Petition for Writ of Certiorari — Robert Holman, Petitioner v. Brooke L. Rollins, Secretary, Department of Agriculture, et al.

Supreme Court briefMay 5, 2025

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No. 24-____

In the

Supreme Court of the United States

♦

ROBERT HOLMAN,

Petitioner,

BROOKE ROLLINS, IN HER OFFICIAL CAPACITY AS

SECRETARY OF THE UNITED STATES DEPARTMENT OF

AGRICULTURE, ET AL.,

Respondents.

♦

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

♦

APPENDIX

♦

WILLIAM E. TRACHMAN

Counsel of Record

Alexander R. Khoury

MOUNTAIN STATES LEGAL

FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

wtrachman@mslegal.org

BRADEN BOUCEK

KIMBERLY HERMANN

SOUTHEASTERN LEGAL

FOUNDATION

560 West Crossville

Rd. Suite 104

Roswell, Georgia

30075

May 5, 2025

Counsel for Petitioner

Appendix

Table of Contents

Page

Appendix A — Court of Appeals Opinion

Denying Rehearing En Banc (February 3,

2025) ...............................................................

Appendix B — Court of Appeals Opinion

(September 23, 2024) .....................................

15a

Appendix C — Court of Appeals Judgment

(September 23, 2024) .....................................

46a

Appendix D — District Court Order Denying

Plaintiffs Motion for Attorney Fees and Costs

(April 4, 2023).................................................

47a

Appendix E — District Court Judgment

(September 14, 2022) .....................................

58a

Appendix F — Joint Stipulation of Dismissal

(September 14, 2022) .....................................

59a

Appendix G — District Court Order Granting

Preliminary Injunction (July 8, 2021) ...........

62a

Appendix H — Statutory and regulatory

provisions:

28 USCA § 2412 .............................................

97a

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

105a

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

106a

42 U.S.C. § 1988(b).........................................

106a

American Rescue Plan Act Section 1005, Pub.

L. No. 117-2, 135 Stat. 4 (2021) .....................

100a

Inflation Reduction Act, Pub. L. No. 117-169,

136 Stat. 1818 (2022) .....................................

101a

Notice of Funding Availability, (86 Fed. Reg.

28329) .............................................................

101a

PL 96–481 (HR 5612), PL 96–481, OCTOBER

21, 1980, 94 Stat 2321 ...................................

124a

42 U.S.C. § 12205 ............................................

125a

42 U.S.C. § 3613(c)(2)..........................................

125a

Appendix I — Congressional Reports:

H.R. Rep. No. 94-1558 (1976) ........................

126a

H.R. Rep. No. 96-1005 (1980) ........................

128a

H.R. Rep. No. 96-1418 (1980) ........................

133a

H.R. Rep. No. 96-1434 (1980) (Conf. Rep.) ....

136a

H.R. Rep. No. 98–992 (1984) .........................

138a

H.R. Rep. No. 99-120 (1985) ..........................

143a

S. Rep. No. 94-1011 (1976).............................

146a

S. Rep. No. 96-253 (1979)...............................

150a

S. Rep. No. 98-586 (1984)...............................

153a

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ROBERT HOLMAN,

Plaintiff-Appellant,

THOMAS J. VILSACK, in his official

capacity as Secretary of the United

States Department of Agriculture;

ZACH DUCHENEAUX, in his official

capacity as Administrator of the

Farm Service Agency,

Defendants-Appellees.

┐

│

> No. 23-5493

│

┘

On Petition for Rehearing En Banc

United States District Court for the Western District

of Tennessee at Jackson.

No. 1:21-cv-01085—S. Thomas Anderson, District

Judge.

Decided and Filed: February 3, 2025

Before: STRANCH, LARSEN, and DAVIS, Circuit

Judges.

COUNSEL

ON PETITION FOR REHEARING EN BANC:

Braden H. Boucek, Kimberly S. Hermann,

SOUTHEASTERN LEGAL FOUNDATION, Roswell,

Georgia, William E. Trachman, MOUNTAIN STATES

LEGAL FOUNDATION, Lakewood, Colorado, for

Appellant. ON RESPONSE: Jeffrey E. Sandberg,

Thomas Pulham, UNITED STATES DEPARTMENT

OF JUSTICE, Washington, D.C., for Appellees. ON

BRIEF: Daniel P. Lennington, WISCONSIN

INSTITUTE FOR LAW & LIBERTY, Milwaukee,

Wisconsin, David C. Tryon, Alex M. Certo, Thomas J.

Gillen, THE BUCKEYE INSTITUTE, Columbus,

Ohio, for Amici Curiae.

The court delivered an order denying the petition

for rehearing en banc. THAPAR, J. (pp. 3–10),

delivered a separate opinion dissenting from the

denial of the petition for rehearing en banc, in which

BUSH, LARSEN, NALBANDIAN, and READLER,

JJ., concurred.

ORDER

The court received a petition for rehearing en banc.

The original panel has reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original

submission and decision.

The petition was then circulated to the full court.*

Less than a majority of the judges voted in favor of

rehearing en banc. Judge Larsen would grant the

petition for the reasons stated in her original dissent

* Judge Ritz is recused from participation in this case.

and for those stated in Judge Thapar’s dissent to this

order of denial.

Therefore, the petition is denied.

DISSENT

THAPAR, Circuit Judge, dissenting. COVID-19

didn’t discriminate against farmers based on the color

of their skin. But the federal government did. The

government conditioned a farmer’s eligibility for

COVID-era debt relief on his race. And the

government favored certain races without any

evidence of past discrimination against them.

Apparently, COVID was a crisis not to be wasted—a

chance to play racial favorites when distributing

public funds. Luckily, the Constitution stood in the

way.

Now, an American who challenged the

government’s racial discrimination in court, Robert

Holman, seeks to recover attorney’s fees for his efforts.

The government says it shouldn’t have to pay up

because its legal defense of its racial discrimination

was “substantially justified.” But binding precedent

said otherwise. Disregarding that precedent, a panel

of our court sided with the government over Judge

Larsen’s thoughtful dissent. We should have granted

rehearing en banc to fix this egregious error, and I

respectfully dissent from our refusal to do so.

Robert Holman’s family has farmed Tennessee soil

for four generations. Along with his dad, Holman

grows corn and soybeans. In recent years, he took out

two loans from the Department of Agriculture (USDA)

to buy farming equipment. Given the pandemic’s

impact on the price of corn and soybeans, it became

especially hard for farmers like Holman to pay back

their loans.1

When Congress and President Biden created a

debt relief program for farmers in the American

Rescue Plan Act of 2021, Holman had hope. But that

hope was soon dashed when he found out that the

relief was not available for anyone with the wrong

skin color.

Normally, the color of an American’s skin doesn’t

block his access to government benefits. But it did

here. The Act provided debt relief only to “socially

disadvantaged” farmers. Pub. L. No. 117-2, §

1005(a)(2), 135 Stat. 4, 12 (2021). It defined “socially

disadvantaged” farmers solely with reference to

whether they were members of a group that’s “been

subjected to racial or ethnic prejudice.” 7 U.S.C. §

2279(a)(5)–(6). The USDA determined that members

of socially disadvantaged groups include but are not

limited to: “American Indians or Alaskan Natives;

Asians; Blacks or African Americans; Native

Hawaiians or other Pacific Islanders; and Hispanics

or Latinos.” Notice of Funds Availability, 86 Fed. Reg.

28329, 28330 (May 26, 2021). All told, if not for his

white skin, Holman would have qualified for the

USDA’s debt relief.

1 See Tennessee Agricultural Sectors Taking a Hit from

COVID-19,

Inst.

Agric.

(Aug.

13,

2020),

https://utianews.tennessee.edu/tennessee-agricultural-sectorstaking-a-hit-from-covid-19/.

So he sued. Holman challenged the USDA’s racebased determination of who counts as a “socially

disadvantaged” farmer deserving of debt relief. He

sought a preliminary injunction, and the government

opposed his motion. The district court granted

Holman preliminary relief. Congress then repealed

the relevant portion of the American Rescue Plan,

thereby mooting the case. The parties stipulated to

dismissal.

Holman then moved for attorney’s fees under the

Equal Access to Justice Act (EAJA). To get those fees,

Holman had to be a “prevailing party.” 28 U.S.C. §

2412(d)(1)(A). But the government could avoid paying

fees if its defense of the racially discriminatory debt

relief program was “substantially justified” or if

“special circumstances” would “make an award

unjust.” Id.

The district court found that Holman was not a

“prevailing party” since he received only preliminary

relief. When Holman appealed, the panel affirmed the

district court’s judgment without reaching the

“prevailing party” question.2 Instead, the panel

concluded that Holman didn’t deserve fees because

the government’s position was “substantially

justified.” Judge Larsen dissented.

II.

For the government’s litigating position to be

substantially justified, it must be reasonable. Pierce v.

Underwood, 487 U.S. 552, 565, 566 n.2 (1988). So, in

reaching a substantial justification determination, we

“analyze why the government’s position failed in

court.” Taucher v. Brown-Hruska, 396 F.3d 1168, 1174

(D.C. Cir. 2005) (Roberts, J.). If the government’s

position flouted “controlling case law,” it isn’t

substantially justified. Griffith v. Comm’r of Soc. Sec.,

987 F.3d 556, 564 (6th Cir. 2021) (quoting Taucher,

396 F.3d at 1174). The government’s position here

contradicted binding precedent. Thus, it wasn’t

substantially justified.

The USDA expressly discriminated against

citizens based on their race when distributing COVID2 The Supreme Court is considering a case this term that tees up

whether the winner of a preliminary injunction in a case that’s

later mooted is a “prevailing party.” See Lackey v. Stinnie, No.

23-621 (4th Cir. Argued Oct. 8, 2024). The Court’s resolution of

that case, which centers on 42 U.S.C. § 1988, will apply with full

force to the statutory language at issue here, 28 U.S.C. §

2412(d)(1)(A). See Hensley v. Eckerhart, 461 U.S. 424, 433 n.7

(1983); Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of

Health & Hum. Res., 532 U.S. 598, 603 n.4 (2001). Lackey’s

impact remains unclear. Regardless of Lackey, the “primary

responsibility for the Sixth Circuit’s errors rests with the Sixth

Circuit.” Shoop v. Cunningham, 143 S. Ct. 37, 44 (2022)

(Thomas, J., dissenting from denial of certiorari).

era debt relief. Thus, precedent made clear that the

debt relief program had to surmount the high bar of

strict scrutiny. Adarand Constructors, Inc. v. Pena,

515 U.S. 200, 235 (1995). That meant that in addition

to satisfying narrow tailoring requirements, the

government needed to “show that favoring one race

over another [was] necessary to achieve a compelling

state interest.” Vitolo v. Guzman, 999 F.3d 353, 360

(6th Cir. 2021).

What was the compelling interest? Allegedly,

remedying the USDA’s past racial discrimination and

halting its continuing effects.

For such an interest to be valid, precedent left no

doubt that the government had to provide actual

evidence of past intentional discrimination. Id. at 361.

That evidence is essential. It helps us differentiate

between permissible remedial efforts that target

specific episodes of past intentional discrimination

and impermissible efforts that strive to remedy

societal discrimination writ large. Id. Without such

evidence, remedying the discrimination of yesterday

becomes “an amorphous” and thus impermissible

“end.” Parents Involved in Cmty. Schs. v. Seattle Sch.

Dist. No. 1, 551 U.S. 701, 735 (2007).

And that precedent exists for a good reason. The

Constitution is no friend to racial discrimination.

Under our Constitution, Americans are individuals of

equal worth, not indistinguishable members of racial

groups. When the government crafts policies at odds

with that core truth, precedent rightly requires the

government to come armed with evidence justifying

its actions.

But the government showed up here all but emptyhanded. For Native Hawaiians and other Pacific

Islanders, the government offered no evidence of past

discrimination at all. That failure alone provides

sufficient reason to conclude that the government’s

position wasn’t “substantially justified” considering

“controlling case law.” Taucher, 396 F.3d at 1174.

Meanwhile, the government’s evidence of past

racial discrimination against Asians was inadequate.

The government first pointed to statistics indicating

that Asian farmers defaulted on their loans more

frequently than other farmers. It also relied on two

reports from 1997 and 2011 noting that Asian farmers

had complained that the USDA hadn’t treated them

fairly. Precedent made clear that such evidence

couldn’t

support

the

government’s

racial

classifications.

To begin, precedent established that the 1997

report was too dated to support an interest in

remedying past discrimination. Associated Gen.

Contractors of Ohio, Inc. v. Drabik, 214 F.3d 730, 735

(6th Cir. 2000) (noting that seventeen-year-old

evidence of discrimination can’t support a compellinginterest finding). Precedent also made clear that the

statistical disparities in loan delinquency couldn’t

themselves establish a compelling interest in

remedying past discrimination. Vitolo, 999 F.3d at

361–62. Nor did the complaints of unfair treatment

documented in the reports cut it. Evidence that some

farmers felt the USDA had treated them unfairly is

not evidence that the USDA intentionally

discriminated against them because of the color of

their skin. Instead, such complaints amount to “vague

reference[s] to a ‘theme’ of governmental

discrimination,” which are “not enough” to establish a

compelling governmental interest in remedying past

discrimination. Id. at 362.

In short, when it comes to race, precedent tightly

constrains the government’s ability to play favorites.

And for good reason. “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) (opinion of

Roberts, C.J.). The Constitution’s ideal is colorblind

government policy. But the government hasn’t always

lived up to that ideal. And when the government tries

to right its past racial wrongs, it cannot be too careful.

If it isn’t precise, attempts to remedy racial wrongs

risk repeating them. Thus, there must be direct

evidence of past intentional discrimination and proof

that the government’s attempt to write race back into

our law is narrowly tailored to rectify past harms.

Because the government’s defense of giving racial

preferences to Asians flouted that precedent, its

position wasn’t substantially justified.

In fact, the government’s choice to lump “Asians”

into a single racial bloc at the outset was indefensible.

The USDA scheme treated “Asians” as a single racial

unit. “Asians” is a strikingly loose racial category,

capturing Japanese, Chinese, Koreans, Vietnamese,

Indians, Kazakhs, and many others. Thus, the

government fought for a scheme that painted with a

broader racial brush than even the 1890 census—

which grouped Americans into categories like “white,”

“black,” “mulatto,” “quadroon,” “octoroon,” “Chinese,”

10a

“Japanese,” and “Indian.”3 When it comes to Asians,

the USDA’s conception of race is less refined than

that of the 1890 census takers. If those who used the

racially stigmatizing term “octoroon” can grasp that

“Asians” aren’t all the same, surely the government

today can too.

The USDA’s reductionist racial categories open the

door to more discrimination. If all these groups can be

housed under the single “Asian” umbrella, the

government can provide preferential treatment to one

of these groups today because it intentionally

discriminated against a different group yesterday.

That is not right.4

To see why, consider the government’s

discrimination against Japanese Americans during

World War II. By forcing Japanese Americans into

internment camps, the government discriminated

against them because of their race. To remedy this

past intentional discrimination, President Ronald

Reagan signed legislation to “make restitution to

those individuals of Japanese ancestry who were

interned.” Civil Liberties Act, Pub. L. No. 100-383, §

1(4), 102 Stat. 903 (1988). So, decades ago, the

government made up for past racial discrimination by

History:

1890,

U.S.

Census

Bureau,

https://web.archive.org/web/20090929132248/http:/

www.census.gov/history/www/through_the_decades/index_of_qu

estions/1890_1.html (last updated Sept. 1, 2009).

4 What’s more, the same is true for “Pacific Islanders.” As

far as I can tell, this term includes everyone who hails from

Hawaii to the Cocos Islands—a group capturing areas with

hundreds of ethnic groups and languages. According to the

government’s

logic,

Melanesians,

Micronesians,

and

Polynesians—just to name a few—are all the same.

11a

paying those it had harmed.

But by the government’s logic today, it could point

to internment of Japanese Americans as evidence of

past discrimination and then pay reparations to all

Asians. Neither the Constitution nor the precedent

interpreting it supports such a capacious definition of

race.

To be sure, the government did marshal evidence

of past intentional discrimination against black

farmers. But precedent put the government on notice

that when it “promulgates race-based policies, it must

operate with a scalpel,” not a sledgehammer. Vitolo,

999 F.3d at 361. Evidence of past discrimination

against African Americans couldn’t justify defending

present discrimination in favor of Native Hawaiians,

Asians, or any other group. If it did, then the

government could come before the court and cite past

intentional discrimination against one racial group to

justify discrimination in favor of any other racial

group today. The Constitution stands in the way of

such nonsense.

In other words, the government can’t sneak in

racial discrimination in favor of one group on the back

of evidence of past racial discrimination against

another. Had the USDA only discriminated in favor

of, say, Native Hawaiians and other Pacific Islanders,

its defense of that discrimination would not be

substantially justified—there’s no evidence. Bundling

a baseless racial preference with a more defensible,

evidence-backed racial preference doesn’t change

anything.

12a

When the government distributes benefits, the

Constitution demands that it treat us as individuals,

not members of interchangeable racial groups. And

precedent made that crystal clear when the

government litigated this case. Therefore, its

litigating position was inexcusable, not substantially

justified.

III.

This case warranted en banc review. The panel

opinion blessed a baseless defense of the government’s

discrimination. Litigating positions that defy

precedent are not substantially justified. Saying

otherwise does violence to the substantial justification

standard—it’s permissive, not toothless.

And this case presents “questions of exceptional

importance.” Fed. R. App. P. 40(b)(2)(D). The

government tells us that this case is not noteworthy

because it deals with a small, fact-bound attorney’s

fees dispute.

But it’s exceptionally important that we correctly

interpret fee-shifting standards that, when properly

applied, disincentivize discrimination. If an agency is

on the wrong side of a court’s prevailing-party

determination, the EAJA requires the agency to pay

up. See 28 U.S.C. § 2412(d)(4). Financial penalties for

unsuccessful attempts at racial discrimination should

make agencies less eager to discriminate in the first

place. And that agency might have to answer to

Congress when the next appropriations bill is on the

table. On the other hand, if an agency knows that its

failed gambits can be recast in court as “substantially

justified,” it will be more apt to try its hand at playing

racial favorites; the costs would be low. Shaping

13a

federal agencies’ incentive structures when they

consider whether to racially discriminate is

exceptionally important.

Similarly, watering down the substantial

justification standard will discourage challenges like

Holman’s to unlawful congressional or agency action,

even when plaintiffs know they have a strong case on

the merits. It’s exceptionally important that we not

disincentivize such suits.

Further, leaving the panel opinion on the books

risks confusing district courts. As an appellate court

our job is to synthesize and clarify legal doctrines so

district courts can apply them in an accurate and

efficient manner. What are district courts to think

now? On the one hand, we have told them that the

government’s litigating position is not substantially

justified if it skirts controlling precedent. On the other

hand, this case endorses a litigating position that

disregards controlling precedent as “substantially

justified.” We’re speaking out of both sides of our

mouth. And in service of what? Giving the government

a pass at treating Americans differently because of

their race. We should have cleaned up our own mess

rather than leaving it to district courts to sort out.

Some in the federal government saw the instability

unleashed by COVID as a crisis not to be wasted. They

saw it as an opportunity to write race back into the

law.

But they forgot that dividing ourselves by race in

the United States Code and the Federal Register will

divide us by race in the real world. They forgot that

14a

“every time the government places citizens on racial

registers and makes race relevant to the provision of

burdens or benefits, it demeans us all.” Grutter v.

Bollinger, 539 U.S. 306, 353 (2003) (Thomas, J.,

concurring in part and dissenting in part). And they

forgot that history has not looked kindly at the

government’s attempts to use emergencies as excuses

to discriminate. See Korematsu v. United States, 323

U.S. 214 (1944), overruled by Trump v. Hawaii, 585

U.S. 667 (2018). As Justice Harlan observed, “[t]he

Constitution is not to be obeyed or disobeyed as the

circumstances of a particular crisis . . . may suggest.”

Downes v. Bidwell, 182 U.S. 244, 384 (1901) (Harlan,

J., dissenting). A crisis doesn’t justify turning our

backs on his teaching that the Constitution “is colorblind, and neither knows nor tolerates classes among

citizens. In respect of civil rights, all citizens are equal

before the law.” Plessy v. Ferguson, 163 U.S. 537, 559

(1896) (Harlan, J., dissenting).

When the government concocts policies that

violate this core truth, its defenses of those policies are

not “substantially justified.” They are without

foundation in the Constitution. I respectfully dissent

from the denial of rehearing en banc.

ENTERED BY ORDER OF THE COURT

___________________________________

Kelly L. Stephens, Clerk

15a

Appendix B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ROBERT HOLMAN,

Plaintiff-Appellant,

THOMAS J. VILSACK, in his official

capacity as Secretary of the United

States Department of Agriculture;

ZACH DUCHENEAUX, in his official

capacity as Administrator of the

Farm Service Agency,

Defendants-Appellees.

┐

│

> No. 23-5493

│

┘

Appeal from the United States District Court for the

Western District of Tennessee at Jackson.

No. 1:21-cv-01085—S. Thomas Anderson, District

Judge.

Decided and Filed: September 23, 2024

Before: STRANCH, LARSEN, and DAVIS, Circuit

Judges.

COUNSEL

ON BRIEF: Braden H. Boucek, Kimberly S.

Hermann,

SOUTHEASTERN

LEGAL

16a

FOUNDATION, Roswell, Georgia, William E.

Trachman,

MOUNTAIN

STATES

LEGAL

FOUNDATION, Lakewood, Colorado, for Appellant.

Jeffrey E. Sandberg, Thomas Pulham, UNITED

STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellees.

STRANCH, J., delivered the opinion of the court in

which DAVIS, J., joined. LARSEN, J. (pp. 14–22),

delivered a separate dissenting opinion.

OPINION

JANE B. STRANCH, Circuit Judge. This appeal

concerns a litigant’s petition for fees under the Equal

Access to Justice Act (EAJA). Plaintiff Robert Holman

successfully obtained a preliminary injunction

freezing a debt-relief program that used racial

categories to remedy prior discrimination against

farmers and ranchers. Following additional

proceedings, but before final judgment, Congress

repealed the challenged program. Holman now seeks

fees associated with the litigation. The district court

denied that request because, in its view, Holman was

not a “prevailing party” under the EAJA. We neither

adopt nor definitively reject that conclusion. Instead,

we find that the Government’s position during the

litigation was “substantially justified” within the

EAJA’s meaning. On that basis, we AFFIRM the

judgment below.

I. BACKGROUND

In March 2021, President Biden signed into law

the American Rescue Plan Act, which provided

17a

various forms of emergency assistance in the COVID19 pandemic’s wake. Section 1005 of the Act was a

debt-relief program for “socially disadvantaged”

farmers and ranchers. It authorized the Secretary of

Agriculture to pay to Black, American Indian/Alaskan

Native, Hispanic, Asian, and Hawaiian/Pacific

Islander farmers and ranchers up to 120 percent of

certain farm loans previously issued by the United

States Department of Agriculture (USDA). The

congressional record explains that the legislation was

designed to provide targeted relief for farmers against

whom the USDA had historically discriminated and

for whom prior pandemic relief efforts had failed.

A number of challenges to Section 1005 were filed.

In Tennessee, farmer Robert Holman filed a

complaint and motion to preliminarily enjoin the

program in early June 2021, alleging that he would

have been eligible for Section 1005’s benefits but for

his race. His preliminary injunction motion argued

that Section 1005 should be halted nationwide

because Defendants—heads of the USDA and its

subagency the Farm Service Agency, collectively the

Government—could not satisfy the strict scrutiny

applied to racial classifications under the Fifth

Amendment’s Equal Protection Clause and because

other injunction-related factors favored his position.

The Government agreed that strict scrutiny applied,

but contended that Section 1005 was nonetheless

constitutional and that other considerations weighed

against issuing an injunction.

Meanwhile, similar litigation was proceeding in

other courts. On June 10, 2021, a district court in

Wisconsin entered a temporary restraining order

barring the USDA from forgiving any loans pursuant

18a

to Section 1005. Faust v. Vilsack, 519 F. Supp. 3d 470,

478 (E.D. Wis. 2021). On June 23, a Florida district

court preliminarily enjoined Section 1005 nationwide.

Wynn v. Vilsack, 545 F. Supp. 3d 1271, 1295 (M.D.

Fla. 2021). And on July 1, a district court in Texas

both enjoined the Government from considering race

under Section 1005 and certified a class action of all

farmers and ranchers excluded from Section 1005 by

the “socially disadvantaged” criterion. Miller v.

Vilsack, No. 4:21-cv-0595-O, 2021 WL 11115194, at

*3, 12 (N.D. Tex. July 1, 2021).

The district court granted Holman’s preliminary

injunction motion on July 8, 2021. It reasoned that the

Government had failed to make the strict scrutiny

showing that Section 1005 was narrowly tailored to

serve a compelling governmental interest. The district

court further explained its view that an injunction

was necessary to protect Holman from irreparable

injury and that the public interest weighed in favor of

injunctive relief, but also acknowledged that an

injunction could cause substantial harm to others—

namely, socially disadvantaged farmers who sought

access to Section 1005’s funds. Finally, despite

expressing reservations about issuing a nationwide

injunction, the court found that alternative relief

would be unworkable and enjoined the Government

from implementing Section 1005 in its entirety.

On January 26, 2022, the district court granted the

Government’s motion to dismiss counts two and three

of Holman’s complaint, in which Holman had argued

that the USDA planned to illegally make Section 1005

funding recipients eligible for future relief programs.

The Government contended that with these counts

dismissed, Holman’s case presented materially

19a

identical issues to the Texas class action litigation

where Holman was necessarily a class member, so a

stay of Holman’s case was necessary to prevent

inconsistent rulings. On February 16, the district

court granted the Government’s stay motion.

Half a year later, with this case still stayed, the

Inflation Reduction Act became law and repealed

Section 1005. The parties agreed that Section 1005’s

repeal mooted Holman’s challenge and, accordingly,

stipulated to the case’s dismissal. Holman then moved

for fees and costs as a “prevailing party” under the

EAJA. See 28 U.S.C. § 2412(d)(1)(A). The district court

denied the motion, reasoning that because the

“temporary and revocable” nature of the injunctive

relief previously awarded to Holman provided him

“with nothing lasting,” Holman was not a prevailing

party within the EAJA’s meaning. Holman timely

appealed.

II.

ANALYSIS

The EAJA modifies the American legal system’s

default rule “that each party pays its own costs and

attorney’s fees.” Griffith v. Comm’r of Soc. Sec., 987

F.3d 556, 563 (6th Cir. 2021). Under the EAJA, a

“prevailing party” in a civil case against the United

States is entitled to “fees and other expenses” and

certain “costs” unless “the position of the United

States was substantially justified” or “special

circumstances make an award unjust.” 28 U.S.C. §

2412(d)(1)(A). The parties dispute all three aspects of

§ 2412(d)(1)(A)—whether (1) Holman was a prevailing

party, (2) the Government’s litigating position was

substantially justified, and (3) special circumstances

otherwise preclude a fees award. Finding the first two

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issues sufficient to resolve the case, we take them up

in turn.1

Prevailing Party

We review a plaintiff’s entitlement to prevailing

party status de novo. Miller v. Caudill, 936 F.3d 442,

448 (6th Cir. 2019). To be a prevailing party, “a

plaintiff must have ‘been awarded some relief by the

court.’” Tenn. State Conf. of NAACP v. Hargett, 53 F.

4th 406, 410 (6th Cir. 2022) (quoting Buckhannon Bd.

& Care Home, Inc. v. W. Va. Dep’t of Health & Hum.

Res., 532 U.S. 598, 603 (2001)).2 Beyond that baseline

requirement, whether a claimant who “prevails in one

sense (by receiving a preliminary injunction) but not

in another sense (by failing to obtain a final judgment

when the case becomes moot)” is entitled to prevailing

party status “requires a ‘contextual and case-specific’

response.” Roberts v. Neace, 65 F.4th 280, 284 (6th

Cir. 2023) (quoting McQueary v. Conway, 614 F.3d

591, 604 (6th Cir. 2010)). Generally, preliminary

1 Although the district court’s conclusion that Holman

was not a prevailing party meant that it did not reach the

substantial-justification or exceptional-circumstances issues,

both parties have had a “full and fair opportunity to address”

these questions and urge us to reach them as necessary. Smith

v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197, 205 (6th

Cir. 2011).

2 As the district court recognized, interpretations of the

phrase “prevailing party” in cases involving 42 U.S.C. § 1988 and

the EAJA are equally applicable to both statutes. See Hensley v.

Eckerhart, 461 U.S. 424, 433 n.7 (1983) (“The standards set forth

in this opinion [concerning § 1988 fee awards] are generally

applicable in all cases in which Congress has authorized an

award of fees to a ‘prevailing party.’”); Bryant v. Comm’r of Soc.

Sec., 578 F.3d 443, 449 (6th Cir. 2009).

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injunctions alone are insufficient to show that a party

prevailed within the EAJA’s meaning. Id. “But a

preliminary injunction may well suffice if it mainly

turns on the likelihood-of-success inquiry and changes

the parties’ relationship in a material and enduring

way.” Id.

Both parties present weighty arguments on this

question. The Government contends that because

orders entered by other courts had already halted

Section 1005’s implementation nationwide, see, e.g.,

Wynn, 545 F. Supp. 3d at 1295, the injunction in this

case did not “directly benefit the ‘plaintiff by

modifying the defendant’s behavior toward him’” and

was accordingly not “material.” Hargett, 53 F.4th at

410 (quoting McQueary, 614 F.3d at 598 (cleaned up)).

It further argues that Holman’s relief was not

“enduring” because it gave him no “irrevocable”

benefit; both before and after the injunction, Holman

could not access Section 1005’s funds. The district

court agreed that Holman was not a prevailing party,

largely focusing on his failure to obtain irrevocable

relief.

Holman notes, however, that several relevant

considerations point in his direction. For example,

there is no question that the district court’s

preliminary injunction opinion mainly turned “on the

likelihood-of-success inquiry.” Roberts, 65 F.4th at

284. Further, we have previously explained that in

determining “whether a claimant directly benefitted

from litigation, we usually measure the plaintiff’s gain

based on the relief requested in his complaint, not

based on the practical significance of the relief

obtained.” McQueary, 614 F.3d at 602. This reasoning

suggests that the preliminary injunction, which

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granted Holman the relief requested in his motion,

may have been material even though—because of the

previously issued injunctions—it did not require the

Government to immediately change its behavior.

As for whether his relief was enduring, Holman

observes that the thirteen-month-long injunction here

was in place longer than in several cases in which the

plaintiff was deemed the prevailing party. See, e.g.,

G.S. ex rel. Schwaigert v. Lee, No. 22-5969, 2023 WL

5205179, at *6 (6th Cir. Aug. 14, 2023) (finding an

injunction lasting as little as two-to-six months

sufficiently lengthy to qualify a plaintiff as a

prevailing party); Hargett, 53 F.4th at 410-11 (same

as to an injunction that lasted seven months). The

injunction’s “nature,” moreover, was not “illconsidered, hastily entered, or tentative”—it neither

“maintain[ed] the status quo without addressing the

merits” nor was “later overturned, repudiated, or

vacated.” Roberts, 65 F.4th at 284. Finally, Holman

contends that the injunction did provide irrevocable

relief by preventing the harm caused each day by

Section 1005: his “inability to compete on equal

footing” with others for funding. Ne. Fla. Chapter,

Associated Gen. Contractors of Am. v. Jacksonville,

508 U.S. 656, 666 (1993).

Determining “whether or when the winner of a

preliminary injunction may be treated as a ‘prevailing

party’” is always a “thorny” undertaking. McQueary,

614 F.3d at 596. Considering the record and both

parties’ substantial arguments, we conclude only that

determining a plaintiff’s prevailing party status is

particularly fraught where, as here, he succeeds in

preliminarily enjoining a statute or rule but cannot

use that injunction to take any specific action. We

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instead resolve the issue of Holman’s entitlement to

EAJA fees on a clearer ground: whether the

Government’s litigating position was substantially

justified.

Substantial Justification

Even if a litigant is a prevailing party under the

EAJA, he is not entitled to fees if “the position of the

United States was substantially justified.” 28 U.S.C.

§ 2412 (d)(1)(A). The Government bears the burden of

demonstrating substantial justification, Griffith, 987

F.3d at 563, which requires the position to “be ‘more

than merely undeserving of sanctions for

frivolousness,’” id. (quoting Pierce v. Underwood, 487

U.S. 552, 565 (1988)). But it need not represent a

winning argument. Id. Instead, the position need only

be “justified to a degree that could satisfy a reasonable

person” such that “a reasonable person could think it

correct.” Id. (quoting Pierce, 487 U.S. at 565, 566 n.2).

What “matter[s] most” to the substantial

justification analysis is “the actual merits of the

Government’s litigating position.” Id. (quoting United

States ex rel. Wall v. Circle C. Constr., LLC, 868 F.3d

466, 471 (6th Cir. 2017)). The merits of that position

are considered “as a whole.” Id. at 564 (quoting

Amezola-Garcia v. Lynch, 835 F.3d 553, 555 (6th Cir.

2016)); see also Comm’r, Immigr. & Naturalization

Serv. v. Jean, 496 U.S. 154, 160 (1990) (noting that

the substantial justification inquiry considers the

entire litigation and “operates as a one-time threshold

for fee eligibility”). In doing so, we recognize the

difference “between cases in which ‘the government

lost because it vainly pressed a position flatly at odds

with the controlling case law’ and cases in which ‘the

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government lost because an unsettled question was

resolved unfavorably.’” Griffith, 987 F.3d at 564

(quoting Taucher v. Brown-Hruska, 396 F.3d 1168,

1174 (D.C. Cir. 2005) (Roberts, J.)) (internal quotation

marks omitted).

In addition to the merits of the Government’s

position, other “‘objective indicia’ of reasonableness”

may be relevant, though not dispositive. Id. at 563

(quoting Wall, 868 F.3d at 471). These indicia include

whether the Government’s position follows a string of

losses or successes, id., as well as “the stage at which

the proceedings were resolved,” Dvorkin v. Xonzales,

173 F. App’x 420, 424 (6th Cir. 2006) (quoting United

States v. 2323 Charms Road, 946 F.2d 437, 440 (6th

Cir. 1991)).

As an initial matter, the Government urges us to

adopt a presumption that its position is substantially

justified whenever it defends a federal statute. That

presumption, the Government argues, flows from its

“duty to defend the constitutionality of statutes

whenever reasonable arguments can be made in their

defense.” But the EAJA directs the court to examine

the justification for the Government’s “position,” not

its conduct. 28 U.S.C. § 2412(d)(1)(A). At best,

therefore, the Government’s duty to defend Section

1005 “explains . . . why [it] took the position it did,”

but it does not answer the “question under [the]

EAJA” of “whether that position was substantially

justified.” Taucher, 396 F.3d at 1175 (Roberts, J.). The

Government’s claimed presumption, moreover, could

effectively insulate it from liability even when

defending

unreasonable

positions—a

result

fundamentally at odds with the EAJA’s “specific

purpose” of eliminating “for the average person the

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financial disincentive to challenge unreasonable

governmental actions.” Jean, 496 U.S. at 163. As a

result, though we need not deem the Government’s

duty to defend irrelevant in every substantialjustification inquiry, we decline to adopt a

presumption that the Government is substantially

justified anytime it defends a federal statute.

Instead, we return to the considerations outlined

in our caselaw, starting with the Government’s merits

position during the central aspect of this litigation:

that the district court should not preliminarily enjoin

Section 1005. It was Holman’s burden as the movant

to “present ‘a clear showing’” that the injunctive-relief

factors weighed in his favor. L.W. ex rel. Williams v.

Skrmetti, 83 F.4th 460, 471 (6th Cir. 2023) (quoting

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22

(2008)). Considered within the EAJA’s framework,

this burden means that the Government’s position

was substantially justified “if ‘a reasonable person

could think it correct’” that Holman had not made the

requisite clear showing of likely success necessary to

receive injunctive relief. Griffith, 987 F.3d at 563

(quoting Pierce, 487 U.S. at 566 n.2).

The first issue in Holman’s preliminary injunction

motion—the likelihood of success on the merits—

turned on the constitutionality of Section 1005’s relief

for socially disadvantaged farmers. Like all programs

that differentiate based on race, Section 1005 was

subject to strict scrutiny. Fisher v. Univ. of Tex. at

Austin, 570 U.S. 297, 310 (2013); Grutter v. Bollinger,

539 U.S. 306, 326-27 (2003); Vitolo v. Guzman, 999

F.3d 353, 360 (6th Cir. 2021). The Government

therefore had to show that the program was narrowly

tailored to further a compelling governmental

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interest. Fisher, 570 U.S. at 310. Holman

misapprehends this standard by positing that the

Government was required to “present evidence of

current, intentional discrimination when seeking to

uphold a racial preference scheme.” To the contrary,

remedying the effects of past discrimination

constitutes a compelling governmental interest where

the remedial policy targets specific episodes of past

discrimination and there is evidence that the

Government intentionally participated in that

discrimination. Vitolo, 99 F.3d at 361; see Associated

Gen. Contractors of Ohio, Inc. v. Drabik, 214 F.3d 730,

735 (6th Cir. 2000) (“There is no question that

remedying the effects of past discrimination

constitutes a compelling governmental interest.”);

Parents Involved in Cmty. Schs. v. Seattle Sch. Dist.

No. 1, 551 U.S. 701, 720 (2007).3 Narrow tailoring, in

turn, requires the Government to show “serious, good

faith consideration of workable race-neutral

alternatives,” but “does not require exhaustion of

every conceivable” alternative. Fisher, 570 U.S. at 312

(quoting Grutter, 539 U.S. at 339) (emphasis omitted).

Acknowledging the high bar set by strict scrutiny,

the Government presented substantial record

evidence to defend the program’s constitutionality.

3 Though cases decided after the Government articulated

its position do not affect the substantial-justification analysis, see

Griffith, 987 F.3d at 565-66, we observe that the Supreme Court

has recently reiterated that remedying past intentional

discrimination constitutes a compelling interest. See Students for

Fair Admissions, Inc. v. President & Fellows of Harvard Coll.,

600 U.S. 181, 207 (2023) (specifying that “remediating specific,

identified instances of past discrimination that violated the

Constitution or a statute” is a compelling interest).

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Some of the Government’s evidence regarding its

compelling interest addressed past discrimination

against minority groups generally. For example, a

1997 report contained evidence that the USDA had

“done more to hurt than to help small and minority

farmers” because many minority farmers’ loan

applications

and

discrimination

complaints

languished within the Agency. A 2011 Civil Rights

Assessment “substantiated” continued “claims of

denial of equal program access” by minority

applicants and suggested the existence of “continuing

institutional discrimination” by the Agency. And a

2019 governmental report explained that “allegations

of unlawful discrimination against [socially

disadvantaged farmers and ranchers] in the

management of USDA programs are long-standing

and well-documented.” These reports represent

evidence of past discrimination by the USDA against

socially disadvantaged farmers generally.

Building on that evidence, the Government also

provided examples of past discrimination by the

USDA against many specific groups. As detailed in

governmental reports and federal litigation

terminating in substantial settlements, the USDA

had a history of dealing reluctantly with and denying

loans to Black farmers; loans that were issued,

moreover, were often provided at unfavorable times or

contained burdensome requirements not imposed on

non-Black farmers. Hispanic farmers stated that they

had been “stereotyped as being farm workers, rather

than owners,” and received “inconsistent or

incomplete” information from the USDA; one farmer

said Hispanic growers had been “systematically

excluded” from USDA programs. Asian farmers were

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among those who alleged in the late 1990s that the

USDA had hurt rather than helped minority farmers,

and some reported in 2011 “a general consensus . . .

that they are not always treated fairly by the USDA.”

And in 2019, Native American farmers reported that

“discrimination [has] contribute[d] to the lack of

commercial lending on tribal lands”; similar

allegations resulted in a large settlement between the

USDA and Native farmers and ranchers.

Finally, to support its argument that Section 1005

was narrowly tailored to addressing the compelling

interest in remedying this identified past

discrimination, the Government pointed to “the

inefficacy of the race-neutral alternatives that

Congress tried for years before enacting § 1005”, the

time-limited nature of the Section 1005’s relief, and

the administrative difficulty of quickly administering

relief to minority farmers disproportionately harmed

by the pandemic.

In short, the Government placed before the district

court a “strong basis in evidence for its conclusion that

remedial action” in the form of Section 1005 “was

necessary.” Drabik, 214 F.3d at 735 (quoting City of

Richmond v. J.A. Croson Co., 488 U.S. 469, 500

(1989)). It pointed to “specific episode[s] of past

discrimination” against socially disadvantaged

farmers and ranchers, statistical and anecdotal

“evidence to establish intentional discrimination,”

and examples of the USDA’s role in “the past

discrimination it now seeks to remedy.” Vitolo, 999

F.3d at 361. Finally, it explained Congress’s view as

to why “race-neutral alternatives”— some of which

had already been tried, and others of which were

impractical—constituted

insufficient

remedies.

29a

Fisher, 570 U.S. at 312 (quoting Grutter, 539 U.S. at

339).

In granting a preliminary injunction, the district

court ultimately rejected these arguments. In doing

so, it rightly recognized the difficulty of satisfying

strict scrutiny and evaluated an issue—when and how

the Government may permissibly act to remedy past

discrimination—that was “controversial, thorny, and

unsettled” at the time and remains so today. Vitolo,

999 F.3d at 366 (Donald, J., dissenting). That

thorniness flows in part from the legal tests in this

area of the law, many of which are matters of degree

rather than cleanly drawn lines. For example, when

do statistical disparities between racial groups, which

may be insufficient by themselves to show intentional

discrimination, nonetheless represent sufficiently

probative “evidence [of] intentional discrimination”

that a court may infer intent? See id. at 361. And how

many options must the Government evaluate to show

a “serious, good faith consideration of race-neutral

alternatives?” See Fisher, 570 U.S. at 312 (quoting

Grutter, 539 U.S. at 339). That thoughtful judges

could, on this record, readily reach different answers

on these and other questions suggests that the

Government “lost because an unsettled question was

resolved unfavorably,” not because it “vainly pressed

a position flatly at odds with the controlling case law.”

Griffith, 987 F.3d at 564 (quoting Taucher, 396 F.3d

at 1173) (internal quotation marks omitted).

The dissent concludes otherwise primarily by

relying on Vitolo, which explained that a raceconscious program is unconstitutional where the

Government provides “little evidence of past

intentional discrimination against the many groups to

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whom it grants preferences.” 999 F.3d at 361. But

here, as chronicled above, the Government provided

evidence of intentional USDA discrimination against

socially disadvantaged farmers and ranchers

generally, and buttressed that evidence with specific

examples of intentional discrimination against nearly

every group included in the socially disadvantaged

category. That is categorically distinct from the

evidentiary presentation in Vitolo, which did “not

identify specific incidents of past discrimination” and

relied entirely on “general social disparities.” Id. at

361-62. Nor is this a case in which the Government

provided

“absolutely

evidence

past

discrimination” against most of the categories

included in a race-conscious program. J.A. Croson Co.,

488 U.S. at 506 (emphasis removed). The notion that

the Government was clearly required, at the

preliminary injunction stage, to provide specific

examples of intentional discrimination against every

category included in a race-conscious program is also

difficult to square with the Supreme Court’s

instruction that narrow tailoring does not demand

perfection. See Fisher, 570 U.S. at 312; Grutter, 539

U.S. at 339; accord J.A. Croson Co., 488 U.S. at 510

(holding that “evidence of a pattern of individual

discriminatory acts can, if supported by appropriate

statistical proof, lend support to a . . . government’s

determination that broader remedial relief is

justified.”). It was Holman’s duty to make a clear

showing of likely success on the merits, Skrmetti, 83

F.4th at 471—but here, “a reasonable person could

think” that the Government’s evidence supporting

Section

1005’s

constitutionality

sufficiently

undermined Holman’s required showing. Pierce, 487

31a

U.S. at 566 n.2. As a result, the Government’s position

on this aspect of the litigation was substantially

justified.

Governing precedent, moreover, requires us to

consider the entirety of the Government’s “arguments

made during litigation” in determining whether its

“whole position” was substantially justified. Id. And

other aspects of the litigation, not addressed by the

dissent, reinforce the reasonableness of the

Government’s position “as a whole.” Id. (quoting

Amezola-Garcia, 835 F.3d at 555). In opposing the

injunction motion, for instance, the Government

contended that the injunctions against Section 1005

already issued by other courts eliminated the threat

of irreparable harm to Holman. Although the district

court rejected this argument, some courts have

“concluded that once another district court has

entered the same relief” sought by a plaintiff, that

plaintiff is “no longer able to demonstrate the

irreparable harm that [is] needed to justify the

extraordinary relief requested” by a preliminary

injunction. Faust v. Vilsack, No. 21-C-548, 2021 WL

2806204, at *3 (E.D. Wis. July 6, 2021) (collecting

cases). It was not unreasonable for the Government to

raise this argument against Holman’s motion.

The Government also won a later motion to

dismiss the second and third counts of Holman’s

complaint, which encompassed his claims that the

USDA was planning to illegally make Section 1005

funding recipients eligible for future debt relief. This

aspect of the litigation was less “prominent” than the

preliminary injunction motion, through which

Holman successfully enjoined Section 1005. Griffith,

987 F.3d at 564 (quoting EEOC v. Memphis Health

32a

Ctr., 526 F. App’x 607, 615 (6th Cir. 2013)).

Nonetheless, this part of the Government’s position

was not only reasonable but ultimately meritorious.

Holman observes that before the district court

decided the preliminary injunction motion, the

Government had already suffered a “string of losses”

in other courts, which “can be indicative” of the

unreasonableness of the Government’s position.

Pierce, 487 U.S. at 569. But this and other “objective

indicia” of the Government’s position, while

“relevant,” matter less than “the actual merits of the

Government’s litigating position”—a position that, as

shown above, was substantially justified. Griffith, 987

F.3d at 563 (quoting Wall, 868 F.3d at 471). And other

objective criteria support the Government’s position,

including “the stage in which the proceedings were

resolved.” Dvorkin, 173 F. App’x at 424 (quoting 2323

Charms Road, 946 F.2d at 440). Because each of the

decisions concerning Section 1005 were issued in a

preliminary posture, no court had definitively deemed

the program unconstitutional. Thus, not only do those

decisions matter less than the actual merits of the

Government’s litigating position, but their import is

lessened by their posture.

III.

CONCLUSION

For the reasons set forth above, we AFFIRM the

judgment of the district court.

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DISSENT

LARSEN, Circuit Judge, dissenting. A “prevailing

party” in a civil case against the United States is

entitled to fees and costs unless the government’s

position was “substantially justified” or “special

circumstances make an award unjust.” So, to get fees

and costs, Holman must show that he is a prevailing

party. Even if he does, though, the government may

avoid paying if it shows that its position was

substantially justified or that special circumstances

make an award unjust. The majority, rightly

recognizing that the prevailing-party issue is difficult,

instead concludes that the government’s position was

substantially justified. I cannot agree. I first explain

that disagreement and then tackle the more difficult

question of whether Holman is a prevailing party. I

then address the special-circumstances question. I

conclude that Holman is a prevailing party because

the preliminary injunction in this case turned

primarily on the likelihood of success on the merits

and afforded enduring and material relief; the

government’s position was not substantially justified

because it was flatly at odds with controlling caselaw;

and no special circumstances make an award unjust.

Holman is therefore entitled to fees and costs, so I

respectfully dissent.

Section 1005 of the American Rescue Plan Act

authorized the USDA Secretary to “provide a payment

in an amount up to 120 percent of the outstanding

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indebtedness of each socially disadvantaged farmer or

rancher as of January 1, 2021, to pay off [direct and

guaranteed farm loans].” Pub. L. No. 117-2, §

1005(a)(2)

(2021).

USDA

defined

“socially

disadvantaged” based on race, extending debt relief to

Black, American Indian/Alaskan Native, Hispanic,

Asian, or Hawaiian/Pacific Islander farmers and

ranchers, without any consideration of need. 86 Fed.

Reg. 28,329, 28,330 (May 26, 2021). Holman, who does

not fall into any of the above racial categories, sued

and obtained a preliminary injunction, temporarily

enjoining the implementation of the debt-relief

program. Section 1005 was then repealed in the

Inflation Reduction Act. Pub. L. No. 117-169, § 22008

(2022). That mooted the case, and the parties

stipulated to dismissal.

Holman then moved for fees and costs under the

Equal Access to Justice Act, 28 U.S.C. § 2412. Under

that statute, a “prevailing party” in a civil case

against the United States is entitled to fees and costs

unless the government’s position was “substantially

justified” or “special circumstances make an award

unjust.” Id. § 2412(d)(1)(A). The district court denied

Holman’s motion—concluding that he is not a

prevailing party.

II.

The government is not required to pay fees and

costs when it shows that its position was

“substantially justified.” Id. A position is substantially

justified if “a reasonable person could think it correct,

that is, if it has a reasonable basis in law and fact.”

Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988). The

35a

“actual merits” of the position is what “matter[s]

most.” Griffith v. Comm’r of Soc. Sec., 987 F.3d 556,

563 (6th Cir. 2021). The position must be better than

one “merely undeserving of sanctions,” though it need

not ultimately prove correct. Id. (quoting Pierce, 487

U.S. at 566).

The majority concludes that the government has

shown that its position was substantially justified. I

disagree.

Section 1005 authorized debt relief based on race.

Pub. L. No. 117-2, § 1005 (2021); 86 Fed. Reg. 28,329,

28,330 (May 26, 2021). That makes it presumptively

invalid. Vitolo v. Guzman, 999 F.3d 353, 360 (6th Cir.

2021) (citing U.S. Const. amend. XIV). The

government can overcome that presumption only if it

shows that the racial discrimination was narrowly

tailored to achieve a compelling government interest.

Id. This standard (strict scrutiny) is “very demanding”

and one which “few programs will survive.” Id.

In the district court, the government accepted that

strict scrutiny applied to this claim and argued that it

had a “two-fold” compelling interest: “to remedy the

lingering effects of prior 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.”

The Supreme Court has said that “remedial policies

can sometimes justify preferential treatment based on

race.” Vitolo, 999 F.3d at 361 (citing City of Richmond

v. J.A. Croson Co., 488 U.S. 469, 493–94 (1989)

(plurality); Adarand Constructors, Inc. v. Pena, 515

U.S. 200, 237 (1995)). At a minimum, though, there

36a

must be a specific episode of past intentional

discrimination on the part of the government against

a particular group—disparate impacts are not

enough. Id.

The government, of course, does not have a

compelling interest in remedying past discrimination

that never happened. And when a government

program seeks to remedy past discrimination against

a number of different groups, it bears the burden to

demonstrate “past intentional discrimination against

the many groups to whom it grants preferences.” Id.

(faulting the “schedule of racial preferences detailed

in the government’s regulation—preferences for

Pakistanis but not Afghans; Japanese but not Iraqis;

Hispanics but not Middle Easterners—[a]s not

supported by any record evidence at all”). The

majority concludes that the government provided

evidence of USDA discrimination against “many

specific groups” defined as “socially disadvantaged.”

Maj. Op. at 9 (emphasis added). But what about the

others? The government referred to no evidence of

past intentional discrimination by USDA against

Native Hawaiian and Pacific Islander farmers and

ranchers. And the government relied only on broad

assertions and statistical disparities to show

discrimination against American Indian, Asian, and

Native Alaskan farmers and ranchers. We might

assume that such discrimination happened, but that

is not enough. See Vitolo, 999 F.3d at 362 (“[W]hen it

comes to general social disparities, there are simply

too many variables to support inferences of

intentional discrimination.”). The government cannot

claim a compelling interest in remedying

37a

discrimination without first showing that the

discrimination happened. Croson, 488 U.S. at 505.

That is reason enough to conclude that its position

was not substantially justified.

That is not to say, in this preliminary posture, that

the government made no compelling-interest

showing. I agree with the majority that the

government cited evidence of past intentional

discrimination against Black farmers and ranchers.

But if the government is going to use racially

exclusionary measures as a remedy, the government’s

policy must be narrowly tailored to that particular

interest. And “a policy is not narrowly tailored if it is

either overbroad or underinclusive in its use of racial

classifications.” Vitolo, 999 F.3d at 362. Here, the

program extends debt relief to farmers and ranchers

in groups never shown to have been discriminated

against. Giving Native Hawaiian farmers and

ranchers

debt

relief

cannot

remedy

past

discrimination against Black farmers and ranchers.

The glaring “mismatch” between means and ends is

far too much for strict scrutiny to bear. Students for

Fair Admissions, Inc. v. President and Fellows of

Harvard Coll., 143 S. Ct. 2141, 2168 (2023). There is

no “reasonable basis in law and fact” to find this policy

narrowly tailored. Pierce, 487 U.S. at 566 n.2.

The majority contends that the Government was

not “clearly required, at the preliminary injunction

stage, to provide specific examples of intentional

discrimination against every category included in [its]

race-conscious program.” Maj. Op. at 11. The Supreme

Court says otherwise. To justify a “resort to racebased government action,” the government had to

show that it was “remediating specific, identified

38a

instances of past discrimination that violated the

Constitution or a statute.” Students for Fair

Admission, Inc., 143 S. Ct. at 2162 (emphasis added).

And the preliminary posture of the litigation does not

absolve the government of its burden. See Gonzales v.

O Centro Espirita Beneficente Uniao do Vegetal, 546

U.S. 418, 429–30 (2006). Absent at least some specific

evidence of intentional discrimination against each

racial group, the government cannot show a

compelling remedial interest in benefitting that

group. It has not shown there is anything to remedy.

See Croson, 488 U.S. at 505–06. The government’s

position—that § 1005 should not be preliminarily

enjoined—was not substantially justified because the

government presented arguments “flatly at odds with

the controlling case law.” Griffith, 987 F.3d at 564

(quoting Taucher v. Brown-Hruska, 396 F.3d 1168,

1174 (D.C. Cir. 2005)) (cleaned up).

Because I disagree that the government’s position

was substantially justified, I turn to the prevailingparty issue. In general, obtaining a preliminary

injunction does not make a plaintiff a “prevailing

party.” Planned Parenthood Sw. Ohio Region v.

DeWine, 931 F.3d 530, 538 (6th Cir. 2019). But, in

cases that are later dismissed as moot, a preliminary

injunction may suffice when it (1) turns primarily on

the likelihood of success on the merits and affords (2)

“enduring” and (3) “material” relief. Miller v. Caudill,

936 F.3d 442, 448 (6th Cir. 2019). The inquiry is “casespecific,” but we have tended to treat relief as

enduring when it is “irrevocable” and as material

when it “directly benefits” the plaintiff. Id.; see

McQueary v. Conway, 614 F.3d 591, 601 (6th Cir.

39a

2010).

Although the question is not free from doubt, I

believe that Holman is a prevailing party because the

preliminary injunction in this case turned primarily

on the likelihood of success on the merits and afforded

enduring and material relief.

As the majority finds, “there is no question that the

district court’s preliminary injunction opinion mainly

turned on the likelihood-of-success inquiry.” Maj. Op.

at 5 (cleaned up). Holman clears this first hurdle with

ease.

Whether the relief was enduring is a more difficult

question. We have said that relief is enduring when it

is “irrevocable.” Miller, 936 F.3d at 448. Accordingly,

we have found enduring relief where preliminary

injunctions enabled plaintiffs to: attend church,

Roberts v. Neace, 65 F.4th 280, 284 (6th Cir. 2023);

Hargett, 53 F.4th 406, 410–11 (6th Cir. 2022);

prescribe mifepristone, Planned Parenthood, 931 F.3d

at 541–42; get married, Miller, 936 F.3d at 448–49;

and receive in-person education, G.S. ex rel.

Schwaigert v. Lee, 2023 WL 5205179, at *6 (6th Cir.

Aug. 14, 2023). In each of those cases, the preliminary

injunction afforded relief that was in some sense

realized during the pendency of the injunction. In

contrast, we did not find enduring relief where a

preliminary injunction temporarily prevented

enforcement of a statute criminalizing protests at

funerals when the plaintiff had not identified a

40a

funeral at which he planned to protest. McQueary v.

Conway, 508 F. App’x 522, 523–24 (6th Cir. 2012);

McQueary v. Conway, 2012 WL 3149344, at *3 (E.D.

Ky. Aug. 1, 2012). We distinguished a Seventh Circuit

case, Young v. City of Chicago, 202 F.3d 1000 (7th Cir.

2000), in which the plaintiffs wanted to protest at a

particular event, and the injunction enabled them to

do so. McQueary, 508 F. App’x at 524.

The cases above make clear that relief is enduring

only if it is irrevocable. See Miller, 936 F.3d at 448.

That distinction is consistent with out-of-circuit

caselaw. See Thomas v. Nat’l Science Found., 330 F.3d

486, 488–93 (D.C. Cir. 2003); N. Cheyenne Tribe v.

Jackson, 433 F.3d 1083, 1084–86 (8th Cir. 2006).

To determine whether the preliminary injunction

afforded Holman irrevocable relief, we must ask

whether Holman benefitted from the injunction before

the case was mooted. Irrevocable, Black’s Law

Dictionary (12th ed. 2024) (“committed beyond

recall”). Or to ask the question differently, would

Holman have benefitted even if the injunction had

ultimately been vacated? I believe the answer is “yes.”

The preliminary injunction delayed the debt-relief

program. That secured a period of equal treatment,

during which all borrowers were continuing to accrue

interest, and decreased the present value of the debtrelief program.

It is important to remember the nature of the harm

in a case like this. In Regents of the University of

California v. Bakke, 438 U.S. 265 (1978), the plaintiff

challenged an admissions program that reserved

spots in the entering medical-school class for

minorities. Id. at 279. The Supreme Court explained

41a

that the plaintiff was harmed regardless of whether

he would have been admitted to the class absent the

challenged program. Id. at 280 n.14. The race-based

exclusion from consideration was a harm separate and

apart from any practical consequence of the exclusion.

So too in other race-based set-aside programs. See Ne.

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

City of Jacksonville, 508 U.S. 656, 666 (1993). The

harm in cases like this is “the denial of equal

treatment resulting from the imposition of the barrier,

not the ultimate inability to obtain the benefit.” Id.

The denial of equal treatment, i.e., the

“discrimination itself,” causes “serious non-economic”

harm. Heckler v. Mathews, 465 U.S. 728, 739–40

(1984). Because that harm is “not co-extensive with

any substantive rights to the benefits denied the party

discriminated against,” it can be remedied “by

withdrawal of benefits from the favored class as well

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

That means that Holman’s equal-protection harm

could be remedied either by denying everyone debt

relief (leveling down), or by allowing Holman to

participate on a race-neutral basis in the debt-relief

program (leveling up). In this case, the court ordered

the level-down remedy.

Holman argues that afforded him the irrevocable

benefit of “[d]ay-by-day” equal treatment. Appellant

Br. at 23–24. He might be right. The preliminary

injunction, at minimum, ensured that no one got debt

relief during its pendency. Holman was therefore not

being discriminated against. The benefit of those days

of equal treatment “could not be reversed.” Thomas,

330 F.3d at 493; see Heckler, 465 U.S. at 739–40.

42a

The counterargument is that the harm in this case

is more appropriately tied to dollars—not days. The

argument goes: The preliminary injunction merely

delayed the spending of money, and because reversal

of the preliminary injunction would have meant that

the entire appropriation could later have been spent

in a discriminatory manner, Holman avoided no

harm. I don’t think that’s right on these facts. Section

1005 authorized the Secretary to make debt-relief

payments based on amounts owed as of January 1,

2021. Pub. L. No. 117-2, § 1005(a)(2) (2021). At

minimum, the preliminary injunction delayed those

payments. In the interim, all borrowers were

continuing to accrue interest that was not part of the

outstanding indebtedness as of January 1, 2021. Plus,

aside from any increase in interest expense, delay

itself has a cost. See Atl. Mut. Ins. Co. v. Comm’r, 523

U.S. 382, 384 (1998) (explaining the “time value of

money,” i.e., “the fact that a dollar today is worth more

than a dollar tomorrow” (cleaned up)). So, even if the

equal-protection harm in this case were merely a

function of the value of the debt-relief program, the

preliminary injunction irreversibly reduced that too.

The preliminary injunction in this case delayed

debt-relief payments. That secured a period of equal

treatment, meant that that all borrowers continued to

accrue interest, and decreased the present value of the

debt-relief program. That relief is irrevocable and,

therefore, enduring.

Whether the relief was material is also

complicated. We have said that relief is material when

it “directly benefits the plaintiff by modifying the

43a

defendant’s behavior toward him.” NAACP, 53 F.4th

at 410 (cleaned up); see Farrar v. Hobby, 506 U.S. 103,

111–12 (1992). So, preventing the government from

implementing a program that causes an injury would

ordinarily qualify. Here, though, there were already

two nationwide injunctions against the program. See

Faust v. Vilsack, 519 F. Supp. 3d 470, 478 (E.D. Wis.

2021); Wynn v. Vilsack, 545 F. Supp. 3d 1271, 1295

(M.D. Fla. 2021). The government argues that the

relief was therefore not material. Is a defendant’s

behavior changed by an injunction enjoining

something already enjoined? As a practical matter, no.

But we have said that “the magnitude of a party’s

obtained relief does not dictate the outcome of the

prevailing-party inquiry.” Planned Parenthood, 931

F.3d at 541. Rather, the “touchstone” of the inquiry is

whether there has been a meaningful “alteration of

the legal relationship of the parties in a manner which

Congress sought to promote in the fee statute.” Texas

State Tchrs. Ass’n v. Garland Indep. Sch. Dist., 489

U.S. 782, 792–93 (1989). As a result, we look to the

“relief requested in the complaint,” “not the practical

significance of the relief obtained.” McQueary, 614

F.3d at 602 (cleaned up).

In McQueary, for example, the plaintiff obtained a

preliminary injunction preventing enforcement of two

provisions of law that prohibited certain protests. Id.

The defendant argued that the relief was not material

because there were yet other provisions of law, not

challenged in that case, that also prohibited the

protests. Id. This court was unmoved and said that

the relief was material even if it had no practical

significance. Id.

44a

Like the plaintiff in McQueary, Holman obtained

the relief he requested in his complaint—albeit

preliminarily. That seems like enough. However,

unlike in McQueary, the relief Holman requested in

his complaint had, in a sense, already been ordered by

other courts. I do not think that changes the outcome

here, though. Those other decisions might have been

reversed on appeal or otherwise have failed to convert

into permanent injunctions; the parties, for example,

might have settled, or the scope of the injunctions

might have been narrowed. See, e.g., Commonwealth

v. Biden, 57 F.4th 545, 556–57 (6th Cir. 2023);

California v. Azar, 911 F.3d 558, 583–85 (9th Cir.

2018). The relief in this case meant that Holman had

the ability to enforce his injunction and was protected

regardless of what happened in those other cases.

Although somewhat difficult to square with the

“modifying the defendant’s behavior” formulation, the

relief in this case was clearly a meaningful alteration

of the legal relationship between the parties that

directly benefitted Holman. Because this court’s cases

teach that our focus should be on the “relief requested

in the complaint,” not its “practical significance,” I

think that the relief obtained here qualifies as

material. McQueary, 614 F.3d at 602.

The government may still avoid paying fees and

costs if it shows that “special circumstances make an

award unjust.” 28 U.S.C. § 2412(d)(1)(A). We look to

general “equitable considerations” in evaluating this

exception. Sakhawati v. Lynch, 839 F.3d 476, 478 (6th

Cir. 2016). The government argues that there are

three special circumstances here, but each falls short.

45a

First, the government repackages its materialrelief argument that the preliminary injunction

provided no benefit beyond the already-existing

nationwide injunctions. That argument is unavailing

here for the same reasons it was unavailing there:

Holman obtained the relief he requested in his

complaint, which gave Holman added protection

independent of those other cases. Second, the

government notes that it was defending the

constitutionality of a statute and contends that it is

wrong to penalize an agency for complying with its

statutory obligations. Whatever the policy merits of

the government’s argument, there is nothing in the

Equal Access to Justice Act that supports a statutorydefense exception. Third, the government suggests

that an award would be unjust because some of the

fees Holman seeks are for work that occurred after the

preliminary injunction entered. That is not a concern

at this stage, though, because it does not mean that

“an award” would be unjust. 28 U.S.C. § 2412(d)(1)(A).

Rather, it goes to calculating “reasonable attorney

fees.” Id. § 2412(d)(2)(A); see Sakhawati, 839 F.3d at

480.

In this case, no special circumstances make an

award unjust.

My best read of our cases is that Holman is entitled

to fees and costs because he is a prevailing party, the

government’s position was not substantially justified,

and no special circumstances make an award unjust.

I therefore respectfully dissent.

46a

Appendix C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 23-5493

ROBERT HOLMAN,

Plaintiff - Appellant,

THOMAS J. VILSACK, in his official capacity as

Secretary of the United States Department of

Agriculture; ZACH DUCHENEAUX, in his official

capacity as Administrator of the Farm Service

Agency,

Defendants - Appellees.

Before: STRANCH, LARSEN, and DAVIS, Circuit

Judges.

JUDGMENT

On Appeal from the United States District Court

for the Western District of Tennessee at Jackson.

THIS CAUSE was heard on the record from the

district court and was submitted on the briefs without

oral argument.

CONSIDERATION

THEREOF,

ORDERED that the judgment of the district court is

AFFIRMED.

ENTERED BY ORDER OF THE COURT

Kelly L. Stephens, Clerk

47a

Appendix D

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

_________________________________________________

ROBERT HOLMAN,

)

Plaintiff,

)

THOMAS J. VILSACK, )

in his official capacity )

as Secretary of

) 21-cv-1085-STA-jay

Agriculture; and

)

ZACH DUCHENEAUX )

in his official capacity )

as Administrator of

)

the Farm Service

)

Agency,

)

Defendants,

)

ORDER DENYING PLAINTIFF’S MOTION FOR

ATTORNEY FEES AND COSTS

Plaintiff Robert Holman filed this action to

challenge the United States Department of

Agriculture’s implementation of § 1005 of the

American Rescue Plan Act of 2021 (“ARPA”). Section

1005 appropriated funds to pay certain USDA farm

loans held by “socially disadvantaged” farmers and

48a

ranchers. “Socially disadvantaged” was defined as a

“farmer or rancher who is a member of” 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”

– specifically American Indians or Alaskan Natives;

Asians; Blacks or African Americans; Hispanics or

Latinos; and Native Hawaiians or other Pacific

Islanders. Plaintiff asserted that he would have been

eligible for debt relief for his farm loans under § 1005

but for the fact that he does not fall within one of the

racial or ethnic groups considered “socially

disadvantaged.” He filed suit asserting that § 1005

violated the equal protection component of the Fifth

Amendment’s Due Process Clause, and he sought

declaratory and injunctive relief, costs and fees, and

nominal damages.

Plaintiff moved for a preliminary injunction. After

a hearing and with opposition from the Government,

the Court granted Plaintiff’s request and enjoined

disbursement of § 1005 funds on a nationwide basis

pending resolution of the case on the merits on July 8,

2021. This Court’s injunction was preceded by similar

preliminary injunctions in the Middle District of

Florida, Wynn v. Vilsack, 3:21-cv-514 (M.D. Fla. June

23, 2021), and in the Northern District of Texas,

Miller v. Vilsack, 4:21-cv-595 (N.D. Tex. July 1, 2021).

Miller certified two classes at the same time that it

entered class-wide preliminary relief. Plaintiff was a

member of the classes in Miller. The Court initially

denied the Government’s motion to stay pending the

outcome of the Miller class action but then

reconsidered that decision and stayed the matter.

On September 6, 2022, the Government filed a

49a

notice that § 1005 had been repealed by the Inflation

Reduction Act of 2022, thus mooting the actions

challenging § 1005. See Pub. L. No. 117-169, § 22008

(2022). Consequently, the Miller class action was

dismissed. Subsequently, the parties in this case

submitted a joint stipulation of dismissal, and

judgment was entered on September 15, 2022.

Plaintiff has now filed a motion for attorney fees

and costs pursuant to the Equal Access to Justice Act

(“EAJA”), 28 U.S.C. § 2412, and Local Rule 54.1. (ECF

No. 85.) Plaintiff seeks fees, costs, and expenses in the

amount of $44,117.00. The Government has

responded and opposes the motion. (ECF No. 88.)

Plaintiff has filed a reply to the Government’s

response. (ECF No. 91.) Subsequently, the Court

entered an order requiring additional briefing by the

parties in light of Tennessee State Conf. of NAACP v.

Hargett, 53 F.4th 406 (6th Cir. 2022). (ECF No. 93.) In

that decision, a divided panel upheld the district

court’s award of attorney fee to the plaintiffs as

prevailing parties even though the Tennessee

legislature repealed the statutory provisions that the

district court had enjoined, thereby rendering the

lawsuit moot.1 The Government has filed its

1 The motion for attorney fees in Hargett was brought under 42

U.S.C. § 1988, whereas the present motion is brought under the

EAJA. However, the Supreme Court has stated that the

standards applicable to § 1988 fee awards “are generally

applicable in all cases in which Congress has authorized an

award of fees to a ‘prevailing party.’” Hensley v. Eckerhart, 461

U.S. 424, 433 n.7 (1983); see also Richlin Sec. Serv. Co. v.

Chertoff, 553 U.S. 571, 581-83 (2008) (applying § 1988 fee

decisions to EAJA fee matter); INS v. Jean, 496 U.S. 154, 161

(1990) (applying Hensley to EAJA award).

50a

additional briefing (ECF No. 94), as has Plaintiff.

(ECF No. 95.) For the reasons set forth below,

Plaintiff’s Motion is DENIED.

Under the EAJA, the Court shall “award to a

prevailing party . . . fees and other expenses . . .

incurred by the party in any civil action . . ., including

proceedings for judicial review of agency action,

brought by or against the United States . . ., unless

the Court finds that the position of the United States

was substantially justified or that special

circumstances make an award unjust.” 28 U.S.C. §

2412(d)(1)(A). “The party seeking fees bears the

burden of proving that it was a prevailing party with

respect to the work done to generate them.” United

States v. Tennessee, 780 F.3d 332, 336 (6th Cir. 2015).

The Government then bears the burden of proving

that its position was substantially justified or that

special circumstances make an award unjust.

Caremore, Inc. v. NLRB, 150 F.3d 628, 629 (6th Cir.

1998).

Plaintiff contends that he is entitled to attorney

fees because he is the prevailing party in this action

since he obtained a preliminary injunction even

though the injunction was later mooted by the repeal

of § 1005. He also contends that the Government’s

defense of § 1005 was not substantially justified, and

he argues that there are no special circumstances that

would make an EAJA award unjust. The Government

has responded, inter alia, that Plaintiff was a member

of the Miller class, and, by the time this Court entered

a preliminary injunction, Plaintiff’s interests were

already protected by the nationwide injunction in

Wynn and the class-wide injunction in Miller. The

Government also asserts that it had a duty to defend

51a

§ 1005 and, therefore, its position was substantially

justified. 2

It is undisputed that the only “success” that

Plaintiff obtained in this Court was the issuance of the

preliminary injunction. After the preliminary

injunction was issued, the Court stayed discovery,

dismissed Plaintiffs’ additional loan-forgiveness

claims, and then stayed the case pending resolution of

the Miller class action. Ultimately, as mentioned

above, the entire case was dismissed by a joint

stipulation of the parties. Therefore, the issue for the

Court is whether obtaining a preliminary injunction,

without more, elevates a plaintiff to prevailing party

status in light of the ruling in Hargett. The Court finds

that it does not in that Hargett did not change the

well-established law of this circuit.

To be considered a prevailing party, a litigant must

have “receive[d] at least some relief on the merits of

his claim” amounting to “a court-ordered change in

the legal relationship between the plaintiff and the

defendant.” Buckhannon Bd. & Care Home, Inc. v. W.

Va. Dep’t of Health & Hum. Res., 532 U.S. 598, 603-04

(2001) (internal quotation marks and alterations in

original omitted). Prior to Hargett, it was well-settled

that a plaintiff who “wins a preliminary injunction

and nothing more” is almost never a prevailing party,

2 Because the Court has found that Plaintiff is not a prevailing

party for the purpose of an award of EAJA attorney fees, the

Court need not reach the issue of whether the Government’s

position was substantially justified or whether Plaintiff should

receive an award of costs. See 28 U.S.C. § 2412(a)(1) (allowing a

“prevailing party” to recover from the government certain costs

associated with the litigation under the EAJA).

52a

see McQueary v. Conway, 614 F.3d 591, 604 (6th Cir.

2010) (“McQueary I”), and Hargett did not change this

general principle. See Hargett, 53 F.4th at 410 (relying

on the guidance of McQueary I and Buckhannon in

determining whether the plaintiff in that case was a

“prevailing party”).

The Supreme Court has identified “the material

alteration of the legal relationship of the parties” as

the “touchstone of the prevailing party inquiry,” Texas

State Teachers Ass’n v. Garland Indep. School

District, 489 U.S. 782, 792-93 (1989) - and “for an

alteration of legal relationships to be considered

material, . . . a plaintiff must ‘receive at least some

relief on the merits of his claim.’” Biodiversity

Conservation All. v. Stem, 519 F.3d 1226, 1231 (10th

Cir. 2008) (emphasis in original) (quoting Hewitt v.

Helms, 482 U.S. 755, 760 (1987)). Thus, while

preliminary injunction recipients may sometimes be

prevailing parties, the nature of preliminary relief,

which usually does not create lasting change in the

legal relationship between the parties, “will generally

counsel against fees.” McQueary I, 614 F.3d 597, 60001 (quoting Sole v. Wyner, 551 U.S. 74, 86).

The Supreme Court has specifically rejected the

catalyst theory “under which a plaintiff ‘prevailed’ if

he ‘achieved the desired result because the lawsuit

brought about a voluntary change in the defendant’s

conduct,’ such as a legislative repeal of a challenged

statutory provision.” McQueary I, 614 F.3d at 597

(quoting Buckhannon, 532 U.S. at 601-02). That is, “‘a

voluntary change in the defendant’s conduct,’ such as

a legislative repeal of a challenged statutory

provision, . . . does not amount to a ‘court-ordered

change in the legal relationship’ between the plaintiff

53a

and defendant, as required to establish prevailingparty status.” McQueary I, 614 F.3d at 597 (quoting

Buckhannon, 532 U.S. at 603-04).3 Instead, the Sixth

Circuit applies a “contextual and case-specific

inquiry” to determine if a party who obtained only a

preliminary injunction is entitled to attorney fees.

McQueary I, 614 F.3d at 601. This approach asks

whether the plaintiff obtained a change to “the legal

relationship between the parties” that was “courtordered, material,” and “enduring.” Miller v. Caudill,

936 F.3d 442, 448 (6th Cir. 2019). A change is courtordered if it is caused by the preliminary injunction

and not the defendant’s voluntary change in conduct.

Id. It is material if it “directly benefit[s]” the plaintiff

by altering the defendant’s conduct toward him, and

it is enduring if it is “irrevocable, meaning it . . .

provided [the] plaintiff[] with everything [he] asked

for.” Id.

To illustrate this approach, the Government relies

on the following cases. In Young v. City of Chicago,

202 F.3d 1000 (7th Cir. 2000), protestors obtained a

preliminary “injunction to exercise their First

Amendment rights at a specific time and place,” i.e.,

the 1996 Democratic National Convention, and that

injunction gave the protestors everything they

needed. That is, the protestors wanted to protest at

the Convention, and the preliminary injunction

allowed them to do so. Thus, an award of attorney fees

was appropriate in Young. See McQueary I, 614 F.3d

3 Additionally, a plaintiff cannot claim to be a prevailing party if

its success is ultimately “reversed, dissolved, or otherwise

undone by the final decision in the same case.” Sole, 551 U.S. at

83. Those factors are not present in this case.

54a

at 599 (explaining the holding in Young).4

In Miller v. Caudill, the Court of Appeals found

that same sex couples who obtained a preliminary

injunction that gave them the immediate opportunity

to obtain marriage licenses – and they did, in fact,

obtain marriage licenses and wed - were prevailing

parties because that opportunity was the relief they

sought and could not be taken away by any future

action of the defendants. 936 F.3d at 449 (“[T]he

injunction gave plaintiffs all the court-ordered relief

they needed, [such that] the issuance of the marriage

licenses mooted [the] request for them,” and the Clerk

could not “retroactively . . . nullify the marriage

licenses plaintiff[s] had already obtained.”).

Accordingly, “[t]he relief plaintiffs obtained – the

unobstructed opportunity to secure pre- alteration

marriage licenses – therefore stemmed from the

preliminary injunction, not from the legislature’s or

[defendant’s] later voluntary actions.” Id.

As a counterpoint to Young and Miller, the

Government cites McQueary v. Conway, 2012 WL

3149344, at *3 (E.D. Ky. Aug. 1, 2012) (“McQueary

II”), aff’d, 508 F. App’x 522 (6th Cir. 2012). In that

case, the plaintiff challenged provisions of Kentucky

law limiting protests at funerals. The district court

granted the plaintiff’s motion for a preliminary

injunction, concluding that he had shown a likelihood

4 McQueary I also cited the case of Watson v. County of Riverside,

300 F.3d 1092, 1095–96 (9th Cir. 2002) (affirming an award of

attorney fees when a government employee who sought to

exclude an unconstitutionally obtained report from an

administrative hearing obtained a preliminary injunction that

“irrevocably excluded the report).

55a

of success on the merits. The Kentucky General

Assembly then repealed the challenged provisions,

which mooted the plaintiff’s case before he obtained

any permanent relief. The district court initially

denied the plaintiffs’ request for an award of attorney

fees; however, the Sixth Circuit reversed that decision

while clarifying the appropriate prevailing party

analysis. On remand in McQueary II, the district court

applied a context-specific analysis and again

concluded that the plaintiff was not a prevailing

party. The district court found that the plaintiff was

not a prevailing party because his “claim for

permanent relief did not become moot when a

particular event occurred” but, instead, because

Kentucky “voluntarily repealed the challenged

provisions” before the court ordered permanent

injunctive relief. 2012 WL 3149344, at *2.

Unlike the protestors in Young, the McQueary

plaintiff did not seek relief allowing him to protest “at

a specific time and place.” Id. Instead, “[h]e sought a

permanent injunction that would enjoin the

Defendant from enforcing the challenged provisions at

all funerals.” Id. The court explained that, when

injunctive relief is linked to a particular event, as in

Young, “preliminary relief becomes, in effect,

permanent relief after the event occurs. After the

passage of the event, the preliminary injunction can

no longer be meaningfully revoked,” and the court

cannot order any further relief. Id. at *3. Preliminary

relief like that awarded in McQueary, which enjoined

Kentucky “from enforcing . . . challenged provisions

only while [the plaintiff’s] claim for permanent relief

was pending,” was “truly temporary and revocable.”

Id. at *2-3. It could be either undone or made

56a

permanent by a court order on the merits. Thus, as

long as the court had not “permanently enjoin[ed] the

state from enforcing the challenged provisions,” there

was “more [it] could do for” plaintiff. Id. at *2. The

plaintiff did not receive all the relief sought through a

permanent injunction; instead, permanent relief came

by way of Kentucky’s voluntary repeal of the

challenged provision. Ultimately, “the defendant’s

voluntary conduct could not serve as the basis for an

award of attorney fees. Id. The Sixth Circuit affirmed

this decision in McQueary v. Conway, 508 F. App’x

522, 524 (6th Cir. 2012) (“McQueary III”).

In Hargett, the plaintiffs obtained a preliminary

injunction against enforcement of a Tennessee statute

“imposing a raft of new requirements upon persons or

organizations conducting voter registration activities

in the State.” 53 F.4th at 408. A few months later, the

Tennessee legislature repealed the challenged

provisions, and the plaintiffs dismissed the case. Id.

at 409. However, prior to the legislative action, the

“plaintiffs were able to conduct voter-registration

drives for seven months during the runup to the 2020

election, unburdened by the requirements of the”

enjoined law. Id. at 410-11. Thus, the injunction gave

the plaintiffs something that could not later be taken

away.

In the present case, the Court agrees with the

Government that the decision in Hargett is consistent

with the principles outlined in the McQueary cases

and that Hargett did not alter the governing

framework for assessing whether a preliminary

injunction grants sufficient relief to render Plaintiff a

“prevailing

party.”

Here,

Plaintiff

received

preliminary relief that was by nature “temporary and

57a

revocable,” i.e., an injunction precluding the

Government from implementing § 1005 until a

decision on the merits of the case could be rendered.

Unlike the injunction obtained in Hargett or Miller,

the injunction in this case provided Plaintiff with

nothing lasting – no permanent change of status, no

irrevocable benefit, and no enduring opportunity to

profit from the Court’s order. See, e.g., McQueary II,

2012 WL 3149344, at *2 (contrasting an injunction for

a “specific” act or occasion with an injunction that

seeks to stop the defendants “from enforcing the

challenged” law universally). Any relief that Plaintiff

now has because of § 1005’s repeal is the result of a

voluntary act of Congress and not a court order. As

Plaintiff failed to obtain any “court-ordered, material,

enduring change in the legal relationship between the

parties,” Miller, 936 F.3d at 448, he is not eligible for

attorney fees, and his motion is DENIED.

IT IS SO ORDERED.

s/ S. Thomas Anderson

S. THOMAS ANDERSON

UNITED STATES

DISTRICT JUDGE

Date: April 4, 2023.

58a

Appendix E

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

ROBERT HOLMAN,

Plaintiff,

vs.

JUDGMENT IN A

CIVIL CASE

THOMAS J. VILSACK, ET AL.,

Defendant.

CASE NO: 21-1085STA-jay

DECISION BY COURT. This action came to

consideration before the Court. The issues have been

considered and a decision has been rendered.

IT IS SO ORDERED AND ADJUDGED that in

accordance with the STIPULATION of

Dismissal entered on September 14, 2022, this

cause is hereby DISMISSED without prejudice.

APPROVED:

s/ S. Thomas Anderson

CHIEF JUDGE UNITED STATES DISTRICT

COURT

DATE: 9/15/2022

THOMAS M. GOULD

Clerk of Court

s/Maurice B. BRYSON

(By) Deputy Clerk

59a

Appendix F

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

_________________________________________________

ROBERT HOLMAN,

)

Plaintiff,

)

THOMAS J. VILSACK, )

in his official capacity )

as Secretary of

)21-cv-01085-STA-jay

Agriculture; and ZACH )

DUCHENEAUX, in his )

official capacity as

)

Administrator of

)

the Farm Service

)

Agency,

)

Defendants,

)

JOINT STIPULATION OF DISMISSAL

In light of the repeal of Section 1005, the Parties

agree that Plaintiff’s challenge to Section 1005 is moot

and therefore stipulate to dismiss this action without

prejudice. See Fed. R. Civ. P. 41(a)(1)(A)(ii). Plaintiff

reserves the right to file subsequent motions for cost

and attorneys’ fees.

Dated: September 14, 2022

60a

Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

LESLEY FARBY

Assistant Branch Director

Civil Division, Federal

Programs Branch

/s/ Kyla M. Snow

KYLA M. SNOW (Ohio Bar No.

96662)

Trial Attorney

United States Department of

Justice Civil Division, Federal

Programs Branch

1100 L Street, NW

Washington, D.C. 20005

Tel: (202) 514-3259 / Fax: (202)

616-8460

Kyla.snow@usdoj.gov

Counsel for Defendants

s/ B.H. Boucek

BRADEN H. BOUCEK

TN BPR No. 021399

GA Bar No. 396831

Southeastern Legal

Foundation

560 W. Crossville Road, Suite

104

Roswell, GA 30075

Telephone: 770/977-2131

bboucek@southeasternlegal.org

61a

WILLIAM E. TRACHMAN*

CO. Bar No. 45684

Mountain States Legal

Foundation

2596 S. Lewis Way

Lakewood, Colorado 80227

Telephone: (303) 292-2021

Facsimile: (303) 292-1980

wtrachman@mslegal.org

*Appearing Pro Hac Vice

Counsel for Plaintiff

62a

Appendix G

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

_________________________________________________

ROBERT HOLMAN,

)

Plaintiff,

)

THOMAS J. VILSACK, )

in his official capacity )

as Secretary of

) 21-cv-01085-STA-jay

Agriculture; and ZACH )

DUCHENEAUX, in his )

official capacity as

)

Administrator of

)

the Farm Service

)

Agency,

)

Defendants,

)

ORDER GRANTING MOTION FOR

PRELIMINARY INJUNCTION

Plaintiff Robert Holman, a non-minority1 farmer

in Union City, Tennessee, filed this action against

Thomas J. Vilsack, Secretary of the United States

The complaint alleges that the USDA has Plaintiff’s race

on file as white and that he “would generally be considered white

or Caucasian.” (Cmplt. p. 3, ECF No. 1.)

63a

Department of Agriculture (“USDA”), and Zach

Ducheneaux, Administrator of the Farm Service

Agency (“FSA”), seeking a declaratory judgment that

Section 1005’s loan forgiveness program in the

American Rescue Plan Act of 2021, Pub. L. No. 117-2,

§ 1005 (2021) (“ARPA”), is violative of the Fifth

Amendment’s Equal Protection Clause under the

United States Constitution and seeking to enjoin the

program. The Court has jurisdiction under 28 U.S.C.

§§ 1331 and 1343 because this case presents a

substantial question of federal law, specifically

whether Section 1005 of the ARPA, facially and as

applied, violates the Constitution’s guarantee of equal

protection of the law.

Section 1005 of the ARPA allots funds for debt

relief to “socially disadvantaged” farmers and

ranchers.2 The USDA interprets the phrase “socially

disadvantaged” to mean the racial classifications of

“Black, American Indian/Alaskan Native, Hispanic, or

Asian, or Hawaiian/Pacific Islander.” See American

Rescue Plan Debt Payments FAQ, Question 1,

https://www.farmers.gov/americanrescueplan/arpfaq. The program erases the debts of those farmers

falling within the specified racial classifications who

took out qualifying loans and provides an additional

20% to cover tax liabilities, thus providing a payment

in an amount up to 120% of the outstanding

indebtedness, without any consideration of need.

Qualifying loans are either USDA direct loans or

USDA backed loans. Farmers, such as Plaintiff, who

have USDA loans and who are white/Caucasian are

2 Although Section 1005 refers to both “farmers and ranchers,”

the parties have focused on farmers in their briefing.

64a

not considered to be socially disadvantaged and, thus,

are not eligible for debt relief regardless of their

individual circumstances. The Government has not

disputed that Plaintiff, as the holder of two USDA

direct farm loans, would be eligible for debt relief if he

was a member of one of the specified racial

classifications.

Defendants Vilsack and Ducheneaux are

responsible for the implementation of Section 1005.

Defendant Vilsack, as Secretary of Agriculture, is

responsible for leading the USDA, which includes the

FSA. Defendant Ducheneaux, as Administrator of the

FSA, oversees Section 1005. Defendants are sued in

their official capacities.

On June 6, 2021, Plaintiff filed a motion for

preliminary injunction (ECF No. 7) pursuant to Rule

65 of the Federal Rules of Civil Procedure, asking the

Court to preliminarily enjoin Defendants from

enforcing Section 1005. Defendants have filed a

response to the motion (ECF No. 31), and Plaintiff has

filed a reply to the response. (ECF No. 36.) With the

Court’s permission, the National Black Farmers

Association (“NBFA”) and the Association of

American Indian Farmers (“AAIF”) have submitted a

brief as amicus curiae in opposition to Plaintiff’s

motion for preliminary injunction.3 (ECF No. 34.)

3 The NBFA and AAIF have also filed a conditional motion for

leave to intervene as defendants in this matter. However,

because, at present, NBFA and AAIF purport to share the same

objective as the Government in defending the challenged law, the

organizations have requested that the Court defer consideration

of the motion until such time as developments in this lawsuit

indicate that the organizations’ interests diverge from the

Government’s. (ECF No. 27.)

65a

A hearing on Plaintiff’s motion was held on June

29, 2021, with both parties represented by counsel. No

testimony was taken, although Plaintiff’s Declaration

(ECF No. 7-3) was admitted as an exhibit. After

reviewing the briefs, statements and arguments by

counsel at the hearing, and the entire record, for the

reasons discussed below, the Court GRANTS

Plaintiff’s motion for a preliminary injunction.4

History/Background of Section 1005

As explained by Defendants, Congress enacted

Section 1005 to provide debt relief to “socially

disadvantaged” farmers holding certain USDA loans

in an attempt to remedy “the lingering effects of the

unfortunate but well-documented history of racial

discrimination” in USDA loan programs.5 (Resp. p. 1,

ECF No. 31.) Congress considered evidence that

“discriminatory loan practices at USDA have placed

minority farmers at a significant disadvantage today;”

statistically these farmers generally own smaller

farms, have disproportionately higher delinquency

rates, and are at a significantly higher risk of

foreclosure than non-minority farmers. (Id.)

Defendants contend that Congress concluded that

paying off qualifying USDA loans of minority farmers6

4 This Court has authority to order injunctive relief and other

relief that is necessary and proper pursuant to 28 U.S.C. §§ 2201

and 2202.

5 Plaintiff

has not disputed the USDA’s long-term history of

racially discriminatory practices.

Defendants have used the terms “socially disadvantaged

farmers” and “minority farmers” interchangeably. However, as

explained above, not all “minority famers” are included in the

definition of “socially disadvantaged farmers.”

66a

was “necessary to further its interests in remedying

the lingering effects of racial discrimination in USDA

loan programs and ensuring that its pandemic relief

efforts did not perpetuate those lingering effects.” (Id.

at pp. 1 – 2.)

According to Defendants, “decades of evidence

shows that not all USDA stakeholders have benefitted

equally from its services — particularly its farm loan

services,” and the evidence indicates “that throughout

USDA’s history minority farmers have been ‘hurt’

more than helped due to discrimination in USDA’s

farm loan programs.” (Id. at p. 3 (relying on “A Report

by the Civil Rights Action Team” (CRAT) 6 (1997)

(“CRAT Report”))). To support their proposition that

“[m]inority farmers have long experienced inequities

in FSA’s administration of farm loans, including with

respect to loan approval rates, amounts, and terms,”

Defendants have cited a 1982 report from the U.S.

Commission on Civil Rights, The Decline of Black

Farming in America 84-85, the 1997 CRAT Report,

and the 2002 Civil Rights Hearing on the USDA’s

Civil Rights Program for Farm Program Participants.

(Id.)

Defendants also point to a “series of lawsuits

against USDA by groups of minority farmers”

beginning in 1997 and continuing over the next

decade.

“African-American,

Native

American,

Hispanic, and female farmers alleged that USDA

systematically discriminated against them in the

administration of farm loans and other benefits and

67a

failed to investigate discrimination complaints.”7 (Id.

at p. 4 (listing Pigford v. Glickman (“Pigford I”), No.

97-1978 (D.D.C.); Keepseagle v. Veneman, No. 9903119 (D.D.C.); Garcia, No. 00-2445 (D.D.C.); Love v.

Glickman, No. 00-2502 (D.D.C.); In re Black Farmers

Discrimination Litigation (“Pigford II”), No. 08-mc0511 (D.D.C.) (collectively “Pigford”)). According to

Defendants, “[a]lthough USDA has settled the

lawsuits and paid more than $2.4 billion to claimants,

State taxes eroded recoveries, debt relief was

incomplete, and reports before Congress have shown

that the settlements did not cure the problems faced

by minority farmers.” (Id.) Even after the lawsuits, a

2011 report – Jackson Lewis LLP, “Civil Rights

Assessment” (Mar. 31, 2011) (“JL Report”) – showed

that socially disadvantaged groups “continued to

experience discrimination with respect to the

requirements, availability, and timing of FSA loans.”

(Id.) A 2021 Government Accountability Office report

commented on long-existing “concerns about

discrimination in credit markets” and surmised that

minority farmers continued to have less access to

credit. (Id.)

Defendants rely on a 1982 agriculture report to

link “discrimination in USDA’s loan programs” to “a

dramatic loss of minority-owned farmland. (Id. at p. 5

(citing Arg. II.B; 1982 Rep. 176 (reporting that from

1920 to 1978, the number of all minority-owned farms

7 There has been no explanation as to why female farmers were

not included within the ambit of Section 1005 even though

female restaurant owners were included in the restaurant

portion of the ARPA. Additionally, little to no evidence has been

presented concerning discrimination toward Hawaiian/Pacific

Islander farmers.

68a

fell from 926,000 to less than 60,000))). Moreover,

“over the last century, Black farmers dwindled from

14 to two percent of all farmers and lost about 80% of

their land.” (Id. at pp. 5-6.)

According to Defendants, Congress considered this

report, and others,8 which show “the pattern of

discrimination in USDA programs and its

consequences for minority farmers” when passing

8 (Resp. at p. 5 n.8 (citing Hr’g on USDA’s Civil Rights Progs. and

Responsibilities before The House Subcomm. on Dep’t Ops.,

Oversight, Nutrition, and Forestry, Comm. on Ag., 106th Cong.

37 (1999) (Goodlatte) (recognizing that “[c]ivil rights at the

[USDA] has long been a problem”); 2002 Civil Rights Hr’g 16, 18,

26 (hearing testimony about the disparities in loan processing

times

and

approval

rates

for

Hispanic

farmers;

underrepresentation of minorities in USDA; and continuing

delays in the resolution of civil rights complaints); Hr’g to Review

the USDA’s Farm Loan Progs. before the Senate Comm. on Ag.,

Nutrition, and Forestry, 109th Cong. 800 (2006) (Karen Krub,

Farmers’ Legal Action Group, Inc.) (“[T]here is still no

meaningful process for investigation and resolution of

allegations of discrimination [against] FSA decision-makers.”);

Hr’g to Review Availability of Credit in Rural America before the

House Subcomm. on Conserv., Credit, Energy, and Research,

Comm. on Ag., 110th Cong. 8 (2007); Hr’g on Mgmt. of Civil

Rights at the USDA before the House Subcomm. on Gov’t Mgmt.,

Org., and Procurement, Comm. on Oversight and Gov’t Reform,

110th Cong. 137 (2008) (hearing testimony about, and

recognizing, the continued problem of USDA discrimination

against minority farmers, including the inability of Native

American and Hispanic farmers to receive loans;

underrepresentation of minorities on county committees; and

delayed processing of civil rights complaints, including

allegations that complaints were shredded and not processed, all

despite creation in 2002 of the Assistant Secretary of Civil

Rights); House Ag. Comm. Hr’g on U.S. Ag. Policy and the 2012

Farm Bill (Apr. 21, 2010); House Ag. Comm. Hr’g on USDA

Oversight 45, 50 (July 22, 2015)).

69a

Section 1005. (Id. (citing S.278,9 “Emergency Relief for

Farmers of Color Act of 2021”)).

In their response, Defendants ask the Court to

consider “previous efforts to remedy discrimination

against minority farmers in USDA programs and its

lingering effects” which have purportedly “fallen

short.” (Id. at pp. 6-7.) In particular, in 1990 Congress

created a program “to provide outreach and technical

assistance” to help minority farmers and then

permanently funded the program in 2018. (Id. at p. 7.)

In 1998 Congress suspended statutes of limitations

for Equal Credit Opportunity Act claims; in 2010, it

provided $1.25 billion to ensure that Pigford II

claimants received settlement payments; in 2002 it

created an Office of the Assistant Secretary for Civil

Rights at USDA to ensure better compliance with civil

rights laws; and in 2014 it created a permanent Office

of Tribal Relations at USDA. (Id.) Defendants contend

that, despite these efforts, socially disadvantaged

farmers continue to have difficulty getting loans and

credit from the USDA. (Id.)

Defendants note that Congress found that, even

before the pandemic, “Black farmers and other

farmers of color were in a far more precarious

financial situation,” than non-minority farmers, and,

“a year into the pandemic, some ‘ha[d] simply not been

able to weather the storm.’” (Id.) Statistically, “a

disproportionate number of Black, Hispanic, AsianAmerican, and Indigenous farmers were in default on

their direct loans, putting farmers of color at risk of

‘facing yet another wave of foreclosures and potential

9 S.278 was the predecessor of Section 1005.

70a

land loss.’” (Id. at p. 8.)

Defendants have provided evidence purportedly

relied on by lawmakers to show that “the

overwhelming majority of recent agricultural

subsidies and pandemic relief prior to ARPA went to

non-minority farmers, despite minority farmers

occupying a more vulnerable financial position.” (Id.)

For example, “reporting indicated that nearly the

entirety of USDA’s $25 billion Market Facilitation

Program (MFP) payments, and almost all of the $9.2

billion provided through USDA’s first Coronavirus

Food Assistance Program (CFAP), went to nonminority farmers.” (Id. (citations omitted.)) According

to Defendants, Congress found that this disparity was

“partly due to the lingering effects of discrimination in

USDA programs.” (Id. at pp. 8-9.) Defendants

reference a letter from thirteen agriculture professors

who explained that federal farm programs “have

perpetuated and exacerbated the problem” of

discrimination, by preferring crops that tend to be

produced by white farmers and “rewarding” large

farms “which are predominantly owned by white

farmers.” (Id. at p. 9.)

Congress passed Section 1005 of the ARPA to

“provide targeted and tailored support for … farmers,”

CR H.765 (Scott), who “have for many decades

suffered discrimination by [USDA],’ id. S.1265

(Booker), and had not benefited from prior pandemic

relief efforts, id. H.1273 (Rep. Neal) (explaining as

much with respect to Black farmers); id. S.1264-65

(‘Congress includes these measures to address the

longstanding and widespread systemic discrimination

within the USDA, particularly within the loan

programs, against [socially disadvantaged famers].’)

71a

(Stabenow); S.278, Sec. 4, ¶ (a)(1)-(2) (stating that §

1005 addressed ‘historical discrimination against’

socially disadvantaged farmers and ‘issues relating to

… COVID-19 … in the farm loan programs’).” (Id. at

p. 10.)

Arguments

Plaintiff, a white farmer with two USDA loans that

had outstanding balances as of January 1, 2021,

contends that the government should be enjoined from

carrying out Section 1005’s farm loan forgiveness

program because it is entirely based on race, and the

denial of a government benefit based on race is a

violation of the right to be treated equally under the

law. He argues that, because he can show that he

faces a colorable constitutional violation, a

preliminary injunction is appropriate.

Defendants have responded that Congress enacted

Section 1005 to remedy the lingering effects of longstanding racial discrimination in USDA programs.

They claim that, in doing so, Congress looked at

evidence that discriminatory loan practices at the

USDA placed minority farmers at a significant

disadvantage pre-pandemic and that minority

farmers’ positions were made worse by the pandemic,

which disproportionately burdened them. Defendants

argue that, in authorizing debt relief in Section 1005,

Congress adopted a measure that was narrowly

tailored to remedy the lingering effects of

discrimination in USDA programs and to correct the

ways prior funding had perpetuated those lingering

effects.

72a

Legal Standard and Analysis

“The purpose of a preliminary injunction is merely

to preserve the relative positions of the parties until a

trial on the merits can be held.” Univ. of Texas v.

Camenisch, 451 U.S. 390, 395 (1981). It is an

“extraordinary and drastic” remedy, and “[t]he party

seeking [it] bears the burden of justifying such relief.”

Am. Civil Liberties Union Fund of Mich. v. Livingston

Cnty., 796 F.3d 636, 642 (6th Cir. 2015). The Sixth

Circuit Court of Appeals recently reiterated the

standard for issuing a preliminary injunction.

We consider four factors in determining

whether a preliminary injunction should

issue: (1) whether the moving party has

shown a likelihood of success on the

merits; (2) whether the moving party will

be irreparably injured absent an

injunction; (3) whether issuing an

injunction will harm other parties to the

litigation; and (4) whether an injunction

is in the public interest. Nken v. Holder,

556 U.S. 418, 434, 129 S. Ct. 1749, 173

L.Ed.2d 550 (2009). In constitutional

cases, the first factor is typically

dispositive. Roberts v. Neace, 958 F.3d

409, 416 (6th Cir. 2020) (order) (per

curiam).

That’s

because

“[w]hen

constitutional rights are threatened or

impaired,

irreparable

injury

presumed.” Obama for Am. v. Husted,

697 F.3d 423, 436 (6th Cir. 2012). And no

cognizable harm results from stopping

unconstitutional conduct, so “it is always

in the public interest to prevent violation

73a

of a party’s constitutional rights.” Deja

Vu of Nashville, Inc. v. Metro. Gov’t of

Nashville & Davidson Cnty., 274 F.3d

377, 400 (6th Cir. 2001) (citation

omitted). We thus focus our analysis on

the plaintiffs’ likelihood of success on the

merits.

Vitolo v. Guzman, 999 F.3d 353, 360 (6th Cir. May 27,

2021).

Likelihood of Success on the Merits

At the outset, the Court notes that four cases in

particular have informed its decision: Vitolo

(enjoining the restaurant relief portion of the ARPA),

which is binding precedent for this Court, and Faust

v. Vilsack, 2021 WL 2409729 (E.D. Wis. June 10,

2021) (enjoining Section 1005’s farm loan relief

portion of the ARPA), Wynn v. Vilsack, 2021 WL

2580678 (M.D. Fla. June 23, 2021) (same), and Miller

v. Vilsack, No. 4:21-cv-0595-O (N.D. Tex., July 1,

2021), which are persuasive.10 All four courts

determined that the plaintiff had shown, inter alia, a

likelihood of success on the merits in challenging

portions of the ARPA that purportedly violated the

plaintiff’s equal protection rights by allocating funds

based on race (and in Vitolo also based on gender) and

enjoined the distribution of those funds. At the

hearing in this Court, the parties agreed that the

evidence that was presented in Faust and in Wynn is

10 Although decisions from other circuits are not binding on this

Court, those opinions may constitute persuasive authority. See

Moldowan v. City of Warren, 578 F.3d 351, 381 n. 9 (6th Cir.

2009).

74a

the same as the evidence presented in this case.11

The parties also agree that, because Section 1005

on its face makes a distinction among applicants for

relief on the basis of race, it must satisfy strict

scrutiny – that is, it must be narrowly tailored to serve

a compelling state interest. See Johnson v. California,

543 U.S. 499, 505 (2005) (quoting Adarand

Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995),

and reiterating that “all racial classifications

[imposed by government] ... must be analyzed by a

reviewing court under strict scrutiny.”) Under strict

scrutiny, the government has the burden of proving

that racial classifications “are narrowly tailored

measures that further compelling governmental

interests.” Johnson, 543 U.S. at 505. “When racebased action is necessary to further a compelling

governmental interest, such action does not violate

the constitutional guarantee of equal protection so

long as the narrow-tailoring requirement is also

satisfied.” Grutter v. Bollinger, 539 U.S. 306, 327

(2003). Thus, the government must adopt “the least

restrictive means of achieving a compelling state

interest,” McCullen v. Coakley, 573 U. S. 464, 478

(2014), “rather than a means substantially related to

a sufficiently important interest.” Americans for

Prosperity Foundation v. Bonta, __ S. Ct. __, 2021 WL

2690268 (July 1, 2021).

Because “[g]overnment policies that classify people

by race are presumptively invalid,” and “[t]o overcome

that presumption, the government must show that

favoring one race over another is necessary to achieve

11 The hearing pre-dated the Miller decision.

75a

a compelling state interest,” Vitolo, 999 F.3d at 360,

the Court begins by looking at the Government’s

asserted compelling state interest in its race-based

farm loan forgiveness program. Defendants have

offered as “a compelling interest” the need to remedy

past

discrimination

suffered

“socially

disadvantaged” farmers at the hands of the USDA. It

is undisputed that the USDA has a sad history of

discriminating against certain groups of farmers

based on their race. The evidence in the record reveals

systemic racial discrimination by the USDA (and in

particular the FSA) throughout the twentieth century

which has compounded over time, resulting in

bankruptcies, land loss, a reduced number of minority

farmers, and diminished income for the remaining

minority farmers. Defendants argue that Section 1005

is necessary to reverse the years of economic

discrimination against minority farmers. However,

Vitolo, Faust, Wynn, and Miller all rejected systemic

racial discrimination as a compelling state interest to

support race-based legislation.

In Vitolo, the Sixth Circuit explained when the

government may attempt to remedy past

discrimination by using preferential treatment based

on race.

First, the policy must target a specific

episode of past discrimination. It cannot

rest on a “generalized assertion that

there has been past discrimination in an

entire industry.” [City of Richman v.]

J.A. Croson Co., 488 U.S. [469] at 498,

109 S. Ct. 706 [1989]; see also Adarand,

515 U.S. at 226, 115 S. Ct. 2097; Aiken v.

City of Memphis, 37 F.3d 1155, 1162–63

76a

(6th Cir. 1994) (en banc) (explaining that

societal discrimination is not enough to

justify racial classifications and that

there must be prior discrimination by the

governmental unit involved).

Second, there must be evidence of

intentional discrimination in the past.

J.A. Croson Co., 488 U.S. at 503, 109 S.

Ct. 706 (requiring an “inference of

discriminatory exclusion”). Statistical

disparities don’t cut it, although they

may be used as evidence to establish

intentional discrimination. See Aiken, 37

F.3d at 1163; United Black Firefighters

Ass’n v. City of Akron, 976 F.2d 999, 1011

(6th Cir. 1992).

Third, the government must have had a

hand in the past discrimination it now

seeks to remedy. So if the government

“show[s] that it had essentially become a

“passive participant” in a system of

racial exclusion practiced by elements of

[a] local ... industry,” then the

government can act to undo the

discrimination. J.A. Croson Co., 488 U.S.

at 492, 109 S. Ct. 706 (plurality opinion).

But if the government cannot show that

it actively or passively participated in

this past discrimination, race-based

remedial measures violate equalprotection principles.

Vitolo, 999 F.3d at 361.

77a

Here, Defendants cannot meet the first prong

because the evidence does not show that Section 1005

targets a specific episode of past discrimination.

Defendants have pointed to statistical and anecdotal

evidence of a history of discrimination by the USDA.

But it is well settled that a “generalized assertion that

there has been past discrimination in an entire

industry” cannot establish a compelling interest. J.A.

Croson Co., 488 U.S. at 498; see also Parents Involved

in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,

731 (2007) (plurality opinion) (“remedying past

societal discrimination does not justify race-conscious

government action”). Moreover, as recognized in

Wynn, “[d]ue 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.” Wynn, 2021 WL 2580678, at * 5. Any evidence

that there is such a need “is not tied in any way to a

governmental interest in affording [socially

disadvantaged farmers] broad race-based debt relief

and does not support a finding that USDA continues

to be a participant, passive or active, in

discrimination.”12 Id.

Also, although Defendants have asserted that the

majority of funding in pandemic relief efforts did not

12 Defendants will have the opportunity to present such evidence

at a trial on the merits. See Wynn, 2021 WL 2580678, at *6 n.9

(“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.”)

78a

reach minority farmers, they have not provided

evidence of “specific episodes” of present intentional

discrimination by Defendants. At the hearing,

Defendants conceded that Congress attempted to

remedy the lingering effects of historic discrimination

when enacting Section 1005 and did not rely on

specific present-day discrimination occurring at the

USDA.

In Wynn, Judge Marcia Morales Howard analyzed

the evidence presented by Defendants on this issue

and found it to be lacking.

[T]he 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. 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. Even taking these statistics at

face value, they are less useful than they

may appear to be. The first statistic is

qualified

the

fact

that:

“[a]pproximately seven percent of the

funds went to entities owned by

corporations or individuals whose race

was not reported.” The report also

identifies farm size and specific crops—

namely, soybeans—as being the target of

MFP funding, not racial identity. As to

the second statistic, both parties at least

79a

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. Where a race-neutral

basis for a statistical disparity can be

shown, the Court can give that statistical

evidence less weight. 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.

Wynn, 2021 WL 2580678, at *6 (citations omitted). See

also Hilbert v. Ohio Dep’t of Rehab. & Corr., 121 F.

App’x 104, 110 (6th Cir. 2005) (explaining in an

alleged racial discrimination employment context

that, although statistical data, if unrebutted, can

create an inference of discrimination, such data must

not only show a significant disparity between two

groups, but must also “eliminate the most common

nondiscriminatory explanations for the disparity.”

(citations omitted)). Defendants have presented no

additional evidence to this Court than that presented

in Wynn, and, as discussed above, Defendants stated

at the hearing that the evidence before this Court is

the same as the evidence presented in Wynn. “An

observation that prior, race-neutral relief efforts

failed to reach minorities is no evidence at all that the

80a

government enacted or administered those policies in

a discriminatory way.” Vitolo, 999 F.3d at 362.

As for the second prong, other than statistical

disparities, Defendants have presented no evidence of

current intentional discrimination by Defendants,

and they acknowledged this lack of evidence at the

hearing. Instead, Defendants attempted to rely on

statistical and anecdotal evidence, even though this

type of evidence to show intentional discrimination

has been rejected by the Sixth Circuit. See Vitolo, 999

F.3d at 361 (“When the government promulgates race

based policies, it must operate with a scalpel. And its

cuts must be informed by data that suggest

intentional discrimination. The broad statistical

disparities cited by the government are not nearly

enough.”)13

Looking at the third prong, the Court finds

evidence that the USDA played a role in past

discrimination toward socially disadvantaged farmers

but no evidence of current discrimination by the

USDA. That is, no evidence has been presented that

the USDA or FSA played a role in creating the

disparities in pandemic relief given to minority

farmers versus non-minority farmers.

13 The Vitolo court distinguished between cases based on racial

statistical disparities involving a single decisionmaker, such as

when a city hires one race at a disproportionate rate, and

statistics showing “general social disparities” because “there are

simply too many variables to support inferences of intentional

discrimination.” Vitolo, 999 F.3d at 362. Although Vitolo

addressed societal discrimination, the court also considered

whether the government had shown a compelling interest in

remedying past industry-wide discrimination. Id. at pp. 361-62.

81a

Accordingly, Defendants here, as in Vitolo, have

failed to establish that the government has a

compelling interest in remedying the effects of past

and present discrimination through the distribution

of benefits on the basis of racial classifications.

However, even when the government has shown a

compelling state interest in remedying some specific

episode of discrimination, the discriminatory

legislation must be narrowly tailored to further that

interest. Id.

For a policy to survive narrow-tailoring

analysis, the government must show

“serious, good faith consideration of

workable race-neutral alternatives.”

Grutter v. Bollinger, 539 U.S. 306, 339,

123 S. Ct. 2325, 156 L.Ed.2d 304 (2003);

J.A. Croson Co., 488 U.S. at 507, 109 S.

Ct. 706. This requires the government to

engage in a genuine effort to determine

whether alternative policies could

address the alleged harm. And, in turn,

a court must not uphold a race-conscious

policy unless it is “satisfied that no

workable

race-neutral

alternative”

would achieve the compelling interest.

Fisher v. Univ. of Tex. at Austin, 570 U.S.

297, 312, 133 S. Ct. 2411, 186 L.Ed.2d

474 (2013). In addition, a policy is not

narrowly tailored if it is either overbroad

or underinclusive in its use of racial

classifications. J.A. Croson Co., 488 U.S.

at 507–08, 109 S. Ct. 706; Gratz v.

Bollinger, 539 U.S. 244, 273–75, 123 S.

Ct. 2411, 156 L.Ed.2d 257 (2003).

82a

Vitolo, 999 F.3d at 362 – 63. “[T]he strict scrutiny

standard ... forbids the use even of narrowly drawn

racial classifications except as a last resort.” J.A.

Croson Co., 488 U.S. at 519 (Kennedy, J., concurring).

Here, Defendants have not presented any raceneutral alternatives that Congress considered when

discussing Section 1005. Instead, they contend that

the loan relief program is narrowly tailored to its

constitutional aims because race-neutral alternatives

have failed. However, as pointed out in Vitolo, in

attempting to mitigate the failure of prior pandemic

relief efforts to reach socially disadvantaged farmers

(minority and female restaurant owners in Vitolo),

Congress could have given priority to those farmers

who did not receive prior pandemic aid instead of

passing race-based legislation. (“But an obvious raceneutral alternative exists: The government could

grant priority consideration to all business owners

[farmers] who were unable to obtain needed capital or

credit during the pandemic.”) “Because these raceneutral alternatives exist, the governments use of

race is unconstitutional.” Vitolo, 999 F.3d at 363.

The Vitolo court also looked at whether the

legislation at issue in that case was underinclusive or

overinclusive and found that it was both.

For example, individuals 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. This

scattershot approach does not conform to

83a

the narrow tailoring strict scrutiny

requires.

Id. at 363-64. Under Section 1005, “Black, American

Indian/Alaskan Native, Hispanic, or Asian, or

Hawaiian/Pacific Islander” farmers qualify for debt

relief but not farmers of other races or ethnicities

regardless of their financial condition and regardless

of whether they obtained any financial relief during

the pandemic.

The Wynn court also specified ways in which

Section 1005 is both underinclusive and overinclusive.

For instance, Section 1005 benefits only those socially

disadvantaged farmers who received qualifying

USDA farm loans, “but the evidence of discrimination

provided by the Government says little regarding how

this particular group of [socially disadvantaged

farmers] has been the subject of past or ongoing

discrimination.” Wynn, 2021 WL 2580678, at *7.

Additionally,

[a]lthough 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, [a socially disadvantaged

farmer] receives up to 120% debt relief.

And regardless of whether [a socially

disadvantaged farmer] is having the

most profitable year ever and not

remotely in danger of foreclosure, that [a

socially disadvantaged farmer] 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.

84a

Race or ethnicity is the sole, inflexible

factor that determines the availability of

relief provided by the Government under

Section 1005.

Id. The Wynn court also commented on the dearth of

evidence of prior discrimination by the USDA in farm

loans toward Asians, Native Hawaiians, and Pacific

Islanders, groups which are included in Section 1005,

thus leading to an inference that Section 1005 is

overinclusive as well as being underinclusive. Id. at

*10. Finally, “there is little evidentiary support for the

magnitude of relief provided by Section 1005 — up to

120% debt relief to all [socially disadvantaged

farmers] with qualifying farm loans — which appears

to duplicate or in some instances exceed the relief

provided to those who actually suffered the welldocumented historic discrimination Congress sought

to remedy through prior settlements” such as Pigford.

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 is narrowly

85a

tailored such that it “eliminates no more

than the exact source of the ‘evil’ it seeks

to remedy.”

Id. (citation omitted).

Defendants

contend

that

Congress

has

unsuccessfully implemented race-neutral alternatives

for decades, but no evidence was presented that

Congress ever engaged “in a genuine effort to

determine whether alternative policies could address

the alleged harm” here. Vitolo, 999 F.3d at 362. As

indicated in Faust, “[t]he 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.” Faust, 2021

WL 2409729, at *3.

The Faust court listed ways in which Congress

could have implemented race-neutral programs to

help farmers in need of financial assistance “such as

requiring individual determinations of disadvantaged

status or giving priority to loans of farmers and

ranchers that were left out of the previous pandemic

relief funding. It can also provide better outreach,

education, and other resources.” Id. at *3. Because

“[n]arrow tailoring requires evaluating the “efficacy of

alternative [race-neutral] measures,” United States v.

Paradise, 480 U.S. 149, 171 (1987) (plurality opinion),

and Congress did not do so, the Court finds that

Section 1005 is not narrowly tailored to remedy the

ills that Congress sought to alleviate.

However important the goal of eliminating the

vestiges of prior race discrimination, and it is

86a

important, the government’s efforts cannot withstand

strict scrutiny. Therefore, Plaintiff has shown a

likeliness of success on the merits at trial.

Irreparable Injury14

Section 1005(a)(1) appropriates “out of amounts in

the Treasury not otherwise appropriated, such sums

as may be necessary, to remain available until

expended .…” Plaintiff contends that, if the Court does

not halt all payments, then the limited funds

available will be depleted by the time this case is

resolved, and he will suffer irreparable harm.

Defendants counter that the funds are not limited and

that, if Plaintiff prevails at trial, he can be made

whole by being made eligible for debt relief.15 In

rejecting that argument, the Miller court noted that

“[w]hile the Government may at times act like it, the

public fisc is not bottomless, and at any time,

Congress may turn off the spigot.” Miller, No. 4:21-cv0595-O at p. 20 (citing Baker v. Concord, 916 F.2d 744,

749 (1st Cir. 1990)).

Not only is the “public fisc” not “bottomless,” there

are strong indications that Section 1005’s “bottom” is

$4 billion.16 Plaintiff maintains that Section 1005’s

14 Even though, in constitutional cases, a finding of likelihood of

success on the merits “is typically dispositive,” Vitolo, 999 F.3d

at 360 (citing Roberts, 958 F.3d at 416), the Court has considered

the remaining factors in its analysis.

15 Defendants also contend that Plaintiff has not shown a need

for debt relief under Section 1005. Because Section 1005 is not

based on need, this argument is unavailing.

16 At the hearing, Defendants stated that the $4 billion figure was

arrived at by calculating the amount needed to pay off the

qualifying loans held by socially disadvantaged farmers.

87a

language stating that funds for debt relief will be

expended “out of amounts in the Treasury not

otherwise appropriated” indicates some limit to the

funds. Additionally, at the hearing, Plaintiff pointed

out that public statements surrounding Section 1005

indicated that $4 billion was available for farm debt

relief. See, e.g., Delta Farm Press, 2021 WLNR

18455848 (June 8, 2021) (noting Defendant Vilsack’s

testimony that $4 billion would be given away to

socially disadvantaged farmers); The Daily Citizen

(Dalton, GA), 2021 WLNR 17135549 (May 26, 2021)

(relying on statements by Defendant Vilsack and

United States Senator Raphael Warnock that the

“U.S. Department of Agriculture will begin doling out

$4 billion in payments to farmers of color as part of

the most recent COVID-19 relief package.”);

International New York Times, 2021 WLNR

16517301(May 22, 2021) (“The Congressional Budget

Office estimated that the loan forgiveness provision

would cost $4 billion over a decade.”); Reuters News

(May 21, 2021) (“The U.S Agriculture Department

said on Friday it will start erasing an estimated $4

billion dollars in debt to minority farmers in June, as

it seeks to address racial discrimination.”).

The Faust court discussed the subject of the

amount of funding provided by Section 1005.

While there is no explicit cap on the

funds allocated to the loan-forgiveness

program, based on current estimates,

0.2% of the $1.9 trillion package in the

ARPA has been allocated to the program.

Defendants sent offer letters to eligible

farmers and ranchers as early as May 24,

2021. On June 9, 2021, Defendants sent

88a

offer letters to 8,580 farmers, and intend

to send another 6,836 letters beginning

June 14, 2021. Defendants indicate that

it will take an average of seven days to

receive an accepted offer and that the

FSA will process payment immediately

upon receipt of the offer. Defendants

have already started to forgive loans,

and the 8,580 farmers and ranchers who

were sent offer letters represent

approximately 49% of the loans that will

be forgiven under the program. The

entire $3.8 billion that has been

allocated to the program may be

depleted

before

briefing

and

consideration of the motion for a

preliminary injunction.

Faust, 2021 WL 2409729, at *4 (emphasis added and

citations to the record omitted).

The Court concludes that, while it is not clear that

relief under Section 1005 is limited to $4 billion, it not

believable that Congress intended to appropriate

open-ended funding. Therefore, if the program is not

enjoined, even if Plaintiff is later determined to be

eligible for the program, he would suffer irreparable

injury in the likely case that all the funds allotted for

the program would have already been spent.

Next, Defendants contend that rather than

enjoining the program, the Court could, at a later

date, “re-write” Section 1005 to include Plaintiff. That

is, instead of withdrawing benefits from the favored

class (“socially disadvantaged farmers”), the Court

could extend benefits to the excluded class (white

89a

farmers such as Plaintiff). In support of their

argument, Defendants rely on the Supreme Court’s

decision in Califano v. Westcott, 443 U.S. 76 (1979). In

that case, the Supreme Court looked at a federal

statute that provided benefits to families whose

fathers had become unemployed but denied those

same benefits when mothers lost their jobs, and the

Court ultimately expanded the statute to include

mothers as well as fathers. Id. at 79. Prior to 1968, the

provision of assistance to families whose dependent

children were deprived of support because of a

parent’s unemployment was gender neutral. Id. at 7980. In 1968, as part of a revision to the Social Security

Act, Congress added the gender qualification to the

statute. Id. at 80. The Court upheld the lower court’s

remedy of “extension rather than invalidation”

because the Social Security Act’s “strong severability

clause” … “evidence[d] a congressional intent to

minimize the burdens imposed by a declaration of

unconstitutionality upon innocent recipients of

government largesse.” Id. at 90.

In Ayotte v. Planned Parenthood of N. New

England, 546 U.S. 320 (2006), the Court considered

when it was appropriate “to devise a judicial remedy

that does not entail quintessentially legislative work.”

546 U.S. at 330. The Court looked to Westcott to find

that “the touchstone for any decision about remedy is

legislative intent, for a court cannot ‘use its remedial

powers to circumvent the intent of the legislature.’”

Id. (quoting Westcott, 443 U.S. 94 (Powell, J.,

concurring in part and dissenting in part)). “After

finding an application or portion of a statute

unconstitutional, we must next ask: Would the

legislature have preferred what is left of its statute to

90a

no statute at all?” Ayotte, 546 U.S. at 330 (citations

omitted).

The legislative intent of Section 1005 is to remedy

past discrimination suffered by those farmers defined

as “socially disadvantaged” and to give those farmers

a more level playing field with non-minority farmers.

Opening eligibility for debt relief to all farmers would

gut that intent. Additionally, Defendants have not

pointed to a severability clause in the ARPA or Section

1005 to show that Congress would rather have raceneutral debt relief for farmers than no debt relief at

all. Accordingly, the Court finds that Westcott does not

support Defendants’ argument.

Defendants also contend that there is no need for

a preliminary injunction in this case because the

courts in Faust and Wynn have already enjoined

Section 1005’s distribution of funds. However,

Defendants have given no assurance that they will not

appeal those decisions. Moreover, Faust, Wynn, and

Miller are all out-of-circuit decisions, and the

standard for issuing an injunction in the Sixth Circuit

is not necessarily the same as in other circuits. And,

as the Miller court noted, “the existence of overlapping

injunctive relief from other courts does not serve to

automatically eliminate irreparable harm in parallel

litigation, and the Government cites no authority to

suggest otherwise.” Miller, No. 4:21-cv-0595-O at p.

21.

Finally, Plaintiff will be irreparably harmed if he

is denied his constitutional right to equal protection.

Vitolo was clear that the impairment of a

constitutional right supports a finding of irreparable

injury. Vitolo, 999 F.3d at 365 (quoting Bonnell v.

91a

Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001) (“[W]hen

reviewing a motion for a preliminary injunction, if it

is found that a constitutional right is being threatened

or impaired, a finding of irreparable injury is

mandated.”)).17 Therefore, even if Plaintiff obtained

financial relief after a trial on the merits, he would

have suffered irreparable harm merely by the

deprivation of his constitutional rights during the

pendency of this matter.

Substantial Harm to Others

Defendants contend that Plaintiff has not shown

that any injury to him absent an injunction would

outweigh the harm to the socially disadvantaged

farmers who are at a disproportionately higher risk of

foreclosure and whose economic position in the midst

of the pandemic worsens the longer payments are

delayed. While this factor militates in favor of not

granting the injunction, the potential economic harm

to minority farmers is lessened by the USDA’s present

policy of not foreclosing on USDA direct loans, as

acknowledged by Defendants at the hearing.

Additionally, the USDA has encouraged private

lenders not to foreclose on their loans.

17 The parties disagree as to whether a farmer who receives debt

forgiveness under Section 1005 will be eligible for future debt

forgiveness under 7 U.S.C. § 2008h(c), which prohibits the USDA

from providing debt forgiveness on a direct loan to any person

who has previously received debt forgiveness. See 7 U.S.C. §

2008h(c). The Court need not decide the dispute at this juncture

based on Plaintiff’s statement at the hearing that he is not

relying on this point of law as a basis for his motion for injunctive

relief.

92a

Public Interest18

This factor weighs in favor of granting the

injunction. Plaintiff is asserting a violation of the

Equal Protection Clause, and, as reiterated by Vitolo,

“it is always in the public interest to prevent the

violation of a party’s constitutional rights.” Vitolo, 999

F.3d at 360 (quoting Déjà vu of Nashville, 274 F.3d at

400 (citation omitted)).

Summary and Conclusion

The Court finds that Plaintiff has shown a

substantial likelihood that he will prevail on his claim

that Section 1005 violates his right to equal protection

under the law. Absent action by the Court, socially

disadvantaged farmers will obtain debt relief, while

Plaintiff will suffer the irreparable harm of being

excluded from that program solely on the basis of his

race. Despite the arguments of Defendants, the Court

cannot re-write Section 1005 and order that Plaintiff

receive equivalent relief. While an injunction may

harm socially disadvantaged farmers, the Court has

balanced the equities and determines that they favor

enjoining Section 1005. The Court agrees with Judge

Howard’s reasoning that “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.” Wynn, 2021 WL 2580678, at *17.

18 The factors of irreparable harm and the public interest “merge

when the Government is the opposing party.” Nken v. Holder, 556

U.S. 418, 435 (2009).

93a

Although this Court has reservations about

issuing a nationwide injunction, in this type of case

such an injunction is warranted.19 As explained by

Judge Howard,

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.

19 In her decision, Judge Howard noted some of the criticism of

nationwide injunctions.

[T]he 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., ––– U.S. ––––, 140 S. Ct. 599, 599-601, 206

L.Ed.2d 115 (2020) (concurring opinion); see also Trump

v. Hawaii, ––– U.S. ––––, 138 S. Ct. 2392, 2423, 201

L.Ed.2d 775 (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).

Wynn, 2021 WL 2580678, at *17 (footnotes omitted).

94a

406, 420, 97 S. Ct. 2766, 53 L.Ed.2d 851

(1977) (internal quotations and citations

omitted); see also Califano v. Yamasaki,

442 U.S. 682, 702, 99 S. Ct. 2545, 61

L.Ed.2d 176 (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

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. 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.

Wynn, 2021 WL 2580678, at *17 (footnotes omitted).

See also Faust at *5 (quoting City of Chicago v. Barr,

961 F.3d 882, 916–17 (7th Cir. 2020) (“While universal

injunctions are rare, they ‘can be necessary to provide

complete relief to plaintiffs, to protect similarlysituated nonparties, and to avoid the chaos and

confusion that comes from a patchwork of

injunctions.’”)) Faust also found that a nation-wide

injunction was appropriate because “Defendants’

proposal to set aside funds to pay off any of Plaintiffs’

95a

qualified loans is unworkable. If the USDA forgave

Plaintiffs’ loans, it would be required to forgive every

farmer’s loan, since the only criteria for loan

forgiveness is the applicant’s race.”20 Id. Therefore,

the only way to preserve the status quo is for the

Court to issue a nationwide injunction.

Accordingly, Plaintiff’s motion for a preliminary

injunction is GRANTED, and Defendants are hereby

enjoined

from

implementing

Section

1005.

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 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 orders of the Court.

The government has not opposed Plaintiff’s

request that the Court waive the bond requirement.

Therefore, Plaintiff will not be required to post a bond

or other security.

No later than fourteen (14) days from the entry of

this order, the parties must confer and submit to the

undersigned Judge’s ECF inbox a proposed

scheduling order in word processing format. A

scheduling conference will be set by separate order.

20 The plaintiffs in Miller were granted class certification and did

not seek a nationwide injunction. Miller, No. 4:21-cv-0595-O at

p. 22.

96a

IT IS SO ORDERED.

s/ S. Thomas Anderson

S. THOMAS

ANDERSON

UNITED STATES

DISTRICT JUDGE

Date: July 8, 2021

97a

Appendix H

Statutory Provisions and regulatory provisions

28 USCA § 2412 provides:

(a)(1) Except as otherwise specifically provided by

statute, a judgment for costs, as enumerated in

section 1920 of this title, but not including the fees

and expenses of attorneys, may be awarded to the

prevailing party in any civil action brought by or

against the United States or any agency or any official

of the United States acting in his or her official

capacity in any court having jurisdiction of such

action. A judgment for costs when taxed against the

United States shall, in an amount established by

statute, court rule, or order, be limited to reimbursing

in whole or in part the prevailing party for the costs

incurred by such party in the litigation.

(2) A judgment for costs, when awarded in favor of the

United States in an action brought by the United

States, may include an amount equal to the filing fee

prescribed under section 1914(a) of this title. The

preceding sentence shall not be construed as requiring

the United States to pay any filing fee.

(b) Unless expressly prohibited by statute, a court

may award reasonable fees and expenses of attorneys,

in addition to the costs which may be awarded

pursuant to subsection (a), to the prevailing party in

any civil action brought by or against the United

States or any agency or any official of the United

States acting in his or her official capacity in any court

having jurisdiction of such action. The United States

shall be liable for such fees and expenses to the same

extent that any other party would be liable under the

common law or under the terms of any statute which

98a

specifically provides for such an award.

(c)(1) Any judgment against the United States or any

agency and any official of the United States acting in

his or her official capacity for costs pursuant to

subsection (a) shall be paid as provided in sections

2414 and 2517 of this title and shall be in addition to

any relief provided in the judgment.

(2) Any judgment against the United States or any

agency and any official of the United States acting in

his or her official capacity for fees and expenses of

attorneys pursuant to subsection (b) shall be paid as

provided in sections 2414 and 2517 of this title, except

that if the basis for the award is a finding that the

United States acted in bad faith, then the award shall

be paid by any agency found to have acted in bad faith

and shall be in addition to any relief provided in the

judgment.

(d)(1)(A) Except as otherwise specifically provided by

statute, a court shall award to a prevailing party other

than the United States fees and other expenses, in

addition to any costs awarded pursuant to subsection

(a), incurred by that party in any civil action (other

than cases sounding in tort), including proceedings for

judicial review of agency action, brought by or against

the United States in any court having jurisdiction of

that action, unless the court finds that the position of

the United States was substantially justified or that

special circumstances make an award unjust.

(B) A party seeking an award of fees and other

expenses shall, within thirty days of final judgment in

the action, submit to the court an application for fees

and other expenses which shows that the party is a

prevailing party and is eligible to receive an award

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under this subsection, and the amount sought,

including an itemized statement from any attorney or

expert witness representing or appearing in behalf of

the party stating the actual time expended and the

rate at which fees and other expenses were computed.

The party shall also allege that the position of the

United States was not substantially justified.

Whether or not the position of the United States was

substantially justified shall be determined on the

basis of the record (including the record with respect

to the action or failure to act by the agency upon which

the civil action is based) which is made in the civil

action for which fees and other expenses are sought.

amount to be awarded pursuant to this subsection, or

deny an award, to the extent that the prevailing party

during the course of the proceedings engaged in

conduct which unduly and unreasonably protracted

the final resolution of the matter in controversy.

(D) If, in a civil action brought by the United States

or a proceeding for judicial review of an adversary

adjudication described in section 504(a)(4) of title 5,

the demand by the United States is substantially in

excess of the judgment finally obtained by the United

States and is unreasonable when compared with such

judgment, under the facts and circumstances of the

case, the court shall award to the party the fees and

other expenses related to defending against the

excessive demand, unless the party has committed a

willful violation of law or otherwise acted in bad faith,

or special circumstances make an award unjust. Fees

and expenses awarded under this subparagraph shall

be paid only as a consequence of appropriations

provided in advance.

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(2) For the purposes of this subsection-(A) “fees and other expenses” includes the

reasonable expenses of expert witnesses, the

reasonable cost of any study, analysis,

engineering report, test, or project which is

found by the court to be necessary for the

preparation of the party's case, and reasonable

attorney fees (The amount of fees awarded

under this subsection shall be based upon

prevailing market rates for the kind and

quality of the services furnished, except that (i)

no expert witness shall be compensated at a

rate in excess of the highest rate of

compensation for expert witnesses paid by the

United States; and (ii) attorney fees shall not

be awarded in excess of $125 per hour unless

the court determines that an increase in the

cost of living or a special factor, such as the

limited availability of qualified attorneys for

the proceedings involved, justifies a higher

fee.);

(B) “party” means (i) an individual whose net

worth did not exceed $2,000,000 at the time the

civil action was filed, or (ii) any owner of an

unincorporated business, or any partnership,

corporation, association, unit of local

government, or organization, the net worth of

which did not exceed $7,000,000 at the time the

civil action was filed, and which had not more

than 500 employees at the time the civil action

was filed; except that an organization described

in section 501(c)(3) of the Internal Revenue

Code of 1986 (26 U.S.C. 501(c)(3)) exempt from

taxation under section 501(a) of such Code, or a

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cooperative association as defined in section

15(a) of the Agricultural Marketing Act (12

U.S.C. 1141j(a)), may be a party regardless of

the net worth of such organization or

cooperative association or for purposes of

subsection (d)(1)(D), a small entity as defined

in section 601 of title 5;

any official of the United States acting in his or

her official capacity;

(D) “position of the United States” means, in

addition to the position taken by the United

States in the civil action, the action or failure to

act by the agency upon which the civil action is

based; except that fees and expenses may not

be awarded to a party for any portion of the

litigation in which the party has unreasonably

protracted the proceedings;

(E) “civil action brought by or against the

United States” includes an appeal by a party,

other than the United States, from a decision of

a contracting officer rendered pursuant to a

disputes clause in a contract with the

Government or pursuant to chapter 71 of title

41;

(F) “court” includes the United States Court of

Federal Claims and the United States Court of

Appeals for Veterans Claims;

(G) “final judgment” means a judgment that is

final and not appealable, and includes an order

of settlement;

(H) “prevailing party”, in the case of eminent

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domain proceedings, means a party who

obtains a final judgment (other than by

settlement), exclusive of interest, the amount of

which is at least as close to the highest

valuation of the property involved that is

attested to at trial on behalf of the property

owner as it is to the highest valuation of the

property involved that is attested to at trial on

behalf of the Government; and

(I) “demand” means the express demand of the

United States which led to the adversary

adjudication, but shall not include a recitation

of the maximum statutory penalty (i) in the

complaint, or (ii) elsewhere when accompanied

by an express demand for a lesser amount.

(3) In awarding fees and other expenses under this

subsection to a prevailing party in any action for

judicial review of an adversary adjudication, as

defined in subsection (b)(1)(C) of section 504 of title 5,

or an adversary adjudication subject to chapter 71 of

title 41, the court shall include in that award fees and

other expenses to the same extent authorized in

subsection (a) of such section, unless the court finds

that during such adversary adjudication the position

of the United States was substantially justified, or

that special circumstances make an award unjust.

(4) Fees and other expenses awarded under this

subsection to a party shall be paid by any agency over

which the party prevails from any funds made

available to the agency by appropriation or otherwise.

(5)(A) Not later than March 31 of the first fiscal year

beginning after the date of enactment of the John D.

Dingell, Jr. Conservation, Management, and

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Recreation Act, and every fiscal year thereafter, the

Chairman of the Administrative Conference of the

United States shall submit to Congress and make

publicly available online a report on the amount of

fees and other expenses awarded during the preceding

fiscal year pursuant to this subsection.

(B) Each report under subparagraph (A) shall

describe the number, nature, and amount of the

awards, the claims involved in the controversy, and

any other relevant information that may aid Congress

in evaluating the scope and impact of such awards.

(C)(i) Each report under subparagraph (A) shall

account for all payments of fees and other expenses

awarded under this subsection that are made

pursuant to a settlement agreement, regardless of

whether the settlement agreement is sealed or

otherwise subject to a nondisclosure provision.

(ii) The disclosure of fees and other expenses required

under clause (i) shall not affect any other information

that is subject to a nondisclosure provision in a

settlement agreement.

(D) The Chairman of the Administrative Conference

of the United States shall include and clearly identify

in each annual report under subparagraph (A), for

each case in which an award of fees and other

expenses is included in the report-(i) any amounts paid under section 1304 of title

31 for a judgment in the case;

(ii) the amount of the award of fees and other

expenses; and

(iii) the statute under which the plaintiff filed

suit.

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(6) As soon as practicable, and in any event not later

than the date on which the first report under

paragraph (5)(A) is required to be submitted, the

Chairman of the Administrative Conference of the

United States shall create and maintain online a

searchable database containing, with respect to each

award of fees and other expenses under this

subsection made on or after the date of enactment of

the John D. Dingell, Jr. Conservation, Management,

and Recreation Act, the following information:

(A) The case name and number, hyperlinked to

the case, if available.

(B) The name of the agency involved in the

case.

was made as such party is identified in the

order or other court document making the

award.

(D) A description of the claims in the case.

(E) The amount of the award.

(F) The basis for the finding that the position

of the agency concerned was not substantially

justified.

(7) The online searchable database described in

paragraph (6) may not reveal any information the

disclosure of which is prohibited by law or a court

order.

(8) The head of each agency (including the Attorney

General of the United States) shall provide to the

Chairman of the Administrative Conference of the

United States in a timely manner all information

105a

requested by the Chairman to comply with the

requirements of paragraphs (5), (6), and (7).

(e) The provisions of this section shall not apply to any

costs, fees, and other expenses in connection with any

proceeding to which section 7430 of the Internal

Revenue Code of 1986 applies (determined without

regard to subsections (b) and (f) of such section).

Nothing in the preceding sentence shall prevent the

awarding under subsection (a) of this section of costs

enumerated in section 1920 of this title (as in effect on

October 1, 1981).

(f) If the United States appeals an award of costs or

fees and other expenses made against the United

States under this section and the award is affirmed in

whole or in part, interest shall be paid on the amount

of the award as affirmed. Such interest shall be

computed at the rate determined under section

1961(a) of this title, and shall run from the date of the

award through the day before the date of the mandate

of affirmance.

7 U.S.C. § 2279(a)(5) provides:

Socially Disadvantaged Farmers and Ranchers Policy

Research Center

The Secretary shall award a grant to a college or

university eligible to receive funds under the Act of

August 30, 1890 (7 U.S.C. 321 et seq.), including

Tuskegee University, to establish a policy research

center to be known as the “Socially Disadvantaged

Farmers and Ranchers Policy Research Center” for

the purpose of developing policy recommendations for

the protection and promotion of the interests of

socially disadvantaged farmers and ranchers.

106a

7 U.S.C. § 2279(a)(6) provides:

Evaluation criteria

In making grants or entering into cooperative

agreements under this subsection, the Secretary shall

evaluate, with respect to applications for the grants or

cooperative agreements-(A) relevancy;

(B) technical merit;

(D) the expertise and track record of 1 or mor

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