MEMORANDUM OPINION AND ORDER
BERYL
A. HOWELL CHIEF JUDGE
The
plaintiffs-Dakota Rural Action, Institute for Agriculture and
Trade Policy, Iowa Citizens for Community Improvement,
Citizens Action Coalition of Indiana, Association of
Irritated Residents, White River Waterkeeper, Food &
Water Watch, and Animal Legal Defense Fund-have sued the
United States Department of Agriculture (“USDA”),
the Farm Service Agency (“FSA”), and two federal
officials-Sonny Perdue, Secretary of Agriculture; and Richard
Fordyce, Administrator of FSA. The suit alleges violations of
both the National Environmental Policy Act
(“NEPA”), 42 U.S.C. § 4321, et
seq.; 40 C.F.R. § 1500, et seq., and the
Administrative Procedure Act (“APA”), 5 U.S.C.
§ 500, et seq., pertaining to the FSA's
allegedly unlawful promulgation of a 2016 rule that
categorically excludes FSA assistance loans provided for
construction of medium-sized concentrated animal feeding
operations (“CAFOs”) from requiring a prior
environmental assessment or environmental impact statement.
See generally Compl., ECF No. 1. Simultaneously with
the Complaint, the plaintiffs filed a Notice of Related Case,
ECF No. 2, representing that the present case “involves
common issues of fact” with Food & Water Watch
v. United States Department of Agriculture, No.
17-cv-1714 (BAH), an earlier-filed case assigned to the
undersigned judge. Under this Court's rules, the present
case was then also assigned to the undersigned judge.
See LCvR 40.5(c)(1) (“Where the existence of a
related case in this Court is noted at the time . . . the
complaint is filed, the Clerk shall assign the new case to
the judge to whom the oldest related case is
assigned.”). The defendants promptly filed an Objection
to Plaintiffs' Notice of Related Case (“Defs.'
Obj.”), ECF No. 15. For the reasons set forth below,
the defendants' objection is sustained and this case will
be transferred to the Calendar and Case Management Committee
for random reassignment. LCvR 40.5(c)(1).
The
general rule is that “all new cases filed in this
courthouse are randomly assigned . . . in order ‘to
ensure greater public confidence in the integrity of the
judicial process,' ‘guarantee[] fair and equal
distribution of cases to all judges,' ‘avoid public
perception or appearance of favoritism in assignments, and
reduce[] opportunities for judge-shopping.'”
Singh v. McConville, 187 F.Supp.3d 152, 154-55
(D.D.C. 2016) (quoting Tripp v. Exec. Office of the
President, 196 F.R.D. 201, 202 (D.D.C. 2000). Yet,
“in the interest of judicial economy, ” Local
Civil Rule 40.5 creates an exception for “related
cases.” Id. at 155. Under that rule, the
plaintiff may complete a form, to be provided to the Clerk of
the Court and served on the defendant with the complaint,
designating the action as related to an earlier-filed action.
LCvR 40.5(b)(2). Defendants may lodge an objection at the
time of the defendants' first responsive pleading.
Id.
Civil
cases are “related when the earliest is still pending
on the merits in the District Court and they (i) relate to
common property, or (ii) involve common issues of fact, or
(iii) grow out of the same event or transaction, or (iv)
involve the validity or infringement of the same
patent.” LCvR 40.5(a)(3). “The party requesting
the related-case designation bears the burden of showing that
the cases are related under Local Civil Rule 40.5.”
Singh, 187 F.Supp.3d at 155. The burden on the party
claiming relation is heavy as random assignment of cases is
essential to the public's confidence in an impartial
judiciary. Deviating from that foundational principle is
appropriate only if the relationship between the two cases is
certain. The judge to whom a case is assigned resolves any
objection to a related-case designation. Singh, 187
F.Supp.3d at 155; LCvR 40.5(c)(1). If the objection is
sustained, the judge may transfer the later-filed case to the
Calendar and Case Management Committee, which then decides if
good causes exists for the transfer and thus random
reassignment of the case. LCvR 40.5(c)(1).
In
Food & Water Watch, which is still pending, the
plaintiffs challenge under both NEPA and the APA the
FSA's “Finding of No. Significant Impact, dated
July 22, 2015, and [the FSA's] approval of One More Haul
Farm's application for a guaranteed loan to construct and
operate a poultry [CAFO].” Compl. ¶ 1, ECF No. 1
(No. 17-1714). The two cases, the plaintiffs claim, share
“common issues of fact, ” as in each whether the
“FSA improperly departed from or disregarded the
requirements of NEPA with regard to CAFO loans” depends
on “whether the alleged environmental impacts of CAFOs
are ‘individually or cumulatively significant'
under NEPA.” Pls.' Reply Supp. Notice of Related
Case (“Pls.' Reply”) at 3, ECF No. 17. More
specifically, each case will turn on CAFOs' individual
and cumulative effect on surface water pollution, groundwater
quality and quantity, biological resources, air quality,
community and quality of life, and family farmers.
Id.
The
plaintiffs' claim of relation is not frivolous. Cases are
related under the Rule 40.5(a)(3)(ii) if they share
“common issues of fact, ” but the rule offers no
guidance as to how much factual overlap is needed or how
similar the underlying facts must be. As for these two cases,
both the validity of the single 2015 loan provided to One
More Haul, at issue in Food & Water Watch, and
the FSA's subsequent 2016 rulemaking that categorically
exempts medium- sized CAFOs from undergoing environmental
assessments prior to receipt of an FSA loan, at issue in this
case, require analyzing the same kinds of facts:
CAFOs' impact on a host of similar environmental
considerations. That, however, is insufficient to support a
claim of relation. Such a reading of the related-case rule
would sweep too broadly, encompassing multiple actions
implicating common analyses of common types of facts. Rather,
to satisfy the related-case rule, the underlying facts
themselves must be common, a standard these two cases do not
meet. For Food & Water Watch, the administrative
record will present facts relevant only to the environmental
effects of a single CAFO in Maryland. By contrast, the
administrative record will present facts relevant to the
baseline environmental effect of medium-sized CAFOs. Even if
NEPA requires consideration of whether the environmental
impact of CAFOs is cumulatively significant, in each case the
question seems to be how the CAFOs at issue-in one case a
single CAFO and in the other case a class of CAFOs-contribute
to the cumulative impact. At bottom, the plaintiffs may have
shown that the two cases will pose similar questions
dependent on a similar class of facts, but have failed to
establish that the facts dictating the answers to those
questions are common.
Treating
this case as unrelated to Food & Water Watch is
consistent with prior interpretations of Rule 40.5. For
example, in Keepseagle v. Glickman, an objection to
relation was sustained even though plaintiffs in the
later-filed case claimed to “have been injured by the
same policies of defendant and in the same manner as were the
plaintiffs” in the earlier-filed case because one set
of plaintiffs claimed to have been discriminated against
because they were Native American and another set because
they were African American. 194 F.R.D. 1, 3 (D.D.C. 2000).
Claiming that “both sets of plaintiffs are farmers who
are members of protected classes and both complain of similar
discrimination at the hands of the Department of
Agriculture” was not enough to “waiv[e] the
normal judicial policy of random assignment of cases.”
Id. Likewise, in Stewart v. O'Neill,
the Court rejected the plaintiff's related-case
designation when one case alleged discrimination against
African-American agents at the Bureau of Alcohol, Tobacco,
and Firearms, and the second case alleged discrimination
against Hispanic agents at the Uinited States Customs
Service, despite both agencies being part of the Department
of Treasury and the alleged discriminatory conducted having
been perpetrated by individuals governed by the same
Department of Treasury policies. 225 F.Supp.2d 16, 20 (D.D.C.
2002).
In
comparison, in Autumn Journey Hospice, Inc. v.
Sebelius, the cases at issue each involved hospice care
providers that had received a demand from the Department of
Health and Human Services for the repayment of funds that had
been disbursed in excess of a cap set by the Department's
applicable regulation. 753 F.Supp.2d 135, 138 (D.D.C. 2010).
Each hospice care provider then raised an identical challenge
to the lawfulness of the identical repayment demands.
Id. at 139. The objection to relation was overruled
because each case concerned “a hospice care provider
subject to recently issued cap repayment demands calculated
pursuant to the same regulation.” Id. at 140.
Similarly, in Singh v. McConville, an objection to
relation was overruled because each of the two cases under
review involved observant Sikhs, all of whom had requested on
the same grounds an exemption from the Department of
Defense's and Army's regulations governing grooming
and personal appearance. 187 F.Supp.3d at 155-56. All
plaintiffs had been subjected to the same exemption process
and challenged the grooming regulations as applied to Sikh
servicemembers. Id. at 156.
The
rest of the plaintiffs' bases for relation are unavailing
as well. According to the plaintiffs, both the instant case
and the first-filed case allege that procedural violations of
the NEPA and the APA “deprived the respective
plaintiffs and the public of proper notice and an opportunity
to comment on FSA's decision-making process.”
Pls.' Reply at 4. The single loan and 2016 rule-making,
however, were separate processes and here too the
plaintiffs' claims depend on distinct facts. Finally, the
plaintiffs draw attention to the “commonality of
parties” as a reason to treat the cases as related.
Pls.' Reply at 6. Of the eight plaintiffs in this matter,
only Food & Water Watch is also a party in the
earlier-filed case. Moreover, overlapping plaintiffs is not
among the bases for a related-case designation.
At
bottom, the plaintiffs have failed to meet their burden that
departure from the practice of random case assignment is
warranted. For the reasons set forth above, the
defendants' objection is sustained. Consistent with Local
Civil Rule 40.5(c)(1), this case shall be transferred to the
Calendar and Case Management Committee for random
reassignment.
SO
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