UPDATE (November 26, 2013): Today the government filed stipulations of dismissal of the claims of eight of the ten plaintiffs in the Love lawsuit.
IMPORTANT UPDATE (April 2013): On March 25, 2013, the USDA extended the deadline for its voluntary claims process for Hispanic and women farmers and ranchers. Information about the claim process is available through the USDA’s website at www.farmerclaims.gov. As a result of this extension, the litigation deadlines set in the Love case have been extended as well.
IMPORTANT UPDATE (June 19, 2012): At a status conference in Court on June 19, 2012, USDA’s attorneys stated that USDA has hired a claims administrator for the administrative claims program. USDA has not yet announced a start date for the program.
Current Status of Love v. Vilsack
In July 2003, the Court granted the plaintiffs’ motion to file an amended complaint. In January 2004, the plaintiffs in the Love v. Vilsack litigation filed a motion for class certification for two of the three proposed subclasses. The USDA submitted an opposition brief in April 2004, and plaintiffs filed a reply brief in May 2004.
The Court issued its decision denying class certification on September 29, 2004. On October 14, 2004, the plaintiffs submitted a petition for permission to appeal the district court’s decision.
On December 16, 2004, the U.S. Court of Appeals for the District of Columbia, issued an order granting the Plaintiffs’ petition for permission to take an interlocutory appeal. Case Numbers 04-5449 (formerly 04-8010).
On December 17, 2004, the Plaintiffs also filed a petition for permission to take an interlocutory appeal relating to the district court’s dismissal of Plaintiffs’ Administrative Procedures Act (“APA) and/or the Equal Credit Opportunity Act (“ECOA”) claims.
On February 23, 2005, the U.S. Court of Appeals issued an order granting the petition for permission to appeal on this basis as well. Case Number 05-5002 (formerly 04-8011). The Court has since consolidated the two appeals, under Case Number 04-5449.
On appeal before the D.C. Circuit, the parties completed the submission of briefs in November 2005, and the oral argument was held on February 6, 2005 at 9:30 a.m. before a three-judge panel, including Judge Sentelle, Judge LeCraft Henderson and Judge Edwards.
On March 3, 2006, the D.C. Circuit issued a decision affirming in part and remanding in part the District Court’s decisions. The D.C. Circuit affirmed the District Court’s denial of class certification and the dismissal of a claim for failure to investigate complaints of discrimination. At the same time, the D.C. Circuit remanded the plaintiffs’ claim brought under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (“APA”) to the District Court for further briefing by the parties.
Back before the District Court, the parties submitted briefs relating to Plaintiffs’ APA claims. On April 19, 2007, the District Court heard oral argument regarding the APA claims. Thereafter, Plaintiffs submitted supplemental memoranda regarding their APA claims. On November 30, 2007, the District Court dismissed Plaintiffs’ APA claims, a ruling which Plaintiffs appealed.
On December 14, 2007, Plaintiffs filed a motion to amend and certify for interlocutory review the District Court’s dismissal order. The District Court granted Plaintiffs’ motion, and Plaintiffs sought permission from the D.C. Circuit Court of Appeals to proceed with the appeal. In the meantime, the District Court has continued to stay proceedings in the case. On April 18, 2008, the D.C. Circuit granted Plaintiff’s appeal request. The parties submitted appeal briefs in the fall of 2008. Oral argument was held on January 9, 2009 before a three-judge panel of the D.C. Circuit Court of Appeals. On April 24, 2009, the D.C. Circuit to issue a decision affirming the District Court’s dismissal order. Plaintiffs submitted a petition for rehearing en banc of this decision, which the D.C. Circuit denied. On September 15, 2009, we filed a petition for writ of certiorari with the U.S. Supreme Court. The Supreme Court denied the petition on January 19, 2010.
At the status conference held on February 10, 2010, the District Court continued the stay of the case pending discussions of the parties. Since then, the judge assigned to the case, Judge Robertson, has retired and the case has been assigned to Judge Walton. Judge Walton has continued to stay of the case pending the parties’ settlement discussions. There was a status conference held on December 3, 2010 at which Judge Reggie B. Walton denied plaintiffs’ motion for court review and supervision of financial distribution to women farmers, and for appointment of lead counsel. At the status conference held on January 14, 2011, the judge continued to stay the proceedings and scheduled another status conference for April 15, 2011.
Judge Walton held status conferences in the Love v. Vilsack case on April 15, July 27, and October 21, 2011, and January 6 and February 23, 2012. A number of women filed a motion to intervene in the case as plaintiffs, and Judge Walton has not yet ruled on their motion, in light of the government’s administrative claims process not yet having been launched and completed. The government had indicated that it would launch the claims program in December 2011 or January 2012, but on January 6, 2012, reported that a claims administrator had not yet been selected. On January 20, 2012, the government filed a revised “Framework” document, which outlines the administrative claims program it expects to offer, and includes some substantive changes from earlier versions.
At a status conference on June 19, 2012 before Judge Walton, USDA’s attorneys stated that USDA has retained an administrator for the administrative claims program for women farmers, but USDA is unsure about when the program will begin. The Judge expressed frustration that the administrative claims program has taken so long to implement. He indicated that he would require USDA to present its final Claims Form to the Court, would allow the plaintiffs to amend their Complaint to include any allegations related to discrimination in the administrative claims program, and would appoint a Magistrate Judge to address certain issues. The Judge issued an Order on June 20, 2012 implementing these directives. The Magistrate Judge is to recommend a litigation schedule for those plaintiffs who choose to litigate their claims in Court, consider how to approach claims of discrimination related to the administrative claims program, and address all other matters to assist in expeditiously resolving the case. The case has since been referred to Magistrate Judge John M. Facciola. In light of the Court’s June 20, 2012 Order, plaintiffs filed their Fourth Amended and Supplemental Complaint on July 13, 2012.
On August 24, 2012, the parties met with Magistrate Judge John M. Facciola. After the meeting, Judge Walton issued a briefing schedule that will allow the parties to address women farmers’ new claims of discrimination related to USDA’s administrative claims program. The briefing of these issues is scheduled to last until late November 2012.
On September 24, 2012, USDA moved to dismiss the Counts of Plaintiffs’ Complaint that relate to the administrative claims program. Plaintiffs responded on October 15, 2012, and argued that USDA’s motion to dismiss should be denied, and that Plaintiffs are entitled to judgment in their favor on these claims. The Plaintiffs’ brief argues that USDA’s claims program is less beneficial than the similar programs USDA offered to African-American and Native American farmers, and that the program accordingly violates the equal protection and due process rights of women farmers, and also violates the Administrative Procedure Act ("APA"). The Plaintiffs’ brief is available here. In support of their brief, Plaintiffs filed the following exhibits:
On December 11, 2012, after the parties submitted briefs, the Court dismissed the portions of Plaintiffs’ Complaint in which Plaintiffs alleged that USDA’s administrative claims process violates the constitutional rights of women farmers. The Court’s opinion is available here. The Court’s decision does not impact the underlying loan discrimination claims of the named plaintiffs. Since then, the Court has set a briefing schedule that begins after the USDA’s voluntary claims process concludes March 25, 2013. Thereafter, the government will have until May 1, 2013 to file a motion to transfer the ten individual named plaintiffs’ cases, and on or after April 22, 2013 the government will file a motion to end the tolling of the statute of limitations for putative plaintiffs (i.e., all other women farmers similarly situated to the named plaintiffs with regard to allegations of discrimination by USDA in its farm loan programs).
The Court granted the government an extension for filing a motion to transfer venue, if any, until 2 weeks after all named plaintiffs’ claims submitted under the Hispanic and Women Farmers and Ranchers Claims Resolution Process had been deemed complete and ready for adjudication. That deadline passed in or around late August without the government filing a motion to transfer.
Since then, the government filed a motion to end the tolling of the statute of limitations in the lawsuit. The Plaintiffs opposed the government’s motion, arguing that there should be a single date on which the tolling ends for all women farmers’ claims: at least 45 days from when the Court lifts the stay. The parties are awaiting the Court’s decision on the government’s motion.
The Plaintiffs’ counsel filed a fee petition for recovery from the federal government of their attorneys’ fees and costs. The government has opposed the petition. The decision will be before the Court for a decision following Plaintiffs’ counsel submitting a reply brief in support of their fee petition in late December 2013.