`
`Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 1 of 24 PageID 1446Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 1 of 24 PageID 1446
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`FORT WORTH DIVISION
`
`Plaintiffs,
`
`SID MILLER, et al.,
`
`
`
`v.
`
`TOM VILSACK, in his official capacity as
`Secretary of Agriculture,
`
`
`
`Defendant.
`
`
`
`
`
`
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`Civil Action No. 4:21-cv-0595-O
`
`
`
`
`
`ORDER
`
`Before the Court are Plaintiffs’ Motion for Class Certification (ECF Nos. 12–13), filed
`
`June 2, 2021; the Government’s Response (ECF No. 28), filed June 11, 2021; Plaintiffs’ Reply
`
`(ECF No. 41), filed June 18, 2021; Plaintiffs’ Motion for Preliminary Injunction (ECF Nos. 17–
`
`18), filed June 2, 2021; the Government’s Response (ECF No. 27), filed June 11, 2021; and
`
`Plaintiffs’ Reply (ECF No. 42), filed June 18, 2021. Plaintiffs seek a preliminary injunction to
`
`enjoin the Department of Agriculture from providing loan forgiveness to farmers and ranchers on
`
`the basis of race or ethnicity. See Inj. Mot., ECF No. 18. Having considered the briefing, relevant
`
`facts, and applicable law, and for the reasons set forth below, the Court GRANTS both motions.
`
`I.
`
`BACKGROUND
`
`Plaintiffs are Texas farmers and ranchers seeking to enjoin the United States Department
`
`of Agriculture from administering a recently enacted loan-forgiveness program under section 1005
`
`of the American Rescue Plan Act of 2021 (ARPA). That Act appropriated funds to the USDA and
`
`required the Secretary to “provide a payment in an amount up to 120 percent of the outstanding
`
`indebtedness of each socially disadvantaged farmer or rancher as of January 1, 2021,” to pay off
`
`qualifying Farm Service Agency (FSA) loans. ARPA, Pub. L. No. 117-2, § 1005 (2021). To be
`
`
`
`1
`
`

`

`
`
`Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 2 of 24 PageID 1447Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 2 of 24 PageID 1447
`
`eligible under the program, an applicant must be a “socially disadvantaged farmer or rancher” as
`
`defined in section 2501(a) of the Food, Agriculture Conservation, and Trade Act of 1990 (codified
`
`at 7 U.S.C. § 2279(a)). See id. That statute provides that a “‘socially disadvantaged farmer or
`
`rancher’ means a farmer or rancher who is a member of a socially disadvantaged group.” 7 U.S.C.
`
`§ 2279(a)(5). It defines “socially disadvantaged group” as “a 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.” Id. § 2279(a)(6). In announcing a Notice of Funds Availability,
`
`the USDA stated that those groups include but are not limited to “American Indians or Alaskan
`
`Natives,” “Asians,” “Blacks or African Americans,” “Native Hawaiians or other Pacific
`
`Islanders,” and “Hispanics or Latinos.” Notice of Funds Availability, 86 Fed. Reg. 28,330 (May
`
`26, 2021).
`
`Plaintiffs held qualifying FSA loans on January 1, 2021 but are white, making them
`
`ineligible for the funds under the Act. See Inj. Mot. 1–2, ECF No. 18-4; 1–2, ECF No. 18-5; 1–2,
`
`ECF No. 18-6; 1–2, ECF No. 18-7. On April 26, 2021, Plaintiffs filed a class action to enjoin the
`
`program as a violation of equal protection under the United States Constitution and a violation of
`
`Title VI of the Civil Rights Act of 1964. See Compl. 6, ECF No. 1. In the alternative, Plaintiffs
`
`argue in Claims Two and Three, that, as a matter of statutory interpretation, “socially
`
`disadvantaged group” must be construed to include white ethnic groups that have experienced
`
`discrimination and individuals who have any discernible trace of minority ancestry. See id. at 7–
`
`9. After filing their Complaint, Plaintiffs filed the present Motion for Class Certification and
`
`Motion for Preliminary Injunction on June 2, 2021. See Class Cert. Mot., ECF Nos. 12–13; Inj.
`
`Mot., ECF Nos. 17–18. After responses and replies, the motions are ripe for the Court’s
`
`
`
`2
`
`

`

`
`
`Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 3 of 24 PageID 1448Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 3 of 24 PageID 1448
`
`consideration. See Class Cert. Resp., ECF No. 28; Inj. Resp., ECF No. 27; Class Cert. Reply, ECF
`
`No. 41; Inj. Reply, ECF No. 42.
`
`II.
`
`LEGAL STANDARD
`
`A. Class Certification
`
`The class action is “an exception to the usual rule that litigation is conducted by and on
`
`behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348
`
`(2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)) (internal quotation marks
`
`omitted). The party seeking class certification “bear[s] the burden of proof to establish that the
`
`proposed class satisfies the requirements of Rule 23.” M.D. ex rel. Stukenberg v. Perry, 675 F.3d
`
`832, 837 (5th Cir. 2012). “The decision to certify is within the broad discretion of the court, but
`
`that discretion must be exercised within the framework of rule 23.” Castano v. Am. Tobacco Co.,
`
`84 F.3d 734, 740 (5th Cir. 1996) (citing Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981)). A
`
`district court must “look beyond the pleadings to ‘understand the claims, defenses, relevant facts,
`
`and applicable substantive law in order to make a meaningful determination’” of the certification
`
`issues. Stukenberg, 675 F.3d at 837 (quoting McManus v. Fleetwood Enters., Inc., 320 F.3d 545,
`
`548 (5th Cir. 2003)).
`
`Federal Rule of Civil Procedure 23 governs whether a proposed class falls within this
`
`limited exception. “To obtain class certification, parties must satisfy Rule 23(a)’s four threshold
`
`requirements, as well as the requirements of Rule 23(b)(1), (2), or (3).” Maldonado v. Ochsner
`
`Clinic Found., 493 F.3d 521, 523 (5th Cir. 2007). Rule 23(a)’s four threshold requirements are
`
`(1)
`(2)
`(3)
`
`(4)
`
`the class is so numerous that joinder of all members is impracticable;
`there are questions of law or fact common to the class;
`the claims or defenses of the representative parties are typical of the claims
`or defenses of the class; and
`the representative parties will fairly and adequately protect the interests of
`the class.
`
`
`
`3
`
`

`

`
`
`Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 4 of 24 PageID 1449Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 4 of 24 PageID 1449
`
`Fed. R. Civ. P. 23(a). These four threshold conditions are “commonly known as numerosity,
`
`commonality, typicality, and adequacy of representation.” Flecha v. Medicredit, Inc., 946 F.3d
`
`762, 766 (5th Cir. 2020) (citing Fed. R. Civ. P. 23(a)) (additional citation and internal quotation
`
`marks omitted). Additionally, the Fifth Circuit has articulated an “ascertainability” doctrine
`
`implicit in Rule 23. John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007) (“The
`
`existence of an ascertainable class of persons to be represented by the proposed class representative
`
`is an implied prerequisite of Federal Rule of Civil Procedure 23.”). “To maintain a class action,
`
`the class sought to be represented must be adequately defined and clearly ascertainable.”
`
`DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970) (per curiam) (citations omitted).
`
`Rule 23(b)(2) applies where the four threshold requirements are met and “the party
`
`opposing the class has acted or refused to act on grounds that apply generally to the class, so that
`
`final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a
`
`whole.” Fed. R. Civ. P. 23(b)(2). This requirement is satisfied “when a single injunction or
`
`declaratory judgment would provide relief to each member of the class.” Wal-Mart, 564 U.S. at
`
`360.
`
`B. Preliminary Injunction
`
`To prevail on an application for a preliminary injunction, the movant must show: (1) a
`
`substantial likelihood that the movant will ultimately prevail on the merits; (2) a substantial threat
`
`that the movant will suffer irreparable injury if the injunction is not granted; (3) that the threatened
`
`injury to the movant outweighs whatever damage the proposed injunction may cause the opposing
`
`party; and (4) that granting the injunction is not adverse to the public interest. See Canal Authority
`
`of State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974); Nichols v. Alcatel USA, Inc.,
`
`532 F.3d 364, 372 (5th Cir. 2008).
`
`
`
`4
`
`

`

`
`
`Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 5 of 24 PageID 1450Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 5 of 24 PageID 1450
`
`To qualify for a preliminary injunction, the movant must clearly carry the burden of
`
`persuasion with respect to all four requirements. See Karaha Bodas Co. v. Perusahaan
`
`Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 363 (5th Cir. 2003). If the movant
`
`fails to establish any one of the four prerequisites to injunctive relief, relief will not be granted.
`
`See Women’s Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d 411, 419 n.15 (5th Cir. 2001). A movant
`
`who obtains a preliminary injunction must post a bond to secure the non-movant against any
`
`wrongful damages it suffers as a result of the injunction. See Fed. R. Civ. P. 65(c).
`
`The decision to grant or deny preliminary injunctive relief is left to the sound discretion of
`
`the district court. Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th
`
`Cir. 1985) (citing Canal, 489 F.2d at 572). A preliminary injunction “is an extraordinary and
`
`drastic remedy, not to be granted routinely, but only when the movant, by a clear showing, carries
`
`the burden of persuasion.” White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989) (quoting
`
`Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)). Even when a
`
`movant satisfies each of the four Canal factors, the decision whether to grant or deny a preliminary
`
`injunction remains discretionary with the district court. Miss. Power & Light, 760 F.2d at 621.
`
`III. ANALYSIS
`
`A. Class Certification
`
`Plaintiffs move to certify two classes under Federal Rule of Civil Procedure 23(b)(2):
`
`
`
`
`
`
`
`Class
`
`Class Representatives
`
`
`
`5
`
`

`

`
`
`Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 6 of 24 PageID 1451Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 6 of 24 PageID 1451
`
`1
`
`2
`
`All farmers and ranchers in the United States who are
`encountering, or who will encounter, racial discrimination
`from the United States Department of Agriculture on account
`of section 1005 of the American Rescue Plan Act
`
`Plaintiffs Greg Macha,
`James Meek, Jeff Peters,
`and Lorinda
`O’Shaughnessy
`
`All farmers and ranchers in the United States who are
`currently excluded
`from
`the definition of
`‘socially
`disadvantaged farmer or rancher,’ as defined in 7 U.S.C. §
`2279(a)(5)–(6) and as interpreted by the Department of
`Agriculture
`
`All named Plaintiffs
`
`
`
`1. Rule 23(a)
`
`i. Numerosity
`
`Plaintiffs argue that the number of white farmers and ranchers facing discrimination from
`
`the USDA on account of their race or ethnicity easily exceeds the numerosity threshold, as
`
`evidenced by 2017 census data showing some 239,351 white farmers and ranchers in Texas and
`
`1,963,286 nationwide. See Class Cert. Mot. 5, ECF No. 13. Plaintiffs also point to the same data
`
`to show that there are an estimated 21,000 holders of qualifying FSA loans nationwide who do not
`
`qualify as “socially disadvantaged.” See id. The Government does not contest the numerosity of
`
`the proposed classes. See Class Cert. Resp., ECF No. 28.
`
`Courts have regularly certified classes far fewer in number than the tens of thousands of
`
`potential plaintiffs here. See, e.g., Mullen, 186 F.3d at 625 (“[T]he size of the class in this case—
`
`100 to 150 members—is within the range that generally satisfies the numerosity requirement.”).
`
`The actual number of class members is not necessarily “the determinative question, for ‘(t)he
`
`proper focus (under Rule 23(a)(1)) is not on numbers alone, but on whether joinder of all members
`
`is practicable in view of the numerosity of the class and all other relevant factors.’” Zeidman v. J.
`
`Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir. 1981) (quoting Phillips v. Joint Legislative
`
`Comm., 637 F.2d 1014, 1022 (5th Cir. 1981)). “[A] number of facts other than the actual or
`
`
`
`6
`
`

`

`
`
`Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 7 of 24 PageID 1452Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 7 of 24 PageID 1452
`
`estimated number of purported class members may be relevant to the ‘numerosity’ question; these
`
`include, for example, the geographical dispersion of the class, the ease with which class members
`
`may be identified, the nature of the action, and the size of each plaintiff’s claim.” Zeidman, 651
`
`F.2d at 1038 (citing Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir. 1980), cert. denied, 449 U.S.
`
`1113 (1981)).
`
`Here, Plaintiffs’ unchallenged evidence demonstrates classes of plaintiffs sufficiently large
`
`and for whom joinder would be impracticable, if not impossible, due to size, geographic dispersion
`
`across the nation, and the inclusion of future members. Accordingly, the Court finds that Plaintiffs
`
`have satisfied the numerosity requirement for certification of both proposed classes.
`
`ii. Commonality
`
`Plaintiffs “seek to litigate a question of law common to all members of each of the two
`
`classes: does the United State Department of Agriculture violate the Constitution and Title VI of
`
`the Civil Rights Act of 1964 by limiting eligibility for government benefits to ‘socially
`
`disadvantaged farmers or ranchers’?” Class Cert Mot. 6, ECF No. 13. Plaintiffs further contend
`
`that “[t]his question affects all class members because each of them is subject to discrimination on
`
`account of their race, as each of them is excluded from the definition of ‘socially disadvantaged
`
`farmers or ranchers’ because they are white.” Id. The Government disagrees, arguing that there is
`
`no common legal question between the different claims Plaintiffs bring. See Class Cert. Mot. 13,
`
`ECF No. 28. With regard to the second class, the Government indicates that, because there are
`
`multiple programs for “socially disadvantaged farmers or ranchers,” and the use of race in a benefit
`
`program must be narrowly tailored, no commonality can exist for the class members who are not
`
`included in that definition, as it necessitates individualized considerations for each of those
`
`programs. See id. at 15.
`
`
`
`7
`
`

`

`
`
`Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 8 of 24 PageID 1453Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 8 of 24 PageID 1453
`
`“In order to satisfy commonality under Wal-Mart, a proposed class must prove that the
`
`claims of every class member ‘depend upon a common contention . . . that is capable of classwide
`
`resolution.’” Stukenberg, 675 F.3d at 838 (quoting Wal-Mart, 564 U.S. at 350). This occurs where
`
`“the contention is ‘of such a nature . . . that determination of its truth or falsity will resolve an issue
`
`that is central to the validity of each one of the claims in one stroke.’” Stukenberg, 675 F.3d at 838
`
`(quoting Wal-Mart, 564 U.S. at 350). Put plainly, “Rule 23(a)(2) requires that all of the class
`
`member[s’] claims depend on a common issue of law or fact whose resolution ‘will resolve an
`
`issue that is central to the validity of each one of the [class member’s] claims in one stroke.’”
`
`Stukenberg, 675 F.3d at 840 (quoting Wal-Mart, 564 U.S. at 350). And a court’s “obligation to
`
`perform a ‘rigorous analysis’” of the commonality prong may “entail some overlap with the merits
`
`of the plaintiff’s underlying claim.” Stukenberg, 675 F.3d at 840 (quoting Wal-Mart, 564 U.S. at
`
`350).
`
`The Court concludes that the proposed classes satisfy the commonality requirement. The
`
`complained-of discrimination by the USDA constitutes more than a common grievance with a
`
`particular legal provision, deemed insufficient for commonality by the Supreme Court in Wal-
`
`Mart. See 564 U.S. at 350 (“Commonality requires the plaintiff to demonstrate that the class
`
`members have suffered the same injury. This does not mean merely that they have all suffered a
`
`violation of the same provision of law.” (citation and internal quotation marks omitted)).
`
`Answering Plaintiffs’ substantive legal question will provide a common answer for all class
`
`members regarding a common issue of law: the availability of USDA program benefits to them
`
`absent racial and ethnic discrimination. See DeOtte v. Azar, 332 F.R.D. 188, 198 (N.D. Tex. March
`
`30, 2019) (distinguishing its facts from Stukenberg, in which plaintiffs asserted “various harms,
`
`the risk of experiencing those harms, and the violation of constitutional rights in various ways”
`
`
`
`8
`
`

`

`
`
`Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 9 of 24 PageID 1454Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 9 of 24 PageID 1454
`
`(internal quotation marks omitted)). Resolution of the alleged conflict between, on the one hand,
`
`programs for “socially disadvantaged farmers or ranchers” and, on the other, Constitutional equal
`
`protection provides a common answer to a narrow question of law based in a specific alleged injury
`
`“in one stroke.” Wal-Mart, 564 U.S. at 350. Accordingly, Plaintiffs have satisfied the commonality
`
`requirement for certification of both classes.
`
`iii. Typicality
`
`Plaintiffs argue that, not only are their claims typical, they are precisely the same as those
`
`of all members of the proposed classes. See Class Cert. Mot. 7, ECF No. 13. The Government
`
`focuses on Plaintiffs’ alternative Claims Two and Three and alleges that proceeding on a class
`
`basis will not be economical, as there will be a need to litigate each member’s unique inclusion in
`
`a disadvantaged group or an individual assessment of each government program that benefits
`
`“socially disadvantaged farmers or ranchers.” See Class Cert. Resp. 16–18, ECF No. 28.
`
`“The commonality and typicality requirements of Rule 23(a) tend to merge.” Gen. Tel. Co.
`
`of the Sw. v. Falcon, 457 U.S. 147, 158 n.13 (1982). “Both serve as guideposts for determining
`
`whether under the particular circumstances maintenance of a class action is economical and
`
`whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the
`
`class members will be fairly and adequately protected in their absence.” Id. “[T]he test for
`
`typicality is not demanding. It focuses on the similarity between the named plaintiffs’ legal and
`
`remedial theories and the theories of those whom they purport to represent.” Mullen, 186 F.3d at
`
`625 (citations omitted). “[T]he critical inquiry is whether the class representative’s claims have
`
`the same essential characteristics of those of the putative class. If the claims arise from a similar
`
`course of conduct and share the same legal theory, factual differences will not defeat typicality.”
`
`
`
`9
`
`

`

`
`
`Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 10 of 24 PageID 1455Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 10 of 24 PageID 1455
`
`James v. City of Dallas, 254 F.3d 551, 571 (5th Cir. 2001) (quoting 5 James Wm. Moore et al.,
`
`Moore’s Federal Practice P 23.24[4] (3d ed. 2000)).
`
`For similar reasons supporting commonality, the Court rejects the Government’s
`
`arguments on typicality. First, Plaintiffs only seek classwide relief on Claim One and pleaded
`
`Claim Two and Three in the alternative. See Compl., ECF No. 1. Second, any fact-specific
`
`inquiries regarding a putative class member’s challenge does not prevent certification of the class
`
`itself because, to the extent they are even necessary, these individualized membership or
`
`government program assessments can be made after class certification. See, e.g., Seeligson v.
`
`Devon Energy Prod. Co., L.P., 761 F. App’x 329, 334 (5th Cir. 2019) (requiring only that the
`
`plaintiff demonstrate “that the class is adequately defined” and “provide sufficient objective
`
`criteria from which to identify class members” (citation and internal quotation marks omitted)).
`
`Denying certification on this basis would be especially improper in cases like these, where the
`
`proposed classes seek only injunctive and declaratory relief regarding enforcement of a statute,
`
`and the usual complications of class certification and phased litigation of suits for money damages
`
`do not apply. See, e.g., Rice v. City of Philadelphia, 66 F.R.D. 17, 19 (E.D. Pa. 1974) (“[T]he
`
`precise definition of the [Rule 23(b)(2)] class is relatively unimportant. If relief is granted to the
`
`plaintiff class, the defendants are legally obligated to comply, and it is usually unnecessary to
`
`define with precision the persons entitled to enforce compliance.”); Allison v. Citgo Petroleum
`
`Corp., 151 F.3d 402, 431 n.28 (5th Cir. 1998) (citing Hebert B. Newberg & Alba Conte, Newberg
`
`On Class Actions § 4.41, at 4-51 to 52 (3d ed. 1992) and noting differing approaches to certification
`
`and litigation of individual trials for damages). Accordingly, Plaintiffs’ claim is typical for both
`
`proposed classes.
`
`iv. Adequacy of Representation
`
`
`
`10
`
`

`

`
`
`Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 11 of 24 PageID 1456Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 11 of 24 PageID 1456
`
`For the final Rule 23(a) factor, Plaintiffs argue that there are no conflicts of interest among
`
`the class members with respect to Claim One, the only claim on which Plaintiffs seek classwide
`
`relief. See Class Cert. Mot. 7–8, ECF No. 13. They contend “[a] classwide injunction will serve
`
`only to protect the class members’ constitutional rights, as well as rights guaranteed under the Civil
`
`Rights Act of 1964[,]” conceding that classwide relief would not be appropriate for Claims Two
`
`and Three. Id.; see Class Cert. Reply 8, ECF No. 41. In response, the Government claims that, in
`
`seeking to prohibit the use of the socially-disadvantaged definition in USDA programs, Plaintiffs
`
`have a conflict in seeking to represent members who cannot opt out from any judgment that will
`
`necessarily bind the entire Rule 23(b)(2) class. See Class Cert. Resp. 18, ECF No. 28.
`
`“The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between
`
`named parties and the class they seek to represent.” Amchem Prods., Inc. v. Windsor, 521 U.S.
`
`591, 625 (1997). “Adequacy encompasses three separate but related inquiries (1) ‘the zeal and
`
`competence of the representative[s’] counsel’; (2) ‘the willingness and ability of the
`
`representative[s] to take an active role in and control the litigation and to protect the interests of
`
`absentees’; and (3) the risk of ‘conflicts of interest between the named plaintiffs and the class they
`
`seek to represent.’” Slade v. Progressive Sec. Ins. Co., 856 F.3d 408, 412 (5th Cir. 2017) (citing
`
`Feder v. Elec. Data Sys. Corp., 429 F.3d 125, 130 (5th Cir. 2005)). “[The] requirements [of
`
`commonality and typicality] . . . tend to merge with the adequacy-of-representation requirement,
`
`although the latter requirement also raises concerns about the competency of class counsel and
`
`conflicts of interest.” Falcon, 457 U.S. at 158 n.13. Throughout litigation, the court “must continue
`
`carefully to scrutinize the adequacy of representation and withdraw certification if such
`
`representation is not furnished.” Grigsby v. N. Miss. Med. Center, Inc., 586 F.2d 457, 462 (5th Cir.
`
`1978).
`
`
`
`11
`
`

`

`
`
`Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 12 of 24 PageID 1457Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 12 of 24 PageID 1457
`
`Here, Plaintiffs have carried their burden to show that they will adequately represent the
`
`interests of class members similarly situated in zealously pursuing the requested relief. All
`
`indications are that Plaintiffs are willing and able to control the litigation and to protect the interests
`
`of absent class members. See Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 484 (5th Cir.
`
`1982). Given the Court’s conclusion as to the commonality and typicality prongs, supra, and
`
`because the Government has not shown any conflicts of interest, issues with competency of
`
`counsel, or other issues suggesting inadequacy of Plaintiffs’ representation as to Claim One, the
`
`Court finds that Plaintiffs will adequately represent members of the proposed classes in pursuit of
`
`that claim.
`
`v. Ascertainability
`
`Plaintiffs argue that both proposed classes are ascertainable under Fifth Circuit law. See
`
`Class Cert. Reply 10, ECF No. 41. They contend that nothing is imprecise or vague about the
`
`proposed classes, as a potential plaintiff is either “encountering racial discrimination on account
`
`of section 1005, or he isn’t” and is “either included with the definition of ‘socially disadvantaged
`
`farmer or rancher,’ or he’s not.” Id. The Government argues that both proposed classes are
`
`imprecise. See Class Cert. Resp. 21–22, ECF No. 28. For the first class, the Government submits
`
`that it is unclear whether it would include, for example, individuals who fall within the definition
`
`of a socially disadvantaged farmer or rancher but claim discrimination based on other factors, such
`
`as accessibility to program services. See id. As for the second class, the Government argues that it
`
`“is not limited to those who have suffered any injury as a result of the fact that they do not fall
`
`within the definition of a ‘socially disadvantaged farmer or rancher.’” Id. at 22.
`
`
`
`12
`
`

`

`
`
`Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 13 of 24 PageID 1458Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 13 of 24 PageID 1458
`
`While not a requirement of Rule 23, courts only certify classes ascertainable under
`
`objective criteria. DeBremaecker, 433 F.2d at 734 (citations omitted).1 “There can be no class
`
`action if the proposed class is amorphous or imprecise.” John v. Nat’l Sec. Fire & Cas. Co., 501
`
`F.3d 443, 445 n.5 (5th Cir. 2007). “[T]he court need not know the identity of each class member
`
`before certification; ascertainability requires only that the court be able to identify class members
`
`at some stage of the proceeding.” Frey v. First Nat’l Bank Sw., 602 F. App’x 164, 168 (5th Cir.
`
`2015) (citations omitted). The Fifth Circuit has upheld the ascertainability of a class even when a
`
`definition necessitates individualized membership assessments that might follow litigation, so long
`
`as the class definition is sufficiently clear. See, e.g., Mullen v. Treasure Chest Casino, 186 F.3d
`
`620, 624 (5th Cir. 1999).
`
`The Court finds that the proposed classes are ascertainable. The ascertainability inquiry is
`
`significantly relaxed for Rule 23(b)(2) certifications like this one. See In re Monumental Life Ins.
`
`Co., 365 F.3d 408, 413 n.6 (5th Cir. 2004). Contrary to the Government’s argument, “district courts
`
`do not err by failing to ascertain at the Rule 23 stage whether the class members include persons
`
`and entities who have suffered ‘no injury at all.’” In re Deepwater Horizon, 739 F.3d 790, 811
`
`(5th Cir. 2014). Plaintiffs here only seek classwide relief on their claim that section 1005 violates
`
`equal protection and Title VI, and the proposed definitions are sufficiently clear to identify class
`
`members at some stage of the proceeding for that claim. See Frey, 602 F. App’x at 168. As such,
`
`
`1 Ascertainability may not be applicable in the Rule 23(b)(2) context. See, e.g., Shelton v. Bledsoe, 775 F.3d
`554, 563 (3rd Cir. 2015) (“[A]scertainability is not a requirement for certification of a (b)(2) class seeking
`only injunctive and declaratory relief.”); Cole v. City of Memphis, 839 F.3d 530, 542 (6th Cir. 2016) (“The
`advisory committee’s notes for Rule 23(b)(2) assure us that ascertainability is inappropriate in the (b)(2)
`context.”); Shook v. El Paso Cnty., 386 F.3d 963, 972 (10th Cir. 2004) (“[W]hile the lack of identifiability
`[of class members] is a factor that may defeat Rule 23(b)(3) class certification, such is not the case with
`respect to class certification under Rule 23(b)(2).”). However, the Fifth Circuit has yet to endorse this view
`shared by other circuit courts. The Court need not decide whether it applies here, because the class is
`ascertainable.
`
`
`
`13
`
`

`

`
`
`Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 14 of 24 PageID 1459Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 14 of 24 PageID 1459
`
`both proposed classes are ascertainable. Accordingly, the Court concludes that Plaintiffs have
`
`satisfied the elements for class certification under Rule 23(a) and need only address whether the
`
`elements of Rule 23(b) are satisfied.
`
`2. Rule 23(b)
`
`Plaintiffs move for class certification under Rule 23(b)(2). See Compl. 9, ECF No. 1. The
`
`Government argues that the requirements of Rule 23(b)(2) are not met because the USDA has not
`
`acted or refused to act on any request by Plaintiffs for debt relief under section 1005. See Class
`
`Cert. Resp. 19–20, ECF No. 28. It argues that Plaintiffs have “the opportunity to seek inclusion of
`
`those groups by submitting a written request with supporting explanation” for consideration by the
`
`Secretary on a case-by-case basis. Id. at 20. For this reason, any denial of benefits would
`
`necessarily vary from group to group and Plaintiff to Plaintiff. See id.
`
`The Government misconstrues the requirements of Rule 23(b)(2). A class action filed
`
`pursuant to Rule 23(b)(2) requires that “the party opposing the class has acted or refused to act on
`
`grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory
`
`relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Rule 23(b)(2) does
`
`not require “common issues,” only “common behavior by the defendant towards the class.” In re
`
`Rodriguez, 695 F.3d 360, 365 (5th Cir. 2012). “Action or inaction is directed to a class within the
`
`meaning of this subdivision even if it has taken effect or is threatened only as to one or a few
`
`members of the class, provided it is based on grounds which have general application to the class.”
`
`Fed. R. Civ. P. 23(b)(2) advisory committee’s note to 1966 amendment.
`
`Here, the USDA acts on grounds that apply generally to the classes in administering the
`
`debt-relief program in a racially discriminatory way, as required by the statute. Plaintiffs seek an
`
`injunction stopping the USDA from providing loan forgiveness to individuals based on their race
`
`
`
`14
`
`

`

`
`
`Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 15 of 24 PageID 1460Case 4:21-cv-00595-O Document 60 Filed 07/01/21 Page 15 of 24 PageID 1460
`
`or ethnicity. See Inj. Mot. 1, ECF No. 18. As required, “a single injunction or declaratory
`
`judgment” here “would provide relief to each member of the” classes. Wal-Mart, 564 U.S. at 360.
`
`Because granting the requested relief would apply generally to the classes as a whole, the Court
`
`finds that Rule 23(b)(2) is satisfied.
`
`B. Preliminary Injunction
`
`1. Substantial Likelihood of Success on the Merits
`
`Plaintiffs contend they are substantially likely to succeed on the merits of their
`
`constitutional challenge, as prioritized compensation for minorities for past discrimination by
`
`society is foreclosed as a matter of law. See Inj. Mot. 3–4, ECF No. 18 (citing City of Richmond v.
`
`J.A. Croson Co., 488 U.S. 469 (1989)). The Government concedes its prioritization scheme is race-
`
`based but maintains that it is allowed to use racial classification to remedy the lingering effects of
`
`past racial discrimination against minority groups—a “well-established” compelling government
`
`interest. See Inj. Resp. 26–27, ECF No. 27 (citing Adarand Constructors, Inc. v. Pena, 515 U.S.
`
`200, 237 (1995)). The Government also submits that Congress narrowly tailored the law to achieve
`
`that compelling interest, considering the history of discrimination against minority farmers and
`
`specific gaps in pandemic-related funding for those racial groups. See id. The Court disagrees.
`
`As other courts to consider this issue already have, the Court concludes that Plaintiffs are
`
`likely to succeed on the merits of their claim that the Government’s use of race- and ethnicity-
`
`based preferences in the administration of the loan-forgiveness program violates equal protection
`
`under the Cons