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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 1 of 14 PageID 653Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 1 of 14 PageID 653
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`bb
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`FILED
`KAREN MITCHELL
`CLERK, U.S. DISTRICT
`COURT
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`June 1, 2021
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`
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 2 of 14 PageID 654
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`students were inherently unequal.
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`In Bolling Et. Al. v. Sharpe et. al.,
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`1954, the Supreme Court held the Equal Protection Clause of the
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`Fourteenth Amendment was applicable under the Fifth Amendment
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`prohibiting the federal government from denying due process making
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`equal protection of the law applicable in all matters. Unfortunately,
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`the USDA does not adhere to the equal protection of the law as it
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`pertains to Socially Disadvantaged Farmers in its failure to provide a
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`final agency decision as outlined in the APA and ECOA.
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`II.
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`Disparate Treatment
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`When a similarly situated White farmer has a grievance, he can file
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`directly with the Administrative Law Judge7 C.F.R. §§ 15.8(c); 10(f);
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`10(g); Subpart C. His complaint takes the ordinary course to receive a
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`determination, which is typically within 180 days. In 1862, when the
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`USDA was established, it required former enslaved Africans to have
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 2 of 14 PageID 654
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`credit or collateral to secure a farm loan. From the beginning, the
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`USDA earned the title, “the last plantation,” due to the predatory
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`lending terms directed against Black farmers.
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`III.
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`The Civil Rights Report of 2003 found that loan applications from
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`White farmers were processed in an average of 60 days, compared to
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`220 days for Black applicants. Notably, between 2006 to 2016, Black
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`2
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 3 of 14 PageID 655
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`farmers were foreclosed on at a higher rate than any other race,
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`making up 13 percent of USDA foreclosures. This is significant
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`because they make up less than 3 percent of farm loan recipients.
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`Despite Black farmers being a part of the Socially Disadvantaged r
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`protected class as defined under the Food, Agriculture, Conservation,
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`and Trade Act of 1990 (7 25 U.S.C. 2279(a)) and the Civil Rights Act
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`of 1964, they are only given the opportunity to be foreclosed upon and
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`not due process to protect their property. This is a violation of the
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`Fifth Amendment. We are seeking enforcement of the APA statute to
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`toll the statute of limitation and ECOA in an effort to require the
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`USDA to provide a final agency decision in a timely manner like it has
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`done for White farmers. Furthermore, we are seeking due process for
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`the Plaintiff in obtaining a formal administrative hearing based on the
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`record just as White farmers are given.
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 3 of 14 PageID 655
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`JUDICIAL REVIEW OF INFORIlfllL RULEIlJAKING lJMDER THE
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`ADMINISTRATIVE PROCEDURE ACT (APA) PURSUANT § 5 U.S.C.zo6
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`REQUIRE TO EXHAUSTADMINISTRATIVE REMEDIES
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`IV.
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`The avoidance of the Assistant Secretary of Civil Rights in rendering a
`final agency decision is an abuse of discretion. Purposefully, tolling
`the 180-day rule under the APA (which requires a final agency
`decision and subsequent use of the “lapse of 18o-days” as a basis to
`dismiss many Socially Disadvantaged Farmers cases in District Court)
`is an abuse of power. Under the Administrative Procedures Act
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 4 of 14 PageID 656
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`(APA), the District Court’s review the Respondents’ informal
`rulemaking was to determine if it was, “arbitrary, capricious, an abuse
`of discretion, or otherwise not in accordance with law.” 5 U.S.C. §
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`706(2)(A). As the Supreme Court held in Citizens to Preserve Overton
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`Park v. Volpe, 401 U.S. 402 (1971), “the generally applicable
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`standards of § 706 require the reviewing court to engage in a
`substantial inquiry.” Id. at 415. The Court clarified this mandate in
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`Camp 1). Pitts, 411 U.S. 138 (1973), stating that, “the focal point for
`judicial review should be the administrative record already in
`existence, not some new record made initially in the reviewing court.”
`Id. at 142; see also Fla. Power &Light Co. v. Lorion, 470 U.S.729,
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`743—44 (1985) (“The task of the reviewing court is to apply the
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`appropriate APA standard of review, 5 U.S.C. § 706, to the agency
`decision based on the record the agency presents to the reviewing
`court”).
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`White farmers get final agency decisions in the prescribed time of 180 days,
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`as set forth in the APA, which allows for a formal hearing. This is unlike
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`Socially Disadvantaged Farmers who often wait years to receive a final
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`agency decision and are often denied a formal administrative hearing like in
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`the case of the Plaintiff. If a program complaint was not subject to section
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 4 of 14 PageID 656
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`741 provisions, the Office for Civil Rights is subject to the provisions of the
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`Administrative Procedures Act in which the ASCR has 180 days to render a
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`final agency decision. We prayerfully request
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`the Court review ‘the full
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`administrative record to prove non—compliance of the APA 180—day rule
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`that is contrary to public policy of the Congressional moratorium and the
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`terms of the Pigford settlement agreement.
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 5 of 14 PageID 657
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`CONTINUING VIOLATION UNDER ECOA PURSUANT TO§ P.L. 1 05277,
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`§741
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`V.
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`USDA’s refusal to provide a final agency decision in prohibiting SDF
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`from relief as outlined under the Pigford settlement decree is a
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`continuing violation of ECOA. [1] The ECOA prohibits discrimination
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`against credit applicants based on race, color, religion, national
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`origin, sex, marital status, age, or source of income. 15 U.S.C. §§1691
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`et seq.
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`VII. Under ECOA §P.L. 105-»277, §741, in the fiscal year of 1999,
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`Congress passed legislation allowing Socially Disadvantaged Farmers
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`who had pending claims of discrimination against the USDA from
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`1981 to 1996, the right to pursue their claim in court, void Of the
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 5 of 14 PageID 657
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`tolling of the statute of limitations. Section 741(a) allowed a farmer to
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`file a complaint in Federal District Court or (b) a right to a formal
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`administrative hearing after USDA issued a final agency decision.
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`Once again, Congress had to step in and has now mandated the
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`Secretary to write off all debt for SDFs under the Emergency Relief
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`for Farmers of Color Act of 2021 which allocated $4 billion to pay off
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 6 of 14 PageID 658
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`outstanding debt, taxes, and offsets. The Act states that Secretary
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`shall provide relief for 100 percent of the total debt and 20 percent for
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`tax purposes. Respondent Secretary of Agriculture has now added
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`the terminology “up to”
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`in an attempt
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`to deprive Socially
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`Disadvantaged Farmers of the full performance of a Congressional
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`Act to provide relief that has been denied for nearly twenty—five years
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`(see ex. 7). The history of discriminatory pattern and practices by a
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`long lineage of past and present Secretary’s
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`to manipulate
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`administrative relief must stop. We are requesting the Court to
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`compel the Secretary to enforce what has been legislated into law by
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`Congressional Acts.
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`Like in the Plaintiff, many claimants have sought relief and
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`enforcement of the Pigford decree in District Courts, i.e. Beniot or
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`like the Plaintiff in bankruptcy court, only for the USDA to request a
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 6 of 14 PageID 658
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`dismissal for failure to exhaust remedies under ECOA. The USDA’s
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`abuse of the two statute of limitations is another cause for dismissal.
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`Often, the USDA will exercise its sovereign immunity and move to bar
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`the request for damages under the Civil Rights Act, the APA, and the
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`Fifth Amendment.
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`|O\
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 7 of 14 PageID 659
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`Despite the USDA’s omission of racial and gender discrimination in
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`the settlement of Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999),
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`Native Americans (Keepseagle v. Veraman, 2001 US. Dist. LEXIS
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`25220 (D.D.C. December 11, 2001)), Hispanics (Garcia v. Vilsack,
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`563 F.3d 519 (DC. Cir. 2009), cert. denied, 130 S. Ct. 1138 (2010)),
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`and White women (Love 0. Connor, 525 F. Supp. 2d 155 (D.D.C.
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`2007).), ECOA provisions practice is stili taking place via the refusal
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`to provide a final agency decision and denial of a formal hearing.
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`IX. In 2008, recognizing the USDA’s continued violation of ECOA,
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`Congress passed the Food Energy and Conservation Act known as,
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`“the Farm Bill.” This provided a moratorium on foreclosures and
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`offsets for farmers. The challenge with the moratorium was that the
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 7 of 14 PageID 659
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`farmer had to obtain a final agency decision for the provision to
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`apply. We are requesting enforcement under § P.L. 105*277, §741 by
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`the Secretary of Agriculture.
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`The Secretary of Agriculture's inaction in enforcing the moratorium
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`is not only a violation of the 2008 Farm Bill, but also a violation of the
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`Civil Rights Act of 1964 (title 6 amended 1991)
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`that prohibits
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 8 of 14 PageID 660
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`discrimination based on contractual agreements. The Secretary had a
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`contractual agreement to adhere to, but purposefully failed to issue
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`relief, a final agency decision, or allowance of a formal hearing. This is
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`a defiant display of repudiation.
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`The District of Columbia Circuit Court has recently applied the
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`doctrine of equitable tolling in a variety of cases, most notably, “in
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`cases where strict application [of the statute of limitations] would be
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`inequitable.” Phillips v. Heine, 984 F.2d 489, 491 (DC. Cir. 1993); see
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`also Jankovic v. Int’l Crisis Group, 494 F.3d 1080, 1086—87 (DC. Cir.
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`2007) (holding that equitable tolling applies when the plaintiff is
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`unable to find information vital to his claim). Tolling can only begin
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`upon the discovery of an injury. The refusal to issue a final agency
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`decision or
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`respond to SDF complaint discovery has been a
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`purposefully delay thereby tolling the statute of limitations under
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 8 of 14 PageID 660
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`ECOA. The non—enforcement of the ECOA in issuing a final agency
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`decision led to the loss of property. Therefore, we are requesting a
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`final agency decision from the USDA on behalf of the Plaintiff based
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`on the authority of the 2008 moratorium and the Emergency Relief
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`for Farmers of Color Act of 2021 which mandates the Secretary to
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`ICC)
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 9 of 14 PageID 661
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`release all public and private debt, barring any and all adverse actions
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`from private lenders.
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`PRAYER OF RELIEF
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`1. Compel the Secretary of Agriculture for a formal hearing on the
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`Merits to potential class members who are eligible for the same under
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`§ 741;
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`2. Compel the Secretary to declare, under seal of this court, all Socially
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`Disadvantaged Farmers’ loans written off, complete with loan number
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`and a certified copy of the debt write off; and the payment of 20
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`percent of the total write off to farmers within 180 days of the filing of
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 9 of 14 PageID 661
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`this action;
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`3. Compel the Secretary of Agriculture and the United States Attorney to
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`use the authority granted to the Secretary of Agriculture pursuant 42
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`U.S.C. § 1480(c)(d) to release all liens and UCC filings in the county
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`in which the real property is located. Further, to enter the released
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`real property into this Court
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`including language that the loans
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 10 of 14 PageID 662
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`associated with released property is forever barred against adverse
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`action such as foreclosure and offsets and mail a certified copy to the
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`Socially Disadvantaged Farmer or Rancher;
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`4. Compel the Secretary of Agriculture to return all offset money taken
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`by the Respondents, the Secretary of Agriculture, and the Department
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`of Agriculture from Socially Disadvantaged Farmers or Ranchers who
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`did not receive a final agency decision within 180 days, consistent
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`with the Administrative Procedures Act and Food Energy and
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`Conservation Act, later codified as 7 CFR 766. 358;
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`5. Compel Respondent Secretary to declare, within 120 days, that all
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`land belonging to Socially Disadvantaged Farmers or Ranchers facing ‘
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`foreclosures, and guaranteed banks associated with foreclosure, if
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`any, have been paid in full and are forever barred from any adverse
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`action from a private lender(s‘) on any and all eligible loans subject to
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 10 of 14 PageID 662
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`debt relief under the Emergency Relief for Farmers of Color Act of
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`2021;
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`6. Compel Respondents, the Secretary of Agriculture and the United
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`States Attorney General —Merrick Garland, to submit to this Court all
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`foreclosures of program farm ownership loans or farm operating
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`loans that led to foreclosure of Socially Disadvantaged Farmers who
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 11 of 14 PageID 663
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`had an accepted discrimination complaint from May 22, 2008 to
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`present. This also includes third party actions in which the United
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`States guaranteed the loan;
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`7. Compel Respondents, Secretary of Agriculture— Tom Vilsack and the
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`United States Attorney General, to bring claims in the jurisdiction in
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`which foreclosure action was taken against Socially Disadvantaged
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`Farmers who had pending foreclosure complaints after May 22,
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`2008. The Secretary of Agriculture can bring such claims in certain
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`jurisdictions under fraudulent transfers and powers granted to the
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`Secretary under 42 U.S.C.§ 1980(c)(d). Such loans were provided
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`moratorium relief by settlement agreement through the 2008 Food
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`Energy and Conservation Act, later codified as 7 C.F.R. 766.358;
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`8. Compel the Secretary of Agriculture to file in this court what is believe
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`to be 20,000 pending discrimination complaint since the year 2000
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 11 of 14 PageID 663
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`lodged at the Office for Civil Rights in which manner were resolved;
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`the number of final agency decisions actually given to the affected
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`farmer;
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`the amount of
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`farmers
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`that
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`received an finding of
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`discrimination;
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`the number of Socially Disadvantaged Farmers
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`referred to the ALJ by the ASCR or Office for Civil Rights; How many
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`findings of discrimation that produced monetary damages;
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`the
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 12 of 14 PageID 664
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`number of White male farmers or petitioners that were heard before
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`the AL]; and how much in monetary damages has the Dept. of
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`Agriculture paid out through the Administrative Law Judges since the
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`year 2000.
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`9. Compel the Secretary of Agriculture to pay the balance of the 46
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`billion dollars allocated to the China Trade Wars Relief to the lower
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`50% of White Farmers and All Socially Disadvantaged Farmers in
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`Equal payments.
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`8. ECOA was enacted by Congress in 1989. ECOA is a federal statute
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`that prohibits credit grantors from discriminating when granting
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`credit based on race, color, religion, national origin, gender, marital
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`status, or age. ECOA Section 741(c) provides: mif an eligible claim is
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`denied administratively, the claimant shall have at least 180 days to
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`commence ‘a cause of action in a Federal Court of competent
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 12 of 14 PageID 664
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`jurisdiction seeking review of such denial. We are requesting
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`reasonable attorney’s fees and costs under ECOA; and
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`9. in addition, the Equal Access to Justice Act (EAJA) deems the United
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`States
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`liable
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`for
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`attorneys’
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`fees
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`in many court
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`cases
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`and
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`administrative proceedings that it loses (and some that it wins) in the
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`event it fails to prove that its position was substantially justified. 5
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 13 of 14 PageID 665
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`U.S.C. § 504 and 28 U.S.C. § 2412(d). As noted in the Decision and
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`Order entered in this case, the costs of the action and attorney fees
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`are added to the award. 15 U.S.C. §1691e(d). Traditionally, the usual
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`' starting point for determining the amount of a reasonable fee is an
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`examination of the number of hours reasonably expended multiplied
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`by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433
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`(1983). Reasonableness is required in both the number of hours billed
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`and the rate sought. Parties seeking an award, “should submit
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`evidence supporting the hours worked and the rates claimed.” Id. at
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`433, 437. Where, as in this case, the fees and costs are being paid
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`pursuant to the Equal Access to Justice Act (EAJA) (See, 7 C.F.R.
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`§15f.25).
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 13 of 14 PageID 665
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`
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`[1] The Supreme Court has held that “federal statutes of limitations are
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`generally subject to equitable principles of tolling,” Rotalla v. Wood, 528
`U.S. 549, 560 (2000), and that such principles should apply “unless tolling
`would be inconsistent with the text of the relevant statute,” Young v. United
`States, 535 U.S. 43, 49 (2002) (internal quotation and citation omitted). To
`prevail on an equitable tolling claim, a plaintiff must show that “[s]he has
`been pursuing h[er] rights diligently, and. .
`. that some extraordinary
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`13
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`
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 14 of 14 PageID 666
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`circumstance stood in h[er] way.” Pace v. DiGuglielmo, 544 U.S. 408, 418
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`(2005).
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`Respecthh/mitte "
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`71/
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`PO. Box 422
`Arrington, Tn. 37014
`615 308 7787
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`I certify that a true and correct copy has been served to the following:
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`Jonathan Mitchell
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`111 Congress Avenue, Suite 400
`Austin, TX 78701
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`Case 4:21-cv-00595-O Document 15 Filed 06/01/21 Page 14 of 14 PageID 666
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