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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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`Sid Miller, et al.,
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`v.
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`Plaintiffs,
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`Tom Vilsack, in his official capacity as
`Secretary of Agriculture,
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`Defendant.
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`Case No. 4:21-cv-00595-O
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`BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION
`FOR PRELIMINARY INJUNCTION
`Section 1005 of the American Rescue Plan Act of 2021 instructs the Secretary of
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`Agriculture to provide loan forgiveness to farmers and ranchers—but only if they
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`qualify as a “socially disadvantaged farmer or rancher.” And the Department interprets
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`the phrase “socially disadvantaged farmer and rancher” in a manner that includes ra-
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`cial minorities but excludes whites. The plaintiffs respectfully request an order enjoin-
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`ing the defendant from providing loan forgiveness to individuals based on their race
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`or ethnicity.
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`FACTS
`Section 1005 of the American Rescue Plan Act of 2021, Pub. L 117-2 (2021),
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`provides aid to farmers and ranchers—including loan forgiveness up to 120 percent
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`of the value of the loan as of January 1, 2021—but only if they qualify as a “socially
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`disadvantaged farmer or rancher.” See Exhibit 1.
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`On May 21, 2021, the United States Department of Agriculture, through the
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`Farm Service Agency (FSA), issued a press release announcing a Notice of Funds
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`plaintiffs’ brief in support of motion for preliminary injunction
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`Availability (NOFA), in which it would start making loan payments for eligible bor-
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`rowers with qualifying direct farm loans, pursuant to section 1005 of the American
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`Rescue Plan Act. See Exhibit 2; see also U.S. Department of Agriculture, Press Release,
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`In Historic Move, USDA to Begin Loan Payments to Socially Disadvantaged Borrowers
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`under American Rescue Plan Act Section 1005, available at https://bit.ly/3fHNQd6
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`(last visited on June 2, 2021). The Department of Agriculture published the NOFA
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`in the Federal Register on May 26, 2021. See Exhibit 3; see also Notice of Funds Avail-
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`ability, 86 Fed. Reg. 28,329 (May 26, 2021).
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`The notice defines, for the purposes of eligibility for loan forgiveness, “socially
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`disadvantaged farmer or rancher” as:
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`[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)).
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`Id. at 28,330. The notice goes on to state that this includes “American Indians or
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`Alaskan Natives,” “Asians,” “Blacks or African Americans,” “Native Hawaiians or
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`other Pacific Islanders,” and “Hispanics or Latinos.” Id.
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`The plaintiffs in this case are farmers and ranchers who held qualifying FSA loans
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`on January 1, 2021, and—aside from their racial or ethnic backgrounds—would be
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`otherwise entitled to benefit from this program.
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`Plaintiff Greg Macha is a white rancher who resides in Wallis, Texas. Declaration
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`of Greg Macha ¶¶ 3–4. Plaintiff Macha held a qualifying loan on January 1, 2021.
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`Id. ¶ 5. Plaintiff James Meek is a white farmer and rancher who resides in Alvord,
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`Texas. Declaration of James Meek ¶¶ 3–4. Plaintiff Meek held a qualifying loan on
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`January 1, 2021. Id. ¶ 5. Plaintiff Jeff Peters is a white farmer and rancher who resides
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`in Arlington, Texas. Declaration of Jeff Peters ¶¶ 3–4. Plaintiff Peters held a qualify-
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`ing loan on January 1, 2021. Id. ¶ 5. Plaintiff Lorinda O’Shaughnessy is a white
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`plaintiffs’ brief in support of motion for preliminary injunction
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`rancher who resides in Placedo, Texas. Declaration of Lorinda O’Shaughnessy ¶¶ 3–
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`4. Plaintiff O’Shaughnessy held a qualifying loan on January 1, 2021. Id. ¶ 5.
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`THE PLAINTIFFS ARE ENTITLED TO A PRELIMINARY
`INJUNCTION
`To obtain a preliminary injunction, the plaintiffs must show: “(1) a substantial
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`likelihood of success on the merits, (2) a substantial threat of irreparable injury if the
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`injunction is not issued, (3) that the threatened injury if the injunction is denied out-
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`weighs any harm that will result if the injunction is granted, and (4) that the grant of
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`an injunction will not disserve the public interest.” Janvey v. Alguire, 647 F.3d 585,
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`595 (5th Cir. 2011). All four factors support a preliminary injunction.
`I.
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`The Plaintiffs Are Likely to Succeed on the Merits Because the
`Racial Preferences in Section 1005 Are Unconstitutional
`Racial classifications are antithetical to the Constitution, as the Supreme Court
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`has repeatedly recognized. See Washington v. Davis, 426 U.S. 229, 239 (1976) (“The
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`central purpose of the Equal Protection Clause of the Fourteenth Amendment is the
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`prevention of official conduct discriminating on the basis of race.”); Palmore v. Sidoti,
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`466 U.S. 429, 432 (1984) (footnote omitted) (“A core purpose of the Fourteenth
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`Amendment was to do away with all governmentally imposed discrimination based
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`on race.”); see also Bolling v. Sharpe, 347 U.S. 497, 500 (1954) (requiring the federal
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`government to comply with the constitutional prohibition on racial on the same terms
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`as the states). All government-imposed racial classifications are “presumptively inva-
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`lid”1 and “inherently suspect,”2 and they will not be tolerated unless the government
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`proves that a racial classification is “narrowly tailored” and “furthers compelling gov-
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`ernmental interests.” Johnson v. California, 543 U.S. 499, 505 (2005) (citation and
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`internal quotation marks omitted).
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`1. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272 (1979).
`2. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 223 (1995) (citation and in-
`ternal quotation marks omitted).
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`There is no justification for the racial preferences in section 1005 that could satisfy
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`the “strict scrutiny” standard. The COVID-19 pandemic has affected farmers, ranch-
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`ers, and people from all walks of life. It has done so without regard to anyone’s race.
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`And even if there were some unique vulnerabilities to infection among certain racial
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`groups, that would have no effect on the economic misfortunes that befall a person’s
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`farm or ranch. It is a blatant violation of the principles of rule of law and equal pro-
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`tection to condition government assistance on an individual’s race.
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`If the government thinks it can “prioritize” racial minorities to compensate for
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`past discriminatory actions that have occurred in society generally, those efforts will
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`be foreclosed by City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). Croson
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`emphatically rejected the idea that amorphous claims of past discrimination can justify
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`a present-day racial preference in the distribution of government largesse. See id. at
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`499–506. See also Adarand, 515 U.S. 200 (extending Croson’s holding to the federal
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`government). The statute contains no findings of past discrimination that are specific
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`enough to warrant remedial preferences through a loan-forgiveness program, and the
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`defendants cannot point to any other specific evidence related to the industry in ques-
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`tion that would support such remedial action. See Croson at 500.
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`This is nothing more than a naked discriminatory preference that turns a disaster-
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`relief program into a politicized spoils system. And there is no basis in reason or evi-
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`dence to think that excluding white farmers and ranchers from a loan-forgiveness pro-
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`gram will do anything to “remedy” past societal discrimination.
`II. The Plaintiffs Will Suffer Irreparable Harm Absent a
`Preliminary Injunction
`The plaintiffs will suffer irreparable harm absent a preliminary injunction because
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`the entirety of funds Congress that appropriated under section 1005 will be unavail-
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`able to them. And there is no mechanism to “claw back” this money once the gov-
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`ernment dispenses it. The Defendants’ sovereign immunity makes it impossible for
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`the plaintiffs to recover damages if these unconstitutional racial preferences wind up
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`excluding them from relief that the defendants grant to others.
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`Moreover, the plaintiffs are suffering additional irreparable harm because they are
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`encountering racial discrimination at the hands of government officials, which inflicts
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`irreparable harm per se. See Am. Civil Liberties Union of Ky. v. McCreary Cnty., Ky.,
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`354 F.3d 438, 445 (6th Cir. 2003), aff’d sub nom., McCreary Cnty., Ky. v. Am. Civil
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`Liberties Union of Ky., 545 U.S. 844 (2005) (“[I]f it is found that a constitutional
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`right is being threatened or impaired, a finding of irreparable injury is mandated.”).
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`This injury cannot be remedied absent a preliminary injunction because the defend-
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`ants’ sovereign immunity prevents retrospective relief.
`III. The Harm to the Plaintiffs Outweighs Harms That Will Arise If
`This Court Grants a Preliminary Injunction
`The harm to the plaintiffs (and others who are being excluded from loan for-
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`giveness on account their race) outweighs any “harms” that might arise from the pro-
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`posed preliminary injunction. A preliminary injunction will not compel the defend-
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`ants to withhold loan forgiveness from minority farmers and ranchers; it will merely
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`require them to award loan forgiveness to farmers and ranchers without any regard to
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`race. The defendants will have a choice in whether to respond to the proposed injunc-
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`tion by extending loan forgiveness to all farmers and ranchers, or whether to respond
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`by withholding loan forgiveness from everyone. But any outcome that “harms” mi-
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`nority farmers and ranchers by withholding loan forgiveness will be the result of the
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`defendants’ choices rather than judicial compulsion.
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`A preliminary injunction will not only alleviate the financial harms that are being
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`inflicted the plaintiffs, but it will also eliminate the injury to their constitutional right
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`to be free from racial discrimination at the hands of the government. The “socially
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`disadvantaged” farmers and ranchers, by contrast, are not encountering any injury
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`from racial discrimination and will not encounter any such injury if an injunction is
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`granted. That tips the scales decisively in favor of the plaintiffs.
`IV. A Preliminary Injunction Is in The Public Interest
`The protection of constitutional rights is by definition in the public interest. See
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`Council of Alternative Political Parties v. Hooks, 121 F.3d 876, 884 (3d Cir. 1997)
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`(“[T]he public interest clearly favors the protection of constitutional rights.”); Gio-
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`vani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002) (“[U]pholding
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`constitutional rights surely serves the public interest.”); Connection Distributing Co.
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`v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (“[I]t is always in the public interest to
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`prevent the violation of a party’s constitutional rights.”). If the Court agrees that the
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`plaintiffs are likely to succeed on their claim that the racial and ethnic conditions in
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`section 1005 are unconstitutional, then a preliminary injunction will be in the public
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`interest as well.
`V.
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`The Plaintiffs’ Motion for a Preliminary Injunction Complies
`with Rule 65(a) and Rule 65(c)
`This brief and the attached declarations describe the irreparable injury that will
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`result in the absence of a preliminary injunction.
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`Finally, it is not necessary to require a bond because the federal government will
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`not suffer costs or damages from the proposed preliminary injunction. See Fed. R.
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`Civ. P. 65(c).
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`CONCLUSION
`The motion for a preliminary injunction should be granted.
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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 Class
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`plaintiffs’ brief in support of motion for preliminary injunction
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