MOTION FOR PRELIMINARYINJUNCTIVE RELIEF

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UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

NOTICE OF MOTION FOR PRELIMINARY INJUNCTION

You are notified that on ________________ (date), at ________ (time), or as soon thereafter as the Plaintiffs can be heard, in Courtroom ___ of the United States District Court, District of Columbia at 333 Constitutional Avenue N.W, Washington D.C. 20001.

The Plaintiffs will bring on for hearing this Motion for Preliminary Injunctive Relief for the reasons stated in the attached Motion.

Dated this day of Month, year.

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UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIVE RELIEF

Plaintiffs requests a hearing on this motion as soon as possible within the 21 days provided for by local Civil Rule 65.1(d).

The plaintiffs respectfully move for a preliminary injunction to prevent the Department of Agriculture from dispersing $11 billion dollars to farmers due to the history of disbursement disparities based on race which is a violation of the Equal Protection Clause of the Fifth Amendment, and for cause would like to show this Honorable Court as follows:

1. FACTS
2. On March 11, 2021, the US Legislature under Section 1005 of the American Rescue Plan Act of 2021, H.R. 1319, 117th Cong. (2021)., instructed the Department of Agriculture (USDA) and Secretary Tom Vilsack to provide four billion in debt relief to Socially Disadvantaged Farmers (SDF).  
3. Over 90 days has lapsed and SDFs have not received debt relief and USDA admitted in response to Faust v. Vilsack, No. 21-C-548, the Department has spent 49 percent of the $4 billion dollars and it intends on sending “offer” letters out to SDFs by July 10, 2021.  
4. The debt relief outlined by the U.S. Legislature are not contract offers up for negotiations but guaranteed debt payments for SDF who have been historically discriminated against by the Department.
5. To our knowledge no SDF has received any correspondence notifying them how much and when their debt will be written off. Once again there is a clear lack of oversight regarding USDA’s enforcement of legislative authority to provide debt relief to SDFs.
6. These debt payments are owed to SDFs but yet billions of dollars in emergency assistance have been disbursed to primarily White farmers excluding many SDFs receipt of funds.  If we farmers were all racially equal there would not be disparities in program and aid funds. USDA inaction of not complying with written legislation to make SDFs whole by continuing to violate the equal protection of the laws, Equal Credit Opportunity Act, 15 U.S.C. § 1691(a) (“ECOA”), breaching past class action settlement agreement, and the 2008 Food Energy and Conservation Act later as 7 C.F.R. 766.358. is unconstitutional and must be halted.

• LEGAL ARGUMENT
• Plaintiffs hereby incorporate the facts stated in Paragraphs 1-5.
• The Plaintiffs are entitled to a preliminary injunction if they establish “(1) that he is substantially likely to succeed on the merits of his suit, (2) that in the absence of an injunction, he would suffer irreparable harm for which there is no adequate legal remedy, (3) that the injunction would not substantially harm other parties, and (4) that the injunction would not significantly harm the public interest.” Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1505-06 (D.C. Cir. 1995). These factors interrelate on a sliding scale and must be balanced against each other.” Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C. Cir. 1998).
• The Plaintiffs are likely to succeed on the merits of the suit.
• Plaintiffs have shown that they are likely to succeed on the merits, and that the balance of equities tips in their favor. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008).
• The Plaintiffs’ action arises from an express violation of the US Legislature under Section 1005 of the American Rescue Plan Act of 2021, H.R. 1319, 117th Cong. (2021), which was meant to provide debt relief to Socially Disadvantaged Farmers. Notably, in response to Faust v. Vilsack, No. 21-C-548, the Department of Agriculture admitted that the SDFs have not yet received the debt relief.
• Most importantly, up to the time of this action, the SDFs have not received any correspondence notifying them how much and when their debt will be written off. 
• The Plaintiffs will suffer irreparable harm if this Court fails to issue a preliminary injunction.
• Plaintiffs are likely to succeed as the Plaintiffs have shown that they “would suffer irreparable injury if the injunction were not granted.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006).   The damages to be suffered by the Plaintiffs if the injunction is not granted, cannot be ameliorated by money damages. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008).
• It starts with the pattern and practice of the Defendants not complying with Congressional Acts, such as the moratorium provisions provided in the Pigford v. Glickman settlement agreement and the 2008 Food Energy and Conservation Act of 2008, later codified as 7 C.F.R. 766.358. According to the 2021 Environmental Working Groups Report, in studying 2020 coronavirus farm aid disbursement in October 2020, the USDA issued $9.2 billion in aid farmers under the Coronavirus Food Assistance Program (CFAP.  White farmers received 97 percent averaging payments of $3,398 compared to $422 the average payment given to Black farmers, four times less than the White farmers. The breakdown of the $9.2 billion in CFAP payment disbursement shows blatant racial bias that continue to cause irreparable harm to SDF.  Out of the total $6.7 billion went to White farmers, $100 million went to Latinx farmers, $76 million went to Native, Indigenous farmers, and $15 million went to Black farmers. Allowing the disbursement of $11 billion will continue the pattern of discriminatory preference regarding payment disbursement at the sacrifice of SDF prior to the $4 billion that was supposed to be given out over three months ago to be processed.  Allowing for continued preferential treatment and expansion of the racial wealth gap which goes against the Biden Administration policies.  
• The preliminary injunction will not harm the other parties.
• This factor requires the Court to determine whether the harm that would be suffered by the plaintiffs if the Court did not grant the injunction outweighs the harm that would be suffered by the defendants or others if the injunction is granted. See Aluminum Workers Int’l Union v. Consol. Aluminum Corp., 696 F.2d 437, 444 (6th Cir. 1982).  
• In the instant action, the harm to be suffered by the Plaintiffs would outweigh any harm (if there be any harm at all) that may be suffered by the defendants, if this Court grants the injunction. The Congressional Budget Office has recommended that 15,000 to 17,000 farmers will be affected by the Emergency Debt Relief of Farmers of Color Act of 2021. Then provided $4,000,000,000 for the Secretary to write the debt off and tax relief to the farmers prescribed in the act. According to the 2017 USDA Census over 97 percent of farmers in the U.S. are owned by White Americans. However, between 2006 to 2016 according to the Counter, investigative report Black farmers were foreclosed on at 13 percent the highest rate out of all the racial groups despite making up only 3 percent of Direct farm loan recipients.
• The Secretary of Agriculture is now engaging in the same manner he has shown in the past. When Pandemic relief was provided in 2018 and 2019 for the China Trade Wars, White farmers received over 20 billion dollars in a matter of 2 weeks. Then again in October of 2021 for further pandemic relief, White farmers received nearly 9.7 billion dollars. Between both acts, Socially Disadvantaged Farmers received less than ¼ of one percent of total assistance. Sixty Days into the Emergency Debt Relief for Farmers of Color Act, the Secretary is now saying farmers can get relief “up to” a certain amount and must apply. This language is contrary to what is in the bill. The Bill plainly states “The Secretary Shall.”
• The preliminary injunction will not harm the public interest.
• The Courts will grant an injunction based on this fourth and final factor, if granting the injunction will advance policy objectives. Flight Options, LLC v. International Brotherhood of Teamsters, Local 1108, No. 17-3188 (6th Cir. 2017). It follows; the consideration is “whether the public interest will be served by an injunction.” Id.
• The injunction would not harm the public interest as the Balance of Equities and the Public Interest Weigh in Favor of Preliminary Relief       Turning to the final factors, the plaintiffs must demonstrate that the balance of equities and the public interest weigh in favor of preliminary relief. That burden is easily and decisively met the equities weigh sharply in favor of preliminary relief.  Prior to June 15, 2021, announcement of $11 billion dollars all farmers were relieved of their financial obligation to pay any farm loan payments due to the pandemic.  However, despite this mortarium, SDFs have still suffered under impending threat of foreclosure.  According to UDSA response in Faust v. Vilsack case out of the thousands of SDFs who are waiting for relief 399 have pending bankruptcies, 5,000 to 10,000 have pending foreclosures, but White farmers. In Rothe Development, Inc. v. Department of Defense, No. 15-5176, the DC Court of Appeals upheld a lower court’s decision stating that socially disadvantaged individuals who have suffered discrimination historically based on race are protected to participate in the 8(a) Small Business Administration program that allots federal contracts to socially disadvantaged groups based on race as constitutional and not a violation of the equal protection clause.  Additionally, disbursement of $11 billion will allow while placing debt payments on hold and when lifted providing “offers” and not enforcing the language as written as guaranteed payment will continue to allow for the Secretary’s blatant violation of the equal protection clause of the Fifth Amendment.  See Adarand Constructors Inc., v. Pena, 515 U.S. at 236 (holding race-based affirmative action subject to strict judicial scrutiny, and noting that, “to the extent (if any) that Fullilove held federal racial classifications to be subject to a less rigorous standard, it is no longer controlling”)
• Disparate impact exists. In proving disparate impact, the burden rests on the Plaintiff to prove that (1) a facially neutral policy; (2) that, in fact, has a disproportionately adverse effect on a protected class. Plaintiff has proved the two elements in Paragraphs 8-11 of this Motion. In Tex. Dep’t Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, 24 135 S. Ct. 2507, 2525 (2015), the Court held as follows: “Recognition of disparate-impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping. But disparate-impact liability has always been properly limited in key respects that avoid the serious constitutional questions that might arise under the FHA, for instance, if such liability were imposed based solely on a showing of a statistical disparity. Disparate-impact liability mandates the ‘removal of artificial, arbitrary, and unnecessary barriers,’ not the displacement of valid governmental policies.” In this case, disparate-impact liability will prevent unfair disbursement patterns that might otherwise result from covert and illicit stereotyping.
• Nearly 20,000 people across the country face the same hardship as the individual plaintiff, a reality that factors into evaluation of the public’s interest in preliminary relief. See Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (“In awarding a preliminary injunction, a court must also “consider the overall public interest.” (quoting Winter, 555 U.S. at 26)).
• Past practice and precedent are important in themselves. See Michigan v. Bay Mills   Indian Cmty., 572 U.S. 782, 798 (2014) (“Stare decisis is a foundation stone of the rule of law.”). Even more important, though, are what the precedents at issue enable: judicial review of the executive branch. This case illustrates why administrative actions must be subject to court scrutiny. The vast federal bureaucracy wields staggering power over the lives of vulnerable Americans. Agencies like USDA can dictate their access to housing, health care, and food. The APA’s requirements — designed to protect these individuals from arbitrary terminations of their benefits and all Americans from agency action run amok are merely hortatory unless they can be meaningfully enforced by courts. The agency’s theory of judicial power threatens to undermine that enforcement function.
• This is a request for a nationwide injunction as it is an appropriate remedy under the binding D.C. Circuit Precedent interpreting the equal protection clause of the Fifth Amendment.
• “This Court is bound” by the D.C. Circuit’s precedents, Rough Hearing Tr. at 90:8, and those precedents hold “that ‘[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated — not that their application to the individual petitioners is proscribed.’” National Mining Association v. U.S. Army Corps of Engineers, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (alteration in original) (quoting Harmon v. Thornburg, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989)); see also, e.g., Humane Soc’y of U.S v. Zinke, 865 F.3d 585, 614 (D.C. Cir. 2017) (“A common remedy when we find a rule is invalid is to vacate.”); Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002) (“Normally when an agency so clearly violates the APA we would vacate its action . . . and simply remand for the agency to start again.”). In National Mining, the district court had found that the challenged rule exceeded the agency’s authority and ordered “that the rule is declared invalid and set aside, and henceforth is not to be applied or enforced by” the relevant agencies. Am. Mining Cong. v. U.S. Army Corps of Engineers, 951 F. Supp. 267, 278 (D.D.C. 1997). On appeal, the D.C. Circuit rejected the agencies’ argument that the rule should have been enjoined only as to the plaintiffs, stating unequivocally that vacatur of an unlawful rule is not just one possible form of relief but the “ordinary” remedy. The other, less ordinary, remedy, not available at a preliminary stage, is remand to the agency without vacatur. See, e.g., Humane Soc’y, 865 F.3d at 614 (discussing both             options).
• Here the plaintiff argues that the defendants routinely violate the Equal Protection Component of the Due Process Clause of the Fifth Amendment. As aforementioned, the agency does not have an Assistant Secretary for Civil Rights, the one person that has sole authority to settle the discrimination complaints and refer Socially Disadvantaged Farmers to the Administrative Law Judge. Therefore, the pattern and practice of discriminatory conduct against the members of a protected class further violates the right to due process.

• PRAYER FOR RELIEF

REASONS WHEREFORE, Plaintiffs respectfully request this Honorable Court to grant the following reliefs:

1. Grant this Motion for Preliminary Injunctive Relief as well as the attached Order in order to prevent any further harm and damages to Plaintiffs;
2. Such equitable relief as may be appropriate under the circumstances; and
3. Such further relief as this Honorable Court deems necessary and proper.

Dated this day of Month, year.