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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
`
`
`
`
`Sid Miller, Greg Macha, James Meek,
`Jeff Peters, and Lorinda
`O’Shaughnessy, on behalf of themselves
`and others similarly situated,
`
`
`
`
`
`
`
`Plaintiffs,
`
` Case No. 4:21-cv-00595-O
`
`v.
`
`Tom Vilsack, in his official capacity as
`Secretary of Agriculture,
`
`Defendant.
`
`
`
`
`
`
`
`PLAINTIFFS’ FIRST AMENDED 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-
`
`lumbia public schools violated the Due Process Clause of the Fifth Amendment).
`
`Equal rights under law is the cornerstone of American constitutional jurispru-
`
`dence: the principle that all citizens, regardless of status, wealth, race, color, religion,
`
`or creed, have the same rights and are entitled to the same standard of justice. These
`
`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
`
`Lincoln Memorial by Martin Luther King.
`
`As a nation, we are devoted to the task of satisfying these sacred ideals and provid-
`
`ing equal rights to citizens of all races, as the Constitution requires. Profound progress
`
`has been made, and extraordinary milestones reached, throughout our history, serving
`
`as an inspiration to humanity and the nations of the world. Yet, today, the Department
`
`of Agriculture lurches America dangerously backward, reversing the clock on Ameri-
`
`can progress, and violating our most sacred and revered principles by actively and
`
`invidiously discriminating against American citizens solely based upon their race. This
`
`is illegal, it is unconstitutional, it is wrong, and it must stop.
`
`Indeed, the United States Department of Agriculture administers numerous stat-
`
`utes that provide government aid to “socially disadvantaged farmers and ranchers.”
`
`The Department of Agriculture interprets this phrase to include African Americans,
`
`Hispanics, Native Americans, Alaskan natives, Asian-Americans, and Pacific Islanders.
`
`But white farmers and ranchers are not included within the definition of “socially
`
`disadvantaged farmers and ranchers,” making them ineligible for aid under these fed-
`
`eral programs.
`
`These racial exclusions are patently unconstitutional, and the Court should per-
`
`manently enjoin their enforcement. Doing so will promote equal rights under the law
`
`for all American citizens and promote efforts to stop racial discrimination, because
`
`“[t]he way to stop discrimination on the basis of race is to stop discriminating on the
`
`basis of race.” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,
`
`748 (2007) (Roberts, C.J., concurring).
`
`American citizens today represent a beautiful, complex, and increasingly interwo-
`
`ven fabric of racial backgrounds. Government action that tears at that fabric and di-
`
`vides its pieces—rather than reinforcing that fabric’s unifying and binding ties—dis-
`
`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
`
`U.S.C. § 1343.
`2. Venue is proper because a substantial part of the events giving rise to the
`
`claims occurred in this judicial district. See 28 U.S.C. § 1391(b)(2).
`
`PARTIES
`3. Plaintiff Sid Miller is a farmer and rancher who resides in Erath County,
`
`Texas. He also serves as Agriculture Commissioner for the State of Texas. Mr. Miller
`
`is suing in his capacity as a private citizen, and not on behalf of the State of Texas or
`
`the Texas Department of Agriculture.
`4. Plaintiff Greg Macha is a white rancher who resides in Wallis, Texas.
`5. Plaintiff James Meek is a white farmer and rancher who resides in Alvord,
`
`Texas.
`6. Plaintiff Jeff Peters is a white farmer and rancher who resides in Arlington,
`
`Texas.
`7. Plaintiff Lorinda O’Shaughnessy is a white farmer and rancher who resides
`
`in Placedo, Texas.
`8. Defendant Tom Vilsack is the U.S. Secretary of Agriculture. Secretary Vilsack
`
`is sued in his official capacity.
`
`STATEMENT OF FACTS
`9. Sections 1005 and 1006 of the American Rescue Plan Act of 2021, H.R.
`
`1319, 117th Cong. (2021), provide aid to farmers and ranchers who have been
`
`harmed by the COVID-19 pandemic—including loan forgiveness up to 120 percent
`
`of the value of the loan—but only if they qualify as a “socially disadvantaged farmer
`
`or rancher.” See Exhibit 1.
`10. Numerous other federal statutes limit government aid to individuals who
`
`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
`
`of a farm or ranch to a . . . socially disadvantaged farmer or rancher.”); 7 U.S.C.
`
`§ 1985(c)(1)(B) (requiring the Secretary of Agriculture to “offer to sell” certain
`
`properties to “a qualified beginning farmer or rancher or a socially disadvantaged
`
`farmer or rancher at current market value based on a current appraisal” before at-
`
`tempting to sell that property at a public sale); 7 U.S.C. § 1627c(d)(5)(C)(i)(II) (re-
`
`quiring the Secretary of Agriculture to give preference to applications submitted by
`
`“socially disadvantaged farmers or ranchers” when awarding grants).
`11. Federal law defines “socially disadvantaged farmer or rancher” as “a farmer
`
`or rancher who is a member of a socially disadvantaged group.” 7 U.S.C.
`
`§ 2279(a)(5). “Socially disadvantaged group,” in turn, is defined as:
`
`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.
`
`7 U.S.C. § 2279(a)(6).
`12. The Department of Agriculture has adopted a general definition of “socially
`
`disadvantaged farmer and rancher” as follows:
`
`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
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`U.S. Department of Agriculture, Farming Opportunities Training and Outreach Grant
`
`Program, https://www.usda.gov/sites/default/files/documents/2501_FactSheet.pdf
`
`(last visited on June 2, 2021) (attached as Exhibit 2).1
`13. On May 21, 2021, the United States Department of Agriculture, through
`
`the Farm Service Agency (FSA), issued a press release announcing a Notice of Funds
`
`Availability (NOFA), in which it would start making loan payments for eligible bor-
`
`rowers with qualifying direct farm loans, pursuant to section 1005 of the American
`
`Rescue Plan Act. See U.S. Department of Agriculture, Press Release, In Historic Move,
`
`USDA to Begin Loan Payments to Socially Disadvantaged Borrowers under American
`
`Rescue Plan Act Section 1005, available at https://bit.ly/3fAxAuB (last visited May
`
`27, 2021) (attached as Exhibit 3). The Department of Agriculture published this no-
`
`tice in the Federal Register on May 26, 2021. See Notice of Funds Availability, 86
`
`Fed. Reg. 28,329 (May 26, 2021) (attached as Exhibit 4).
`14. The notice defines, for the purposes of eligibility for loan forgiveness, “so-
`
`cially disadvantaged farmer or rancher” as:
`
`[A] farmer or rancher who is a member of a socially disadvantaged
`group whose members have been subjected to racial or ethnic prejudice
`because of their identity as members of a group without regard to their
`individual qualities, as defined by section 2501(a) of the Foot, Agricul-
`ture, Conservation, and Trade Act of 1990 (7 U.S.C. 2279(a)).
`
`
`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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`Id. at 28,330. The notice goes on to state that this includes “American Indians or
`
`Alaskan Natives,” “Asians,” “Blacks or African Americans,” “Native Hawaiians or
`
`other Pacific Islanders,” and “Hispanics or Latinos.” Id.
`15. Setting aside the propriety of the use of these classifications for benefits, this
`
`definition of “socially disadvantaged farmer and rancher” departs from the plain stat-
`
`utory text by failing to include white ethnic groups that have unquestionably suffered
`
`ethnic prejudice.
`16. Indeed, throughout American history, many white ethnic groups have been
`
`subject to “racial or ethnic prejudice because of their identity as members of a group
`
`without regard to their individual qualities,” including Irish, Italians, Germans, Jews,
`
`and eastern Europeans. Members of these ethnic groups unambiguously qualify as
`
`members of a “socially disadvantaged group,” and as “socially disadvantaged farmers
`
`or ranchers,” under the plain text of 7 U.S.C. §§ 2279(a)(5)–(6).
`17. In addition, neither the statutes nor the Department of Agriculture defines
`
`what percentage of “socially disadvantaged” ancestry is necessary to qualify one as a
`
`member of a “socially disadvantaged group.” There are many individuals, such as
`
`Homer Plessy and Elizabeth Warren, who have been regarded as racial minorities de-
`
`spite having only small traces of minority ancestry.
`18. Mr. Plessy, for example, was one-eighth black, yet he was regarded as black
`
`by the government of Louisiana and forbidden to sit in a railroad car reserved for
`
`white passengers. See Plessy v. Ferguson, 163 U.S. 537, 538 (1896). Senator Warren
`
`has been recognized as a Native American by Harvard Law School and the American
`
`Association of Law Schools,2 despite the fact that a recent DNA test showed that any
`
`
`2. See Stephanie Ebbert, Directories Identified Warren as Minority, The Boston
`Globe (April 30, 2012), available at https://bit.ly/3vCvU9v (last visited on June
`2, 2021) (“Elizabeth Warren . . . was listed as a minority professor in American
`law school directories for nine years before she landed at Harvard, documents
`show.”); id. (“Elizabeth Warren . . . said Friday she didn’t realize Harvard Law
`
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`Native American ancestry in Ms. Warren’s lineage would have been 6 to 10 genera-
`
`tions ago.3 Yet nothing in the relevant statutes (or in the Department’s purported
`
`interpretations of these statutes) establishes a blood-quantum cut-off or defines the
`
`amount of “socially disadvantaged” ancestry needed to qualify for aid under any of
`
`these federal programs.
`19. Plaintiff Sid Miller is a farmer and rancher. His ancestry is overwhelmingly
`
`white, and primarily Scotch-Irish. As is the case with many Americans, his ancestry is
`
`not limited to just one racial or ethnic group. Mr. Miller also has approximately 2%
`
`black ancestry.
`20. Plaintiff Greg Macha is a white rancher who resides in Wallis, Texas. He has
`
`a farm loan administered by the Farm Service Agency and a farm loan guaranteed by
`
`the Farm Service Agency.
`21. Plaintiff James Meek is a white farmer and rancher who resides in Alvord,
`
`Texas. He has a farm loan administered by the Farm Service Agency and a farm loan
`
`guaranteed by the Farm Service Agency.
`22. Plaintiff Jeff Peters is a white farmer and rancher who resides in Arlington,
`
`Texas. He has a farm loan administered by the Farm Service Agency and a farm loan
`
`guaranteed by the Farm Service Agency.
`23. Plaintiff Lorinda O’Shaughnessy is a white farmer and rancher who resides
`
`in Placedo, Texas. She has a farm loan administered by the Farm Service Agency and
`
`a farm loan guaranteed by the Farm Service Agency.
`
`
`School had been promoting her as a Native American faculty member in the
`1990s”).
`3. See Astead W. Herndon, Elizabeth Warren Stands by DNA Test. But Around Her,
`Worries Abound., The New York Times
`(Dec. 8, 2018), available at
`https://nyti.ms/2R7mCDj (last visited on June 2, 2021) (“Ms. Warren’s DNA
`test, which was conducted by the renowned geneticist Carlos Bustamante and re-
`leased by her office, showed strong evidence that Ms. Warren has Native American
`pedigree ‘6–10 generations ago.’”).
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`24. The statutes described above, as currently interpreted and enforced by the
`
`Department of Agriculture, exclude the plaintiffs from the benefits of programs for
`
`“socially disadvantaged farmers and ranchers” on account of their race.
`25. The plaintiffs sue on behalf of all farmers and ranchers in the United States
`
`who are excluded from the benefits of programs for “socially disadvantaged farmers
`
`and ranchers” because of their race or ethnicity.
`
`Claim 1: The Department of Agriculture’s Racial Exclusions
`Violate The Constitution and Title VI
`26. The Constitution prohibits the federal government from discriminating on
`
`account of race or ethnicity. See Bolling v. Sharpe, 347 U.S. 497 (1954).
`27. Title VI of the Civil Rights Act of 1964 likewise prohibits discrimination on
`
`the grounds of race, color, or national origin in any program that receives federal
`
`funds. See 42 U.S.C. § 2000d.
`28. The Department of Agriculture is violating the Constitution and Title VI
`
`by discriminating on the grounds of race, color, and national origin in administering
`
`its programs.
`29. The Court should declare unconstitutional any statute limiting the benefits
`
`of federal programs to “socially disadvantaged farmers and ranchers.”
`30. The Court should further declare that the Department is violating the Con-
`
`stitution and Title VI by excluding individuals and entities from the benefit of federal
`
`programs on the grounds of race, color, and national origin, and by discriminating
`
`against individuals and entities on this basis, and it should permanently enjoin Secre-
`
`tary Vilsack and his successors from implementing any racial exclusions or discrimina-
`
`tory racial preferences in the Department’s programs.
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`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
`31. If the Court is unwilling to declare the Department’s racial exclusions and
`
`the underlying statutes unconstitutional, then it should at the very least declare that
`
`the phrase “socially disadvantaged group” must be construed, as a matter of statutory
`
`interpretation, to include ethnic groups of all types that have been subjected to racial
`
`and ethnic prejudice, including (but not limited to) Irish, Italians, Germans, Jews,
`
`and eastern Europeans.
`32. The statutory text is clear: All “group[s] whose members have been sub-
`
`jected to racial or ethnic prejudice because of their identity as members of a group
`
`without regard to their individual qualities” fall within the definition of “socially dis-
`
`advantaged group.” 7 U.S.C. § 2279(a)(6). White ethnic groups that have experi-
`
`enced past racial or ethnic prejudice are no less protected by the statute than members
`
`of minority groups. Because the text is unambiguous, there is no grounds for “defer-
`
`ring” to an atextual interpretation that the Department might offer. See Digital Realty
`
`Trust, Inc. v. Somers, 138 S. Ct. 767, 781–82 (2018).
`33. The Court should therefore declare that the Department of Agriculture’s
`
`current interpretation of “socially disadvantaged group” violates the clear and unam-
`
`biguous text of 7 U.S.C. § 2279(a)(6), by excluding white ethnic groups that have
`
`been subjected to racial and ethnic prejudice, and it should enjoin Secretary Vilsack
`
`and his successors from excluding Irish, Italians, Germans, Jews, eastern Europeans,
`
`and any other ethnic group that has suffered racial and ethnic prejudice, from the
`
`definitions of “socially disadvantaged group” and “socially disadvantaged farmer or
`
`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
`34. If the Court is unwilling to declare as unconstitutional the Department’s
`
`racial exclusions and the underlying statutes, then it should at the very least declare
`
`that 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.
`35. The statutes are silent on how much minority ancestry is needed before one
`
`can qualify as a member of a “socially disadvantaged group,” or as a “socially disad-
`
`vantaged farmer or rancher.” An interpretation of the underlying statutes that excludes
`
`plaintiffs like Miller because he is not “black enough” would raise grave constitutional
`
`concerns under Bolling v. Sharpe, 347 U.S. 497 (1954), and it should be rejected for
`
`that reason alone. For the same reason, the statutes should not be construed to em-
`
`power the Department of Agriculture to choose a minimum threshold of minority
`
`ancestry when determining eligibility for benefits.
`36. The Court is therefore obligated to interpret 7 U.S.C. § 2279(a)(5)–(6) in
`
`a manner that avoids this serious constitutional question under the canon of consti-
`
`tutional avoidance. See Ohio v. Akron Center for Reproductive Health, 497 U.S. 502,
`
`514 (1990) (“[W]here fairly possible, courts should construe a statute to avoid a dan-
`
`ger of unconstitutionality.” (citation and internal quotation marks omitted)).
`37. The canon of constitutional avoidance trumps any deference that the agency
`
`might try to claim if it insisted on a blood-quantum threshold. See Edward J. DeBar-
`
`tolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575
`
`(1988); see also Epic Systems Corp. v. Lewis, 138 S. Ct. 1612, 1630 (2018) (courts
`
`must consider all “traditional canons” at Chevron Step One).
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`38. The Court should therefore declare that the statute, at 7 U.S.C.
`
`§ 2279(a)(5)–(6), prohibits the Department of Agriculture from establishing a blood-
`
`quantum threshold for status as a member of a “socially disadvantaged group, and
`
`that any person with any traceable amount of minority ancestry must be regarded as
`
`a member of a “socially disadvantaged group.”
`39. 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-
`
`tions of “socially disadvantaged group” and “socially disadvantaged farmer or
`
`rancher.”
`
`CLASS-ACTION ALLEGATIONS
`40. The plaintiffs bring this class action under Rule 23(b)(2) of the Federal
`
`Rules of Civil Procedure.
`41. The plaintiffs seek to represent a class of all farmers and ranchers in the
`
`United States who are currently excluded from the Department’s interpretation of
`
`“socially disadvantaged farmer or rancher.”
`42. Plaintiffs Greg Macha, James Meek, Jeff Peters, and Lorinda O’Shaughnessy
`
`seek to represent a second and more narrow class of all farmers and ranchers in the
`
`United States who are encountering, or who will encounter, racial discrimination from
`
`the United States Department of Agriculture on account of section 1005 of the Amer-
`
`ican Rescue Plan Act.
`43. The number of individuals in these classes makes joinder of the individual
`
`class members impractical.
`44. There are questions of law common to the classes, including whether the
`
`Constitution or Title VI allows the Department to exclude farmers and ranchers from
`
`the benefits of federal programs on account of their race.
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`45. The plaintiffs’ claims are typical of other members of the classes. Each of
`
`them wishes to stop the Department of Agriculture from excluding them from the
`
`benefits of federal programs on account of their race.
`46. The plaintiffs adequately represents the interests of the classes, and they have
`
`no interests antagonistic to the classes.
`47. A class action is appropriate under Rule 23(b)(2) because the defendants
`
`are acting on grounds that apply generally to the classes, so that final injunctive relief
`
`or corresponding declaratory relief is appropriate respecting the classes as a whole.
`
`DEMAND FOR RELIEF
`48. The plaintiffs respectfully requests that the court:
`
`a.
`
`certify a class of all farmers and ranchers in the United States who are
`
`currently excluded from the Department’s interpretation of “socially
`
`disadvantaged farmer or rancher;”
`
`b.
`
`certify an additional class of all farmers and ranchers in the United
`
`States who are encountering, or who will encounter, racial discrimi-
`
`nation from the United States Department of Agriculture on account
`
`of section 1005 of the American Rescue Plan Act;
`
`c.
`
`award the declaratory relief described in paragraphs 29, 30, 33, and
`
`38;
`
`d.
`
`permanently enjoin Secretary Vilsack and his successors from imple-
`
`menting any racial exclusions or discriminatory racial preferences in
`
`Department of Agriculture programs;
`
`e.
`
`f.
`
`award costs and attorneys’ fees under 42 U.S.C. § 1988;
`
`award all other relief that the Court may deem just, proper, or equi-
`
`table.
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`
`
`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
`
`H. Dustin Fillmore III
`Texas Bar No. 06996010
`Charles W. Fillmore
`Texas Bar No. 00785861
`The Fillmore Law Firm, LLP
`201 Main Street, Suite 801
`Fort Worth, Texas 76102
`(817) 332-2351 (phone)
`(817) 870-1859 (fax)
`dusty@fillmorefirm.com
`chad@fillmorefirm.com
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`Dated: June 2, 2021
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`Respectfully submitted.
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` /s/ Jonathan F. Mitchell
`Jonathan F. Mitchel l
`Texas Bar No. 24075463
`Mitchell Law PLLC
`111 Congress Avenue, Suite 400
`Austin, Texas 78701
` 394-(512) 686
`0 (phone)
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`(512) 686-3941 (fax)
`jonathan@mitchell.law
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`Counsel for Plaintiffs and
`the Proposed Classes
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`plaintiffs’ first amended class-action complaint
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`Page 13 of 14
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`Case 4:21-cv-00595-O Document 11 Filed 06/02/21 Page 14 of 14 PageID 346Case 4:21-cv-00595-O Document 11 Filed 06/02/21 Page 14 of 14 PageID 346
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`CERTIFICATE OF SERVICE
`I certify that on June 2, 2021, I served this document through CM/ECF upon:
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`Emily Sue Newton
`Senior Trial Counsel
`United States Department of Justice
`Civil Division, Federal Programs Branch
`1100 L Street, NW
`Washington, D.C. 20005
`(202) 305-8356 (phone)
`(202) 616-8460 (fax)
`emily.s.newton@usdoj.gov
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`Counsel for Defendants
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` /s/ Jonathan F. Mitchell
`Jonathan F. Mitchel l
`Counsel for Plaintiffs and
`the Proposed Classes
`
`plaintiffs’ first amended class-action complaint
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`Page 14 of 14
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