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`Case 4:21-cv-00595-O Document 78 Filed 09/03/21 Page 1 of 25 PageID 1647Case 4:21-cv-00595-O Document 78 Filed 09/03/21 Page 1 of 25 PageID 1647
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF TEXAS
`FORT WORTH DIVISION
`
`
`
`
`
`Civil Action No. 4:21-cv-00595-O
`
`SID MILLER, et al.,
`
`Plaintiffs,
`
`v.
`TOM VILSACK, in his official capacity as
`Secretary of Agriculture,
`Defendant.
`











`
`
`MOTION TO OPT OUT OF CERTIFIED CLASSES OR,
`IN THE ALTERNATIVE, TO AMEND CLASS CERTIFICATION ORDER
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`

`

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`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES .......................................................................................................... ii
`INTRODUCTION .......................................................................................................................... 1
`CERTIFICATE OF CONFERENCE (LR 7.1(b)) .......................................................................... 2
`BACKGROUND ............................................................................................................................ 2
`I. Movants’ Challenges to Section 1005 ................................................................................ 2
`II. Plaintiffs’ Class-Action Challenge to Various USDA Programs,
`Including Section 1005 ....................................................................................................... 4
`III. The Government’s Stay Requests ....................................................................................... 5
`ARGUMENT .................................................................................................................................. 6
`I. Movants Should Be Granted an Opt-Out from the Certified Classes. ................................ 6
`A.
`Legal Standard .............................................................................................................. 6
`B.
`Discussion ..................................................................................................................... 7
`1. Movants’ claims are sufficiently distinct from Plaintiffs’ ........................................ 7
`2.
`Allowing Movants to opt out will increase fairness and efficiency and avoid
`prejudice to Movants ................................................................................................ 8
`Allowing Movants to opt out will not prejudice other class members or cause
`undue hardship to the government ......................................................................... 10
`4. Movants’ interests are not completely aligned with Plaintiffs’ .............................. 11
`5.
`Denying Movants the ability to opt out would violate their due process rights. .... 12
`6.
`Denying Movants the ability to opt out would violate the First Amendment. ....... 16
`II. Alternatively, the Court Should Revise the Class Certification to Remove Movants. ..... 18
`CONCLUSION ............................................................................................................................. 18
`CERTIFICATE OF SERVICE ..................................................................................................... 20
`
`
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`3.
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`i
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`Allen v. Isaac, 100 F.R.D. 373 (N.D. Ill. 1983) .............................................................................13
`Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998)...................................................16
`Americans for Prosperity v. Bonta, 141 S. Ct. 2373 (2021) ..........................................................17
`Arizona v. Evans, 514 U.S. 1 (1995) ..............................................................................................11
`Bernard v. Gulf Oil Co., 619 F.2d 459 (5th Cir. 1980) .................................................................16
`Board of Regents v. Roth, 408 U.S. 564 (1972) .......................................................................14, 15
`Bogard v. Cook, 586 F.2d 399 (5th Cir. 1978) ................................................................................6
`City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) ..........................................................16
`Ctr. for Biological Diversity v. Ross, 419 F. Supp. 3d 16 (D.D.C. 2019) .....................................10
`DeGier v. McDonald’s Corp., 76 F.R.D. 125 (N.D. Cal. 1977) ..............................................13, 18
`Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599 (2020) ........................................................11
`Eubanks v. Billington, 110 F.3d 87 (D.C. Cir. 1997) ..................................................................7, 8
`Flecha v. Medicredit, Inc., 946 F.3d 762 (5th Cir. 2020) ................................................................9
`Fowler v. Birmingham News Co., 608 F.2d 1055 (5th Cir. 1979) ...................................................6
`Fuller v. Fruehauf Trailer Corp., 168 F.R.D. 588 (E.D. Mich. 1996) ..........................................10
`Hansberry v. Lee, 311 U.S. 32 (1940) ...........................................................................................13
`Holman v. Vilsack, No. 1:21-cv-01085, 2021 WL 3354169
`(W.D. Tenn. Aug. 2, 2021) ..............................................................................................5, 8, 11
`Humphrey v. United Way of Tex. Gulf Coast,
`No. CIV.A. H-05-0758, 2007 WL 2330933 (S.D. Tex. Aug. 14, 2007) ...................................6
`In re Initial Pub. Offering Secs. Litig., 483 F.3d 70 (2d Cir. 2007) ..............................................18
`INS v Chadha, 462 U.S. 919 (1983) ..............................................................................................17
`Keepseagle v. Johanns, 236 F.R.D. 1 (D.D.C. 2006) ......................................................................7
`Lockyer v. Mirant Corp., 398 F.3d 1098 (9th Cir. 2005) ..............................................................10
`In re Monumental Life Ins. Co., 365 F.3d 408 (5th Cir. 2004) ........................................................6
`NAACP v. Button, 371 U.S. 415 (1963) .........................................................................................16
`Penson v. Terminal Transp. Co., 634 F.2d 989 (5th Cir. 1981) ................................................6, 11
`Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ...........................................................14, 15
`Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781 (1988) .................................................................17
`Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ...............................................................................16
`
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`Serna v. Transp. Workers Union of Am., AFL-CIO,
`No. 3:13-CV-2469-N, 2014 WL 7721824 (N.D. Tex. Dec. 3, 2014) ..................................6, 18
`The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 (1913) ........................................................15
`Trump v. Hawaii, 138 S. Ct. 2392 (2018) ......................................................................................11
`Turner Broad. Sys., Inc. v FCC, 512 U.S. 622 (1994) ...................................................................18
`Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016) ...............................................................12
`Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021) .........................................................................8
`Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) .............................................................12, 14
`Statutes
`28 U.S.C. §§ 2071–77 (Rules Enabling Act) .................................................................................12
`28 U.S.C. § 2072(b) .......................................................................................................................12
`Rules
`Fed. R. Civ. P. 23(b)(2)............................................................................................1, 2, 4, 6, 13, 14
`Fed. R. Civ. P. 23(c)(1)(C) ............................................................................................................18
`Fed. R. Civ. P. 23(d)(2)....................................................................................................................6
`Other Authorities
`America First Legal, Senior Trump Officials Launch America First Legal, https://
`www.aflegal.org/news/senior-trump-officials-launch-america-first-legal-
`foundation (Apr. 6, 2021) ........................................................................................................12
`Decision & Order, Faust v. Vilsack, Case No. 21-C-548, ECF No. 66
`(E.D. Wis. Aug. 23, 2021) .........................................................................................................5
`Grant, Maximilian, Comment, The Right Not to Sue: A First Amendment
`Rationale for Opting Out of Mandatory Class Actions,
`63 U. Chi. L. Rev. 239 (1996) ...........................................................................................13, 17
`Husband, John M. & Williams, Bradford J., Wal-Mart v. Dukes Redux: The
`Future of the Sprawling Class Action, Colo. Law., September 2011 ......................................14
`Marcus, David, Flawed but Noble: Desegregation Litigation and Its Implications
`for the Modern Class Action, 63 Fla. L. Rev. 657 (2011) .......................................................13
`Notice of Funds Availability; American Rescue Plan Act of 2021 Section 1005
`Loan Payment (ARPA), 86 Fed. Reg. 28,329 (May 26, 2021) ..................................................3
`Order, Carpenter v. Vilsack, 21-cv-103-F, ECF No. 33 (D. Wyo. Aug. 16, 2021) .........................5
`Order, Joyner v. Vilsack, No. 1:21-cv-1089, 2021 WL 3699869 (W.D. Tenn. Aug.
`19, 2021) ....................................................................................................................................5
`Order, McKinney v. Vilsack, Civil Action No. 2:21-CV-00212-RWS, ECF No. 40
`(E.D. Tex. Aug. 30, 2021) .........................................................................................................5
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`Pacific Legal Foundation, Equality Before the Law,
`https://pacificlegal.org/equality-before-the-law .......................................................................12
`Redish, Martin H. & Larsen, Nathan D., Class Actions, Litigant Autonomy, and
`the Foundations of Procedural Due Process, 95 Calif. L. Rev. 1573 (2007) .........................16
`Weber, Mark C., Preclusion and Procedural Due Process in Rule 23(b)(2) Class
`Actions, 21 U. Mich. J.L. Reform 347 (1988) .........................................................................15
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`INTRODUCTION
`Movants1 are farmers or ranchers in various states across the country. Each is a named
`
`plaintiff in one of five federal court challenges to Section 1005 of the American Rescue Plan Act
`
`of 2021 (ARPA).2 In their respective cases, Movants allege that they are excluded from debt relief
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`under Section 1005 on the basis of race: specifically, because they are white. They are challenging
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`that race-based exclusion as a violation of both the Fifth Amendment’s Due Process Clause and
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`the federal Administrative Procedure Act and seek court orders either eliminating Section 1005’s
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`race-based debt relief program or expanding it to all farmers and ranchers, regardless of race.
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`Now, however, the federal government is trying to use the case before this Court as an
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`excuse to halt Movants’ cases. It has filed motions to stay those cases—and every challenge to
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`Section 1005 other than this one—because Movants and the other plaintiffs are members of classes
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`certified by this Court under Rule 23(b)(2). See Order, ECF No. 60; see also Joint Report, ECF
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`No. 70 at 1 (“Defendants [sic] have asked other district courts considering similar lawsuits over
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`the constitutionality of section 1005 to stay their proceedings pending proceedings in this class-
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`action lawsuit.”). Because this Court has certified classes, the government argues, this is the only
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`case and the only federal district court that should rule on the constitutionality of Section 1005.
`
`
`1 Movants include Scott Wynn, Kathryn Dunlap, James Dunlap, Ryan Kent, Matthew Morton,
`Joshua Morton, Jarrod McKinney, James Tiegs, Julie Owen, Abraham Jergenson, Cally Jergenson,
`and Chad Ward.
`2 See Wynn v. Vilsack, 3:21-cv-514 (M.D. Fla.); Dunlap v. Vilsack, 2:21-cv-942 (D. Ore.); Kent v.
`Vilsack, 3:21-cv-540 (S.D. Ill.); McKinney v. Vilsack, 2:21-cv-212 (E.D. Tex.); Tiegs v. Vilsack,
`3:21-cv-147 (D.N.D.). Movants are all represented pro bono by attorneys from Pacific Legal
`Foundation. Other challenges to Section 1005 have been brought on behalf of other farmers, using
`other counsel. See Faust v. Vilsack, 1:21-cv-548 (E.D. Wis.); Carpenter v. Vilsack, 21-cv-103-F
`(D. Wyo.); Holman v. Vilsack, 1:21-cv-1085 (W.D. Tenn.); Joyner v. Vilsack, 1:21-cv-1089 (W.D.
`Tenn.); Rogers v. Vilsack, 1:21-cv-1779 (D. Colo.); Nuest v. Vilsack, 21-cv-1572 (D. Minn.).
`1
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`Movants oppose the government’s stay motions because they believe that they should be
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`allowed to pursue their chosen claims, with their chosen counsel, in their chosen forums. The
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`important issues implicated by Section 1005 would also benefit from scrutiny in multiple courts.
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`For those same reasons, Movants now ask this Court to either (1) grant them an opt-out
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`from the certified classes or (2) alternatively, amend the class certification order to remove
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`Movants. Such relief is appropriate because Movants assert different claims and have different
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`interests than the named Plaintiffs and because it would promote fairness, not cause undue hardship
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`to any party, and uphold Movants’ due process and associational rights. Although the stay motions
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`in Movants’ cases should be denied regardless, an order from this Court granting Movants an opt-
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`out or removing them from the certified classes would help assure that they can litigate their
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`claims.
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`CERTIFICATE OF CONFERENCE (LR 7.1(b))
`Between August 30 and September 2, 2021, Movants’ attorney Glenn Roper conferred with
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`counsel for the parties. Emily Newton, counsel for Defendant, indicated that the government
`
`opposes this Motion because in its view, there is no right or other legal basis to opt out of a Rule
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`23(b)(2) class where the plaintiff is not seeking individualized monetary damages. Counsel for
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`Plaintiffs, Jonathan Mitchell, indicated that Plaintiffs take no position on this Motion.
`
`BACKGROUND
`Movants’ Challenges to Section 1005
`
`I.
`
`Section 1005 of ARPA distributes debt relief solely on the basis of race.3 It directs
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`Defendant Vilsack to “provide a payment in an amount up to 120 percent of the outstanding
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`indebtedness [as of January 1, 2021] of each socially disadvantaged farmer or rancher.”
`
`
`3 References to “Section 1005” or “§ 1005” are to Section 1005 of ARPA, Pub. L. No. 117-2,
`§ 1005, 135 Stat. 4, 12 (enacted Mar. 11, 2021).
`2
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`§ 1005(a)(2). Whether a farmer or rancher is considered “socially disadvantaged” for purposes of
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`Section 1005 depends on his or her race. Farmers and ranchers who are Black, American
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`Indian/Alaskan Native, Hispanic, Asian, and Hawaiian/Pacific Islander are automatically eligible
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`for debt relief under Section 1005, whereas white farmers and ranchers are categorically excluded,
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`regardless of their individual circumstances.4
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`In the months following Section 1005’s enactment, farmers across the country, including
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`Movants, brought lawsuits to challenge its constitutionality. See supra n.2. Movants each asserted
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`two claims: first, that Section 1005 violates the equal protection component of the Fifth
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`Amendment’s Due Process Clause (e.g., Wynn, ECF No. 1 ¶¶ 50–61), and second, that Section
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`1005 cannot be lawfully implemented under the Administrative Procedure Act (id. ¶¶ 62–67).
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`Movants named both the Secretary of Agriculture and the Administrator of the Farm Service
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`Agency (FSA) as defendants (id. ¶¶ 10–11) and requested declaratory relief, injunctive relief, and
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`nominal damages, (id. at 20–21 (Prayer for Relief)). All of Movants’ cases other than Tiegs were
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`filed before this Court granted Plaintiffs’ motion for class certification on July 1, 2021; Tiegs was
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`filed just five days later.
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`Movant Scott Wynn, whose case is pending in the Middle District of Florida, was the first
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`plaintiff in any challenge to Section 1005 to file a Motion for Preliminary Injunction. (Wynn, ECF
`
`No. 11.) The Wynn court was also the first to issue a preliminary injunction against enforcement
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`of Section 1005 (Wynn, ECF No. 41), and this Court relied on that analysis in granting Plaintiffs’
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`motion for preliminary injunction in this case. See ECF No. 60 at 18. The Wynn court subsequently
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`issued a case management and scheduling order (Wynn, ECF No. 43), after which the defendants
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`4 See Notice of Funds Availability; American Rescue Plan Act of 2021 Section 1005 Loan Payment
`(ARPA), 86 Fed. Reg. 28,329, 28,330 (May 26, 2021).
`3
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`answered the complaint (Wynn, ECF No. 48), the parties exchanged initial disclosures, and Mr.
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`Wynn served his first round of discovery requests, with responses due September 10.
`
`II.
`
`Plaintiffs’ Class-Action Challenge to Various USDA Programs, Including
`Section 1005
`
`The initial complaint in this case was filed on April 26, 2021, and an amended complaint
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`was filed on June 2, 2021. ECF No. 1; ECF No. 11. Both complaints assert three claims. The first
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`is that all USDA programs containing racial exclusions—not just Section 1005’s debt relief
`
`program—violate the Constitution and Title VI of the Civil Rights Act of 1964. ECF No. 11 ¶¶ 26–
`
`30. The second, alternative claim is that the term “socially disadvantaged group” must be construed
`
`to include “white ethnic groups that have suffered past prejudice and discrimination.” Id. ¶¶ 31–
`
`33. The third claim, also in the alternative, is that the term “socially disadvantaged farmer or
`
`farmer” must include all individuals that “have any discernable trace of minority ancestry.” Id.
`
`¶¶ 34–39. Plaintiffs’ amended complaint also sought certification of two Rule 23(b)(2) classes:
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`(1) farmers and ranchers who are excluded from USDA programs interpreting “socially
`
`disadvantaged farmer or rancher,” and (2) farmers and ranchers encountering racial discrimination
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`on account of Section 1005. Id. ¶¶ 40–42.
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`On July 1, this Court certified Plaintiffs’ proposed classes and granted a preliminary
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`injunction against Section 1005. ECF No. 60. In doing so, the Court cited the preliminary
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`injunction opinion in Wynn, which had been submitted as supplemental authority. See id. at 18–
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`19; see also ECF No. 44 (notice of supplemental authority). By the time this Court issued its class
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`certification decision, all Movants except the Tiegs plaintiffs had filed their lawsuits, and
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`preliminary injunction motions had been granted in Wynn and filed in McKinney and Dunlap.
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`4
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`III. The Government’s Stay Requests
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`Although the government vigorously opposed class certification in this case, see Def.’s
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`Opp. to Class Certif., ECF No. 28, once this Court certified the classes, the government filed
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`motions to stay each of Movants’ cases on the basis of the class certification. It filed similar
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`motions in every other challenge to Section 1005 (except this one). See ECF No. 70 at 1.
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`One federal court, in the Western District of Tennessee, denied the government’s stay
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`request. Holman v. Vilsack, No. 1:21-cv-01085, 2021 WL 3354169 (W.D. Tenn. Aug. 2, 2021).
`
`The court concluded that granting a stay would prejudice the plaintiff farmer, who “could well
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`have to wait years before he is able to resume his case.” Id. at *2. Additionally, the court concluded
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`that the interests of the Holman plaintiff “are not completed aligned” with those of Plaintiffs in
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`this case and noted that if the Holman plaintiff sought “to opt out of the Miller classes,” a stay
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`would “leav[e] his interest unrepresented.” Id.
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`However, in four other cases, including Movant Jarrod McKinney’s, courts have granted
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`the government’s requests for a stay.5 All four courts nonetheless noted that if the plaintiffs “do[ ]
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`not feel that [they are] adequately represented by the class” in this case, they “can opt out of the
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`class, advise the Court and move to lift the stay.” McKinney at 4; accord Carpenter at 6
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`(concluding that should the plaintiff “seek and be permitted to opt-out” of the certified classes, she
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`“may advise the Court and seek to lift the stay”); Joyner at 8 (if plaintiffs “seek and [are] permitted
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`to opt-out of the classes,” they can “move to lift the stay for good cause”); Faust at 2 (“[I]n the
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`event Plaintiffs do opt out of the class, they can advise the Court and move to lift the stay.”). Other
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`than McKinney, the motions for stay in Movants’ cases have not yet been ruled on.
`
`
`5 See Order, McKinney v. Vilsack, Civil Action No. 2:21-CV-00212-RWS, ECF No. 40 (E.D. Tex.
`Aug. 30, 2021); Order, Carpenter v. Vilsack, 21-cv-103-F, ECF No. 33 (D. Wyo. Aug. 16, 2021);
`Joyner v. Vilsack, No. 1:21-cv-1089, 2021 WL 3699869 (W.D. Tenn. Aug. 19, 2021); Decision &
`Order, Faust v. Vilsack, Case No. 21-C-548, ECF No. 66 (E.D. Wis. Aug. 23, 2021).
`5
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`ARGUMENT
`I. Movants Should Be Granted an Opt-Out from the Certified Classes
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`A. Legal Standard
`
`Although the Fifth Circuit has held that “a member of a class certified under Rule 23(b)(2)
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`has no absolute right to opt out of the class,” it has also made clear that a district court in a Rule
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`23(b)(2) case, “acting under its Rule 23(d)(2) discretionary power, may require that an opt-out
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`right and notice thereof be given.” Penson v. Terminal Transp. Co., 634 F.2d 989, 994–95 (5th
`
`Cir. 1981); see also, e.g., In re Monumental Life Ins. Co., 365 F.3d 408, 416 (5th Cir. 2004)
`
`(referring to “the discretion given a district court to order notice and opt-out rights when certifying
`
`a rule 23(b)(2) class”). District courts in this circuit have exercised their discretion to grant notice
`
`and opt-out rights to members of Rule 23(b)(2) classes. E.g., Serna v. Transp. Workers Union of
`
`Am., AFL-CIO, No. 3:13-CV-2469-N, 2014 WL 7721824, at *11 (N.D. Tex. Dec. 3, 2014)
`
`(granting members of Rule 23(b)(2) class an opportunity to opt out); Humphrey v. United Way of
`
`Tex. Gulf Coast, No. CIV.A. H-05-0758, 2007 WL 2330933, at *10 (S.D. Tex. Aug. 14, 2007)
`
`(“In Rule 23(b)(2) class certifications, a court also has the discretion to order . . . that the class
`
`members be afforded the opportunity to opt-out.”).
`
`One common reason for allowing Rule 23(b)(2) class members to opt out is so that they
`
`can independently pursue unique monetary claims. See, e.g., Penson, 634 F.2d at 994 (citing
`
`Bogard v. Cook, 586 F.2d 399 (5th Cir. 1978)). But that is not the only reason. See id. (noting that
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`opt-outs may be allowed to “ameliorate any ‘antagonistic interests’ between the class
`
`representatives and the absent members”) (citing Fowler v. Birmingham News Co., 608 F.2d 1055,
`
`1059 (5th Cir. 1979)). Indeed, the rule in this circuit is that a district court may grant an opt-out
`
`right to members of a 23(b)(2) class whenever it “believe[s] that such a right is desirable to protect
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`the interests of the absent class members.” Id.
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`6
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`B. Discussion
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`This court should allow Movants to opt out of the certified classes so that they can litigate
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`their chosen claims, with their chosen counsel, in their chosen forums. The same factors relied on
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`by other courts that have allowed opt-outs also support allowing Movants to opt out in this case.
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`Additionally, Movants’ due process rights and First Amendment right of association require that
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`they be allowed to opt out of the classes here.
`
`1. Movants’ claims are sufficiently distinct from Plaintiffs’
`
`Allowing opt-out is appropriate when “the claims of particular class members are unique
`
`or sufficiently distinct from the claims of the class.” Eubanks v. Billington, 110 F.3d 87, 96 (D.C.
`
`Cir. 1997); see also Keepseagle v. Johanns, 236 F.R.D. 1, 4 (D.D.C. 2006) (granting opt-outs to
`
`movants who “detailed significant ways in which their claims differ from those of the plaintiff
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`class”). That is true here. Movants have from the outset focused exclusively on Section 1005. By
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`contrast, Plaintiffs assert a broad challenge to “numerous” statutes that limit the benefits of federal
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`programs to socially disadvantaged farmers and ranchers. ECF No. 11 ¶¶ 10, 29. Plaintiffs also
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`raise additional claims not asserted by Movants, including a Title VI claim and two alternative
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`claims regarding the alleged social disadvantage of various white ethnic groups and those with
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`“any discernible trace of minority ancestry.” ECF No. 11 ¶¶ 27–39. Although this Court limited
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`the certified classes to Plaintiffs’ first claim, see ECF No. 60 at 10, and a recent filing indicates
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`that Plaintiffs may file a second amended complaint that omits their alternative claims, see ECF
`
`No. 70 at 2, they have not yet done so. Moreover, the fact that they asserted those alternative claims
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`shows that they take a very different view of the issues than Movants. At a minimum, it reveals
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`key differences in litigation strategy that support allowing Movants to opt out.
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`In turn, Movants raise unique arguments not presented by Plaintiffs, including a claim
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`under the federal Administrative Procedure Act and a request for nominal damages. See
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`
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`7
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`Case 4:21-cv-00595-O Document 78 Filed 09/03/21 Page 13 of 25 PageID 1659Case 4:21-cv-00595-O Document 78 Filed 09/03/21 Page 13 of 25 PageID 1659
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`Uzuegbunam v. Preczewski, 141 S. Ct. 792, 796 (2021) (an award of nominal damages can redress
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`past injury and avoid mootness problems).6 And unlike Plaintiffs, see ECF No. 70 at 2, Movants
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`do not believe that it is appropriate to dispense with all fact discovery; in fact, such discovery is
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`underway in Wynn. These differences, as to both claims and litigation approach, counsel in favor
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`of allowing Movants to opt out of the certified classes.
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`2. Allowing Movants to opt out will increase fairness and efficiency and
`avoid prejudice to Movants
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`An opt-out is appropriate when it will “facilitate the fair and efficient conduct of the
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`litigation.” Eubanks, 110 F.3d at 96. That is true here. Allowing Movants to opt out of this class
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`action will prevent what could be years of undue delay in getting their cases resolved. This case is
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`in its early stages. No judgment or settlement has been reached, no dispositive motions have been
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`filed (other than a partial motion to dismiss), the Court has not yet set a briefing schedule, and the
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`parties do not plan on completing summary judgment briefing until at least April 2022. With
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`appeals likely in a case of nationwide importance like this one, Movants may have to wait years if
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`bound to this proceeding that they did not initiate. That would be unfair to Movants, especially
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`when this case may include delays related to issues that Movants did not choose to raise in their
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`respective cases (such as the propriety of class certification). For that very reason, the Holman
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`court rejected the government’s stay request. Holman, 2021 WL 3354169, at *2 (agreeing that “if
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`this matter is stayed, [plaintiff] would have no say whatsoever in the pace at which Miller would
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`proceed including whatever extensions of deadlines may be requested or granted by either party,
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`or whether the government may seek [appellate] review”).
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`6 It is unclear whether Plaintiffs here seek the same alternative forms of relief as Movants: (1) an
`injunction only as to Section 1005’s racial classification, which could render Movants eligible for
`debt relief; or (2) an injunction prohibiting enforcement of Section 1005 in its entirety. See, e.g.,
`Wynn Compl. at 20–21. If Plaintiffs pursue only the second option, that is an additional reason to
`allow Movants to opt out, so that they can pursue a potential monetary benefit.
`8
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`

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`Case 4:21-cv-00595-O Document 78 Filed 09/03/21 Page 14 of 25 PageID 1660Case 4:21-cv-00595-O Document 78 Filed 09/03/21 Page 14 of 25 PageID 1660
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`Nor have Movants delayed or sat on their rights. To the contrary, they all filed their lawsuits
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`within a few months of Section 1005’s enactment. And although this case was nominally the first-
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`filed challenge to Section 1005, Wynn was filed prior to the amended complaint in this case;7 Kent,
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`Dunlap, and McKinney were filed before this Court granted class certification; and Tiegs was filed
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`less than a week after the classes were certified. It is unnecessary and unfair to bind Movants to
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`classes that either did not exist or were newly formed at the time their cases were filed.
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`The fairness concerns are especially acute for Mr. Wynn. The court in Wynn has already
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`set an expedited discovery and briefing schedule, with the goal of “provid[ing] clarity to the large
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`number of socially disadvantaged farmers and ranchers who were expecting relief under Section
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`1005.” Case Mgmt. & Sched. Order, Wynn, ECF No. 43 at 2. Even with a period for fact
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`discovery—which has already commenced in Wynn but which the parties in this case have elected
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`to forgo—summary judgment briefing in Wynn will be completed more than two months before it
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`would be completed under the parties’ proposal in this case. Compare ECF No. 70 at 3, with Case
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`Mgmt. & Sched. Order, Wynn, ECF No. 43.8 It makes little sense to bind Mr. Wynn as a member
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`of the classes here when his case is poised to be fully briefed and submitted before this one.
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`Fairness concerns are also strong for Mr. McKinney because the court in his case recently
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`granted the government’s stay motion, bringing his case to a halt. McKinney, ECF No. 40. In doing
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`so, the court noted that if Mr. McKinney “does not feel that he is adequately represented by the
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`class,” he “can opt out of the class, advise the Court and move to lift the stay.” Id. at 4. That is
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`7 Given that Mr. Miller has never alleged that he holds a qualifying farm loan, he likely lacked
`standing to challenge Section 1005 on his own. See Flecha v. Medicredit, Inc., 946 F.3d 762, 768–
`69 (5th Cir. 2020) (lack of standing by named class representative is a jurisdictional defect). The
`first amended complaint remedied that defect by adding plaintiffs who do have farm loans, see
`ECF No. 11 ¶¶ 20–23, but not until over two weeks after the complaint was filed in Wynn.
`8 Under the Wynn scheduling order, the close of discovery is

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