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`Case 4:21-cv-00595-O Document 24 Filed 06/09/21 Page 1 of 14 PageID 953Case 4:21-cv-00595-O Document 24 Filed 06/09/21 Page 1 of 14 PageID 953
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`FORT WORTH DIVISION
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`Case No. 4:21-cv-00595
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`SID MILLER,
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`TOM VILSACK,
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`Plaintiff,
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`v.
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`Defendant,
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`THE NATIONAL BLACK FARMERS ASSOCIATION AND
`THE ASSOCIATION OF AMERICAN INDIAN FARMERS’
`CONDITIONAL MOTION FOR LEAVE TO INTERVENE AS DEFENDANTS
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`The National Black Farmers Association (NBFA) and the Association of American
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`Indian Farmers (AAIF) hereby file this Conditional Motion for Leave to Intervene as Defendants
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`in this action (the “Conditional Motion”). Because, at present, NBFA and AAIF share the same
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`ultimate objective as the Government in defending the law challenged in this action,
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`the organizations expressly request that the Court defer consideration of this Motion until future
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`developments in this lawsuit indicate that the organizations’ interests diverge from the
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`Government’s. This approach balances NBFA and AAIF’s interests in timely filing their
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`application to intervene, while also accounting for how merits arguments have yet to be
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`developed due to the litigation’s early stage.1
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`1 See Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engs., 101 F.3d 503, 509 (7th
`Cir. 1996) (“The proper way to handle such an eventuality [where the government’s
`representation of interest “may turn inadequate” at some future point] [is] to file at the outset of
`the case a standby or conditional application for leave to intervene and ask the district court to
`defer consideration of the question of adequacy . . . .”).
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`Pursuant to Fed. R. Civ. P. 24, this Conditional Motion is accompanied by (1) a
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`Memorandum of Law in Support; and (2) NBFA and AAIF’s Answer to Plaintiffs’ First
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`Amended Class Action Complaint.
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`Plaintiffs’ counsel does not oppose the filing of a placeholder motion to secure
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`timeliness, although they have indicated they will oppose any later request to intervene.
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`Defendant’s counsel does not take a position on this Conditional Motion.
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`Respectfully submitted,
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`HENDLER FLORES LAW, PLLC
`
`
`
`Scott M. Hendler
`Texas Bar No. 09445500
`Rebecca R. Webber
`Texas Bar No. 24060805
`901 S. MoPac Expy, Bldg. 1, Suite #300
`Austin, Texas 78746
`Telephone: (512) 439-3200
`Facsimile: (512) 439-3201
`shendler@hendlerlaw.com
`rwebber@hendlerlaw.com
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`Of Counsel:
`PUBLIC JUSTICE, P.C.
`David Muraskin*
`Jessica Culpepper*
`Randolph T. Chen*
`1620 L Street NW, Suite 630
`Washington, D.C. 20036
`Telephone: (202) 797-8600
`Facsimile: (202) 232-7203
`jculpepper@publicjustice.net
`dmuraskin@publicjustice.net
`rchen@publicjustice.net
`Counsel for the National Black Farmers
`Association and the Association of American
`Indian Farmers
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` *
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` Pro hac vice application forthcoming
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`Dated: June 9, 2021
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`2
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`CERTIFICATE OF CONFERENCE
`I certify that I conferred with counsel for Plaintiffs on June 4, 2021. Plaintiffs’ counsel
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`does not oppose the filing of a placeholder motion to secure timeliness, but opposes intervention.
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`I certify that I conferred with counsel for Defendant on June 4, 2021. Defendant’s counsel
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`does not take a position on this Motion.
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`/s/ Scott M. Hendler
`Scott M. Hendler
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`CERTIFICATE OF SERVICE
`I certify that a true and correct copy of the foregoing was filed via the court’s CM/ECF
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`system on June 9, 2021, which will serve all counsel of record.
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`/s/ Scott M. Hendler
`Scott M. Hendler
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`3
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`Case 4:21-cv-00595-O Document 24 Filed 06/09/21 Page 4 of 14 PageID 956Case 4:21-cv-00595-O Document 24 Filed 06/09/21 Page 4 of 14 PageID 956
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`FORT WORTH DIVISION
`
`
`
`
`
`
`Case No. 4:21-cv-00595
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`SID MILLER, et al.
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`
`
`TOM VILSACK,
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`Plaintiffs,
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`v.
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`Defendant,
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`MEMORANDUM OF LAW IN SUPPORT OF THE NATIONAL BLACK FARMERS
`ASSOCIATION AND THE ASSOCIATION OF AMERICAN INDIAN FARMERS’
`CONDITIONAL MOTION FOR LEAVE TO INTERVENE AS DEFENDANTS
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`The National Black Farmers Association (NBFA) and the Association of American
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`Indian Farmers (AAIF) file this Conditional Motion to Intervene as Defendants in this action (the
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`“Conditional Motion”). It requests that the Court defer consideration until future developments
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`in this lawsuit indicate that the organizations’ interests diverge from the Government’s.
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`This approach seeks to balance requirements for intervention set out in Federal Rule of
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`Civil Procedure 24. NBFA and AAIF have an interest in timely filing this application to
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`intervene and defend the laws this action seeks to enjoin—which confers financial benefits on
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`many of their members. At the same time, the conditional nature of this request recognizes the
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`early stage of this litigation, where merits arguments and the adequacy of the Government’s
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`defense have yet to be fully developed.
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`Accordingly, this Memorandum is structured as follows. First, it provides the authority
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`for NBFA and AAIF’s filing of a Conditional Motion. Second, it provides factual background
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`regarding NBFA and AAIF’s purpose and membership. Third, it argues why NBFA and AAIF
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`meet the factors required for intervention that can be ascertained at this time.
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`AUTHORITY FOR CONDITIONAL APPLICATION FOR INTERVENTION
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`NBFA and AAIF file this Conditional Motion pursuant to the approach set out by the
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`Seventh Circuit in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
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`Engineers, 101 F.3d 503 (7th Cir. 1996). In Army Corps, a plaintiff sued to challenge a federal
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`agency’s denial of a water permit, and a citizens’ group moved to intervene to defend the
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`agency’s decision. Id. at 504. The Seventh Circuit denied the request because the putative-
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`intervenor and the agency shared the interest of defending the permitting decision and thus,
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`“adequacy of representation [was] presumed,” as the government is presumed to represent the
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`interests of the public at large. Id. at 508. However, the court was also “sympathetic to the
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`aspiring intervenor’s concern that at some future point in this litigation, the government’s
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`representation of their interest may turn inadequate yet it would be too late to do anything about
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`it.” Id. For example, the court provided a hypothetical where the Government declined to appeal
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`an unfavorable decision—at which point its representation of the putative-intervenor’s interests
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`“could well be thought inadequate.” Id. at 509. The court thus set out the following solution:
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`The proper way to handle such an eventuality is for the would-be intervenor, when
`as here no present inadequacy of representation can be shown, to file at the outset
`of the case a standby or conditional application for leave to intervene and ask the
`district court to defer consideration of the question of adequacy of representation
`until the applicant is prepared to demonstrate inadequacy.
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`Id. (emphasis added).
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`
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`NBFA and AAIF are in a similar posture. They presently share the same objective as the
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`Government in defending the laws challenged by this action—but it remains possible that at
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`some future point, the Government’s handling of this litigation may turn inadequate. NBFA and
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`AAIF thus file this Conditional Motion pursuant to the approach set out in Army Corps and
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`expressly request the Court defer consideration on the motion until future developments in this
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`lawsuit demonstrate that the organizations’ interests diverge from the Government’s.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`
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`This case challenges certain provisions in the American Rescue Plan Act of 2021
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`(the “Act”), a broad piece of legislation aimed at remedying the devastating effects of the
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`COVID-19 pandemic by providing $1.9 trillion in financial relief to American individuals and
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`industries who have been harmed by the ongoing health crisis. See The White House, Am.
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`Rescue Plan, https://www.whitehouse.gov/american-rescue-plan/. The Act includes
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`approximately $10.4 billion in funding aimed to strengthen the agricultural and food supply
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`chain, and includes provisions funding the purchase and distribution of agricultural commodities
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`and providing grants to rural communities to fund programs related to healthcare and nutrition.
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`See What’s in the Am. Rescue Plan Act of 2021 for Ag.? Am. Farm Bureau Fed. (Mar. 8, 2021),
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`https://www.fb.org/market-intel/whats-in-the-american-rescue-plan-act-of-2021-for-agriculture.
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`This case takes aim at two specific provisions of the Act—Sections 1005 and 1006—
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`which provide financial relief to “socially disadvantaged farmers and ranchers.” Section 1005
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`provides loan forgiveness, authorizing the U.S. Department of Agriculture (“USDA”) to
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`“provide a payment in an amount up to 120 percent of the outstanding indebtedness of each
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`socially disadvantaged farmer or rancher” on direct farm loans made by USDA and on farm
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`loans guaranteed by USDA. Section 1005(a)(2). Section 1006 appropriates funds to the Secretary
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`to provide grants and loans for socially disadvantaged farmers and ranchers for various purposes,
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`including “provid[ing] outreach, mediation, financial training” and “improv[ing] land access.”
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`Section 1006(b)(1)-(2). Plaintiff alleges that these laws unconstitutionally “discrimina[te] on the
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`grounds of race, color, and national origin” and requests the Court “declare unconstitutional any
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`statute limiting the benefits of federal programs to ‘socially disadvantaged farmers and
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`ranchers.’” First Am. Compl., Dkt. No. 11, ¶¶ 28-29.
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`3
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`NBFA and AAIF are non-profit, membership-based organizations dedicated to advancing
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`the interests of Black and Native American farmers. Exh. 1, Decl. of John Boyd, Jr. (“J. Boyd
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`Decl.”) ¶¶ 3-4; Exh. 2, Decl. of Kara Boyd (“K. Boyd Decl.”) ¶¶ 3-4. NBFA has a national
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`membership of over 116,000 members, comprised largely of Black farmers and ranchers and
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`those members direct the organization’s actions by voting on agenda items and resolutions at
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`annual meetings. J. Boyd Decl. ¶ 3. AAIF has a national membership of over 350 members,
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`comprised largely of Native American farmers and ranchers. K. Boyd Decl. ¶ 3. AAIF’s
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`activities are directed by its members through regional representatives, who vote on their
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`constituent members’ behalf to determine the organization’s agenda. Id. ¶ 4.
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`NBFA’s mission is to advocate for the interests of Black farmers and ranchers—which
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`has included improving Black farmers and ranchers’ access to public and private loans, as well
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`as education regarding civil rights and land retention. J. Boyd Decl. ¶ 4. NBFA President John
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`Boyd, Jr. has advocated on the specific issue of debt relief for the organization’s members for
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`decades and has testified before Congress on the issue. Id. ¶ 5. NBFA has members who are
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`eligible for Section 1005’s loan forgiveness provisions. Exh. 3, Decl. of Shade Mitchell Lewis
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`(“Lewis Decl.”) ¶ 9; Exh. 4, Decl. of Ivan Isidore Williams (“Williams Decl.”) ¶ 9.
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`AAIF’s mission is to advocate for the interests of Native American farmers and ranchers.
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`K. Boyd Decl. ¶ 5. AAIF advances its mission by promoting investment in Native American
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`farmers and ranchers, as well as providing them with outreach, advocacy, and technical
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`assistance. Id. AAIF President Kara Boyd has specifically advocated on the Act’s debt
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`forgiveness provisions, directly engaging with federal legislators to express the organization’s
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`support for the legislation and building support for the legislation by networking with other
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`groups that advocate for the interests of Native American farmers. Id. ¶ 7. AAIF is aware that it
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`has members who are eligible for Section 1005’s loan forgiveness provisions. See id. ¶ 8.
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`Thus, this suit has the potential to undo NBFA and AAIF’s dogged advocacy, leave their
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`members in debt from which Congress intended them to be freed, and prevent them from
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`receiving additional financial support that was designed to remedy a long history of
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`discrimination that has already cost NBFA and AAIF’s members greatly. To protect those
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`interests, NFBA and AAIF file this conditional motion to intervene under Federal Rules of Civil
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`Procedure 24(a) and (b).
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`I.
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`Intervention As of Right.
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`ARGUMENT
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`Federal Rule of Civil Procedure 24(a)(2) provides: “On timely motion, the court must
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`permit anyone to intervene who . . . claims an interest relating to the property or transaction that
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`is the subject of the action, and is so situated that disposing of the action may as a practical
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`matter impair or impede the movant’s ability to protect its interest, unless existing parties
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`adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). The Fifth Circuit has explained this
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`Rule “is to be liberally construed” and courts “should allow intervention when no one would be
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`hurt and greater justice could be attained.” Wal-Mart Stores, Inc. v. Texas Alcoholic Bev.
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`Comm’n, 834 F.3d 562, 565 (5th Cir. 2016).
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`The Fifth Circuit has elaborated that Rule 24(a)(2) intervention must be allowed where:
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`(1) the application is timely; (2) the applicant has an interest relating to the property or
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`transaction which is the subject of the action; (3) the disposition of that case may impair or
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`impede the applicant’s ability to protect that interest; and (4) the applicant’s interest is
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`inadequately represented by the existing parties to the suit. Wal-Mart, 834 F.3d at 565. An
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`5
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`intervenor under Rule 24(a)(2) only “must meet the requirements of Article III if the intervenor
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`wishes to pursue relief” distinct from the existing parties. Town of Chester, N.Y. v. Laroe Ests.,
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`Inc., 137 S. Ct. 1645, 1648 (2017).
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`A. NBFA and AAIF have Article III standing.
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`To the extent it will prove necessary for intervention, NBFA and AAIF have standing.
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`Under the associational standing doctrine, membership organizations like NBFA and AAIF may
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`sue to redress their members’ injuries when: (1) its members have standing to sue in their own
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`right, (2) the interest it seeks to protect is germane to the organization’s purpose, and (3) neither
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`the claim asserted nor the relief requested requires the participation of individual members in the
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`lawsuit. Cooper v. Tex. Alcoholic Bev. Comm’n, 820 F.3d 730, 737 (5th Cir. 2016).
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`NBFA and AAIF’s members have standing because they stand to receive financial
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`benefits from the law that this action seeks to enjoin. Cooper, 820 F.3d at 737 (liquor retailer
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`association’s members had standing to defend constitutionality of licensing law that benefited
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`their business). Protecting this interest has been and remains core to NBFA and AAIF’s
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`missions. J. Boyd Decl. ¶¶ 4-9; K. Boyd Decl. ¶ 5-6. And defending the constitutionality of this
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`law also does not require the individual participation of any of NBFA and AAIF’s members. Id.;
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`see also Ass’n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d 547, 551 (5th Cir.
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`2010) (while damages claims often require participation of individual members, actions for
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`declaratory and injunctive relief generally do not). Therefore, NBFA and AAIF have Article III
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`standing to participate in this action.
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`B. The Conditional Motion is timely.
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`To determine whether NBFA and AAIF’s motion is timely, courts consider four factors:
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`(1) the length of time between the proposed intervenor’s learning of their interest and the motion
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`6
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`to intervene; (2) the extent of prejudice to existing parties from allowing late intervention; (3) the
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`extent of prejudice to the proposed intervenor if their motion is denied; and (4) and unusual
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`circumstances. Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994). Applications to
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`intervene filed before the start of discovery are generally considered to be timely. E.g., Wal-
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`Mart, 834 F.3d at 565 (motion to intervene was timely because it was filed “before discovery
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`progressed and because it did not seek to delay or reconsider phases of the litigation that had
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`already concluded”); see also Buckland v. Ohio Nat’l Life Assurance Corp., 2015 WL 13188295,
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`*2 (N.D. Tex. Oct. 7, 2015) (O’Connor, J.) (motion to intervene filed two months after lawsuit
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`was removed to federal court was timely).
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`Here, this Motion is timely under all four factors. As to the first and second factors,
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`NBFA and AAIF promptly filed this Motion a mere seven weeks after learning of their interest
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`in this case through reading Plaintiffs’ Complaint that was filed on April 26, 2021. Filing at this
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`very early stage of the litigation where Defendant has yet to file a responsive pleading and no
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`discovery has been conducted is also exceedingly unlikely to prejudice any party. As to the third
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`factor, NBFA and AAIF would be severely prejudiced if denied the opportunity to intervene
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`because the litigation seeks to undo their advocacy and remove financial benefits to their
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`members. See Espy, 18 F.3d at 1207 (intervenors with “economic interests” affected by litigation
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`would be prejudiced if denied the opportunity to intervene). As to the final factor, NBFA and
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`AAIF are unaware of any “unusual circumstances” that would counsel against intervention.
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`C. NBFA and AAIF have a protectable interest related to this case.
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`To determine whether an intervenor has a sufficient interest related to the controversy,
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`the “touchstone of the inquiry is whether the interest alleged is ‘legally protectable.’” Wal-Mart,
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`834 F.3d at 566-67. “[A]n interest is sufficient if it is of the type that the law deems worthy of
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`protection, even if the intervenor does not have an enforceable legal entitlement or would not
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`have standing to pursue her own claim.” Texas v. United States, 805 F.3d 653, 659 (5th Cir.
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`2015) (hereinafter, “Texas”). Here, as explained above, NBFA and AAIF have standing and thus
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`plainly have a legally protectable interest. Wal-Mart, 834 F.3d at 566 n.3 (“We have previously
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`suggested that a movant who shows standing is deemed to have a sufficiently substantial interest
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`to intervene.”) (internal quotations omitted).
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`The Fifth Circuit has also held that the intended beneficiaries of a government regulation
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`possess a legally protectable interest sufficient to intervene and defend against a challenge to that
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`regulation. E.g., Sierra Club v. Glickman, 82 F.3d 106, 109 (5th Cir. 1996) (association
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`purporting to represent farmers had sufficient interest to intervene in action seeking injunction
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`preventing USDA from “expending any funds” to its members); Wal-Mart, 834 F.3d at 566
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`(trade association had interest justifying intervention where it sought to defend law where its
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`members were the “beneficiar[ies]” of the regulations); Texas, 805 F.3d at 659 (“intended
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`beneficiaries of the challenged federal policies” had sufficient interest to intervene). As in
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`Glickman, Wal-Mart, and Texas, NBFA and AAIF’s members are the intended beneficiaries of
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`the laws that Plaintiffs challenge in this case. E.g., Lewis Decl. ¶ 9; Williams Decl. ¶ 9; K. Boyd
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`Decl. ¶ 7. They thus possess a legally protectable interest sufficient to justify intervention here.
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`D. This case’s disposition may impair NBFA and AAIF’s interests.
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`The Fifth Circuit has held that “the stare decisis effect of an adverse judgment constitutes
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`a sufficient impairment to compel intervention.” Glickman, 82 F.3d at 109-10. This is true here.
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`An adverse resolution of this action would prevent NBFA and AAIF’s members from receiving
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`the financial benefits conferred by the laws at issue in this case.
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`E. The Government’s representation may become inadequate at a future point.
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`Where a putative-intervenor and the Government share the same objective in defending a
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`law, courts apply a presumption that the Government’s defense is adequate, see Texas, 805 F.3d
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`8
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`at 661-62; hence NBFA and AAIF have filed this motion to intervene on a conditional basis.
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`However, this litigation is still at an early stage and merits arguments have yet to be fully
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`developed. This presumption thus may well be overcome should the Government later advance
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`arguments that demonstrate its interests diverge from NBFA and AAIF’s. For example,
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`inadequacy of representation may be shown if the Government advances arguments that are
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`adverse to NBFA and AAIF’s interests—such as through compromise positions that limit NBFA
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`and AAIF’s members’ access to financial benefits conferred by the challenged statutes. See id. at
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`663 (undocumented immigrant intervenors seeking to defend federal deferred-action
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`immigration enforcement policy alongside the Government demonstrated inadequacy because
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`Government took the position that States may refuse to issue driver’s licenses to deferred action
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`recipients, which was adverse to intervenors’ interests). Courts have also observed inadequacy
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`can be shown when the Government’s declines to appeal an adverse ruling in the case, see Army
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`Corps, 101 F.3d at 508, or changes its position during the pendency of a case, see Franciscan
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`Alliance, Inc. v. Azar, 414 F. Supp. 3d 928, 935-36 (N.D. Tex. 2019) (O’Connor, J.) (initially
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`denying organization’s attempt to intervene and defend a law alongside the Government, but
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`granting the renewed motion years later after Government had changed its position on the law).
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`Thus, should later developments in this action indicate that NBFA and AAIF’s interests
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`diverge from the Government, the organizations will renew this motion and establish this
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`inadequacy of representation factor, having already established the other factors above.
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`II.
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`Permissive Intervention
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`NFBA and AAIA also meet the requirements of permissive intervention—but in the
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`interests of judicial economy, they are also requesting the Court defer ruling on this issue so it
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`can be evaluated alongside any renewed motion to intervene as of right.
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`9
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`Rule 24(b)(1)(B) allows a court to grant permissive intervention to a party who makes a
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`timely motion and “has a claim or defense that shares with the main action a common question
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`of law or fact.” District courts have broad discretion on this issue and may permit intervention
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`when: (1) the motion is timely, (2) the intervenor’s claim or defense has a question of law or fact
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`in common with the existing action; and (3) intervention will not delay or prejudice the
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`adjudication of the rights of the original parties. Siesta Village Mkt., LLC v. Perry, 2006 WL
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`1880524, at *! (N.D. Tex. July 7, 2006).
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`The first and third factors, as discussed above in Section II, are plainly met because the
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`Conditional Motion is timely and thus will not impose delay or prejudice on any of the existing
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`parties given the early stage of the litigation. As to the second factor, a common question of law
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`by definition exists where, as here, a proposed intervenor seeks to intervene in a lawsuit to
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`defend a law challenged by the plaintiff. E.g., Texas v. United States, 2018 WL 10562846, at *3
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`(N.D. Tex. May 16, 2018) (O’Connor, J.) (granting permissive intervention to state coalition
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`seeking to defend federal healthcare law because coalition’s defense “share[d] a question of law”
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`with plaintiffs’ constitutional challenge).
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`For these reasons, NFBA and AAIF could ask the Court to exercise its discretion to allow
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`for permissive intervention. However, because NBFA and AAIF may later seek to intervene as
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`of right, they believe it is most appropriate for the Court to also defer ruling on permissive
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`intervention until the organizations determine whether their Rule 24(a) motion will become ripe.
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`CONCLUSION
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`For the foregoing reasons, the NBFA and AAIF respectfully request the Court docket
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`their Conditional Motion for Leave to Intervene as Defendants and defer consideration on the
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`motion pending future developments in this lawsuit.
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`Case 4:21-cv-00595-O Document 24 Filed 06/09/21 Page 14 of 14 PageID 966Case 4:21-cv-00595-O Document 24 Filed 06/09/21 Page 14 of 14 PageID 966
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`Respectfully submitted,
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`HENDLER FLORES LAW, PLLC
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`/s/ Scott M. Hendler
`Scott M. Hendler
`Texas Bar No. 09445500
`Rebecca R. Webber
`Texas Bar No. 24060805
`901 S. MoPac Expy, Bldg. 1, Suite #300
`Austin, Texas 78746
`Telephone: (512) 439-3200
`Facsimile: (512) 439-3201
`shendler@hendlerlaw.com
`rwebber@hendlerlaw.com
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`Of Counsel:
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`PUBLIC JUSTICE, P.C.
`David Muraskin*
`Jessica Culpepper*
`Randolph T. Chen*
`1620 L Street NW, Suite 630
`Washington, D.C. 20036
`Telephone: (202) 797-8600
`Facsimile: (202) 232-7203
`jculpepper@publicjustice.net
`dmuraskin@publicjustice.net
`rchen@publicjustice.net
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`Counsel for the National Black Farmers
`Association and the Association of American
`Indian Farmers
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` *
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` Pro hac vice application forthcoming
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`Dated: June 9, 2021
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