Petition for Writ of Certiorari — Leisl M. Carpenter, Petitioner v. Thomas J. Vilsack, Secretary of Agriculture, et al.

Supreme Court briefMar 11, 2024

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No._______

In the Supreme Court of the United

States

♦

LEISL M. CARPENTER,

Petitioner,

THOMAS J. VILSACK, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF AGRICULTURE, ET AL.,

Respondents.

♦

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

♦

PETITION FOR A WRIT OF CERTIORARI

♦

WILLIAM E. TRACHMAN*

*Counsel of Record

JAMES L. KERWIN

GRADY J. BLOCK

Mountain States Legal

Foundation

2596 South Lewis Way

Lakewood, Colorado 80227

Telephone: (303) 292-2021

wtrachman@mslegal.org

jkerwin@mslegal.org

gblock@mslegal.org

BRADEN BOUCEK

Southeastern Legal

Foundation

560 W. Crossville Rd.,

Suite 104

Roswell, Georgia

Telephone: (770) 977-2131

bboucek@southeasternlegal.org

Counsel for Petitioner

March 11, 2024

QUESTIONS PRESENTED

Section 1005 of the American Rescue Plan Act of

2021 established a debt relief program for “socially

disadvantaged” farmers and ranchers. The United

States

Department

Agriculture

(USDA)

subsequently issued a Notice of Funds Availability

defining “socially disadvantaged farmers and

ranchers” based on race. Carpenter was ineligible for

Section 1005 debt relief because she is Caucasian.

Multiple lawsuits followed, including Carpenter’s.

Before Section 1005 was enjoined, at least four

payments were made to recipients in New Mexico.

In 2022, Congress repealed Section 1005, but did

not address the payments that USDA made before the

repeal. In short, Congress has never fixed the

imbalance between those who received a Section 1005

payment based on their race and those who did not.

Carpenter’s suit was dismissed, based on (1)

Carpenter’s residence in Wyoming, not New Mexico,

and (2) the government’s argument that the repeal of

Section 1005 mooted Carpenter’s case.

This petition thus presents the following questions:

Whether, when a statute treats individuals

differently based on race, a federal agency can defeat

a plaintiff’s standing after their complaint is filed by

adding non-statutory factors to benefit distributions

that are purportedly race neutral.

Whether the voluntary cessation doctrine

applies when Congress repeals a statute, but when

the government does not contend that it has

eradicated the effects of its previous racially

discriminatory conduct.

PARTIES TO THE PROCEEDING

Petitioner Leisl Carpenter was the plaintiffappellant in the lower court proceedings in the Tenth

Circuit and the U.S. District Court for the District of

Wyoming. 1

Respondents were defendants-appellees in the

courts below. They are Thomas J. Vilsack, in his

official capacity as Secretary of the United States

Department of Agriculture; and Zach Ducheneaux, in

his official capacity as Administrator of the Farm

Service Agency (collectively, USDA or the USDA

Respondents).

Another plaintiff, Sara Rogers, also brought suit against

Section 1005, and the parties agreed before the Tenth Circuit

Court of Appeals to consolidate briefing, and that Rogers would

be bound by the ultimate ruling in Carpenter’s case.

STATEMENT OF RELATED PROCEEDINGS

The following proceedings are directly related to

this case under Rule 14.1(b)(iii):

United States District Court (D. Wyo.):

•

Carpenter v. Vilsack, No. 21-CV-0103-F (D.

Wyo.), judgment entered on October 7, 2022.

United States Court of Appeals (10th Cir.):

•

Carpenter v. Vilsack, No. 22-8079 (10th Cir.),

petition for rehearing en banc was denied on

December 12, 2023;

•

Carpenter v. Vilsack, No. 22-8079 (10th Cir.),

judgment entered on October 16, 2023.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ..........................

PARTIES TO THE PROCEEDING ...............

STATEMENT OF RELATED PROCEEDINGS

iii

TABLE OF CONTENTS ................................

TABLE OF AUTHORITIES ..........................

vii

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW.......................................

JURISDICTION .............................................

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ............................

STATEMENT OF THE CASE .......................

Legal Framework ................................

II.

Factual Background ............................

III.

Procedural History ..............................

REASONS FOR GRANTING THE PETITION

INTRODUCTION ..........................................

The Decision Below Creates a Roadmap

for Federal Agencies to Engage in

Invidious Race Discrimination, and

Creates a Split of Authority. ...............

An Individual Should Not Lose

Standing to Sue Based on

Internal Agency Administrative

Decisions Made After a

Complaint is Filed. ...................

Carpenter’s Suit is Not Moot,

Because There Remains an Order

that Could Have Real-World

Effect. ........................................

Carpenter Seeks Prospective

Relief That a Court Could Order

With Respect to the USDA

Respondents—Compelling USDA

to Correct its Previous Racial

Discrimination. .........................

A Court Should Not Dismiss a Case

Based on Mootness if the Defendant

Failed to Eradicate the Effects of its

Misconduct. .........................................

This Case is an Ideal Vehicle to Resolve

the Questions Presented. ....................

At a Minimum, the Court May Consider

Holding the Petition for Subsequent

Vacatur and Remand Until After it

Issues an Opinion in FBI v. Fikre, 221178. .....................................................

CONCLUSION ...............................................

Appendix A — Court of Appeals Order

Denying Petition for Rehearing En Banc

(December 12, 2023).......................................

Appendix B — Court of Appeals Opinion

(October 16, 2023) ..........................................

Appendix C — Order Granting Defendants’

Motion to Lift Stay and Dismiss as Moot

(October 7, 2022) ............................................

33a

Appendix D — Statutory and Regulatory

Provisions:

American Rescue Plan Act of 2021,

Pl 117-2, March 11, 2021, 135 Stat

4....................................................

40a

U.S. Const. amend. V ..................

42a

TABLE OF AUTHORITIES

Page(s)

Cases

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) ................................

Adarand Constructors, Inc. v. Slater,

528 U.S. 216 (2000) ................................

Ayala v. Armstrong,

2017 WL 3659161 (D. Idaho, 2017) .......

Barr v. Am. Ass’n of Political Consultants,

140 S. Ct. 2335 (2020) ............................

Bolling v. Sharpe,

347 U.S. 497 (1954) ................................

Boyd v. U.S.,

2023 WL 3118132 (Fed. Ct. Cl., 2023) ..

Bras v. California Public Utilities Comm’n,

59 F.3d 869 (9th Cir. 1995) ....................

C.M. ex rel. Marshall v. Bentley,

13 F. Supp. 3d 1188 (M.D. Ala. 2014) ...

Chafin v. Chafin,

568 U.S. 165 (2013) ................................

City of Los Angeles v. Lyons,

461 U.S. 95 (1983) ..................................

21, 28

Clark v. Cohen,

794 F.2d 79 (3d Cir. 1986) .....................

Cleveland Branch of the N.A.A.C.P. v. City of

Parma, Oh.,

263 F.3d 513 (6th Cir. 2001) ..................

vii

Day v. Bond,

500 F.3d 1127 (10th Cir. 2007) ..............

DeFunis v. Odegaard,

416 U.S. 312 (1974) ................................

28, 30

Eng’g Contractors Ass’n of S. Fla. Inc. v.

Metro. Dade Cnty.,

122 F.3d 895 (11th Cir. 1997) ................

Faust v. Vilsack,

519 F. Supp. 3d 470 (E.D. Wis. 2021) ...

7, 8

Fikre v. Fed. Bureau of Investigation,

904 F.3d 1033 (9th Cir. 2018) ................

Fisk v. Bd. of Trs. of California State Univ.,

2023 WL 2919317 (S.D. Cal., 2023) ......

Flint v. Dennison,

488 F.3d 816 (9th Cir. 2007) ..................

Forest Guardians v. Johanns,

450 F.3d 455 (9th Cir. 2006) ..................

Friends of the Earth, Inc. v. Laidlaw Env’t

Serv. (TOC), Inc.,

528 U.S. 167 (2000) ................................

Ghailani v. Sessions,

859 F.3d 1295 (10th Cir. 2017) ..............

Golden State Transit Corp. v. City of Los

Angeles,

475 U.S. 608 (1986) ................................

Graham v. Richardson,

403 U.S. 365 (1971) ................................

viii

Gratz v. Bollinger,

539 U.S. 244 (2003) ................................ 3, 15, 18

Heckler v. Mathews,

465 U.S. 728 (1984) ................................22, 24, 26

Holman v. Vilsack,

582 F. Supp. 3d 568 (W.D. Tenn. 2022)

Holman v. Vilsack,

No. 21-1085-STA-jay, 2021 WL 2877915

(W.D. Tenn. Jul. 8. 2021) .......................

Hunter v. U.S. Dep’t of Educ.,

2023 WL 172199 (D. Ore. 2023) ............

In re Circuit City Stores, Inc.,

2022 WL 17722849 (Bankr. E.D. Va.

2022) .......................................................

Indiana Emp. Sec. Div. v. Burney,

409 U.S. 540 (1973) ................................

Johnson v. Jones,

42 F.3d 1385 (4th Cir. 1994) ..................

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ................................

Los Angeles Cnty. v. Davis,

440 U.S. 625 (1979) ................................

5, 28

Louisiana v. U.S.,

380 U.S. 145 (1965) ................................

Miller v. Vilsack,

2021 WL 11115194 (N.D. Tex. 2021) ....

Milliken v. Bradley,

433 U.S. 267 (1977) ................................

20, 26

Monterey Mech. Co. v. Wilson,

125 F.3d 702 (1997)................................

Moritz v. C. I. R.,

469 F.2d 466 (10th Cir. 1972) ................

New York State Rifle & Pistol Ass’n, Inc. v.

City of New York, NY,

140 S. Ct. 1525 (2020) ...........................

Ne. Fla. Chapter of Associated Gen.

Contractors of Am. v. City of Jacksonville,

Fla.,

508 U.S. 656 (1993) ................................ 3, 15, 18

Price v. City of Charlotte, N.C.,

93 F.3d 1241 (4th Cir. 1996) ..................

Prison Legal News v. Fed. Bureau of Prisons,

944 F.3d 868 (10th Cir. 2019) ................

Regents of the Univ. of California, v. Bakke,

438 U.S. 265 (1978) ................................

Rio Grande Silvery Minnow v. Bureau of

Reclamation,

601 F.3d 1096 (10th Cir. 2010) ..............

Row 1 Inc. v. Becerra,

92 F.4th 1138 (D.C. Cir. 2024) ..............

State Emp. Bargaining Agent Coal. v.

Rowland,

494 F.3d 71 (2d Cir. 2007) .....................

Students for Fair Admissions, Inc. v. President

and Fellows of Harvard Coll.,

600 U.S. 181 (2023) ................................2, 3, 13, 20

Sullivan v. Benningfield,

920 F.3d 401 (6th Cir. 2019) ..................

19, 21

Swann Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1 (1971) ....................................22, 24, 29

Thomas S. by Brooks v. Flaherty,

902 F.2d 250 (4th Cir. 1990) ..................

Turner v. Fouche,

396 U.S. 346 (1970) ................................

U.S. Commodity Futures Trading Comm’n v.

Escobio,

946 F.3d 1242 (11th Cir. 2020) ..............

United States v. Paradise,

480 U.S. 149 (1987) ................................

United States v. W. T. Grant Co.,

345 U.S. 629 (1953) ................................

Vitolo v. Guzman,

999 F.3d 353 (6th Cir. 2021) ..................

West Virginia v. EPA,

597 U.S. 697 (2022) ................................

Wynn v. Vilsack,

545 F. Supp. 3d 1271 (M.D. Fla. 2021) .

Zukerman v. U.S. Postal Serv.,

64 F.4th 1354 (D.C. Cir. 2023) ..............

Statutes

7 U.S.C. § 2279(a)...........................................

7 U.S.C. § 2279(a)(5) ......................................

7 U.S.C. § 2279(a)(6) ......................................

28 U.S.C. § 1254(1).........................................

INFLATION REDUCTION ACT OF 2022,

PL 117-169, August 16, 2022, 136 Stat

1818 ........................................................

Regulations

Notice of Funds Availability; American Rescue

Plan Act of 2021 Section 1005 Loan

Payment (ARPA),

86 Fed. Reg. 28329 (May 26, 2021) .......

Other Authorities

13A Charles A. Wright et al., Federal Practice

and Procedure

§ 3533.1 n.22 (3d ed. 2023) ....................

Federal Bureau of Investigation v. Fikre, 221178, Transcript of Oral Argument before

the Supreme Court of the United States

xii

PETITION FOR A WRIT OF CERTIORARI

Leisl Carpenter respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Tenth Circuit.

Alternatively, Carpenter asks that this Court hold

the petition, vacate the Tenth Circuit’s decision, and

remand in light of a case currently pending before this

Court that will address mootness questions in the

context of the voluntary cessation doctrine. See Fed.

Bureau of Investigation, et al., v. Yonas Fikre, 221178.

OPINIONS BELOW

The Tenth Circuit’s opinion is reported at 2023 WL

6810960 (not reported in the Federal Reporter), and

reproduced at App. at 5a. The District Court’s opinion

for plaintiff-appellee Carpenter is reported at 2022

WL 20813305 (not reported in the Federal

Supplement), and reproduced at App. at 33a.

JURISDICTION

The judgment of the Court of Appeals was entered

on October 16, 2023. Petitioner timely filed for

rehearing en banc, which was denied on December 12,

2023. This Court has jurisdiction under 28 U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 1005 of the American Rescue Plan Act of

2021 (ARPA) is reproduced in the appendix at App.

40a.

(1)

Carpenter seeks relief under the equal protection

principles of the Fifth Amendment to the United

States Constitution, as incorporated against the

federal government. See Bolling v. Sharpe, 347 U.S.

497 (1954). The Fifth Amendment to the U.S.

Constitution is reproduced at App. at 42a.

STATEMENT OF THE CASE

Legal Framework

“It is a sordid business, this divvying us up by race.”

League of United Latin Am. Citizens v. Perry, 548 U.S.

399, 511 (2006) (Roberts, C.J., concurring). It is hard

to imagine a more straightforward effort to

discriminate than explicitly apportioning federal debt

relief based on the color of one’s skin. See Students for

Fair Admissions, Inc. v. President and Fellows of

Harvard Coll., 600 U.S. 181, 220 (2023) (SFFA) (“We

have time and again forcefully rejected the notion that

government actors may intentionally allocate

preference to those who may have little in common

with one another but the color of their skin.”) (internal

quotation marks omitted).

The Sixth Circuit recognized the irrationality of

relying on race for COVID-19-related benefits in the

context of another race-based subsidy program

contained within ARPA. See Vitolo v. Guzman, 999

F.3d 353, 364 (6th Cir. 2021) (“[I]ndividuals who trace

their ancestry to Pakistan and India qualify for

special treatment. But those from Afghanistan, Iran,

and Iraq do not. Those from China, Japan, and Hong

Kong all qualify. But those from Tunisia, Libya, and

Morocco do not.”); accord SFFA, 600 U.S. at 216

(“When asked at oral argument ‘how are applicants

from Middle Eastern countries classified, such as

Jordan, Iraq, Iran, and Egypt,’ UNC’s counsel

responded, ‘I do not know the answer to that

question.’”) (cleaned up); id. at 291 (“Where do these

boxes come from? Bureaucrats.”) (Gorsuch, J.,

concurring).

Moreover, if race is even just one portion of the

government’s decision-making process, a plaintiff

establishes an injury that suffices to meet the

standing requirement under Article III. See Ne. Fla.

Chapter of Associated Gen. Contractors of Am. v. City

of Jacksonville, Fla., 508 U.S. 656, 666 (1993) (“To

establish standing, therefore, a party challenging a

set-aside program like Jacksonville’s need only

demonstrate that it is able and ready to bid on

contracts and that a discriminatory policy prevents it

from doing so on an equal basis.”); see also Gratz v.

Bollinger, 539 U.S. 244, 262 (2003) (describing the

holding of Northeastern Florida that a business was

not required “to show that one of its members would

have received a contract absent the ordinance in order

to establish standing”).

In other words, an equal protection injury is not

simply the unfair outcome that might result, but

rather “a discriminatory classification [that] prevents

the plaintiff from competing on an equal footing.”

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211

(1995); Fisk v. Bd. of Trs. of California State Univ.,

No.: 22-CV-173 TWR (MSB), 2023 WL 2919317, *9

(S.D. Cal. Apr. 12 2023) (characterizing the injury in

Regents of the Univ. of California, v. Bakke, 438 U.S.

265 (1978), as “the medical school’s decision not to

permit him to compete for all 100 spots in the class . .

. regardless of whether he could prove that he would

have been admitted had he been allowed to compete

for all 100 spots”). Put simply, Carpenter has standing

to challenge Section 1005 if she suffered an injury

even in part based on her race.

Separately, as for mootness, courts generally reject

a defendant’s mootness argument where, if the court

entered the requested relief, it would impact the

parties. “[A] case becomes moot only when it is

impossible for a court to grant any effectual relief

whatever to the prevailing party.” Chafin v. Chafin,

568 U.S. 165, 172 (2013) (internal quotation marks

omitted). By contrast, “[a]s long as the parties have a

concrete interest, however small, in the outcome of the

litigation, the case is not moot.” Id. at 172 (emphasis

added); id. at 176 (“However small that concrete

interest may be due to potential difficulties in

enforcement, it is not simply a matter of academic

debate, and is enough to save this case from

mootness.”).

And where a defendant relies on its own voluntary

cessation to establish mootness, the general rule is

that courts may accept a showing of mootness if the

government can satisfy two factors: first, there must

be no reasonable expectation that the alleged

violation will recur, and second, interim relief or

events must have completely and irrevocably

eradicated the effects of the alleged violation. See, e.g.,

Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979)

(setting out two-part test); see id. at 631 (“When both

conditions are satisfied it may be said that the case is

moot because neither party has a legally cognizable

interest in the final determination of the underlying

questions of fact and law.”) (emphasis added).

In the context of voluntary cessation, the

government bears a heavy burden in meeting the twopart standard to show that it has mooted a claim. See

West Virginia v. EPA, 597 U.S. 697, 719 (2022) (“That

burden is ‘heavy’ where, as here, the only conceivable

basis for a finding of mootness in the case is the

respondent’s voluntary conduct.”) (internal brackets

and quotation marks omitted); Adarand Constructors,

Inc. v. Slater, 528 U.S. 216, 224 (2000) (“It is no small

matter to deprive a litigant of the rewards of its efforts

. . . . Such action on grounds of mootness would be

justified only if it were absolutely clear that the

litigant no longer had any need of the judicial

protection that it sought.”) (emphasis added).

II.

Factual Background

President Biden signed ARPA on March 11, 2021.

Section 1005 of its text was blunt. It provided up to

120% debt relief for certain “socially disadvantaged”

farmers and ranchers. App. at 8a. That term was

given the same meaning as it was in the Food,

Agriculture, Conservation, and Trade Act of 1990. See

7 U.S.C. § 2279(a)(5) (“The term ‘socially

disadvantaged farmer or rancher’ means a farmer or

rancher who is a member of a socially disadvantaged

group.”); 7 U.S.C. § 2279(a)(6) (“The term ‘socially

disadvantaged group’ means 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.”).

In USDA’s Notice of Funds Availability, it

specifically identified which racial demographics were

therefore eligible for 120% debt relief: American

Indians or Alaskan Natives, Asians, Blacks or African

Americans, Native Hawaiians or other Pacific

Islanders, and Hispanics or Latinos.

Socially Disadvantaged Farmer or Rancher

means a farmer or rancher who is a member

of a socially disadvantaged 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, as defined by section

2501(a)

the

Food,

Agriculture,

Conservation, and Trade Act of 1990 (7

U.S.C. 2279(a)). Members of socially

disadvantaged groups include, but are not

limited to:

American Indians or Alaskan Natives;

Asians;

Blacks or African Americans;

Native Hawaiians

Islanders; and

other

Pacific

Hispanics or Latinos.

See App. at 8a-9a; see also Notice of Funds

Availability; American Rescue Plan Act of 2021

Section 1005 Loan Payment (ARPA), 86 Fed. Reg.

28329 (May 26, 2021).

Section 1005 was one of the most brazen race-based

federal benefits programs in modern American

history. For that reason, it was swiftly enjoined. See

Faust v. Vilsack, 519 F. Supp. 3d 470, 476 (E.D. Wis.

2021) (“The obvious response to a government agency

that claims it continues to discriminate against

farmers because of their race or national origin is to

direct it to stop: it is not to direct it to intentionally

discriminate against others on the basis of their race

and national origin.”).

Petitioner Leisl Carpenter, a cattle rancher of

Norwegian ancestry in Wyoming, had a qualifying

loan but was ineligible for debt relief under Section

1005 based on her race. She brought suit in the United

States District Court for the District of Wyoming on

May 24, 2021, alleging that Section 1005 violated the

equal protection principles of the Fifth Amendment to

the United States Constitution.

Despite Carpenter’s pending complaint, and

motions for injunctive relief before the United States

District Court for the Eastern District of Wisconsin

and in other pending lawsuits, in June 2021, USDA

began implementing Section 1005 by making test

payments to farmers and ranchers in New Mexico.

According to a USDA official, the choice of New

Mexico was based on the fact that “it had a relatively

large volume of direct loan borrowers eligible for

ARPA [debt relief] and a high level of experienced

staff.” App. at 9a. 2 Furthermore, USDA selected the

specific individuals who were chosen to receive

payments based on two other factors: (1) the

borrowers being sole proprietors, rather than entities,

and (2) “past interactions with [the Farm Service

Agency] that reflected a willingness to be part of pilot

initiative.” App. at 9a. None of these factors were

mentioned by Congress in ARPA, and none were even

included in the USDA’s Notice of Funds Availability.

After USDA began making payments, Section 1005

was halted by a Temporary Restraining Order entered

by the Eastern District of Wisconsin on June 10, 2021.

See e.g., Faust, 519 F. Supp. at 475 (“Here, Defendants

lack a compelling interest for the racial

classifications.”); see id. at 478 (“Defendants are

enjoined from forgiving any loans pursuant to § 1005

until the Court rules on Plaintiffs’ motion for a

preliminary injunction.”).

Respondents conceded below that they paid out at

least $160,218 under Section 1005. App. at 25a. And

they did not contest the district court’s

characterization of Section 1005: “Suffice to say that §

1005 provided debt relief to farmers and ranchers

based on race.” App. at 34a. They also never disputed

2 Note that this factor is not race-neutral, since eligibility for

ARPA was itself based on race. However, the district court and

Tenth Circuit Court of Appeals considered the choice to select

New Mexico as outcome-determinative for Carpenter’s standing.

that Carpenter would have been eligible for relief

under the statutory text of Section 1005, but for her

race.

Following the Temporary Restraining Order,

Section 1005 was subject to three preliminary

injunctions. See Holman v. Vilsack, No. 21-1085-STAjay, No. 21-1085-STA-JAY, 2021 WL 2877915, at *1

(W.D. Tenn., Jul. 8, 2021) (“Plaintiff will be

irreparably harmed if he is denied his constitutional

right to equal protection.”); Wynn v. Vilsack, 545 F.

Supp. 3d 1271 (M.D. Fla. 2021) (“To allow the

perpetuation of discrimination in such a manner

would undermine the Supreme Court’s ultimate goal

eliminating

entirely

from

governmental

decisionmaking such irrelevant factors as a human

being’s race.”) (internal quotation marks omitted);

Miller v. Vilsack, No. 4:21-cv-0595-O, 2021 WL

11115194, at *9 (N.D. Tex., Jul. 1, 2021) (“[T]he loan

forgiveness program is simultaneously overinclusive

and underinclusive: overinclusive in that the program

provides debt relief to individuals who may never

have experienced discrimination or pandemic-related

hardship, and underinclusive in that it fails to provide

any relief to those who have suffered such

discrimination but do not hold a qualifying FSA

loan.”).

Rather than continuing to defend a race-based

program that no less than four federal courts

determined unlikely to survive, Congress repealed the

program as a provision of the Inflation Reduction Act

of 2022. Pub. L. No. 117-169 § 22008, 136 Stat. 1818,

2023 (2022). USDA asserts that this fact alone

renders Carpenter’s lawsuit moot, and that there is no

redress for the racially discriminatory payments that

were made under Section 1005 before it was repealed.

But it is also undisputed that the new statute never

addressed the payments that were issued before

Section 1005 was halted. Thus, the unequal treatment

that Carpenter suffered, and continues to suffer, was

never remedied.

In other words, there is an order that a court could

issue to remedy Carpenter’s injury address the

payments that were made before Section 1005 was

repealed. And in the same vein, with respect to the

voluntary cessation doctrine, USDA has never argued

that it “completely and irrevocably eradicated the

effects” of Section 1005.

As it stands today, Carpenter remains as unequally

treated as when the discriminatory payments were

first made. As a result, Carpenter remains injured,

even if the elimination of the program means she will

not suffer further injuries in the future.

III.

Procedural history

Carpenter filed her lawsuit on May 24, 2021,

asserting an equal protection violation. The suit was

stayed on August 16, 2021, pending the outcome of

Miller v. Vilsack, in which Carpenter was an unnamed

class member. After Miller was dismissed, the

government sought to dismiss Carpenter’s case as

well, arguing that the repeal of Section 1005 caused

her case to be moot.

Carpenter opposed the motion to dismiss, pointing

out that the Inflation Reduction Act did not address

USDA’s pre-repeal payments under Section 1005, and

thus her case was not moot. The government argued

in a footnote in its reply brief that even if Carpenter’s

case were not moot, she lacked standing because there

was an independent, race-neutral reason why she was

not eligible for Section 1005 benefits: she lived in

Wyoming, while all of the Section 1005 payments

went to farmers or ranchers in New Mexico.

The District Court held that Carpenter lacked any

interest in her case because Section 1005 was

repealed. It also agreed with the government that

because all of the payments went to New Mexico

farmers or ranchers, Carpenter was not within the

“playing field” of those injured by Section 1005. App.

at 39a (“Completely apart from any considerations of

race, Plaintiff was never within that so-called ‘playing

field’ for the simple reason that her property is in

Wyoming.”).

On appeal, the Tenth Circuit affirmed the dismissal

of Carpenter’s lawsuit. It concluded that Carpenter’s

standing was defeated by the fact that Section 1005

payments were made only to New Mexico farmers.

Additionally, the Tenth Circuit rejected the

application of the voluntary cessation doctrine,

finding no indication of Congress being likely to reenact Section 1005. However, the Tenth Circuit

stopped there and rested its analysis solely on the fact

that Section 1005 was not likely to reoccur. It saw no

need to ask whether interim relief or events had

completely and irrevocably eradicated the effects of the

alleged violation.

Carpenter timely files this petition for a writ of

certiorari, challenging the Tenth Circuit’s dismissal

and seeking redress for her ongoing equal protection

injury.

REASONS FOR GRANTING THE PETITION

INTRODUCTION

Leisl Carpenter suffered an equal protection injury

when similarly-situated farmers and ranchers

received federal benefits under a congressional

program for which she was not eligible, solely based

on her race. That injury was not alleviated when

Congress repealed the underlying federal benefits

program on a forward-looking basis only.

The Tenth Circuit’s opinion creates two strange

incentives for federal agencies: (1) engage in as much

unconstitutional conduct as possible, as swiftly as

possible, before a lawsuit can be filed or an injunction

obtained; and (2) make non-statutory internal

administrative decisions that “pick off” plaintiffs who

have already filed complaints against a federal

program, so as to defeat their standing and avoid

judicial review.

Having an appellate precedent establishing that

the government may strategically engage in these two

actions to avoid challenges to its race-based programs

works a disservice to justice and to equality under the

law.

The issues raised herein are not just important to

the petitioner but apply to a host of federal benefits

programs that increasingly rely on race for eligibility

determinations. Given the substantial legal questions

presented and the far-reaching implications of the

Tenth Circuit’s decision, Carpenter respectfully

submits that this petition merits the Court’s

consideration. It is an opportune moment for the

Court not only to rectify the immediate injustice faced

by the petitioner, but also to guide the lower courts

and federal agencies in adhering to the constitutional

principles that safeguard equality and prevent

discrimination.

The Decision Below Creates a Roadmap

for Federal Agencies to Engage in

Invidious Race Discrimination and

Creates a Split of Authority.

An Individual Should Not Lose

Standing to Sue Based on Internal

Agency Administrative Decisions

Made After a Complaint is Filed.

Under Article III, a plaintiff possesses standing if

she can demonstrate: (1) an injury in fact; (2) that is

fairly traceable to the challenged conduct of the

defendant, and (3) which is likely to be redressed by a

favorable decision. SFFA, 600 U.S. at 191. In her

complaint, Carpenter pled that Section 1005 injured

her by creating a racial classification that excluded

her for the purpose of federal benefits, and that

prospective relief to address this discrimination would

remedy the injury that was fairly traceable to Section

1005’s racial classification. App at 11a (“In the

Complaint, Ms. Carpenter alleges she would be

eligible for loan forgiveness under § 1005, and for

future FSA loans after such forgiveness, if she were

not white.”).

Section 1005 and USDA’s published Notice of

Funds Availability (NOFA) made clear that

Carpenter’s race disqualified her from participating in

the debt relief program. No one disputes that

payments were made under Section 1005 after the

NOFA was issued. No one disputes that they were

based on race. Instead, the only non-racial distinction

between Carpenter and those who received payments

is the fact that she lived in Wyoming, and that USDA

chose to first send payments to New Mexico

recipients—an

irrelevant

and

arbitrary

administrative choice that was not based on anything

in the statute or NOFA.

Yet the Tenth Circuit made clear that it was relying

on this incidental geographic difference when it

affirmed the lower court’s holding based on the idea

that Carpenter was not within the “playing field” of

those who were eligible for Section 1005 benefits. App.

at 23a (“If Appellees’ administration of test payments

can be said to have excluded Ms. Carpenter from

consideration at all, it was because she lives in

Wyoming rather than New Mexico.”); id. (“Even if she

were not white, Ms. Carpenter would have been

excluded from the test payments.”); id. (“The test

payments to four New Mexico farmers therefore do not

constitute an injury to Ms. Carpenter based on the

racial distinctions in § 1005.”).

But Carpenter’s injury stems from a racially

discriminatory policy implemented on a national

level, as shown by the statutory language of Section

1005. The essence of her equal protection claim does

not turn on some self-imposed internal criteria for

prioritizing where USDA would first send the money.

That USDA officials opted to implement Section 1005

in New Mexico before other states is immaterial in the

context of equal protection analysis. Such

administrative choices, while perhaps relevant to the

program’s rollout logistics, do not alter the

fundamental nature of Carpenter’s constitutional

injury—an injury that is rooted in the nationwide

application of a race-based eligibility criterion.

It is the written word that is law, and it is the law

that discriminates—not the incidental methods that

public officials may implement written policies. The

Tenth Circuit’s decision therefore creates a split in

authority regarding the scope of the “playing field” for

equal protection injuries. See Ne. Fla. Chapter of the

Associated Gen. Contractors of Am., 508 U.S. at 666

(“To establish standing, therefore, a party challenging

a set-aside program like Jacksonville’s need only

demonstrate that it is able and ready to bid on

contracts and that a discriminatory policy prevents it

from doing so on an equal basis.”) (emphasis added);

see also Gratz v. Bollinger, 539 U.S. 244, 262 (2003)

(describing the holding of Northeastern Florida that a

business was not required “to show that one of its

members would have received a contract absent the

ordinance in order to establish standing.”) (emphasis

added); Monterey Mech. Co. v. Wilson, 125 F.3d 702,

706 (1997) (“Monterey Mechanical was prevented by

the statute from competing on an equal footing with

general contractors in the designated classes.”)

(emphasis added).

Compare, by contrast, the Tenth Circuit’s focus on

the initial geographic distribution of benefits: “But it

is precisely because the decision to do the test in New

Mexico was unrelated to the statutory language that

Ms. Carpenter cannot claim an injury based on §

1005’s racial distinctions.” App. at 23a (emphasis

added).

Yet fact that USDA officials opted to start with New

Mexico when they began implementing Section 1005

is a non-sequitur. They could just as easily have

started with borrowers whose last names started with

“A” or “B.” But plaintiffs whose names start with “C”

should not be deprived of the right to challenge

unconstitutional race discrimination in such

circumstances.

Notably, living in New Mexico was not one of the

textual criteria of Section 1005, nor could bureaucrats

have made it so. Accord Boyd v. U.S., No. 22-1473C,

2023 WL 3118132, *5 (Fed. Ct. Cl., Apr. 27, 2023) (“In

this case, however, no official was conferred with

contracting authority by ARPA § 1005.”). And simply

put, Carpenter could never have received payments

under Section 1005, regardless of which state she

lived in, due to her race.

Moreover, the Tenth Circuit’s logic would not just

stop at geography. There were two other factors that

USDA officials considered when deciding to start with

New Mexico:

•

The borrowers being sole proprietorships

rather than entities; and

•

Past interactions with [the Farm Service

Agency] that reflected a willingness to be

part of a pilot initiative.

See App. at 8a-9a. The Tenth Circuit’s logic would

mean that even Carpenter did live in New Mexico, she

would also still need to meet these qualifications, too,

to have standing.

But the idea that USDA could rely on making these

distinctions among non-Caucasian recipients of

Section 1005 funds—a group that Carpenter was not

a part of, of course—in order to defeat her lawsuit for

lack of standing, would be truly anomalous. (That is

especially true since USDA was knew, at the time of

the payments, that no plaintiff in New Mexico had

challenged Section 1005.) Congress never mentioned

any of these qualifications when it enacted Section

1005, and none were in place when Carpenter brought

her suit on May 24, 2021.

In other words, Carpenter possessed a concrete

injury under Article III when she filed her complaint

on May 24, 2021. Binding Supreme Court case law—

and a wealth of appellate precedents—contradicts the

Tenth Circuit’s decision that she somehow lost that

standing based on the subsequent internal

administrative decisions of USDA employees that

purportedly narrowed who was truly injured under

ARPA.

The Tenth Circuit’s conclusion also fundamentally

overlooks the broader constitutional question at hand:

whether the federal program’s design and

implementation, in its entirety, violated the

Constitution by considering race as one factor in

discriminating against individuals. As this Court and

numerous lower courts have recognized, race need

only be one factor that is part of the decision-making

process, for a plaintiff to have standing. See, e.g.,

Gratz, 539 U.S. at 262 (“The ‘injury in fact’ necessary

to establish standing in this type of case is the denial

of equal treatment resulting from the imposition of

the barrier, not the ultimate inability to obtain the

benefit.”) (cleaned up); Ne. Fla. Chapter of Gen. Contr.

of Am., 508 U.S. at 664 (“[O]ur holding [in Turner v.

Fouche, 396 U.S. 346 (1970)] did not depend upon an

allegation that he would have been appointed to the

board but for the property requirement. All that was

necessary was that the plaintiff wished to be

considered for the position.”).

Numerous lower courts have followed this Court’s

clear precedents, which are now all in tension with the

Tenth Circuit. See Eng’g Contractors Ass’n of S. Fla.

Inc. v. Metro. Dade Cnty., 122 F.3d 895, 906 (11th Cir.

1997) (“When the government loads the dice that way,

the Supreme Court says that anyone in the game has

standing to raise a constitutional challenge.”); Price v.

City of Charlotte, N.C., 93 F.3d 1241, 1248 (4th Cir.

1996) (“[T]he injury Appellees suffered is the

ignominy and illegality of the City’s erecting a racial

bar to promotions…”); see also Sullivan v.

Benningfield, 920 F.3d 401, 408 (6th Cir. 2019)

(“Plaintiffs need not show the denial of an

independent right to make out an Article III injury in

fact.”); Bras v. California Public Utilities Comm’n, 59

F.3d 869, 873 (9th Cir. 1995) (“[P]laintiffs alleging

equal protection violations need not demonstrate that

rigid quotas make it impossible for them to compete

for any given benefit. Rather, they need only show

that they are forced to compete on an unequal basis.”);

Holman, 582 F. Supp. 3d at 577 (“[A]ny classification

that makes it more difficult for members of one racial

group to obtain a benefit is an injury sufficient to

confer standing.”) (cleaned up).

In sum, the Tenth Circuit’s reliance on the

geographic specificity of the program’s test payments

in New Mexico as a factor in evaluating Carpenter’s

injury overlooks the national scope of Section 1005,

and misapplies equal protection principles. The injury

that Carpenter alleges is tied to the discriminatory

nature of the program itself—a national policy from

which she was excluded based on race, rendering the

location of initial payments immaterial to the

determination of her constitutional injury. Put

simply, payments were made under a discriminatory

national policy, therefore, Carpenter has suffered an

injury.

Worse, the Tenth Circuit’s decision will distort a

host of legal outcomes, given that federal agency

officials have no inherent authority to act without

congressional delegation arising from the text of

statutes. In that sense, the mere administrative

choices of bureaucrats do not and cannot undermine

the Court’s conventional analysis of when classes are

similarly situated. If the decision stands, clever

bureaucrats could easily evade legal challenges

through arbitrary administrative choices. Accord Day

v. Bond, 500 F.3d 1127, 1135 (10th Cir. 2007) (“[T]he

plaintiff must show he is not disqualified from

competing because of nondiscriminatory eligibility

criteria.”).

This is not the law, and if it were, it would invite

gamesmanship through informal modifications of

unconstitutional programs, to avoid pending suits for

injunctive relief, based on the identity and location of

existing plaintiffs. Accord SFFA, 600 U.S. at 257

(Thomas, J., concurring) (“This judicial skepticism is

vital. History has repeatedly shown that purportedly

benign discrimination may be pernicious, and

discriminators may go to great lengths to hide and

perpetuate their unlawful conduct.”).

Carpenter’s Suit is Not Moot,

Because There Remains an Order

that Could Have Real-World Effect.

There is no legal doctrine establishing that courts

cannot correct past mistakes. Indeed, courts possess

significant power to address bona fide equal

protection violations. See, e.g., Milliken v. Bradley,

433 U.S. 267, 280 (1977) (“[D]ecree[s] … must be

designed as nearly as possible to restore the victims of

discriminatory conduct to the position they would

have occupied in the absence of such conduct.”)

(internal quotation marks omitted).

The Tenth Circuit’s decision in this case contrasts

with decisions from this Court and other circuits,

where courts have rejected mootness arguments in

the context of unremedied past injuries. City of Los

Angeles v. Lyons, 461 U.S. 95, 102 (1983) (past harm

can constitute an injury-in-fact for purposes of

pursuing injunctive relief if it causes continuing,

present adverse effects); Sullivan, 920 F.3d at 411

(prisoner suit was not moot despite plaintiffs’ release

from prison, and despite the repeal of a statute,

because “the statute fails to stop the differential

treatment Plaintiffs continue to suffer”); accord

Zukerman v. U.S. Postal Serv., 64 F.4th 1354, 1363

(D.C. Cir. 2023) (“[T]he customized postage program

has already been shuttered. … [Yet] Zukerman was

injured the moment the Postal Service refused to print

and recognize his stamp. The effects of that past

injury remain unremedied…”).

In short, when the government gives some people

the benefit of a program based on their race and not

others, an injury remains to be redressed even after

the government abandons its discriminatory policies.

See New York State Rifle & Pistol Ass’n, Inc. v. City of

New York, NY, 140 S. Ct. 1525, 1528 (2020) (Alito, J.,

concurring) (“[T]he changes in City and State law do

not provide petitioners with all the injunctive relief

they sought.”).

Courts have long held that it is permissible to order

government officials to undo the constitutional

damage that they have done in the past. See, e.g.,

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402

U.S. 1, 15 (1971) (“Once a right and a violation have

been shown, the scope of a district court’s equitable

powers to remedy past wrongs is broad, for breadth

and flexibility are inherent in equitable remedies.”).

This is especially true in the equal protection context.

Id. at 16-17 (“[A] school desegregation case does not

differ fundamentally from other cases involving the

framing of equitable remedies to repair the denial of a

constitutional right. The task is to correct, by a

balancing of the individual and collective interests,

the condition that offends the Constitution.”).

What that remedy looks like for Carpenter is, at

this stage, a premature question. But for this Court’s

purposes, the critical point is that there is no per se

bar to courts correcting ongoing injuries merely

because the injury had its genesis in the past. See

Heckler v. Mathews, 465 U.S. 728, 740 (1984) (“[T]he

right to equal treatment guaranteed by the

Constitution is not co-extensive with any substantive

rights to the benefits denied the party discriminated

against. Rather, as we have repeatedly emphasized,

discrimination itself, by perpetuating ‘archaic and

stereotypic notions’ or by stigmatizing members of the

disfavored group as ‘innately inferior’ can cause

serious non-economic injuries to those persons who

are personally denied equal treatment solely because

of their membership in a disfavored group.”) (internal

citations omitted); United States v. Paradise, 480 U.S.

149, 191 (1987) (Stevens, J., concurring) (“In this case,

the record discloses an egregious violation of the

Equal Protection Clause. It follows, therefore, that the

District Court had broad and flexible authority to

remedy the wrongs resulting from this violation.”).

Indeed, in numerous contexts, lower courts have

held that government actors owe a duty to correct the

wrongs of the past, if an injury lingers. See Thomas S.

by Brooks v. Flaherty, 902 F.2d 250, 255 (4th Cir.

1990) (“If the present conditions under which class

members live do not meet constitutional requirements

as explained in Youngberg, or if a patient is presently

suffering from unconstitutional conditions imposed

while in the hospital, the decree provides appropriate

prospective relief.”); see id. at 255 (“The decree

addresses the present needs of the patients.”); Ayala

v. Armstrong, No. 1:16-cv-00501-BLW, 2017 WL

3659161, *2 (D. Idaho, Aug. 24, 2017) (“Here, the

State of Idaho’s past unconstitutional acts have led to

‘continuing conditions of inequality’ for same-sex

couples who desired to marry but were

unconstitutionally denied that right by the State of

Idaho.”); Hunter v. U.S. Dep’t of Educ., No. 6:21-cv00474-AA, 2023 WL 172199, *7 (D. Ore., Jan. 12,

2023) (students who had graduated from college still

had standing under Title IX because “the Court can

redress the stigmatic, emotional, and procedural

injuries that Plaintiffs are experiencing now.”)

(emphasis added); In re Circuit City Stores, Inc., No.

19-03091-KRH, 2022 WL 17722849, *3 (E.D. Va.

Bankr., Dec. 15, 2022) (“[T]he Court rejects the

Defendants’

argument

that

correcting

the

assessments on a going-forward basis is sufficient in

and of itself to provide adequate relief.”); C.M. ex rel.

Marshall v. Bentley, 13 F. Supp. 3d 1188, 1203 (M.D.

Ala. 2014) (injury was redressable by court if “other

students are no longer allowed to enjoy the benefits

that Plaintiffs are being denied.”).

While this Court need not figure out at this junction

how to remedy the ongoing violation of Petitioner’s

rights, courts are certainly institutionally capable of

addressing an equal protection violation. See Barr v.

Am. Ass’n of Political Consultants, 140 S. Ct. 2335,

2354 (2020) (“When the constitutional violation is

unequal treatment, as it is here, a court theoretically

can cure that unequal treatment either by extending

the benefits or burdens to the exempted class, or by

nullifying the benefits or burdens for all.”) (citing

Heckler, 465 U.S. at 740; Moritz v. C. I. R., 469 F.2d

466, 470 (10th Cir. 1972) (“Where a court is compelled

to hold such a statutory discrimination invalid, it may

consider whether to treat the provisions containing

the discriminatory underinclusion as generally

invalid, or whether to extend the coverage of the

statute.”).

To be sure, sometimes these cases can raise “knotty

questions” about whether to “extend benefits or

burdens,” id., but ultimately the onus should be on

USDA to “come forward with a plan that promises

realistically to work” Swann, 402 U.S. at 12-13, and

that courts can review for constitutional compliance.

Moreover, the “real-world” effect of an order

correcting past constitutional harm need not be earth-

shaking. See Golden State Transit Corp. v. City of Los

Angeles, 475 U.S. 608, 613 n.3 (1986) (rejecting

mootness argument based on intervening events

when a party merely “would be more likely to have an

operating franchise now,” but for the government’s

unconstitutional conduct.); Prison Legal News v. Fed.

Bureau of Prisons, 944 F.3d 868, 881 (10th Cir. 2019)

(“A defendant’s corrective actions that do not fully

comport with the relief sought are also insufficient.”);

Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th

Cir. 2006) (“That burden is ‘heavy’; a case is not moot

where any effective relief may be granted.”) (original

emphasis).

Carpenter Seeks Prospective Relief

That a Court Could Order With

Respect to the USDA Respondents—

Compelling USDA to Correct its

Previous Racial Discrimination.

In rejecting the injury that Carpenter pled, the

Tenth Circuit focused on the fact that future

discriminatory payments would not occur. App. at 20a

(“The injunctions against implementation of § 1005

and the section’s eventual repeal rendered any equal

protection injury impossible.”). But that holding does

not address payments made before Section was

repealed by Congress.

The fact that the USDA Respondents are Executive

Branch agency officials is immaterial to Carpenter’s

claim. A court may freely impose duties on public

officials to prospectively comply with the

Constitution, even if that means correcting past

mistakes. See Milliken v. Bradley, 433 U.S. at 290

(“That the programs are also ‘compensatory’ in nature

does not change the fact that they are part of a plan

that operates prospectively to bring about the delayed

benefits of a unitary school system. We therefore hold

that such prospective relief is not barred by the

Eleventh Amendment.”); Flint v. Dennison, 488 F.3d

816, 825 (9th Cir. 2007) (“Here, the injunctions Flint

seeks as related to past violations serve to expunge

from University records the 2003 censure and 2004

denial of his Senate seat, which actions may cause

Flint harm.”); State Emp. Bargaining Agent Coal. v.

Rowland, 494 F.3d 71, 96 (2d Cir. 2007) (“We are

specifically required by Ex parte Young to examine

whether there exists an ongoing violation of federal

law. … Thus, it is relevant—in considering the

existence vel non of an ongoing violation—to ask

whether the claimed remedy is still available.”)

(internal citation omitted); Clark v. Cohen, 794 F.2d

79, 84 (3d Cir. 1986) (“Given the square holding in

Milliken II that a federal court may order state

officials to fund from the state treasury remedial

measures found necessary to undo the harmful effects

of past constitutional violations, we hold that the

Commonwealth defendants’ eleventh amendment

argument is meritless.”); Heckler, 465 U.S. at 740

(“[W]hen the right invoked is that of equal treatment,

the appropriate remedy is a mandate of equal

treatment, a result that can be accomplished by

withdrawal of benefits from the favored class as well

as by extension of benefits to the excluded class.”).

Here, neither the District Court, the Tenth Circuit,

or the USDA Respondents have ever contended that

correcting prior race discrimination is not prospective

relief, or that sovereign immunity shields them from

having to address racially discriminatory monetary

payments made under Section 1005. Accord Graham

v. Richardson, 403 U.S. 365 (1971) (discriminatory

welfare payment system was struck down as

unconstitutional,

despite

involving

monetary

payments).

A Court Should Not Dismiss a Case Based

on Mootness if the Defendant Failed to

Eradicate the Effects of its Misconduct.

“It is well settled that a defendant’s voluntary

cessation of a challenged practice does not deprive a

federal court of its power to determine the legality of

the practice.” Friends of the Earth, Inc. v. Laidlaw

Env’t Serv. (TOC), Inc., 528 U.S. 167, 189 (2000)

(cleaned up); id. (“[T]he standard we have announced

for determining whether a case has been mooted by

the defendant's voluntary conduct is stringent.”).

The Tenth Circuit below alluded to the proper twoprong test to establish an exception to the voluntary

mootness doctrine, App. 29a, but nevertheless

dismissed Carpenter’s case based merely on one

prong. The Tenth Circuit held that the government

had successfully met its burden merely by making a

particularly strong showing on the first factor. App. at

31a (“There is no indication in the Complaint or any

exhibit in this case that Congress intends to re-enact

the provisions of § 1005, nor is it plausible Congress

would do so given that the emergency that prompted

§ 1005 in the first place—the sudden economic

devastation caused by the COVID-19 pandemic—no

longer exists.”).

That was error. To establish mootness through

voluntary cessation, the government must make a

proper showing on both prongs, not just one:

(1) it can be said with assurance that there is

no reasonable expectation that the alleged

violation will recur, and

(2) interim relief or events have completely

and irrevocably eradicated the effects of the

alleged violation.

Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979)

(cleaned up) (emphasis added); Indiana Emp. Sec.

Div. v. Burney, 409 U.S. 540, 541-42 (1973)

(remanding for consideration of whether other

members of a class had been made whole, even if the

named plaintiff Burney had been paid); see also Lyons,

461 U.S. at 101 (agreeing with Petitioner that the case

was not moot since “[i]ntervening events have not

irrevocably eradicated the effects of the alleged

violation”) (internal quotation marks omitted); accord

Golden State Transit, 475 U.S. at 613, n.3 (“It

therefore cannot be said that intervening events have

. . . irrevocably eradicated the effects of the alleged

violation. We conclude, therefore, that the case is not

moot.”) (cleaned up); DeFunis v. Odegaard, 416 U.S.

312, 317 (1974) (“[H]e now has also been irrevocably

admitted to the final term of the final year of the Law

School course.”).

And with respect to both factors, it is the

defendant’s burden to establish mootness. See Row 1

Inc. v. Becerra, 92 F.4th 1138, 1144 (D.C. Cir. 2024)

(describing the “formidable burden” that the

government has in establishing mootness through

voluntary cessation, and referring to both factors);

13A Charles A. Wright et al., Federal Practice and

Procedure § 3533.1 n.22 (3d ed. 2023) (“If a plaintiff

begins with standing, a defendant who asserts that

voluntary cessation has mooted the action carries a

heavy burden to prove mootness, a clear difference

from the rule that a plaintiff has the burden to

establish standing.”).

Applying these principles to the instant case, the

mere repeal of § 1005 does not irrevocably eradicate

equal protection violations that occurred prior to the

statute’s repeal. The government has not even

contended that it tried to irrevocably eradicate the

effects of Section 1005.

While repealing Section 1005 prevented future

discrimination, it failed to address or rectify the past

unequal treatment that Carpenter suffered. See

Swann, 402 U.S. at 15 (“The objective today remains

to eliminate from the public schools all vestiges of

state-imposed segregation.”); id. at 28 (“The remedy

for such segregation may be administratively

awkward, inconvenient, and even bizarre in some

situations and may impose burdens on some.”);

Louisiana v. U.S., 380 U.S. 145, 154 (1965) (“We bear

in mind that the court has not merely the power but

the duty to render a decree which will so far as

possible eliminate the discriminatory effects of the

past as well as bar like discrimination in the future.”)

(emphasis added).

In that vein, strict application of the voluntary

cessation doctrine plays a crucial role in the judicial

system’s oversight of constitutional violations,

particularly in cases where defendants may seek to

avoid judicial review by ceasing illegal conduct once

challenged. DeFunis, 416 U.S. at 318 (there is a

“public interest in having the legality of the practices

settled”). This doctrine ensures that mootness is not

merely a tool for evasion, but a genuine and lasting

resolution of the issues at hand. See United States v.

W. T. Grant Co., 345 U.S. 629, 632 (1953) (“The courts

have rightly refused to grant defendants such a

powerful weapon against public law enforcement.”).

The Tenth Circuit’s decision therefore creates a

split of authority with lower courts that have agreed

that both of the Davis prongs must be met to satisfy

the mootness standard. See, e.g., U.S. Commodity

Futures Trading Comm’n v. Escobio, 946 F.3d 1242,

1251 (11th Cir. 2020) (“Escobio’s adherence to the new

payment structure does not negate the possibility that

he will fail to pay in the future nor has it ‘completely

and irrevocably’ paid off the restitution award.”);

Fikre v. Fed. Bureau of Investigation, 904 F.3d 1033,

1040 (9th Cir. 2018) (“[W]e note that Fikre’s removal

from the No Fly List does not completely and

irrevocably eradicate the effects of the alleged

violations.”) (cleaned up); Cleveland Branch of the

N.A.A.C.P. v. City of Parma, Oh., 263 F.3d 513, 533

(6th Cir. 2001) (second prong not satisfied in

discrimination case where the lingering effects of

discrimination remained in municipal employment);

Johnson v. Jones, 42 F.3d 1385, *2 (4th Cir. 1994)

(Table) (dismissing a discrimination claim based on

voluntary cessation only because “[t]he Citadel has

represented that the accommodations that will be

made for the 78 male veterans who had been enrolled

in the veterans program would also be made for

women”).

Likewise, many decisions support the position that

mootness can only be determined after reaching the

second prong. See Davis, 440 U.S. at 633 (the

government satisfied the second prong because it

“completely cured any discriminatory effects” of its

prior policy); Rio Grande Silvery Minnow v. Bureau of

Reclamation, 601 F.3d 1096, 1120 (10th Cir. 2010)

(dismissing as moot where there were “no lingering

effects from the federal agencies’ alleged violations of

the ESA in connection with the issuance of the 2001

and 2002 biological opinions”); see also Ghailani v.

Sessions, 859 F.3d 1295, 1302 (10th Cir. 2017)

(dismissing case as moot only after concluding “there

is no evidence that any of the former SAM restrictions

are currently affecting Mr. Ghailani”). 3

3 Note that despite the intra-circuit split of authority within the

Tenth Circuit, Carpenter’s request for en banc review was

denied. App. at 4a.

The Tenth Circuit’s holding here therefore

represents a significant deviation from the voluntary

cessation doctrine as articulated by this Court. The

Tenth Circuit relied exclusively on the government’s

showing on the first Davis prong and never analyzed

the second prong. But the doctrine requires not just a

halt in the challenged conduct and the unlikeliness of

its further implementation, but also a comprehensive

remedy for its effects. This gap in the Tenth Circuit’s

analysis overlooks the enduring impact of the

discrimination Carpenter faced, an impact that

remains unaddressed by the legislative repeal alone.

Interestingly, USDA has never even contended that

the discriminatory payments made under § 1005 have

actually been eradicated or unwound. Instead, they

simply point to the statute’s repeal. This is

insufficient to satisfy the second prong of the

voluntary cessation test for mootness under this

Court’s jurisprudence. It is imperative that the Court

take up this matter to rectify the Tenth Circuit’s

flawed voluntary cessation analysis.

This Case is an Ideal Vehicle to Resolve

the Questions Presented.

This case presents the relatively straightforward

question of whether a plaintiff’s constitutional claim

based on racially discriminatory treatment must be

dismissed when payments are made to similarly

situated individuals who nevertheless have some

incidental difference with the plaintiff—such as their

geographic residence. Secondarily, it presents the

question of whether monetary payments that were

made prior to the repeal of a racially discriminatory

program may be left unaddressed, once the program

is halted through injunction or repeal.

Neither the District Court, nor the Tenth Circuit,

questioned in their opinions whether Carpenter

adequately pled her claims; nor did they suggest that

Carpenter might lack standing for any other reason.

Moreover, there is no factual disagreement regarding

the payments that were made prior to Section 1005’s

repeal that is material to the legal questions in this

petition. Last, neither the District Court nor the

Tenth Circuit questioned whether some remedy might

exist, if a constitutional violation is found to have

occurred. Indeed, USDA has never contended that no

relief is possible in this case.

At a Minimum, the Court May Consider

Holding the Petition for Subsequent

Vacatur and Remand Until After it Issues

an Opinion in FBI v. Fikre, 22-1178.

In Federal Bureau of Investigation, et al., v. Yonas

Fikre, 22-1178, this Court is considering whether a

claim regarding an individual’s placement on the “No

Fly List” is moot. In Fikre, the Respondent was taken

off of the No Fly List after bringing suit, but the Ninth

Circuit Court of Appeals held that the suit was not yet

moot. This Court granted a writ of certiorari on

September 29, 2023—after briefing and oral

argument had already occurred Carpenter’s appeal—

and the Court heard argument on January 8, 2024.

The Court’s discussion of the doctrine of voluntary

cessation in Fikre—regardless of whether it affirms or

reverses the Ninth Circuit Court of Appeals—may

shed light on whether Carpenter’s claim for relief is

moot, given that her ongoing unequal treatment has

never been remedied. See Transcript of Oral

Argument at 20, FBI v. Fikre, 22-1178, (Justice

Jackson: “So I understand here that what we’re really

talking about is the extent to which the government

can rely on voluntary cessation to claim that he no

longer has a—a claim.”); see id. at 38 (Justice Kagan:

“Well, that suggests— . . . that we’re not committed

to our voluntary cessation rule, which I think we’ve

given every indication we are extremely committed

to.”). 4 For that reason, this Court may opt to hold this

petition, and vacate and remand once its decision has

been issued in Fikre.

CONCLUSION

This Petition for a Writ of Certiorari presents

constitutional questions that warrant this Court’s

attention. The Tenth Circuit’s dismissal of

Petitioner’s claims, based on a narrow interpretation

of equal protection injuries and the voluntary

cessation doctrine, fails to recognize the enduring

harm inflicted by racially discriminatory policies

under Section 1005 of ARPA.

https://www.supremecourt.gov/oral_arguments/argument_trans

cripts/2023/22-1178_7lhn.pdf

Moreover, the Tenth Circuit’s approach, if left

unchallenged, sets a dangerous appellate precedent

that undermines the judiciary’s role in safeguarding

constitutional

rights

against

governmental

discrimination. The decision below not only lets stand

the injuries suffered so far by Carpenter, but also

provides federal agencies with a roadmap to evading

judicial review.

Therefore, Petitioner respectfully urges the Court

to grant this petition, reverse the Tenth Circuit’s

decision, and reaffirm the primacy of equal protection

rights in the face of racial discrimination by federal

programs.

Alternatively, Petitioner respectfully requests that

the Court hold the petition, and vacate and remand

upon issuing its opinion in Federal Bureau of

Investigation, et al., v. Fikre, 22-1178.

DATED: March 11, 2024.

Respectfully submitted,

William E. Trachman

James L. Kerwin.

Grady J. Block

Mountain States

Legal Foundation

2596 South Lewis Way

Lakewood, CO 80227

(303) 292-2021

wtrachman@mslegal.org

Braden Boucek

Southeastern Legal Foundation

560 West Crossville Rd. Suite

104

Roswell, Georgia 30075

(770) 977-2131

bboucek@southeasternlegal.org

Counsel for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.