United States District Court, District of Columbia
June 13, 2014
ROSEMARY LOVE, et al., Plaintiffs,
THOMAS J. VILSACK, Secretary, United States Department of Agriculture, Defendant.
REGGIE B. WALTON, District Judge.
The plaintiffs in this civil action are female farmers who allege that the United States Department of Agriculture ("USDA") discriminated against them on the basis of gender in the administration of its farm loan and disaster benefit programs, and that it failed to timely resolve their discrimination complaints. Fourth Amended and Supplemental Complaint at 3. The Black Farmers & Agriculturalists Association, Inc. ("Association") has moved to intervene in this action pursuant to Federal Rule of Civil Procedure 24. Motion of Black Farmers and Agriculturalists Association, Inc. to Intervene ("Mot.") at 1. Upon careful consideration of the relevant submissions,  the Court concludes that it must deny the motion for the reasons set forth below.
Between 1997 and 2000, African-American, Native American, Hispanic, and female farmers filed four similar class action lawsuits alleging that the USDA engaged in widespread discrimination on the basis of race, ethnicity, or gender in the administration of its farm loan and benefit programs, and that it routinely failed to investigate complaints of such discrimination. See Pigford v. Glickman, Nos. 97-1978, 98-1693 (D.D.C. filed Aug. 28, 1997, July 7, 1998) ("Pigford I") (African-American farmers); Keepseagle v. Vilsack, No. 99-03119 (D.D.C. filed Nov. 24, 1999) (Native American farmers); Garcia v. Vilsack, No. 00-2445 (D.D.C. filed Oct. 13, 2000) (Hispanic farmers); Love v. Vilsack, No. 00-2502 (D.D.C. filed Oct. 19, 2000) (female farmers). Judge James Robertson, a former member of this Court, denied the plaintiffs' motions for class certification in this action and in Garcia v. Vilsack. See Love v. Veneman , 224 F.R.D. 240 (D.D.C. 2004), aff'd in part, remanded in part sub nom. Love v. Johanns , 439 F.3d 723 (D.C. Cir. 2006); Garcia v. Veneman , 224 F.R.D. 8 (D.D.C. 2004), aff'd and remanded sub nom. Garcia v. Johanns , 444 F.3d 625 (D.C. Cir. 2006). The defendant has, however, developed an administrative claims process for Hispanic and female farmers to resolve their claims of discrimination against the USDA. See Defendant's Status Report at 1, ECF No. 155; Defendant's Eighth Status Report at 1, Garcia, No. 00-2445 (D.D.C. Jan. 20, 2012), ECF No. 218. Participation in the administrative claims process is conditioned on dismissal of a farmer's legal claims against the USDA. See Defendant's Status Report, Exhibit ("Ex.") 1 (Framework for Hispanic or Female Farmers' Claims Process) at 6, ECF No. 155-1; Defendant's Eighth Status Report, Ex. 1 (Framework for Hispanic or Female Farmers' Claims Process) at 6, Garcia, No. 00-2445 (D.D.C. Jan. 20, 2012), ECF No. 218-1.
The Association is "a not-for-profit organization created for the specific purpose of responding to the issues and concerns of Black Farmers in the United States and abroad, " Mot. at 2, and it seeks to intervene in this action and Garcia on behalf of its members who asserted time-barred claims in Pigford I, see Mot. at 6; Mot., Ex. 1 (Proposed Complaint) ¶¶ 15, 19. A brief overview of the Pigford litigation is necessary to understand the Association's asserted interest in this case and Garcia.
On October 9, 1998, Judge Paul L. Friedman of this Court certified Pigford I as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) for purposes of liability. Pigford v. Glickman , 182 F.R.D. 341, 352 (D.D.C. 1998). Judge Friedman later vacated his original class certification order on January 5, 1999, and certified a new class pursuant to Rule 23(b)(3). Pigford v. Glickman , 185 F.R.D. 82, 92 (D.D.C. 1999). Following the Court's class certification rulings, the parties in Pigford I negotiated a class-wide settlement, which Judge Friedman approved in a consent decree issued on April 14, 1999. Id . at 113. The Pigford I consent decree established an administrative claims process "by which each class member would have an opportunity to demonstrate that he or she had been the victim of past discrimination by the USDA and therefore was entitled to compensatory damages." In re Black Farmers Discrim. Litig. , 856 F.Supp.2d 1, 9 (D.D.C. 2011).
The Pigford I consent decree imposed a deadline for African-American farmers to submit their claims for administrative adjudication, id. at 10, and many farmers tried, unsuccessfully, to file claim packages after the deadline expired, id. at 11. To address this problem, "Congress resurrected the claims of those who had unsuccessfully petitioned the Arbitrator for permission to submit late claim packages" with a provision in the Food, Conservation, and Energy Act of 2008 ("2008 Farm Bill"), id., which provides that "[a]ny Pigford claimant who has not previously obtained a determination on the merits of a Pigford claim may, in a civil action brought in the United States District Court for the District of Columbia, obtain that determination, " id. (quoting Pub. L. 110-234, § 14012(b), 122 Stat. 923, 1448 (2008)). After this provision became effective, thousands of African-American farmers filed suit in this Court. Id . at 13. The Association also brought suit on behalf of its members who were eligible to file claims under the 2008 Farm Bill. Complaint to Determine Merits and Damages Pursuant to § 14012 of the Food, Conservation and Energy Act of 2008 ¶ 1, Black Farmers & Agriculturalists Ass'n, Inc. v. Schafer, No. 08-1188 (D.D.C. July 9, 2008), ECF No. 1. These cases were all subsequently consolidated before Judge Friedman, and are collectively known as Pigford II. In re Black Farmers, 856 F.Supp.2d at 13.
The parties in Pigford II reached a class-wide settlement agreement on February 18, 2010, id., which Judge Friedman approved, id. at 42. The settlement agreement largely maintained the administrative claims process utilized in Pigford I, with some modifications. Id . at 22. Judge Friedman certified a settlement class consisting of "[a]ll individuals: (1) who submitted Late-Filing Requests under Section 5(g) of the Pigford v. Glickman Consent Decree on or after October 13, 1999, and on or before June 18, 2008; but (2) who have not obtained a determination on the merits of their discrimination complaints...." Id . at 15. Notably, unlike the Pigford I class, Pigford II class members were not permitted to opt out of the class. See id. at 9, 32-33. The order and judgment granting approval of the settlement agreement provided that
the Class Representatives, the Class, and its members and their heirs, administrators, successors, and assigns release, waive, acquit and forever discharge the United States and the Secretary from and are forever barred and precluded from prosecuting, any and all claims, causes of action, or requests for any monetary relief... that have been or could have been asserted in the Consolidated Case by reason of, with respect to, in connection with, or which arise out of, any matters alleged in the Consolidated Case that the Class Representatives, the Class, and its members, and their heirs, administrators, successors, and assigns have against the United States or the Secretary, or any of them.
Order and Judgment ¶ 19, Pigford II, No. 08-mc-0511 (D.D.C. Oct. 27, 2011), ECF No. 231. The Association was terminated as a party in Pigford II, Amended Class Action Complaint to Determine Merits and Damages Pursuant to § 14012 of the Food, Conservation and Energy Act of 2008, As Amended at 1 n.1, Pigford II, No. 08-mc-0511 (D.D.C. Apr. 5, 2011), ECF No. 163, and is not a member of the settlement class, see Latham v. Vilsack, Nos. 11-5326, 11-5334, 12-5019, 2012 WL 10236550, at *1 (D.C. Cir. July 25, 2012).
The Association seeks to intervene in this litigation to assert two claims. Mot., Ex. 1 (Proposed Complaint) ¶¶ 16-23. First, it seeks a declaration finding that "both the Equal Protection Clause and Due Process Clauses of the United States Constitution mandate that its members who are eligible Pigford claimants' under the 2008 Farm Bill, but did not timely file claims are entitled to file claims, under the framework established for Hispanic and female farmers." Id . ¶ 19. The Association's second claim is for injunctive relief with respect to the USDA's current loan approval process, specifically, "a permanent injunction against [the] USDA and its subordinate county level loan processing entities to refrain from discrimination in processing loan applications of Black Farmers, " id. ¶ 21, and "an order restructuring the present loan approval process that removes the [county] and local level aspects of the process and replaces it with a more equitable organizational structure, " id. ¶ 22. Both the defendant and the plaintiffs oppose the motion to intervene.
II. STANDARD OF REVIEW
The Association seeks to intervene as a matter of right pursuant to Federal Rule of Civil Procedure 24(a), or, in the alternative, permissively pursuant to Rule 24(b). Mot. at 6.
Federal Rule of Civil Procedure 24(a) provides that "on timely motion, " a court must allow a party to intervene if it
claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
Fed. R. Civ. P. 24(a)(2). In assessing a motion to intervene as of right, a court must consider the motion's timeliness, whether the movant "claims an interest relating to the property or transaction which is the subject of the action, " whether the movant "is so situated that the disposition of the action may as a practical matter impair or impede [its] ability to protect [its] interest, " and whether the movant's interest "is adequately represented" by the existing parties to the litigation. Fund for Animals, Inc. v. Norton , 322 F.3d 728, 731 (D.C. Cir. 2003) (citation omitted). A party seeking to intervene as of right must additionally establish standing under Article III of the Constitution. Id . at 731-32.
Pursuant to Federal Rule of Civil Procedure 24(b), "on timely motion, " a court may permit a party to intervene if it "has a claim or defense that shares with the main action a common question of law or fact." Fed.R.Civ.P. 24(b)(1)(B). In determining whether permissive intervention is appropriate, a court "must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." Fed.R.Civ.P. 24(b)(3). Permissive intervention is "inherently discretionary, " EEOC v. Nat'l Children's Ctr., Inc. , 146 F.3d 1042, 1046 (D.C. Cir. 1998), and a court may deny a motion for permissive intervention even if the movant has met all of the requirements of Rule 24(b), id. at 1048.
While the Court sympathizes with the Association members who failed to timely assert Pigford claims, the Association's motion to intervene in this litigation fails on every score. The Court agrees with the defendant that the Association's first claim is plainly barred by Pigford II, which unequivocally extinguished the right of any Pigford claimant to receive a determination on the merits of a claim outside of the claims process created by Pigford II. See Order and Judgment ¶¶ 1, 18-19, Pigford II, No. 08-mc-0511 (D.D.C. Oct. 27, 2011), ECF No. 231. The Association's motion suffers from a more fundamental defect, however. In order to intervene as of right, the Association must establish that it has Article III standing. Fund for Animals, Inc. , 322 F.3d at 731-32. As alluded to by the defendant, Def.'s Opp'n at 6 n.1; see also Def.'s Opp'n at 5-6, the Association's standing to pursue its first claim is far from evident.
"The irreducible constitutional minimum of standing contains three elements: (1) injury-in-fact, (2) causation, and (3) redressability.'" Nat'l Ass'n of Home Builders v. EPA , 667 F.3d 6, 11 (D.C. Cir. 2011) (citation omitted). "Thus, to establish standing, a litigant must demonstrate a personal injury fairly traceable to the [opposing party's] allegedly unlawful conduct [that is] likely to be redressed by the requested relief.'" Id . (citation omitted). "The absence of any one of these three elements defeats standing." Newdow v. Roberts , 603 F.3d 1002, 1010 (D.C. Cir. 2010). An association has standing to bring suit on behalf of its members if "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Nat'l Ass'n of Home Builders , 667 F.3d at 12 (citation and internal quotation marks omitted).
In its proposed complaint, the Association asserts that it seeks a declaration that both the Equal Protection Clause and Due Process Clauses of the United States Constitution mandate that its members who are eligible Pigford claimants' under the 2008 Farm Bill, but did not timely file claims are entitled to file claims, under the framework established for Hispanic and female farmers.
Mot., Ex. 1 (Proposed Complaint) ¶ 19. While it is apparent that the Association's objective in intervening is to obtain an opportunity for its members to participate in the administrative claims process for Hispanic and female farmers, see id. ¶¶ 11, 19; Mot. at 6; Reply at 6, the nature of the Association members' asserted injury, how that injury is fairly traceable to the USDA's conduct, and how the requested relief will redress that injury is less clear. For example, if, as it appears, the harm that the Association seeks to redress is its members' inability to obtain a determination on the merits of their claims, the Court is at a loss to discern how this injury is fairly traceable to the defendant's actions in this case and whether the Association's requested relief would likely redress this injury. See Mot. at 11 (describing the Association's first claim as alleging that "the additional claim process is unconstitutional unless [the Association's] members are permitted to intervene"). The Association's motion yields no assistance here, providing only a recitation of the requirements for standing and the conclusory statement that it "has standing to sue based on injuries to itself or to its members." Mot. at 7. The Association has therefore failed to demonstrate Article III standing to pursue its first claim, as it must to intervene as of right in this litigation.
While the Association's second claim does not present the same standing problems, the Court agrees with the plaintiffs that the Association's motion does not satisfy the requirements for either intervention as of right or permissive intervention, see Pls.' Opp'n at 3-5, because the Association's motion is untimely, a prerequisite for both modes of intervention, see Fed.R.Civ.P. 24(a), (b). The timeliness of a motion to intervene
is to be judged in consideration of all the circumstances, especially weighing the factors of time elapsed since the inception of the suit, the purpose for which intervention is sought, the need for intervention as a means of preserving the applicant's rights, and the probability of prejudice to those already parties in the case.
Smoke v. Norton , 252 F.3d 468, 471 (D.C. Cir. 2001) (citation omitted). The plaintiffs filed their complaint on October 19, 2000, see ECF No. 1, and the defendant first announced its intention to establish an administrative claims process for Hispanic and female farmers in September 2010, see Defendant's Status Report at 1, ECF No. 112; Defendant's Status Report at 1, Garcia, No. 00-2445 (D.D.C. Sept. 27, 2010), ECF No. 181. The claims process was finalized in January 2012. See Defendant's Status Report at 1, ECF No. 155; Defendant's Eighth Status Report at 1, Garcia, No. 00-2445 (D.D.C. Jan. 20, 2012), ECF No. 218. The Association did not move to intervene for nearly thirteen years after the plaintiffs filed suit, almost three years after the USDA announced its intention to create the administrative claims process to settle the claims asserted in this litigation, and just over a year after the USDA finalized the claims process. The Association's motion is untimely as measured from any of these points, see Moten v. Bricklayers, Masons & Plasterers Int'l Union of Am. , 543 F.2d 224, 228 (D.C. Cir. 1976) (upholding denial of motion to intervene based on untimeliness because "[a]ny measure of timeliness of the motion to intervene must be cast against the backdrop of two years of controversy between the unions which now have reached settlement"), and the Association provides no reason for its delay. Indeed, it is apparent that its decision not to seek intervention earlier was a strategic choice to instead participate in the parallel Pigford litigation, a circumstance that weighs against intervention. See id.
The other factors the Court must consider also weigh in favor of finding the Association's motion untimely. While the Association's first claim relates solely to the administrative claims process, its purpose for intervention with respect to the second claim is to obtain injunctive relief relating to discrimination against African-American farmers in the USDA's current loan approval process, a claim appropriately brought at the beginning, rather than the end, of this litigation. This litigation is quite advanced, and injection of new claims at this point will serve only to delay further the conclusion of this long-running case for the existing parties. Intervention would require further proceedings to address new issues and potentially new factual development since the Association's second claim relates to the USDA's "present loan approval process, " Mot., Ex. 1 (Proposed Complaint) ¶ 22 (emphasis added), and therefore is likely to prejudice the existing parties, see Roane v. Leonhart , 741 F.3d 147, 152 (D.C. Cir. 2014) (identifying further discovery and argument on additional issues as sources of prejudice in evaluating the timeliness of a motion to intervene).
Moreover, the Association need not intervene here to pursue its second claim. While the ability to bring a claim in separate litigation is not in itself a sufficient reason to deny intervention, Natural Res. Def. Council v. Costle , 561 F.2d 904, 910 (D.C. Cir. 1977), the fact that the Association will suffer no harm if intervention is denied is very relevant to the Court's assessment of the timeliness of its motion when all of the other considerations before the Court indicate that the Association's intervention at this late date will serve only to disadvantage the existing parties, delay the resolution of this protracted litigation, and unnecessarily complicate an already-complex proceeding by injecting new issues when the litigation has advanced to the point it has reached here. Indeed, "the requirement of timeliness is aimed primarily at preventing potential intervenors from unduly disrupting litigation, to the unfair detriment of the existing parties, " Roane , 741 F.3d at 151, which is exactly what the Association's intervention here would occasion.
The Association responds that since this litigation has been stayed while claimants seek resolution through the administrative claims process, the Association's intervention "will not delay or otherwise prejudice the parties for the reason the litigation will resume and a new case schedule will be formulated." Reply at 6. Accepting this reasoning would render Rule 24's timeliness requirement meaningless because intervening at any time short of final judgment would constitute timely intervention due to the fact that intervention would generally require that the litigation proceed under a revised scheduling order. The Association also argues that the plaintiffs do not set forth any "specific grounds" in support of their contention that the motion to intervene is untimely. Id . at 6. But the plaintiffs argue that the Association's motion is untimely for precisely the reason stated above-the fact that this litigation was already far advanced when the Association moved to intervene. Pls.' Opp'n at 5. The Association cites no authority for the proposition that anything more is required of the plaintiffs, and the Court has found none. Accordingly, the Court finds that the Association's motion to intervene is untimely and that neither intervention as of right nor permissive intervention is appropriate.
For the foregoing reasons, the Association's motion to intervene is denied.