)(6), by excluding white ethnic groups that have
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`been subjected to racial and ethnic prejudice, and it should enjoin Secretary Vilsack
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`and his successors from excluding Irish, Italians, Germans, Jews, eastern Europeans,
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`and any other ethnic group that has suffered racial and ethnic prejudice, from the
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`definitions of “socially disadvantaged group” and “socially disadvantaged farmer or
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`rancher.”
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`Claim 3:
`
`In The Alternative, The Phrase “Socially Disadvantaged
`Farmer Or Rancher” Must Be Construed, As A Matter Of
`Statutory Interpretation, To Include Individuals Who
`Have Any Discernible Trace Of Minority Ancestry
`24. If the Court is unwilling to declare as unconstitutional the Department’s
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`racial exclusions and the underlying statutes, then it should at the very least declare
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`that the phrase “socially disadvantaged farmer or rancher” must be construed, as a
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`matter of statutory interpretation, to include individuals who have any discernible
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`trace of minority ancestry.
`25. The statutes are silent on how much minority ancestry is needed before one
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`can qualify as a member of a “socially disadvantaged group,” or as a “socially disad-
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`vantaged farmer or rancher.” An interpretation of the underlying statutes that excludes
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`plaintiffs like Miller because he is not “black enough” would raise grave constitutional
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`concerns under Bolling v. Sharpe, 347 U.S. 497 (1954), and it should be rejected for
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`that reason alone. For the same reason, the statutes should not be construed to em-
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`power the Department of Agriculture to choose a minimum threshold of minority
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`ancestry when determining eligibility for benefits.
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`26. The Court is therefore obligated to interpret 7 U.S.C. § 2279(a)(5)–(6) in
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`a manner that avoids this serious constitutional question under the canon of consti-
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`tutional avoidance. See Ohio v. Akron Center for Reproductive Health, 497 U.S. 502,
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`514 (1990) (“[W]here fairly possible, courts should construe a statute to avoid a dan-
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`ger of unconstitutionality.” (citation and internal quotation marks omitted)).
`27. The canon of constitutional avoidance trumps any deference that the agency
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`might try to claim if it insisted on a blood-quantum threshold. See Edward J. DeBar-
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`tolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575
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`(1988); see also Epic Systems Corp. v. Lewis, 138 S. Ct. 1612, 1630 (2018) (courts
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`must consider all “traditional canons” at Chevron Step One).
`28. The Court should therefore declare that the statute, at 7 U.S.C.
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`§ 2279(a)(5)–(6), prohibits the Department of Agriculture from establishing a blood-
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`quantum threshold for status as a member of a “socially disadvantaged group, and
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`that any person with any traceable amount of minority ancestry must be regarded as
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`a member of a “socially disadvantaged group.”
`29. The Court should also enjoin Secretary Vilsack and his successors from ex-
`
`cluding any person with any traceable amount of minority ancestry from the defini-
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`tions of “socially disadvantaged group” and “socially disadvantaged farmer or
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`rancher.”
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`CLASS-ACTION ALLEGATIONS
`30. Plaintiff Miller brings this class action under Rule 23(b)(2) of the Federal
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`Rules of Civil Procedure.
`31. Plaintiff Miller seeks to represent a class of all farmers and ranchers in the
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`United States who are currently excluded from the Department’s interpretation of
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`“socially disadvantaged farmer or rancher.”
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`32. The number of individuals in this class makes joinder of the individual class
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`members impractical.
`33. There are questions of law common to the class, including whether the Con-
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`stitution or Title VI allows the Department to exclude farmers and ranchers from the
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`benefits of federal programs on account of their race.
`34. Plaintiff Miller’s claims are typical of other members of the class. Each of
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`them wishes to stop the Department of Agriculture from excluding them from the
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`benefits of federal programs on account of their race.
`35. Plaintiff Miller adequately represents the interests of the class, and he has
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`no interests antagonistic to the class.
`36. A class action is appropriate under Rule 23(b)(2) because the defendants
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`are acting on grounds that apply generally to the class, so that final injunctive relief or
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`corresponding declaratory relief is appropriate respecting the classes as a whole.
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`DEMAND FOR RELIEF
`37. Plaintiff Miller respectfully requests that the court:
`
`a.
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`certify a class of all farmers and ranchers in the United States who are
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`currently excluded from the Department’s interpretation of “socially
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`disadvantaged farmer or rancher;”
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`b.
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`award the declaratory relief described in paragraphs 19, 20, 23, and
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`28;
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`c.
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`permanently enjoin Secretary Vilsack and his successors from imple-
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`menting any racial exclusions or discriminatory racial preferences in
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`Department of Agriculture programs;
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`d.
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`e.
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`award costs and attorneys’ fees under 42 U.S.C. § 1988;
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`award all other relief that the Court may deem just, proper, or equi-
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`table.
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`Respectfully submitted.
`
` /s/ Jonathan F. Mitchell
`Jonathan F. Mitchel l
`Texas Bar No. 24075463
`Mitchell Law PLLC
`111 Congress Avenue, Suite 400
`Austin, Texas 78701
` 0 (phone) 394-(512) 686
`
`
`(512) 686-3941 (fax)
`jonathan@mitchell.law
`
`
`
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`
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`
`
`Counsel for Plaintiff and
`the Proposed Class
`
`
`
`
`Gene P. Hamilton*
`Virginia Bar No. 80434
`Vice-President and General Counsel
`America First Legal Foundation
`300 Independence Avenue SE
`Washington, DC 20003
`(202) 964-3721
`gene.hamilton@aflegal.org
`
`Charles W. Fillmore
`H. Dustin Fillmore
`The Fillmore Law Firm, L.L.P.
`201 Main Street, Suite 801
`Fort Worth, Texas 76102
`(817) 332-2351 (phone)
`(817) 870-1859 (fax)
`chad@fillmorefirm.com
`dusty@fillmorefirm.com
`
` pro hac vice application pending
`
`
`Dated: April 26, 2021
`
` *
`
`
`
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