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Hildebrandt v. Vilsack

United States District Court, D. Columbia.

May 5, 2015

TOM VILSACK, Secretary, United States Department of Agriculture, Defendant

For George Hildebrandt, Patricia Hildebrandt, Individuals and Black American Citizens, Plaintiffs: J. Robert Robertson, LEAD ATTORNEY, Kelly A. Quinn, HOGAN LOVELLS U.S. LLP, Washington, DC USA; Nathaniel H. Nesbitt, PRO HAC VICE, HOGAN LOVELL U.S. LLP, Washington, DC USA.

For Ann Veneman, U.S. Secretary of Agriculture, in her official and individual capacities, Vernon Parker, Assistant Secretary for Civil Rights, in his official, Defendants: Brian G. Kennedy, Daniel Edward Bensing, Galen Nicholas Thorp, LEAD ATTORNEYS, Jeremiah Goulka, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC USA; Michael Sitcov, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Federal Programs Branch, Civil Division, Washington, DC USA.


PAUL L. FRIEDMAN, United States District Judge.

Plaintiffs in this action, George and Patricia Hildebrandt, claim that the Farm Service Agency (" FSA" ) refused to provide them with applications for farm loans and/or for loan servicing, and that these refusals were made on the basis of the Hildebrandts' race, in violation of the Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq. The United States Department of Agriculture (" USDA" ) has filed a motion for summary judgment, arguing that the Hildebrandts have suffered no injury and therefore lack standing, and that they have failed to produce sufficient evidence to support their claims. Upon consideration of the arguments made by the parties in their papers and in open court, as well as the relevant legal authorities and the entire record in this case, the Court will deny USDA's motion.[1]


George and Patricia Hildebrandt are a married couple who since 1981 have operated a 242-acre farm in Leavenworth, Kansas. They bought the farm using funds from a loan administered by FSA, which is an agency of defendant USDA. The Hildebrandts made payments on the loan through 1996 but then stopped doing so, allegedly because of bad crop yields in 1997 and 1998 and based on the advice of their counsel in the Pigford class action. See Deposition of George Hildebrandt, Jr. (Jan. 15, 2014) at 42:12-43:21 [Dkt. Nos. 173-4 and 174-1] (" George Hildebrandt Depo." ). The Hildebrandts also state that they sought farm loan assistance from FSA on a biannual basis from 1985 until 2002 or 2003. See id. at 74:22-75:8. They contend that beginning in 1996, their efforts were consistently refused by FSA Farm Loan Manager Bruce Nutsch. See id. at 44:11-45:12, 52:6-19. The Hildebrandts complained to FSA that they believed Mr. Nutsch was discriminating against them because they are African American. In response to these complaints, FSA in June 2002 transferred the Hildebrandts' loan file to a different loan manager, who worked at the FSA office in Seneca, Kansas, some 102 miles away from their farm. See id. at 63:17-64:2; Pls.' Stmt. of Facts at 1-2.

The basis of the present action centers specifically on allegations that, on at least two occasions during the period from 2002 to 2005, the Hildebrandts requested applications for loans and/or for loan servicing but FSA officials refused to provide applications to them. The Hildebrandts allege that these refusals were made because of their race, in violation of the Equal Credit Opportunity Act (" ECOA" ), which prohibits discrimination on the basis of race against a credit applicant " with respect to any aspect of a credit transaction." 15 U.S.C. § 1691(a)(1).[2]

This case has a long procedural history, which the Court will not recount in full here. The Hildebrandts filed the action in 2004, when they were represented by James W. Myart, Jr. as counsel. They terminated Mr. Myart's representation in March 2008, after Mr. Myart's application to renew his membership in the bar of this Court was rejected. See Dkt. No. 104; Hildebrandt v. Vilsack, 287 F.R.D. 88, 91-93 & n.3 (D.D.C. 2012).[3] Nevertheless, the Hildebrandts' Second Amended Complaint -- drafted and filed by Mr. Myart in May 2005 -- remains the operative pleading in the case. After Mr. Myart's departure, the Hildebrandts obtained new counsel. By November of 2012, however, the Court ordered the Hildebrandts to file a written notice of their willingness and ability to prosecute the action. Hildebrandt v. Vilsack, 287 F.R.D. at 99; Dkt. No. 141. The Hildebrandts' new counsel subsequently informed the Court that they were unable to continue representing the plaintiffs on an unpaid basis, see Dkt. No. 142, and so in April 2013 the Court appointed attorneys at the law firm of Hogan Lovells as pro bono counsel for the Hildebrandts. Bradshaw v. Vilsack, Civil Action No. 04-1423, 2013 WL 1716502 (D.D.C. Apr. 18, 2013). The parties then engaged in discovery, which was followed by USDA's filing of the present motion for summary judgment.


Summary judgment is appropriate when " the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Fed.R.Civ.P. 56(a), (c). In making that determination, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Tolan v. Cotton, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; Talavera v. Shah, 638 F.3d 303, 308, 395 U.S.App.D.C. 7 (D.C. Cir. 2011). A disputed fact is " material" if it " might affect the outcome of the suit under the governing law." Talavera v. Shah, 638 F.3d at 308 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). A dispute over a material fact is " genuine" if it could lead a reasonable jury to return a verdict in favor of the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Paige v. DEA, 665 F.3d 1355, 1358, 398 U.S.App.D.C. 492 (D.C. Cir. 2012). " [T]he moving party is entitled to judgment as a matter of law if the nonmoving party 'fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Holcomb v. Powell, 433 F.3d 889, 895, 369 U.S.App.D.C. 122 (D.C. Cir. 2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). " Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge at summary judgment. Thus, [the court] do[es] not determine the truth of the matter, but instead decide[s] only whether there is a genuine issue for trial." Barnett v. PA Consulting Group, Inc., 715 F.3d 354, 358, 404 U.S.App.D.C. 439 (D.C. Cir. 2013) (quoting Pardo-Kronemann v. Donovan, 601 F.3d 599, 604, 390 U.S.App.D.C. 178 (D.C. Cir. 2010)); see also Tolan v. Cotton, 134 S.Ct. at 1866; Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 255.


A. Article III Standing

USDA contends that even if the Hildebrandts were wrongfully refused the opportunity to apply for loans and loan servicing, these refusals could not have caused them any injury because they never were qualified to receive a loan from FSA in the first place. As a consequence, argues USDA, the Hildebrandts lack Article III standing to pursue this action. USDA Reply at 10-13.

" Article III of the Constitution limits federal-court jurisdiction to 'Cases' and 'Controversies.'" Massachusetts v. E.P.A.,549 U.S. 497, 516, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). " To enforce this limitation, [federal courts] demand that litigants demonstrate a 'personal stake' in the suit." Camreta v. Greene,563 U.S. 692, 131 S.Ct. 2020, 2028, 179 L.Ed.2d 1118 (2011) (quoting Summers v. Earth Island Institute, 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009)). " The party invoking the Court's authority has such a stake when three conditions are satisfied: The [plaintiff] must show that he has 'suffered an injury in fact' that is caused by 'the conduct complained of' and that 'will ...

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