A Colorado farmer is joining a growing list of challengers to the USDA’s debt relief forgiveness program for socially disadvantaged producers under the American Rescue Plan Act of 2021, stating it is discriminatory and based solely on race.
Sara Rogers, a third-generation farmer in Washington County—represented by Mountain States Legal Foundation (MSLF)—filed suit in the U.S. District Court for the District of Colorado because she does not qualify as socially disadvantaged. She also alleged the program violated the equal protection clause of the U.S. Constitution.
At a virtual town hall hosted by MSLF in late June, Rogers stated when she researched the rumor that the loan forgiveness program would excuse outstanding loan balances based on a socially disadvantaged group, which includes race classifications, she decided to take action.
“If we end up getting our loans repaid that’s great,” Rogers said at the town hall. “But the main reason why I am here is because I just want our voices to be heard…I’m just here for the equality.”
Rogers stated about five years ago, she wanted to farm and raise a family in the area where her parents and grandparents farmed. She took out a USDA Farm Service Agency (FSA) loan and purchased a quarter section of land. In February 2020, Rogers closed on another quarter section and received a second FSA loan. Rogers said she farms by herself and her husband works in town. With the onset of drought and COVID-19, Rogers said money was tight and it was “very challenging,” so having the “opportunity to have the loans forgiven just as minorities would be huge.”
Corey Bartkus, MSLF’s lead attorney on the case, said in a statement that choosing loan forgiveness based on race is discrimination, something that the government “purports to be fighting against.” Bartkus praised Rogers for “stepping-up” and fighting for her family.
“MSLF is fighting to ensure that all Americans, regardless of race, are viewed equally in the eyes of the government,” Bartkus said in a statement. “But we can’t combat these injustices unless courageous Americans like Sara are willing to take a principled stand for what’s right and fair and constitutional.”
Other cases
On June 10, Judge William C. Griesbach for the Wisconsin Eastern District Court granted a temporary restraining order against the program on behalf of 12 Wisconsin farmers. In the lawsuit, the temporary restraining order was requested before a preliminary injunction to address the issue “on an emergency basis,” and to “preserve the status quo pending the complete briefing and consideration of a motion for a preliminary injunction,” the order stated.
On June 23, Judge Marcia Morales Howard with the U.S. District Court for the Middle District of Florida Jacksonville Division granted a preliminary injunction against the program, agreeing that Section 1005 of the American Rescue Plan Act, violates equal protection under the law. The order stated, “On the record before the court, it appears that in adopting Section 1005’s strict race-based debt relief remedy Congress moved with great speed to address the history of discrimination but did not move with great care.
“Indeed, the remedy chosen and provided in Section 1005 appears to fall well short of the delicate balance accomplished when a legislative enactment employs race in a narrowly tailored manner to address a specific compelling governmental interest.”
Section 1005 in the American Rescue Plan Act provides funding and authorization of FSA to forgive up to 120 percent of outstanding loans for “socially disadvantaged” farmers and ranchers. Within the definition of socially disadvantaged, the USDA states that members of a socially disadvantaged group include racial classifications.
Will Trachman, MSLF general counsel, stated at the town hall that Stanley Thomas Anderson, the chief judge for the U.S. District Court for the Western District of Tennessee, heard arguments in Holman v. Vilsack in late June and he was in attendance. MSLF and Southeastern Legal Foundation represent Robert Holman, a fourth-generation farmer in Union City, TN, who argued the program was discriminatory.
Trachman said one question Anderson asked of the Justice Department lawyers was whether the government could forgive all the FSA loans, to which they replied it was possible. According to DTN, if the courts were to rule that the government must pay off debt relief for all farmers with outstanding FSA loans, the cost of the debt relief plan would amount to about $31.7 billion for nearly 145,000 borrowers.
Trachman said the judge also asked if farmers and ranchers had to contract COVID or if their operations had to have suffered due to the pandemic to be eligible for relief and was “skeptical” of how the government “could do this program the way it’s written into statutes.”
“The government had no answer to those questions because as we’ve seen in the statutes, it’s just about race,” Trachman said. “I’ve never seen a program where you are automatically eligible, based on your race or automatically ineligible, based on your race. It’s just truly, truly brand new territory for us.”
Reed O’Connor, judge for the U.S. District Court for the Northern District of Texas, heard arguments in late June in the case filed by Texas Agriculture Commissioner Sid Miller. Several farming advocacy organizations that represent socially disadvantaged farmers filed an amici curiae brief. The groups argued in their brief to not support a preliminary injunction because Section 1005 addresses the harm done to minority farmers and is a “narrowly tailored measure” temporarily benefiting the farmers who are at greatest risk.
On June 29, Secretary of Agriculture Tom Vilsack filed a partial response to the plaintiff’s complaint and a separate motion to dismiss the case. In the response, Vilsack stated the farmers’ claims are too broad and “go well beyond challenging the administration of the program that they contend unlawfully excludes them” because the phrase “socially disadvantaged” is used in “a wide range of programs administered by the USDA.”
According to Politico, O’Connor issued a preliminary injunction in early July and ordered the Justice Department to respond to a notice it filed indicating that while the injunctions stop payments, the USDA is preparing payments by sending letters to eligible loan forgiveness recipients.
Trachman told WLJ in an email the case of Leisl Carpenter is continuing on a regular schedule and the government has until the end of July to respond to its case filed in the U.S. District Court for the District of Wyoming. Carpenter, a sixth-generation Wyoming rancher, sued USDA, alleging the loan forgiveness program violates the equal protection clause under the U.S. Constitution. Carpenter took out $250,000 in FSA loans after inheriting the ranch from her grandparents.
“The good news is that the program is halted for now, but if that appears like it may change, we are still considering whether to ask the judge to move for an injunction in the meantime,” Trachman said.
Bartkus concurred at the town hall, stating based on similar cases filed regarding the issue and the preliminary injunction and restraining order filed by judges, they will “come out on top.”
Agriculture Secretary Tom Vilsack, speaking to DTN, said USDA is “committed to try to figure something out here to help people who have for far too long been denied the impact and effect of all the programs at USDA throughout the entire history of the department.”
Vilsack stated the litigation would have to move through the U.S. District courts, then “almost certainly” will go to federal appeals courts and perhaps to the Supreme Court. — Charles Wallace, WLJ editor
