Wynn v. Vilsack

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

SCOTT WYNN, an individual,

Plaintiff,

v. Case No. 3:21-cv-514-MMH-JRK

THOMAS J. VILSACK, in his

official capacity as U.S. Secretary of

Agriculture and ZACH

DUCHENEAUX, in his official

capacity as Administrator, Farm

Service Agency,

Defendants.

ORDER

THIS CAUSE is before the Court on Plaintiff’s Motion for Preliminary

Injunction (Doc. 11; Motion) filed May 25, 2021, Defendants Response in

Opposition to Plaintiff’s Motion for Preliminary Injunction (Doc. 22; Response)

filed June 4, 2021, and Plaintiff’s Reply in Support of Motion for Preliminary

Injunction (Doc. 23; Reply) filed June 9, 2021.1 On June 16, 2021, the Court

held a hearing on the Motion at which the parties argued their respective

positions. Accordingly, the Motion is ripe for review.

1 The Court also considered the brief filed by the National Black Farmers Association (NBFA)

and Association of American Indian Farmers (AAIF). (Doc. 25; Amicus Brief).

I. Background

In this action, Plaintiff challenges Section 1005 of the American Rescue

Plan Act of 2021 (ARPA), 2 which provides debt relief 3 to “socially

disadvantaged farmers and ranchers” (SDFRs). (Doc 1; Complaint). Specifically,

Section 1005(a)(2) authorizes the Secretary of Agriculture to pay up to 120% of

the indebtedness, as of January 1, 2021, of an SDFR’s direct Farm Service

Agency (FSA) loans and any farm loan guaranteed by the Secretary

(collectively, farm loans). Section 1005 incorporates 7 U.S.C. § 2279’s

definition of an SDFR as “a farmer of rancher who is a member of a socially

disadvantaged group.” 7 U.S.C. § 2279(a)(5). A “socially disadvantaged group”

is defined as “a group whose members have been subjected to racial or ethnic

prejudice because of their identity as members of a group without regard to

their individual qualities.” 7 U.S.C. § 2279(a)(6). Racial or ethnic groups that

categorically qualify as socially disadvantaged are “Black, American

Indian/Alaskan Native, Hispanic, Asian, and Pacific Islander.” Complaint at ¶

3; see also U.S. Dep’t of Agric., American Rescue Plan Debt Payments,

https://www.farmers.gov/americanrescueplan (last visited June 22, 2021).

White or Caucasian farmers and ranchers do not.

2 Pub. L. No. 117-2, 135 Stat. 4.

3 At the hearing, counsel for the Government took exception to the Court’s use of the term

“loan forgiveness,” arguing the relief is properly categorized as “debt relief.” (Doc. 37; Hearing

Transcript at 48). To avoid confusion, the Court will use the term debt relief throughout this

Order to refer to the relief provided to SDFRs in Section 1005.

Plaintiff is a White farmer in Jennings, Florida who has qualifying farm

loans but is ineligible for debt relief under Section 1005 solely because of his

race. Complaint ¶ 9. He sues Thomas J. Vilsack, the current Secretary of

Agriculture, and Zach Ducheneaux, the administrator of the United States

Department of Agriculture (USDA) and head of the FSA, in their official

capacities. Id. ¶¶ 10-11. In his two-count Complaint, Plaintiff alleges Section

1005 violates the equal protection component of the Fifth Amendment’s Due

Process Clause (Count I) and, by extension, is not in accordance with the law

such that its implementation should be prohibited by the Administrative

Procedure Act (APA) (Count II). See generally Complaint. Plaintiff seeks (1) a

declaratory judgment that Section 1005’s provision limiting debt relief to

SDFRs violates the law, (2) a preliminary and permanent injunction prohibiting

the enforcement of Section 1005, either in whole or in part, (3) nominal

damages, and (4) attorneys’ fees and costs. Id. at 20-21.

II. Legal Standard

A preliminary injunction is an extraordinary and drastic remedy. See

McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998); see also

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary

injunction is an extraordinary remedy never awarded as of right.”); Davidoff &

CIE, S.A. v. PLD Int’l Corp., 263 F.3d 1297, 1300 (11th Cir. 2001). Indeed, “[a]

preliminary injunction is a powerful exercise of judicial authority in advance of

trial.” Ne. Fla. Chapter of Ass’n of Gen Contractors of Am. v. City of

Jacksonville, 896 F.2d 1283, 1284 (11th Cir. 1990). This is particularly true with

respect to preliminary injunctions of legislative enactments, which “must be

granted reluctantly and only upon a clear showing that the injunction before

trial is definitely demanded by the Constitution and by the other strict legal

and equitable principles that restrain courts.” Id. at 1287. This is because such

injunctions “interfere with the democratic process and lack the safeguards

against abuse or error that come with a full trial on the merits . . . .” Id.; see

also Robinson v. Attorney General, 957 F.3d 1171, 1178-79 (11th Cir. 2020)

(“[t]he chief function of a preliminary injunction is to preserve the status quo

until the merits of the controversy can be fully and fairly adjudicated.” (internal

quotations and citation omitted)).

“A plaintiff seeking a preliminary injunction must establish [1] that he is

likely to succeed on the merits, [2] that he is likely to suffer irreparable harm

in the absence of preliminary relief, [3] that the balance of equities tips in his

favor, and [4] that an injunction is in the public interest.” Winter, 555 U.S. at

20. The Eleventh Circuit recently described the heavy burden on a party

seeking preliminary injunctive relief as follows:

A district court may grant a preliminary injunction only if the

moving party establishes that: (1) [he] has a substantial likelihood

of success on the merits; (2) [he] will suffer an irreparable injury

unless the injunction is granted; (3) the harm from the threatened

injury outweighs the harm the injunction would cause the

opposing party; and (4) the injunction would not be adverse to the

public interest.

Gonzalez v. Governor of Georgia, 978 F.3d 1266, 1270-71 (11th Cir. 2020); see

also Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc). However,

the court also instructed that “the third and fourth factors merge when, as here,

the Government is the opposing party.” Id. at 1271 (internal quotations and

citation omitted).

The movant, at all times, bears the burden of persuasion as to each of

these requirements. See Ne. Fla., 896 F.2d at 1285. In deciding whether a party

has met its burden, “[a] district court may rely on affidavits and hearsay

materials which would not be admissible evidence for a permanent injunction,

if the evidence is appropriate given the character and objectives of the

injunctive proceeding.” Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d

982, 985 (11th Cir. 1995) (internal quotations and citation omitted); see also

Cumulus Media, Inc. v. Clear Channel Commc'ns, Inc., 304 F.3d 1167, 1171

(11th Cir. 2002) (“Preliminary injunctions are, by their nature, products of an

expedited process often based upon an underdeveloped and incomplete

evidentiary record.”). Notably, a party’s failure to establish any one of the

essential elements will warrant denial of the request for preliminary injunctive

relief and obviate the need to discuss the remaining elements. See Pittman v.

Cole, 267 F.3d 1269, 1292 (11th Cir. 2001) (citing Church v. City of Huntsville,

30 F.3d 1332, 1342 (11th Cir. 1994)); Del Monte Fresh Produce Co. v. Dole Food

Co., 148 F. Supp. 2d 1326, 1339 n.7 (S.D. Fla. 2001).

III. Discussion

a. Likelihood of Success

Beginning with the first element required to obtain preliminary

injunctive relief, Plaintiff contends that the record before the Court shows that

he has a likelihood of success on the merits of his claim that Section 1005 is

unconstitutional because it violates his right to equal protection under the law.

Motion at 10. This element is often considered the most important factor in

granting preliminary injunctive relief. See Garcia-Mir v. Meese, 781 F.2d 1450,

1453 (11th Cir. 1986).

Since Section 1005 is a race-based governmental action, it is subject to

strict scrutiny. Grutter v. Bollinger, 539 U.S. 306, 326 (2003). As noted by the

Supreme Court,

Absent searching judicial inquiry into the justification for such

race-based measures, there is simply no way of determining what

classifications are “benign” or “remedial” and what classifications

are in fact motivated by illegitimate notions of racial inferiority or

simple racial politics. Indeed, the purpose of strict scrutiny is to

“smoke out” illegitimate uses of race by assuring that the

legislative body is pursuing a goal important enough to warrant

use of a highly suspect tool. The test also ensures that the means

chosen “fit” this compelling goal so closely that there is little or no

possibility that the motive for the classification was illegitimate

racial prejudice or stereotype.

City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality

opinion). Indeed, the Supreme Court instructs that “any person, of whatever

race, has the right to demand that any governmental actor subject to the

Constitution justify any racial classification subjecting that person to unequal

treatment under the strictest of judicial scrutiny.” Adarand Constructors, Inc.

v. Peña, 515 U.S. 200, 224 (1995).

“Although all government uses of race are subject to strict scrutiny, not

all are invalidated by it.” Grutter, 539 U.S. at 326-27; see also Adarand, 515

U.S. at 237 (seeking to “dispel the notion that strict scrutiny is strict in theory,

but fatal in fact.” (internal quotations and citations omitted)). To survive strict

scrutiny, a law must serve a compelling governmental interest and be narrowly

tailored to further that interest. Adarand, 515 U.S. at 227 (“Federal racial

classifications, like those of a State, must serve a compelling governmental

interest, and must be narrowly tailored to further that interest.”). Thus,

Plaintiff’s likelihood of success in this action turns on whether Section 1005

satisfies these requirements.

i. Compelling Governmental Interest

In the Response, the Government states that its “compelling interest in

relieving debt of [SDFRs] is two-fold: to remedy the well-documented history of

discrimination against minority farmers in USDA loan (and other) programs

and prevent public funds from being allocated in a way that perpetuates the

effects of discrimination.” Response at 18. In cases applying strict scrutiny, the

Eleventh Circuit has instructed:

In practice, the interest that is alleged in support of racial

preferences is almost always the same—remedying past or present

discrimination. That interest is widely accepted as compelling. As

a result, the true test of an affirmative action program is usually

not the nature of the government's interest, but rather the

adequacy of the evidence of discrimination offered to show that

interest.

Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1564 (11th Cir. 1994)

(citations omitted). Thus, to survive strict scrutiny, the Government must show

a strong basis in evidence for its conclusion that past racial discrimination

warrants a race-based remedy. Id. at 1565. The law on how a governmental

entity can establish the requisite need for a race-based remedial program has

evolved over time. In Eng’g Contractors Ass’n of S. Fla. v. Metro. Dade Cnty.,

the Eleventh Circuit summarized the kinds of evidence that would and would

not be indicative of a need for remedial action in the local construction industry.

122 F.3d 895, 906-07 (11th Cir. 1997). The court explained:

A strong basis in evidence cannot rest on an amorphous claim of

societal discrimination, on simple legislative assurances of good

intention, or on congressional findings of discrimination in the

national economy. However, a governmental entity can justify

affirmative action by demonstrating gross statistical disparities

between the proportion of minorities hired and the proportion of

minorities willing and able to do the work. Anecdotal evidence may

also be used to document discrimination, especially if buttressed

by relevant statistical evidence.

Id. (internal quotations and citations omitted). Also, the court reaffirmed the

Ensley Branch court’s conclusion that although the Constitution requires

strong evidence of discrimination to justify the need for a race-based remedy, a

proponent of such a remedy need not have produced such evidence before

adopting the remedy. Id. at 911 (quoting Ensley Branch, 31 F.3d at 1565). As

such, the Government is not precluded from presenting post enactment

evidence to establish a compelling governmental interest in this case. Id.

Here, to establish the requisite evidence of discrimination, the

Government relies on substantial legislative history, testimony given by experts

at various congressional committee meetings, reports prepared at Congress’

request regarding discrimination in USDA programs, and floor statements

made by supporters of Section 1005 in Congress.4 See Response at 6-13 (citing

4 Plaintiff contests the Government’s ability to rely on such evidence, arguing there is no basis

to determine what evidence Congress relied on when it passed Section 1005. See Motion at 4-

6; Reply at 8-9. However, formal findings by a government entity “need neither precede nor

accompany the adoption of affirmative action.” Ensley Branch, 31 F.3d at 1565; see also

Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286 (1986) (rejecting any formal findings

requirement). In reaching that conclusion in the public employer context, the Eleventh Circuit

allowed the Government to justify its affirmative action plans post-hac using any evidence

available to it. Ensley Branch, 31 F.3d at 1568 (“If the City and Board can now show strong

evidence of the need for affirmative action in a department, then future affirmative action in

that department is justified.”); see also Harrison & Burrowes Bridge Constructors, Inc. v.

Cuomo, 981 F.2d 50, 60 (2d Cir. 1992) (“The law is plain that the constitutional sufficiency of

a state's proffered reasons necessitating an affirmative action plan should be assessed on

whatever evidence is presented, whether prior to or subsequent to the program's enactment.”);

Contractors Ass'n v. City of Philadelphia, 6 F.3d 990, 1004 (3d Cir. 1993) (observing that

“[b]ecause injunctions are prospective only, it makes sense to consider all available evidence .

. . including prospective evidence.”). That said, there are several categories of evidence that

are less significant than others. For example, any floor statement made by legislators

advocating for Section 1005’s passage that are not backed by statistical or anecdotal evidence

should likely be afforded little or no weight. See N.L.R.B. v. SW General, Inc., 137 S. Ct. 929,

floor statements made by Senators Corey Booker (Booker Floor Statement),

Debbie Stabenow (Stabenow Floor Statement), and others in the Congressional

Record from March 5, 2021, reported at S.1262-66.). This evidence consists of

substantial evidence of historical discrimination that predates remedial efforts

made by Congress and, to a lesser extent, evidence the Government contends

shows continued discrimination that permeates USDA programs.

The historical evidence includes things such as a dramatic decrease in

minority owned farms from 1920 to 1992; USDA’s discriminatory treatment of

SDFRs when they applied for loans through USDA, resulting in lower approval

rates among minority farmers; when loans were offered, they were frequently

for reduced amounts compared to the amount sought by SDFR applicants and

on less favorable terms; inequities in how the loans of minority farmers were

serviced by USDA; lack of SDFR representation on local USDA committees that

were responsible for overseeing USDA loan programs; and concerted efforts by

USDA to ignore complaints of discrimination made by minority farmers.

Response at 3-6, 20-25 (collecting evidence). It is undeniable—and notably

uncontested by the parties—that USDA had a dark history of past

discrimination against minority farmers. Compare id. with Reply at 4.

943 (2017) (noting “floor statements by individual legislators rank among the least

illuminating forms of legislative history.”).

Based on the historical evidence of discrimination, Congress took

remedial measures to correct USDA’s past discrimination against SDFRs.

These measures included implementation of the “2501 Program” to increase

outreach to SDFRs; entering into multiple class action settlements with various

SDFR groups and awarding approximately $2.4 billion in relief to those who

were discriminated against; extending the statutory limitations period for

individuals to file discrimination claims against USDA; creating formal officers

that are responsible for ensuring compliance with civil rights laws and

nurturing relationships among SDFR populations; and adopting measures to

increase SDFR participation on local USDA committees. Response at 7-8. Due

to the significant remedial measures previously taken by Congress, for purposes

of this case, the historical evidence does little to address the need for continued

remediation through Section 1005. Rather, for the Government to show that

additional remedial action is warranted, it must present evidence either that

the prior remedial measures failed to adequately remedy the harm caused by

USDA’s past discrimination or that the Government remains a “passive

participant” in discrimination in USDA loans and programs. See Eng’g

Contractors, 122 F.3d at 911. This is where the evidence of continued

discrimination becomes crucial, and may be inadequate.

The Government contends its prior measures were insufficient to remedy

the effects of past discrimination because “state taxes eroded recoveries, debt

relief was incomplete, and reports before Congress showed that the settlements

have not cured the problems faced by minority farmers.” Response at 5 (citing

Stabenow Floor Statement). However, the actual evidentiary support for the

inadequacy of past remedial measures is limited and largely conclusory. For

example, the Government points to the insufficiency of USDA’s prior outreach

efforts to SDFRs that has resulted in a general distrust among SDFRs in

government programs. Stabenow Floor Statement (citing statistic that 73% of

Black farmers were not aware of pandemic relief programs available to them

due to poor efforts at outreach and lingering distrust of USDA). While this

evidence could support a need for greater outreach efforts such as those

provided for in Section 1006 of the ARPA, it is not tied in any way to a

governmental interest in affording SDFRs broad race-based debt relief and does

not support a finding that USDA continues to be a participant, passive or active,

in discrimination.

The Government also relies on three reports by the Government

Accountability Office. Two reports from 20195 document a number of barriers

that make it more difficult for SDFRs to obtain financing—including smaller

farm sizes, weaker credit histories, and lack of clear title to land—but similarly

5 GAO-19-464, INDIAN ISSUES: Agricultural Credit Needs and Barriers to Lending on Tribal

Lands (May 2019); GAO-19-539, AGRICULTURAL LENDING: Information on Credit and

Outreach to Socially Disadvantaged Farmers and Ranchers is Limited (July 2019).

fail to connect those barriers to prior or ongoing discrimination by USDA or to

a need for complete debt relief.6 The Government also cites to a recent report

from 2021,7 but that report does not add any new evidence as it merely echoes

the findings of the two 2019 reports as part of a more general discussion of

minority owned businesses’ limited access to credit. Thus, from an evidentiary

standpoint, these reports do little to move the needle in the Government’s

favor.8

The Government also contends SDFRs received a disproportionately low

proportion of pandemic relief assistance authorized in prior legislation, thereby

suggesting it remains a passive participant in discrimination. Response at 9-

10. Specifically, the Government cites to two statistics related to recent USDA

programs that have disproportionately benefited White farmers. The first

statistic shows 99.4% of relief under USDA’s Market Facilitation Program

(MFP) went to White farmers. Response at 10 (citing N. Rosenberg, USDA Gave

6 Notably, both 2019 reports include qualifying language regarding the limited nature of

information regarding SDFRs access to credit. Both reports also include recommendations to

remedy the barriers identified, none of which include absolute debt relief, much less debt relief

awarded strictly on the basis of race.

7 GAO-21-399T, FIN. SERVS.: Fair Lending, Access, and Retirement Sec. (Feb. 24, 2021).

8 The Government’s reliance on the Jackson Lewis report does not fill the gap. Jackson Lewis,

LLP, “Civil Rights Assessment” (Mar. 31, 2011). Notably, the Jackson Lewis report found

SDFR “participation reasonably well reflected their respective Principal Operator

populations,” with respect to FSA loan programs and, with respect to Rural Development loan

programs, SDFR “participation for all groups exceeded their respective rural populations, with

some by substantial margins.” Id. at xxi. Also, despite presenting numerous detailed

recommendations to address the challenges faced by SDFRs, none included outright debt

relief.

Almost 100 Percent of Trump’s Trade War Bailout to White Farmers, Farm Bill

Law Enterprise (July 24, 2019)). The second statistic shows 97% of the $9.2

billion in pandemic relief provided through USDA’s Coronavirus Food

Assistance Program in 2020 went to nonminority farmers. Stabenow Floor

Statement at 1264 (citing J. Hayes, USDA Data: Nearly all Pandemic Bailout

Funds Went to White Farmers, Envir’l Working Group (Feb. 18, 2021)). Even

taking these statistics at face value, they are less useful than they may appear

to be.

The first statistic is qualified by the fact that: “[a]pproximately seven

percent of the funds went to entities owned by corporations or individuals whose

race was not reported.” N. Rosenburg, supra. The report also identifies farm

size and specific crops—namely, soybeans—as being the target of MFP funding,

not racial identity. Id. As to the second statistic, both parties at least tacitly

acknowledge the 2020 relief went primarily to nonminority farmers because the

legislation targeted large farms that were disproportionately owned by

nonminority farmers—not because the relief efforts were facially

discriminatory. See Response at 10; Reply at 8. Where a race-neutral basis for

a statistical disparity can be shown, the Court can give that statistical evidence

less weight. Eng’g Contractors, 122 F.3d at 923. Here, the statistical

discrepancies presented by the Government can be explained by non-race

related factors—farm size and crops grown—and the Court finds it unlikely that

this evidence, standing alone, would constitute a strong basis for the need for a

race-based remedial program.

Additionally, the Government argues that SDFRs were in a more

precarious financial position headed into the pandemic due to prior

discrimination, citing evidence of higher delinquency and foreclosure rates

among SDFRs compared to nonminority farmers. Booker Floor Statement

(citing statistics that 13% of FSA direct loan recipients are currently

delinquent, but that group is made up of 35% of Black farmers and 24% of

Hispanic, Asian-American, and Indigenous farmers). The problem with the

Government’s reliance on this evidence lies in the fact that the statistical

evidence for the Government’s broader proposition is lacking. The Government

has not connected SDFRs disproportionate delinquency status to actual

discrimination by USDA outside of conclusory remarks made in support of the

legislation. Courts must be wary of finding statistical disparities untethered to

evidence of discrimination sufficient grounds for implementation of a race-

based program. See Croson, 488 U.S. at 499-500 (criticizing the district court’s

reliance on speculative statistics and finding they did not amount to evidence

of discrimination).

On the record presented here, the Court expresses serious concerns over

whether the Government will be able to establish a strong basis in evidence

warranting the implementation of Section 1005’s race-based remedial action.

The statistical and anecdotal evidence presented appears less substantial than

that deemed insufficient in Eng’g Contractors, which included detailed

statistics regarding the governmental entity’s hiring of minority-owned

businesses for government construction projects; marketplace data on the

financial performance of minority and nonminority contractors; and two studies

by experts. Id. at 912. To the extent remedial action is warranted based on the

current evidentiary showing, it would likely be directed to the need to address

the barriers identified in the GAO Reports such as providing incentives or

guarantees to commercial lenders to make loans to SDFRs, increasing outreach

to SDFRs regarding the availability of USDA programs, ensuring SDFRs have

equal access to the same financial tools as nonminority farmers, and efforts to

standardize the way USDA services SDFR loans so that it comports with the

level of service provided to White farmers. Nevertheless, at this stage of the

proceedings, the Court need not determine whether the Government ultimately

will be able to establish a compelling need for this broad, race-based remedial

legislation.9 This is because, assuming the Government’s evidence establishes

9 While the Court expresses reservations regarding the sufficiency of the Government’s

evidence of a compelling governmental interest supporting the need for further broad ongoing

relief, the Court recognizes that this record – consisting only of a complaint and briefing and

evidence pertinent to the Motion for Preliminary Injunction – is limited. On a more fully

developed record, the Government may be able to establish that despite past remedial efforts

the harm caused by the disgraceful history of discrimination by the USDA in farm loans and

programs is ongoing or that the Government is in some way a participant in perpetuating that

discrimination such that further narrowly tailored affirmative relief is warranted.

the existence of a compelling governmental interest warranting some form of

race-based relief, for the reasons discussed below, Plaintiff has convincingly

shown that the relief provided by Section 1005 is not narrowly tailored to serve

that interest.

ii. Narrow Tailoring

Even if the Government establishes a compelling governmental interest

to enact Section 1005, Plaintiff has shown a substantial likelihood of success on

his claim that, as written, the law violates his right to equal protection because

it is not narrowly tailored to serve that interest. The narrow tailoring

requirement ensures that “the means chosen ‘fit’ th[e] compelling goal so closely

that there is little or no possibility that the motive for the classification was

illegitimate racial prejudice or stereotype.” Croson, 488 U.S. at 493 (plurality

opinion). “The essence of the ‘narrowly tailored’ inquiry is the notion that

explicitly racial preferences ... must be only a ‘last resort’ option.” Eng’g

Contractors, 122 F.3d at 926 (quoting Hayes v. North State Law Enforcement

Officers Ass'n, 10 F.3d 207, 217 (4th Cir. 1993)); see also Croson, 488 U.S. at

519 (Kennedy, J., concurring) (“[T]he strict scrutiny standard ... forbids the use

even of narrowly drawn racial classifications except as a last resort.”). In

determining whether a race-conscious remedy is appropriate, the Supreme

Court instructs courts to examine several factors, including the necessity for

the relief and the efficacy of alternative remedies; the flexibility and duration

of the relief, including the availability of waiver provisions; the relationship of

the numerical goals to the relevant labor market; and the impact of the relief

on the rights of third parties.” U.S. v. Paradise, 480 U.S. 149, 171 (1987).

Here, little if anything about Section 1005 suggests that it is narrowly

tailored. As an initial matter the Court notes that the necessity for the specific

relief provided in Section 1005—debt relief for all SDFRs with outstanding

qualifying farm loans as of January 1, 2021—is unclear at best. As written,

Section 1005 is tailored to benefit only those SDFRs who succeeded in receiving

qualifying farm loans from USDA, but the evidence of discrimination provided

by the Government says little regarding how this particular group of SDFRs

has been the subject of past or ongoing discrimination. See Section III(a)(i),

supra.10 Thus, the necessity of debt relief to the group targeted by Section 1005,

as opposed to a remedial program that more narrowly addresses the

discrimination that has been documented by the Government, is anything but

evident.

More importantly, Section 1005’s rigid, categorical, race-based

qualification for relief is the antithesis of flexibility. The debt relief provision

10 Although the Government argues that historical discrimination against SDFRs also

included things such as higher interest rates, less advantageous loan terms, and delayed

approvals, the record evidence does not appear to show that SDFRs with current loans

suffered such discrimination.

applies strictly on racial grounds irrespective of any other factor. Every person

who identifies him or herself as falling within a socially disadvantaged group11

who has a qualifying farm loan with an outstanding balance as of January 1,

2021, receives up to 120% debt relief—and no one else receives any debt relief.

Although the Government argues that Section 1005 is narrowly tailored to

reach small farmers or farmers on the brink of foreclosure, it is not. Regardless

of farm size, an SDFR receives up to 120% debt relief. And regardless of whether

an SDFR is having the most profitable year ever and not remotely in danger of

foreclosure, that SDFR receives up to 120% debt relief. Yet a small White

farmer who is on the brink of foreclosure can do nothing to qualify for debt relief.

Race or ethnicity is the sole, inflexible factor that determines the availability of

relief provided by the Government under Section 1005.

At the preliminary injunction hearing, the Government cited the

Eleventh Circuit decision in Cone Corp. v. Hillsborough Cnty., 908 F.2d 908,

910 (11th Cir. 1990) as support for a finding that Section 1005 is a constitutional

exercise of Congress’ authority, but a review of the differences between the

11 Presently, this means only the five racial classifications addressed above. See Section I,

supra. However, an individual can petition the Secretary to deem his or her group socially

disadvantaged. See Response at 13; see also Hearing Transcript at 27-28 (noting various

petitions being made to the Secretary to declare additional ethnic groups as socially

disadvantaged for purposes of Section 1005). As noted previously, the definition of a socially

disadvantaged group is limited and extends only to a “group that has been subjected to racial

or ethnic prejudice because of their identity as a member of a group without regard to their

individual qualities.” 7 U.S.C. § 2279(a)(6).

affirmative action scheme reviewed in Cone Corp. only highlights the failure of

Section 1005. In Cone Corp., the Eleventh Circuit reviewed the entry of

summary judgment and a permanent injunction against a county that

implemented a minority business enterprise (MBE) program designed to

promote the use of minority-owned businesses on certain county construction

projects. 908 F.2d 908, 910 (11th Cir. 1990). Under the program, after

evaluating available data regarding a project and the number of qualified MBE

contractors available in a given area, the county would set a goal for MBE

participation on the project before soliciting bids for it. Id. If there were not at

least three qualified MBEs in the relevant area, no MBE participation goal

would be set for that project. Id. Also, low bidders that did not satisfy the MBE

participation goal had an administrative review process during which the low

bidder could qualify to be awarded the contract by meeting other established

race neutral criteria. Id. at 911.

Seeing substantial similarity between the county’s MBE program and

that found unconstitutional in Croson, the district court entered summary

judgment against the county and enjoined the use of the MBE program. Id. at

911-12. On appeal, the Eleventh Circuit found that decision to be in error. Id.

at 912. In doing so, the court pointed to several critical factors that

distinguished the county’s MBE program from that rejected in Croson: (1) the

county had tried to implement a less restrictive MBE program for six years

without success; (2) the MBE participation goals were flexible in part because

they took into account project-specific data when setting goals; (3) the program

was also flexible because it provided race-neutral means by which a low bidder

who failed to meet a program goal could obtain a waiver; and (4) unlike the

program rejected in Croson, the county’s program did not benefit “groups

against whom there may have been no discrimination,” instead its MBE

program “target[ed] its benefits to those MBEs most likely to have been

discriminated against . . . .” Id. at 916-17. Section 1005’s inflexible, automatic

award of up to 120% debt relief only to SDFRs stands in stark contrast to the

flexible, project by project Cone Corp. MBE program.

The Eleventh Circuit’s decision in Ensley Branch is also instructive as to

the contours of race-based relief that would be sufficiently narrowly tailored to

withstand constitutional scrutiny. There, in considering the constitutionality of

consent decrees that contained race-based annual goals and long-term goals,

the court contrasted the remedy provided in those decrees with programs that

provided narrowly tailored relief. Ensley Branch, 31 F.3d at 1569. First, the

court pointed to Howard v. McLucas, 871 F.2d 1000 (11th Cir. 1989), in which

it explained:

we applied strict scrutiny to a consent decree provision that

reserved a certain number of promotions for blacks. The number

of promotions reserved matched the number of promotions that

had been lost by blacks due to past discrimination. The “set aside”

was thus narrowly tailored to correct the precisely identified

effects of past discrimination.

Ensley Branch, 31 F.3d at 1569 (internal citations omitted). Next, the court

turned to Cone Corp., noting that although the MBE program included a

minority participation goal, the county “would grant a waiver if qualified

minority businesses were uninterested, unavailable, or significantly more

expensive than non-minority businesses.” Id. In this way the court observed the

county’s MBE program “had been carefully crafted to minimize the burden on

innocent third parties.” Id. (citing Cone Corp., 908 F.2d at 911). Rejecting the

race-based goals contemplated in the Ensley Branch decrees, the court

concluded that the decrees “lack both the extreme specificity of the Howard plan

and the generous flexibility of the Cone Corp. plan. They are not narrowly

tailored.” Id. at 1569-70.

Section 1005 appears to suffer from similar deficiencies. Unlike the

Howard plan, the 120% debt relief program is untethered to an attempt to

remedy any specific instance of past discrimination. And unlike the Cone Corp.

MBE program, Section 1005 is absolutely rigid in the relief it awards and the

recipients of that relief and provides no waiver or exception by which an

individual who is not a member of a socially disadvantaged group can qualify.

In this way, Section 1005 is far more similar to the remedial schemes found not

to be narrowly tailored in Croson and other similar cases. See In re Birmingham

Reverse Discrimination Employment Litigation, 20 F.3d 1525, 1548 (11th Cir.

1994) (finding requirement that 50% of all promotions to lieutenant be filled by

“qualifying blacks” not narrowly tailored); Gratz v. Bollinger, 539 U.S. 244, 271-

72 (2003) (rejecting as not narrowly tailored a law school admissions policy that

automatically distributed “20 points to every single applicant from an

‘underrepresented minority’ group,” which had “the effect of making ‘the factor

of race . . . decisive’ for virtually every minimally qualified underrepresented

minority applicant.”).

Moreover, on the record before the Court, it appears that in enacting

Section 1005 Congress relies, albeit without any ill intention, on present

discrimination to remedy past discrimination. But the Eleventh Circuit

disapproved of such a course of action in Ensley Branch. 31 F.3d at 1553-56.

There the court noted that despite having been ordered years earlier to

implement a nondiscriminatory selection process, the City of Birmingham

continued to use a discriminatory test to make hiring and promotion decisions.

Id. Never having fixed the test, the solution proposed to address the ongoing

effects of the city’s discriminatory practices involved instituting a race-based

quota system for promotions to ensure racial parity. Id. at 1572. The Eleventh

Circuit unequivocally rejected such a plan as constitutionally inappropriate,

stating

By permitting the continued use of discriminatory tests, the

decrees compound the very evil they were designed to eliminate.

The Constitution will not allow such a discriminatory construct.

One color of discrimination has been painted over another in an

effort to mask the peeling remnants of prejudice past, leaving a

new and equally offensive discoloration rather than a clean canvas.

Id. at 1572-73; see also In re Birmingham, 20 F.3d at 1548 (rejecting the use of

a strict racial quota system for promotion within a city department, noting the

approach was “designed to achieve government-mandated racial balancing—

[which is] the perpetuation of discrimination by government.”). To allow the

perpetuation of discrimination in such a manner would undermine the Supreme

Court’s “ultimate goal of eliminating entirely from governmental

decisionmaking such irrelevant factors as a human being’s race . . . .” Croson,

488 U.S. at 495.12 If the compelling interest sought to be remedied by the

legislature through Section 1005 is continued discrimination in USDA loans

and programs, then relief directed at ending that discrimination would appear

to be more narrowly tailored than providing complete and automatic debt relief

on the basis of race.

12 The use of race to achieve parity has long been considered a slippery slope that reinforces

prejudice rather than eliminates it. See Univ. of Cal. Regents v. Bakke, 438 U.S. 265, 298

(1978) (plurality opinion of Powell, J.) (“[P]referential programs may only reinforce common

stereotypes holding that certain groups are unable to achieve success without special

protection based on a factor having no relation to individual worth.”). The Government’s own

positions in this case appear to fall prey to this evil, as they require certain broad assumptions

to be made about all SDFRs in order to avoid close scrutiny. See, e.g., Hearing Transcript at

52-53 (suggesting, among other things, that it is “unlikely” any SDFR will receive a double

benefit under prior pandemic relief and Section 1005 because minority farmers tend to have

smaller farms, bring in less revenue, and are less credit worthy and therefore excluded from

obtaining loans in the private market).

Additionally, on this record, it appears that Section 1005 simultaneously

manages to be both overinclusive and underinclusive. It appears to be

overinclusive in that it will provide debt relief to SDFRs who may never have

been discriminated against or faced any pandemic-related hardship. For

example, a new SDFR who applied for and received the only farm loan he or she

ever sought on terms equivalent or even better than those given to other

farmers is entitled to up to 120% debt relief despite never having faced any of

the discrimination catalogued by the Government. This is highly likely, as the

Government conceded at the preliminary injunction hearing that the farm loans

that will qualify for repayment “are generally loans by folks new to the industry,

starting their farms, things like that.” Hearing Transcript at 52-53.

Additionally, Section 1005 provides debt relief to groups including Asians,

Native Hawaiians, and Pacific Islanders, groups for which the evidence of prior

discrimination by the USDA in farm loans, programs and services appears to

be exceedingly thin. The overinclusive nature of the relief casts doubt on its

necessity. Croson, 488 U.S. at 506 (“The gross overinclusiveness of Richmond’s

racial preference strongly impugns the city’s claim of remedial motivation.”).

see also O’Donnell Const. Co. v. District of Columbia, 963 F.2d 420, 427 (D.C.

Cir. 1992) (noting that the inclusion of groups for whom there is no history of

discrimination raises doubts as to the remedial nature of a government’s plan).

Moreover, there is little evidentiary support for the magnitude of relief

provided by Section 1005—up to 120% debt relief to all SDFRs with qualifying

farm loans—which appears to duplicate or in some instances exceed the relief

provided to those who actually suffered the well-documented historic

discrimination Congress sought to remedy through prior settlements. See, e.g.

Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999) aff’d, 206 F.3d 1212 (D.C. Cir.

2000).13 To the extent Section 1005 is intended to address the alleged erosion

of prior relief identified by Senators Booker and Stabenow in their floor

statements, the Government presents no evidence that the recipients of Section

1005’s relief are the same persons or in any way—but race—similarly situated

to the persons that received the previous, potentially inadequate relief. Nor does

it explain how providing this debt relief to current loan holders is narrowly

tailored to address the concern of previously inadequate relief. On the record

before the Court at this stage in the case, it does not appear that Section 1005

13 In Pigford, a consent decree was entered that provided victims of USDA discrimination

between January 1, 1981 and January 1, 1997 two alternatives for obtaining relief. 185 F.R.D.

at 95. Claimants who proceeded under “Track A” would receive $50,000 in a capped monetary

award if they could provide some evidence of discrimination, while claimants who proceeded

under “Track B” were not subject to the monetary cap but were required to meet the more

exacting preponderance of the evidence standard in establishing discrimination. Id. at 95-97.

Successful claimants under either track received loan forgiveness of their USDA loans and tax

payments made on their behalf in the amount of 25% of the total debt forgiveness and cash

payment. Id. at 97. However, subsequent stipulations and court orders interpreting the

consent decree limited the debt forgiveness available to claimants to amounts incurred after

the first date of discrimination. See Pigford v. Schafer, 536 F. Supp. 2d 1, 5 (D.D.C. 2008).

Therefore, although some Pigford claimants received complete loan forgiveness of their USDA

loans, the relief afforded in Pigford was not as expansive as Section 1005’s debt relief

provision.

is narrowly tailored such that it “eliminates no more than the exact source of

the ‘evil’ it seeks to remedy.” Frisby v. Schultz, 487 U.S. 474, 485 (1988). Rather,

it appears to be rigidly overinclusive in both its reach and its remedy.

Section 1005 also appears to be underinclusive in that, as mentioned

above, it fails to provide any relief to those who suffered the brunt of the

discrimination identified by the Government. It provides no remedy at all for

an SDFR who was unable to obtain a farm loan due to discriminatory practices

or who no longer has qualifying farm loans as a result of prior discrimination.

While the Government argues that a remedy for past discrimination need not

be limited to remedying specific instances of discrimination, Hearing Transcript

at 53, or include an individualized determination of prior discriminatory

treatment, it fails to explain how a remedy that by its own terms may have the

effect of excluding past victims of the very discrimination it seeks to remedy is

actually tailored, narrowly or not, to remedy that discrimination. Section 1005’s

debt relief also does not increase SDFR representation within USDA; address

alleged discrepancies in the way USDA has serviced farm loans held by SDFRs

or change how they will be serviced in the future; help SDFRs who were denied

funding for farm loans; improve access to farm loans for SDFRs; or restore

farms or land to SDFRs who have had their farms taken away through

discriminatory foreclosure practices—all of which are concerns the Government

raises in support of the need for remedial measures.

The Government attempts to justify Section 1005’s broad race-based

relief without any showing of past harm or any effort to craft a more narrowly

tailored remedy by arguing that Congress wanted to get relief to SDFRs quickly

because they are disproportionately on the brink of foreclosure. Hearing

Transcript at 50. However, the Eleventh Circuit has explicitly rejected what it

describes as “administrative convenience” as a substitute to finding “a narrowly

tailored means to remedy prior discrimination.” In re Birmingham, 20 F.3d at

1548 (“We can imagine nothing less conducive to eliminating the vestiges of

past discrimination than a government separating its [people] into two

categories, black and non-black, and allocating a rigid, inflexible number of

promotions to each group . . . .”); see also Gratz, 539 U.S. at 275 (“the fact that

the implementation of a program capable of providing individualized

consideration might present administrative challenges does not render

constitutional an otherwise problematic system.”). The court also has instructed

that while a more narrowly tailored approach may be administratively

burdensome, “minimizing inconvenience is not a constitutional value.” Ensley

Branch, 31 F.3d at 1574 (“[t]he Constitution does not put a price on

constitutional rights, in terms either of time or money. The rights guaranteed

by the Constitution are to be made effective in the present.”) (alteration in

original). Thus, the use of race based on an intention to act quickly does not

overcome the failure to identify and provide a remedy that is narrowly tailored

to address the specific interest the Government has found to be a compelling

interest.14

Finally, there is little evidence that the Government gave serious

consideration to, or tried, race-neutral alternatives to Section 1005. The

Government recounts the remedial programs Congress previously implemented

that allegedly have failed to remedy USDA’s discrimination against SDFRs.

Response at 7-8. However, almost all of the programs identified by the

Government were not race-neutral programs; they were race-based programs

that targeted things like SDFR outreach efforts, improving SDFR

representation on local USDA committees, and providing class-wide relief to

SDFRs who were victims of discrimination. The main relevant race-neutral

program the Government referenced was the first round of pandemic relief,

which did go disproportionately to White farmers. Response at 10 (citing floor

statements that in turn reference an advocacy group’s findings that 97% of the

14 There are many ways in which Section 1005 could have been more narrowly tailored to

address pandemic-related concerns. For example, USDA already implemented a foreclosure

and eviction moratorium and a broad forbearance policy for Direct and Guaranteed loans,

which constitutes a narrowly tailored remedy that keeps farmers facing financial hardships

from losing their farms or falling further behind on their payments. See, e.g., Press Release

No. 0026.21, USDA Extends Evictions and Foreclosure Moratorium to June 30, 2021 and

Provides Additional Guidance for Servicing Loans Impacted by COVID-19 (Feb. 16, 2021).

Congress could then have targeted the approximately 13% of farmers currently delinquent on

their farm loans, which are made up of approximately 35% Black farmers and 24% Hispanic,

Asian-American, and Indigenous farmers, as opposed to targeting 100% of all SDFRs without

regard for their individual financial positions. Laws targeting small farms or specific crops

that were left out of prior relief bills would also represent narrowly tailored relief, even though,

according to the Government, that relief would disproportionately benefit SDFRs.

$9.2 billion in USDA pandemic relief went to White farmers). However, as

discussed above, the underlying cause of the statistical discrepancy may be

disparities in farm size or crops grown, rather than race. Response at 10; Reply

at 8.15

To satisfy the narrow tailoring requirement, “given the odious nature of

race-based decisionmaking, race-neutral alternatives should be considered

before a government implements an affirmative action plan using race as the

sole criteria upon which [decisions] are based.” In re Birmingham, 20 F.3d at

1545-46; see also Eng’g Contractors, 122 F.3d at 927 (“[i]f a race-neutral remedy

is sufficient to cure a race-based problem, then a race-conscious remedy can

never be narrowly tailored to that problem.”). The record before the Court does

not show that Congress undertook that consideration when enacting Section

1005. Indeed, the statements by legislators that prior efforts by Congress have

been insufficient to remedy past discrimination appear to be more akin to the

“perfunctory” findings found to be entitled to little weight in Eng’g Contractors,

122 F.3d at 927-28.16 Thus, on the current record, in addition to showing that

Section 1005 is inflexible and both overinclusive and underinclusive, Plaintiff

is likely to show that Congress “failed to give serious good faith consideration

15 And a remedy for the disparity could be a targeted allocation of the remaining pandemic

relief.

16 As noted in footnote 4 supra, these statements, in the absence of supporting evidence are of

limited value.

to the use of race and ethnicity-neutral measures” to achieve the compelling

interest supporting Section 1005. Ensley Branch, 122 F.3d at 927. Congress

does not appear to have turned to the race-based remedy in Section 1005 as a

“last resort,” but instead appears to have chosen it as an expedient and overly

simplistic, but not narrowly tailored, approach to addressing prior and ongoing

discrimination at USDA.

Having considered all of the pertinent factors associated with the narrow

tailoring analysis and the record presented by the parties, the Court is not

persuaded that the Government will be able to establish that Section 1005 is

narrowly tailored to serve its compelling governmental interest. The

constitutional right to equal protection guarantees that racial classifications

will be permitted only with “the most exact connection between the justification

and classification.” Wygant, 476 U.S. at 280. The evidence regarding Section

1005’s enactment presents some connection between the justification and the

race-based relief but falls short of presenting an “exact connection.” Moreover,

Section 1005 does not appear to contain any of the hallmarks of a narrowly

tailored race-based affirmative action plan, such as those identified in Howard,

871 F.2d at 1008-11, and Cone Corp., 908 F.2d at 916-17. Rather, it appears to

create an inflexible, race-based discriminatory program that is not tailored to

make the individuals who experienced discrimination whole, increase

participation among SDFRs in USDA programs, or irradicate the evils of

discrimination that remain following Congress’ prior efforts to remedy the

same. Therefore, the Court is satisfied that Plaintiff has established a strong

likelihood of showing that Section 1005 violates his right to equal protection

under the law because it is not narrowly tailored to remedy a compelling

governmental interest. As such, Plaintiff has shown a strong likelihood of

success on his equal protection and APA claims.

b. Irreparable Harm

Regardless of a party’s showing of a likelihood of success, a party seeking

preliminary injunctive relief must show that he or she will suffer irreparable

harm if the Court does not issue an injunction. See Ne. Fla., 896 F.2d at 1285.

Indeed, “[a] showing of irreparable harm is the sine qua non of injunctive relief.”

Id. (reversing a grant of preliminary injunctive relief absent irreparable harm).

The asserted irreparable harm “must be neither remote nor speculative, but

actual and imminent.” Id.; see also Winter, 555 U.S. at 21-22 (noting a

preliminary injunction may not be entered “based only on a possibility of

irreparable harm”). The Eleventh Circuit has instructed:

An injury is “irreparable” only if it cannot be undone through

monetary remedies. “The key word in this consideration

is irreparable. Mere injuries, however substantial, in terms of

money, time and energy necessarily expended in the absence of a

stay, are not enough. The possibility that adequate compensatory

or other corrective relief will be available at a later date, in the

ordinary course of litigation, weighs heavily against a claim of

irreparable harm.

Id. (quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)). Notably, more than

conclusory allegations of irreparable harm or speculative assertions of economic

injury will be sufficient to warrant the extraordinary relief of a preliminary

injunction.

Plaintiff argues he will suffer three distinct forms of irreparable harm in

this case: (1) monetary harm because of his exclusion from the loan assistance

provided to SDFRs; (2) intangible harm related to the alleged violation of his

right to equal protection under the law; and (3) competitive disadvantage.

Hearing Transcript at 11-17. With respect to Plaintiff’s claim of irreparable

harm by virtue of the loss of competitive advantage, the Government argues

that his declaration fails to show that he will suffer any such harm. Response

at 14-16. The Court agrees. Plaintiff has not provided any evidence in support

of his conclusory statement of future competitive disadvantage. He has not

alleged to whom he sells his farm products, whether any of his competitors

qualify as SDFRs, whether any of his competitors intend to seek loan assistance

under Section 1005, or to what extent loan assistance would result in his

competition gaining a competitive advantage against him. As such, it is

impossible to conclude with any certainty that Plaintiff will actually suffer

competitive disadvantage as a result of Section 1005 or to what extent. While it

is certainly possible and perhaps even likely that Plaintiff competes with at

least one SDFR who will receive loan assistance under Section 1005, the need

for such an inference renders the alleged harm speculative, and therefore

insufficient for purposes of obtaining a preliminary injunction. See Ne. Fla., 896

F.2d at 1285.

In finding that, on the record before the Court, Plaintiff’s alleged

competitive disadvantage harm is speculative the Court does not suggest that

at trial Plaintiff could not present evidence that he will suffer a competitive

disadvantage as a result of the one-time transfer of wealth contemplated by

Section 1005 and actual monetary harm as a result. Of course, if Plaintiff were

to present evidence of such damages, he would be barred from being awarded

any compensation due to sovereign immunity. Nevertheless, the Court finds

that the current evidence is insufficient to support a conclusion that Plaintiff’s

alleged loss of competitive advantage is actual and imminent, and thus it cannot

justify the extraordinary remedy of preliminary injunctive relief.

As to his claims of either monetary harm or the violation of his

constitutional right, the Government argued at the hearing that neither is

irreparable because either can be remedied at the conclusion of the case. At the

hearing, the Government argued that, although sovereign immunity would bar

an award of money damages, if Plaintiff prevails, his harm could be remedied

by giving him specific equitable relief under the APA—i.e., the debt relief he

seeks in the Complaint. Hearing Transcript at 58-66. Specifically, the

Government argued that the Court can award Plaintiff the same debt relief

being provided to SDFRs at the end of this case. Id. at 59-61. While Plaintiff’s

counsel did “not necessarily disagree,” he noted that he was not familiar with

and had not reviewed the authority on which the Government relied for this

argument as it was not cited in the Response. Id. at 69.

As support for its contention, the Government relied on Bowen v. Mass.,

which involved a review of the Secretary of Health and Human Services’

decision to disallow a state’s reimbursement request under a federal healthcare

program. 487 U.S. 879, 882-83 (1988). However, that case and others like it

involve eligibility determinations for funds to which the plaintiffs were entitled

to receive under a specific law. See id. at 893; see also America’s Cmty. Bankers

v. F.D.I.C., 200 F.3d 822, 830 (D.C. Cir. 2000) (noting the purpose of a similar

award was “an attempt to restore to the plaintiff that to which it was entitled

from the beginning.”). In other words, in those cases the plaintiffs alleged a

deprivation of a benefit Congress intended for them to receive. In such cases,

upon a finding that the government has deprived a plaintiff of a specific benefit

to which the plaintiff was entitled under the law, the APA authorizes an award

of specific relief, i.e., an award of the specific funds to which the plaintiff was

entitled under the statute. See America’s Cmty. Bankers, 200 F.3d at 829.

Here, the Court has no authority to award Plaintiff any debt relief under

Section 1005. The statute as written by Congress unambiguously authorizes the

expenditure of funds for loan assistance only to SDFRs or other qualifying

socially disadvantaged groups. There is no way to construe the law to provide

debt relief to a White farmer. The Court has no authority to rewrite the law to

extend that assistance to persons that Congress did not intend to benefit. See

Aptheker v. Sec. of State, 378 U.S. 500, 515 (1964) (“It must be remembered

that although this Court will often strain to construe legislation so as to save it

against constitutional attack, it must not carry this to the point of perverting

the purpose of a statute or judicially rewriting it.” (internal quotations,

alterations, and citations omitted)); U.S. v. Stevens, 559 U.S. 460, 481 (2010)

(noting courts “may impose a limiting construction on a statute only if it is

‘readily susceptible’ to such a construction.” (citations omitted)); cf. Bostock v.

Clayton Cnty., Ga., 140 S. Ct. 1731, 1738 (2020) (noting “only the words on the

page [of a law] constitute the law adopted by Congress and approved by the

President.”). To do so would run afoul of separation of powers principles, which

dictate that Congress, through the Appropriations Clause, has the

constitutional authority to allocate funds. See America’s Cmty. Bankers v.

F.D.I.C., 200 F.3d 822, 830 (D.C. Cir. 2000) (noting the “separation of powers

encroachment” that would result if courts were to control the appropriation of

funds in cases involving program eligibility). Thus, contrary to the contention

of the Government, if Plaintiff prevails in this action, the Court has no authority

to order that he be given debt relief equal to that given to the SDFRs under

Section 1005.

The Government also argues that Plaintiff’s exclusion from debt relief

under Section 1005 does not amount to any harm at all. See Response at 15-17

(focusing primarily on Plaintiff’s alleged competitive disadvantage). The Court

disagrees. The harm he purports to suffer is the denial of his right to equal

protection–his exclusion, solely on account of his race, from eligibility for an

extraordinary government benefit under Section 1005. This constitutional

harm is a real harm. Indeed, the Supreme Court has recognized in the context

of a standing analysis, that the injury in an equal protection case is “the denial

of equal treatment resulting from the imposition of the barrier, not the ultimate

ability to obtain the benefit . . . the injury is the inability to compete on an equal

footing.” Gratz, 539 U.S. at 262 (internal citations and quotations omitted).

Thus, that injury—the unequal treatment based solely on race—and not merely

Plaintiff’s inability to benefit from Section 1005 is the harm Plaintiff will suffer

in the absence of injunctive relief.

Satisfied that Plaintiff’s alleged constitutional injury is actual harm for

purposes of obtaining a preliminary injunction, the question becomes whether

Plaintiff has shown that the specific constitutional harm he will suffer is

irreparable harm. The Government contends that circuit precedent

unequivocally answers the question in the negative. As stated by the Eleventh

Circuit:

No authority from the Supreme Court or the Eleventh Circuit has

been cited to us for the proposition that the irreparable injury

needed for a preliminary injunction can properly be presumed from

a substantially likely equal protection violation. In this case, no

witnesses or other evidence was submitted on the issue of

irreparable injury. The only area of constitutional jurisprudence

where we have said that an on-going violation constitutes

irreparable injury is the area of first amendment and right of

privacy jurisprudence. The rationale behind these decisions was

that chilled free speech and invasions of privacy, because of their

intangible nature, could not be compensated for by monetary

damages; in other words, plaintiffs could not be made whole. The

facts of this case do not fit the rationale of these decisions. This

case involves neither a first amendment nor a right of privacy

claim; and the damage to plaintiff here is chiefly, if not completely,

economic.

Ne. Fla., 896 F.2d at 1285-86 (citations omitted); see also Siegel v. LePore, 234

F.3d 1163, 1177-78 (11th Cir. 2000) (collecting cases). While on its face Ne. Fla.

appears to resolve this issue in the Government’s favor, a closer reading of the

case calls that conclusion into doubt.

The significant distinction between the present case and Ne. Fla. is that,

in Ne. Fla., the plaintiffs stood to suffer “chiefly, if not completely, economic”

damage for which they could obtain monetary relief. 896 F.2d at 1286 (noting

that “contractors can, by taking reasonable steps, quantify their claims for the

purpose of seeking monetary relief from the City”). Ne. Fla. did not involve a

situation where the chief harm was an intangible constitutional violation for

which damages cannot be measured, and even if they could, there could be no

monetary remedy. See id. Other courts in this circuit, and the Eleventh Circuit

itself, have distinguished Ne. Fla. on this basis, finding the unavailability of

money damages in the Eleventh Amendment context can render harm

irreparable for purposes of obtaining preliminary injunctive relief. See, e.g.,

Odebrecht Const., Inc. v. Prasad, 876 F. Supp. 2d 1305, 1320-21 (S.D. Fla. 2012)

aff’d Odebrecht Const., Inc. v. Fla. Dept. of Transp., 715 F.3d 1268, 1288 (11th

Cir. 2013) (distinguishing Ne. Fla. and finding “[w]hen a plaintiff faces

significant economic harm but cannot sue the state of Florida for money

damages, harm is irreparable as a matter of law.” (internal citations and

quotations omitted)); cf. ABC Charters, Inc. v. Bronson, 591 F. Supp. 2d 1272,

1310 (S.D. Fla. 2008) (collecting out-of-circuit cases in support of the proposition

that irreparable harm can be presumed where the Eleventh Amendment bars

a plaintiff from recovering money damages). In fact, the rationale that led the

Eleventh Circuit to recognize a presumption of irreparable harm in First

Amendment and right of privacy cases—namely, the inability for money

damages to make a plaintiff whole in those instances and the intangible nature

of the harm—supports a finding that the Plaintiff’s constitutional harm in this

case is irreparable. See Ne. Fla. 896 F.2d at 1285-86; Odebrecht Const., 715

F.3d at 1288. Thus, the Court rejects the Government’s contention that

Plaintiff’s constitutional harm cannot be irreparable harm as a matter of law.

Nevertheless, the Court does not go so far as to suggest that a showing of

a violation of the right to equal protection would give rise to a presumption of

irreparable harm. The Court has no need to consider that question, because

under the unique circumstances of this case, Plaintiff has shown that the

specific harm he stands to suffer here in the absence of an injunction is indeed

irreparable.

As discussed above, the Court cannot rewrite Section 1005 to include

White farmers like Plaintiff; those decisions are left to Congress. See Stevens,

559 U.S. at 481 (“To read [the law] as the Government desires requires

rewriting [by Congress], not just reinterpretation[ by the Court].”). Thus, the

Court cannot order the Government to provide Plaintiff with the debt relief that

it has chosen to give to SDFRs but not to him. Even if the Court could rewrite

the law, it would be creating a new program that Congress did not intend.17

Judicially rewriting Section 1005 to create a debt relief program that would

include a White farmer and ordering the Government to provide Plaintiff debt

relief from it would not be monetary relief through inclusion in a governmental

program, as urged by the Government. Hearing Transcript at 59-61. Rather, it

would be an alternate form of money damages. In Bowen, the Supreme Court

made the following observation:

The term money damages, 5 U.S.C. § 702, we think, normally

refers to a sum of money used as compensatory relief. Damages are

given to the plaintiff to substitute for a suffered loss, whereas

17 Specifically, Congress only appropriated “such sums as may be necessary, to remain

available until expended, for the cost of loan modifications and payments under [Section

1005]”—that is, “payment[s] in an amount up to 120 percent of the outstanding indebtedness

of each [SDFR] as of January 1, 2021 . . . .” Section 1005(a).

specific remedies are not substitute remedies at all, but attempt to

give the plaintiff the very thing to which he was entitled. Thus,

while in many instances an award of money is an award of

damages, occasionally a money award is also a specie remedy.

487 U.S. at 895 (quoting Maryland Dept. of Human Resources v. Dept. of Health

and Human Services, 763 F.2d 1441, 1446 (D.C. Cir. 1985)) (internal

quotations, alterations, and citations omitted); see also Modoc Lassen Indian

Housing Authority v. U.S. Dept. of Housing and Urban Development, 881 F.3d

1181, 1196-98 (10th Cir. 2017) (outlining the distinction between monetary

relief and money damages in the context of the APA). Here, Section 1005

unambiguously creates a debt relief program for the benefit of SDFRs, not

Plaintiff. As such, any award of debt relief to Plaintiff cannot originate from

Section 1005; it must come from a substitute source and would constitute a

substitute remedy. Therefore, such relief would be an award of money damages

and any award of money damages in this case is barred by sovereign immunity.

Plaintiff has established that he has a substantial likelihood of success on

the merits of his claim that Section 1005 violates his constitutional right to

equal protection. The violation of this right is imminent because in the

immediate future, the Government will provide up to 120% debt relief to

qualifying SDFRs, but not to Plaintiff solely because of his race. This, he has

shown, is an actual constitutional harm that cannot be undone. Absent an

injunction, if Plaintiff prevails in establishing that Section 1005’s debt relief

violates his constitutional right, he will have no remedy. The debt relief cannot

be clawed back or undone, the Court will have no power to order Congress to

provide the substitute remedy of debt relief not authorized by Section 1005, and

sovereign immunity will preclude any award of money damages. In short,

Plaintiff will have no remedy at all. Under the specific circumstances of this

case, Plaintiff has shown that the constitutional harm he stands to suffer, which

cannot be undone by money damages and for which no other remedy exists,

constitutes an irreparable harm for which injunctive relief is proper. For these

reasons, the Court finds Plaintiff has met his burden of establishing that absent

an injunction, he will suffer irreparable harm if the Government proceeds with

the debt relief authorized under Section 1005.

c. Balance of Equities

As a final consideration in determining the need for a preliminary

injunction, courts “must balance the competing claims of injury and must

consider the effect on each party of the granting or withholding of the requested

relief.” Winter, 555 U.S. at 24 (quoting Amoco Production Co. v. Village of

Gambell, AK, 480 U.S. 531, 542 (1987)); see also Trump v. Int’l Refugee

Assistance Project, 137 S. Ct. 2080, 2087 (2017) (noting “[i]t is ultimately

necessary ... to balance the equities—to explore the relative harms to applicant

and respondent, as well as the interests of the public at large” before ruling on

the necessity for a preliminary injunction). In exercising this “sound discretion,

courts of equity should pay particular regard for the public consequences in

employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24

(quoting Weinberger v. Romero–Barcelo, 456 U.S. 305, 312 (1982)). This is

particularly true where the potential injunctive relief impacts a legislative

enactment. Ne. Fla., 896 F.2d at 1284.

Plaintiff argues the public interest element is satisfied because Section

1005 is an unconstitutional infringement on every citizen’s right to be free from

racial discrimination of any kind. Reply at 17-18. Indeed, the Eleventh Circuit

has held “the public interest is served when constitutional rights are protected.”

Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1327 (11th Cir. 2019);

see also Fla. Businessmen for Free Enterprise v. City of Hollywood, 648 F.2d

956, 959 (11th Cir. 1981) (“The public interest does not support the city's

expenditure of time, money, and effort in attempting to enforce an ordinance

that may well be held unconstitutional.”). The Government responds by citing

the public’s interest in enforcing the laws enacted by its democratically selected

representatives. Response at 39 (citing Maryland v. King, 567 U.S. 1301, 1303

(2012) (“Any time a [government] is enjoined by a court from effectuating

statutes enacted by representatives of its people, it suffers a form of irreparable

injury.”)). The Government, NBFA, and AAIF also highlight the significant

detriment SDFRs will face if Section 1005 cannot be implemented. Some SDFRs

have made plans in anticipation of Section 1005’s debt relief and entered into

agreements with the understanding that their farm loan balances would be

paid. Amicus Brief at Exs. C and D; see also Response at Ex. A ¶ 40 (noting FSA

is excluding loan balances owed by SDFRs in its loan application review process

and has approved new farm loans on the understanding that Section 1005

would be implemented in full).

In weighing the interests identified by the parties, the Court returns to

core aspects of this case. To the extent Section 1005 is discriminatory, it will

result in an imminent, one-time act of discrimination that cannot be remedied

through an award of monetary damage or other relief in this case. It also cannot

be reversed after the fact, as the Government has no way to recover the debt

relief once it is paid out. The effect on Plaintiff of such a large-scale debt relief

program will not be quantifiable in the near future, if at all. Meanwhile, the

Government’s interests are largely conditioned on Section 1005 being

constitutional. If the statute in fact violates the Constitution, the Government

does not have a legitimate interest in its implementation regardless of whether

it was passed through the democratic process. Likewise, if Section 1005 is

discriminatory, SDFRs have no legitimate right to the proceeds of a facially

unconstitutional legislative enactment. While the Government argues

Plaintiff’s interest as an individual could not possibly outweigh the interests of

thousands of SDFRs, this argument ignores the fact that Plaintiff challenges

the very premise that the Constitution permits the specific race-based debt

relief provided under Section 1005 to proceed at all, regardless of how well-

intended the program may be or how many beneficiaries stand to be impacted.

In light of Plaintiff’s strong likelihood of success at this stage of the proceedings,

and the Court’s finding that absent an injunction he is likely to suffer

irreparable harm, the Court finds that the balance of equities weigh in favor of

maintaining the status quo by issuing a preliminary injunction.

IV. Conclusion

In enacting Section 1005, Congress expressed the intention of seeking to

remedy a long, sad history of discrimination against SDFRs in the provision

and receipt of USDA loans and programs. Such an intention is not only laudable

it is demanded by the Constitution. See Wygant, 476 U.S. at 277. But in doing

so, Congress also must heed its obligation to do away with governmentally

imposed discrimination based on race. Id. “These related constitutional duties

are not always harmonious, reconciling them requires [Congress] to act with

extraordinary care.” Id. On the record before the Court, it appears that in

adopting Section 1005’s strict race-based debt relief remedy Congress moved

with great speed to address the history of discrimination, but did not move with

great care. Indeed, the remedy chosen and provided in Section 1005 appears to

fall well short of the delicate balance accomplished when a legislative

enactment employs race in a narrowly tailored manner to address a specific

compelling governmental interest.

For purposes of this Motion, Plaintiff has established a substantial

likelihood that he will prevail on his claim that Section 1005, as written,

violates his right to equal protection under the law. He also has shown that

absent an injunction, all SDFRs with qualifying farm loans will receive up to

120% debt relief and he will suffer the harm of being excluded from eligibility

for that debt relief program solely on the basis of his race. That harm, he has

shown, is irreparable. The debt relief given to the SDFRs cannot be undone, the

Court cannot order that Plaintiff receive equivalent relief, and money damages

are precluded. The harm will be complete and its effects will be cast in stone.

Only a preliminary injunction halting the distribution of payments and debt

relief under Section 1005 can give Plaintiff an opportunity to obtain any

redress. Such an injunction certainly impacts the SDFRs counting on the debt

relief. But the Court has carefully balanced the equities and is convinced that

they favor the halting of a program that is significantly likely to violate the

constitutional guarantee of equal protection under the law.

In reaching this conclusion, the Court proceeds with great caution in

determining that an injunction that will have nationwide effect is warranted.

Justices Gorsuch and Thomas have questioned a district courts’ authority to

enter nationwide injunctions, see, e.g., Dep’t of Homeland Sec. v. N.Y., 140 S.

Ct. 599, 599-601 (2020) (concurring opinion); see also Trump v. Hawaii, 138 S.

Ct. 2392, 2423 (2018) (noting the “disposition of the case makes it unnecessary

to consider the propriety of the nationwide scope of the injunction,” leaving the

question unresolved), and courts and scholars have been critical of their use.

See Trump, 138 S. Ct. at 2429 (collecting scholarly articles criticizing the

issuance of nationwide preliminary injunctions). This Court has never gone so

far as to issue such an injunction and is firmly of the view that a narrow

injunction that maintains the status quo in the specific circumstances of the

plaintiff before the Court and nothing more is the appropriate remedy.

Here, despite exploring any possible more narrow option, the Court

cannot identify any relief short of enjoining the distribution of Section 1005’s

payments and debt relief that will maintain the status quo and provide Plaintiff

the opportunity to obtain any relief at all. As noted by the Supreme Court,

“[o]nce a constitutional violation is found, a federal court is required to tailor

the scope of the remedy to fit the nature and extent of the constitutional

violation.” Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406, 420 (1977) (internal

quotations and citations omitted); see also Califano v. Yamasaki, 442 U.S. 682,

702 (1979) (noting, in the context of a nationwide class action, “the scope of

injunctive relief is dictated by the extent of the violation established, not by the

geographical extent of the plaintiff class.”). Plaintiff has shown a likelihood of

success on the merits of his claim that Section 1005 is unconstitutional and, if

implemented, would deprive him of his right to equal protection under the law.

The implementation of Section 1005 will be swift and irreversible, meaning the

only way to avoid Plaintiff’s irreparable harm is to enjoin the program.18 The

Court can envision no other remedy that will prevent the likely violation of

Plaintiff’s constitutional right which absent an injunction cannot be remedied

in this action.

In recognition of the magnitude of the effect of the injunction entered

here, the Court will require the parties to proceed with the greatest of speed in

reaching a final adjudication in this case. The parties must immediately present

the Court with a proposed schedule to complete any discovery that may be

required on an expedited basis as well as a swift deadline for the submission of

dispositive motions.

Accordingly, it is

ORDERED:

1. Plaintiff’s Motion for Preliminary Injunction (Doc. 11) is

GRANTED.

2. Defendants Thomas J. Vilsack, in his official capacity as U.S.

Secretary of Agriculture and Zach Ducheneaux, in his official

capacity as Administrator, Farm Service Agency, their agents,

employees and all others acting in concert with them, who receive

actual notice of this Order by personal service or otherwise, are

18 The Court reaches this conclusion without regard to any incidental benefit to other similarly

situated White farmers.

immediately enjoined from issuing any payments, loan assistance,

or debt relief pursuant to Section 1005(a)(2) of the American Rescue

Plan Act of 2021 until further order from the Court.!®

3. Plaintiff is not required to provide a bond or other security before

this preliminary injunction becomes effective.?°

4, No later than June 29, 2021, the parties must confer and submit

to the Court a proposed expedited schedule to resolve the merits of

this action.

DONE AND ORDERED in Jacksonville, Florida this 23rd day of June,

2021.

MARCIA MORALES HOWARD

United States District Judge

1e29

Copies to:

Counsel of Record

Pro Se Parties

19 The Court’s injunction prohibits the distribution of payments, loan assistance, or debt relief,

but does not enjoin Defendants from continuing to prepare to effectuate the relief under

Section 1005 in the event it is ultimately found to be constitutionally permissible.

20 Defendants did not request a bond nor did they provide any evidence that they will suffer

monetary losses as a result of the injunction.