Case: Dunlap v. Vilsack

2:21-cv-00942 | U.S. District Court for the District of Oregon

Filed Date: June 24, 2021

Case Ongoing

Clearinghouse coding complete

Case Summary

This case is one of several brought challenging the American Rescue Plan (ARP) and U.S. Department of Agriculture’s (USDA) classification of “socially disadvantaged groups.”Two white farmers, a husband and wife, filed suit in the U.S. District Court for the District of Oregon (Pendleton) on June 24, 2021. The two defendants were the Secretary of Agriculture (who leads the USDA) and the administrator of USDA's Farm Service Agency (FSA). Plaintiffs challenged Section 1005 of ARP which offered loa…

This case is one of several brought challenging the American Rescue Plan (ARP) and U.S. Department of Agriculture’s (USDA) classification of “socially disadvantaged groups.”

Two white farmers, a husband and wife, filed suit in the U.S. District Court for the District of Oregon (Pendleton) on June 24, 2021. The two defendants were the Secretary of Agriculture (who leads the USDA) and the administrator of USDA's Farm Service Agency (FSA). Plaintiffs challenged Section 1005 of ARP which offered loan forgiveness only to farmers who qualified as "socially disadvantaged." The USDA, for the purposes of Section 1005, defined a "socially disadvantaged group" as African Americans, American Indians, Alaska Natives, Hispanics, Asians, and Pacific Islanders. Plaintiffs claimed that "[b]ut for [their] race, [they] would be eligible" under Section 1005, arguing that Section 1005 violated the Fifth Amendment’s guarantee of equal protection and violated the Administrative Procedure Act (APA). As to equal protection, the plaintiffs asserted that Section 1005 would not survive the standard of Adarand Constructors Inc. v. Peña becuase Section 1005’s blanket classifications were not narrowly tailored nor “intended or designed to remedy specific instances of racial discrimination.” Plaintiffs further argued that because Section 1005 violated equal protection, the USDA’s adherence to it would be an “unlawful agency action” under the APA. Relief sought included declaratory relief; preliminary and permanent injunctive relief enjoining Section 1005's racial classifications; $1 in nominal damages; and attorney’s fees. Plaintiffs were represented by the Pacific Legal Foundation, a non-profit that defends those “threatened by government overreach and abuse." Magistrate Judge Patricia Sullivan was assigned.

Plaintiffs moved for a preliminary injunction on June 29, 2021. This sought to enjoin the government from providing further loan assistance to "socially disadvantaged" farmers under Section 1005 until the case was resolved.

Defendants moved to stay all proceedings pending the resolution of the class action challenges to Section 1005 in Miller v. Vilsack (PB-TX-0017) on July 12, 2021. In Miller, the court had both preliminarily enjoined the enforcement of Section 1005 and certified two classes of farmers bringing similar claims of discrimination.

The National Black Farmers Association (NBFA) and Association of American Indian Farmers (AAIF) filed an unopposed conditional motion to intervene as defendants on July 13, 2021. However, both groups asked the court to defer consideration of the motion pending future developments in the lawsuit. Specifically, they asked if they could intervene in the future should the government advance "arguments that are adverse to NBFA and AAIF's interests" such as "failing to document USDA's history of discrimination" which Section 1005 was designed to alleviate.

The court granted the defendants' motion to stay proceedings on July 16, 2021.

As of November 2021, the case remains stayed.

Summary Authors

Eric Gripp (8/9/2021)

Jonah Hudson-Erdman (11/11/2021)

People

For PACER's information on parties and their attrorneys, see: https://www.courtlistener.com/docket/60012676/parties/dunlap-v-secretary-of-agriculture/


Judge(s)

Sullivan, Patrick Michael (Oregon)

Attorneys(s) for Plaintiff

Fa, Wencong M (California)

Feldon, Gary Daniel (District of Columbia)

Martin, Christina Marie (Florida)

Ortner, Daniel M. (California)

Roper, Glenn Evans (Colorado)

Attorneys(s) for Defendant

Boynton, Brian M (District of Columbia)

Farby, Lesley (District of Columbia)

Knapp, Michael Fraser (District of Columbia)

Newton, Emily Sue (District of Columbia)

Judge(s)

Sullivan, Patrick Michael (Oregon)

Attorneys(s) for Plaintiff

Fa, Wencong M (California)

Feldon, Gary Daniel (District of Columbia)

Martin, Christina Marie (Florida)

Ortner, Daniel M. (California)

Roper, Glenn Evans (Colorado)

Attorneys(s) for Defendant

Boynton, Brian M (District of Columbia)

Farby, Lesley (District of Columbia)

Knapp, Michael Fraser (District of Columbia)

Newton, Emily Sue (District of Columbia)

Snow, Kyla (District of Columbia)

Other Attorney(s)

Chen, Randolph T (District of Columbia)

Dahab, Nadia H. (Oregon)

Sugerman, David F. (Oregon)

Documents in the Clearinghouse

Document

2:21-cv-00942

Docket

Dunlap v. Secretary of Agriculture

July 16, 2021

July 16, 2021

Docket
1

2:21-cv-00942

Complaint for Declaratory and Injunctive Relief

June 24, 2021

June 24, 2021

Complaint
16

2:21-cv-00942

Defendants' Motion to Stay and Memorandum in Support

July 12, 2021

July 12, 2021

Pleading / Motion / Brief
42

2:21-cv-00942

Opinion & Order

Sept. 21, 2021

Sept. 21, 2021

Order/Opinion

Resources

Docket

See docket on RECAP: https://www.courtlistener.com/docket/60012676/dunlap-v-secretary-of-agriculture/

Last updated Aug. 27, 2022, 3:04 a.m.

ECF Number Description Date Link Date / Link
1

Complaint. Filing fee in the amount of $402 collected. Agency Tracking ID: AORDC-8134474 Jury Trial Requested: No. Filed by Kathryn Dunlap, James Dunlap against Zach Ducheneaux, Thomas J. Vilsack (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons to Thomas Vilsack, # 3 Proposed Summons to Zach Ducheneaux). (Martin, Christina) (Entered: 06/24/2021)

June 24, 2021

June 24, 2021

PACER
2

Notice of Case Assignment to Magistrate Judge Patricia Sullivan and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. Discovery is to be completed by 10/25/2021. Joint Alternate Dispute Resolution Report is due by 11/22/2021. Pretrial Order is due by 11/22/2021. Ordered by Magistrate Judge Patricia Sullivan. (joha) (Entered: 06/25/2021)

June 25, 2021

June 25, 2021

PACER

Clerk's Review of Pro Hac Vice Motion

June 25, 2021

June 25, 2021

PACER
3

Summons Issued Electronically as to Administrator, Farm Service Agency, Secretary of Agriculture. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. (joha) (Entered: 06/25/2021)

June 25, 2021

June 25, 2021

PACER
4

Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Wencong Fa. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-8136032. Filed by James Dunlap, Kathryn Dunlap. (Fa, Wencong) Modified on 6/25/2021 (sss). (Entered: 06/25/2021)

June 25, 2021

June 25, 2021

PACER
5

Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Glenn Roper. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-8136048. Filed by James Dunlap, Kathryn Dunlap. (Roper, Glenn) Modified on 6/25/2021 (sss). (Entered: 06/25/2021)

June 25, 2021

June 25, 2021

PACER

Clerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Wencong Fa. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-8136032 4, Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Glenn Roper. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-8136048 5 : Both Reviewed and Ready for Ruling. (sss)

June 25, 2021

June 25, 2021

PACER
6

ORDER: Motion for Leave to Appear Pro Hac Vice 4 regarding Wencong Fa is GRANTED. Ordered by Magistrate Judge Patricia Sullivan. (dsg) (Entered: 06/28/2021)

June 28, 2021

June 28, 2021

PACER

Clerk's Review of Pro Hac Vice Motion

June 28, 2021

June 28, 2021

PACER
7

ORDER: Motion for Leave to Appear Pro Hac Vice 5 regarding Glenn Roper is GRANTED. Ordered by Magistrate Judge Patricia Sullivan. (dsg) (Entered: 06/28/2021)

June 28, 2021

June 28, 2021

PACER
8

Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney, Daniel M. Ortner. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-8137892. Filed by James Dunlap, Kathryn Dunlap. (Ortner, Daniel) Modified on 6/28/2021 (sss). (Entered: 06/28/2021)

June 28, 2021

June 28, 2021

PACER

Clerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Daniel M. Ortner. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-8137892 8 : Reviewed and Ready for Ruling. (sss)

June 28, 2021

June 28, 2021

PACER
9

Return of Service (Attachments: # 1 Exhibit A - Certified Mail Receipts) (Martin, Christina) (Entered: 06/28/2021)

June 28, 2021

June 28, 2021

PACER
10

ORDER: Motion for Leave to Appear Pro Hac Vice 8 regarding Daniel M. Ortner is GRANTED. Ordered by Magistrate Judge Patricia Sullivan. (dsg) (Entered: 06/28/2021)

June 28, 2021

June 28, 2021

PACER

Leave to Appear Pro Hac Vice

June 28, 2021

June 28, 2021

PACER
11

Motion for Preliminary Injunction and Memorandum in Support of Motion. Oral Argument requested. Filed by James Dunlap, Kathryn Dunlap. (Attachments: # 1 Exhibit 1 - Order, Wynn v. Vilsack, # 2 Exhibit 2 - Order, Faust v. Vilsack, # 3 Exhibit 3 - Decl. of Cobb, Faust v. Vilsack) (Martin, Christina) (Entered: 06/29/2021)

1 Exhibit 1 - Order, Wynn v. Vilsack

View on PACER

2 Exhibit 2 - Order, Faust v. Vilsack

View on PACER

3 Exhibit 3 - Decl. of Cobb, Faust v. Vilsack

View on PACER

June 29, 2021

June 29, 2021

RECAP
12

Declaration of Kathryn Dunlap in Support of Motion for Preliminary Injunction. Filed by James Dunlap, Kathryn Dunlap. (Related document(s): Motion for Preliminary Injunction, 11 .) (Martin, Christina) (Entered: 06/30/2021)

June 30, 2021

June 30, 2021

PACER
13

Declaration of James Dunlap in Support of Motion for Preliminary Injunction. Filed by James Dunlap, Kathryn Dunlap. (Related document(s): Motion for Preliminary Injunction, 11 .) (Martin, Christina) (Entered: 06/30/2021)

June 30, 2021

June 30, 2021

PACER
14

Certificate of Service by James Dunlap, Kathryn Dunlap of Motion for Preliminary Injunction and Memorandum in Support of Motion 11 and related documents and Declarations. (Attachments: # 1 Exhibit A - Certified Mail Receipts) Filed by James Dunlap, Kathryn Dunlap. (Fa, Wencong) (Entered: 06/30/2021)

June 30, 2021

June 30, 2021

PACER
15

Notice of Appearance of Gary Feldon appearing on behalf of All Defendants . Filed by Administrator, Farm Service Agency, Secretary of Agriculture. (Feldon, Gary) (Entered: 07/07/2021)

July 7, 2021

July 7, 2021

PACER
16

Motion for Stay . Filed by All Defendants. (Feldon, Gary) (Entered: 07/12/2021)

July 12, 2021

July 12, 2021

RECAP
17

Motion for Stay of Pending Deadlines. Expedited Hearing requested. Filed by All Defendants. (Feldon, Gary) (Entered: 07/12/2021)

July 12, 2021

July 12, 2021

PACER
18

Motion to Appear as Amicus Curiae . Filed by National Black Farmers Association, Association of American Indian Farmers. (Attachments: # 1 Proposed Document Amicus Curiae Brief) (Dahab, Nadia) (Entered: 07/13/2021)

July 13, 2021

July 13, 2021

PACER
19

Unopposed Motion to Intervene Conditionally and Request to Defer Consideration of Conditional Motion. Filed by Association of American Indian Farmers, National Black Farmers Association. (Attachments: # 1 Proposed Document Answer) (Dahab, Nadia) (Entered: 07/13/2021)

1 Proposed Document Answer

View on PACER

July 13, 2021

July 13, 2021

RECAP
20

Declaration of John Boyd, Jr. in Support of Motion to Appear as Amicus Curiae and Conditional Motion to Intervene as Defendants. Filed by Association of American Indian Farmers, National Black Farmers Association. (Related document(s): Motion to intervene, 19, Motion to appear as amicus curiae 18 .) (Dahab, Nadia) (Entered: 07/13/2021)

July 13, 2021

July 13, 2021

PACER
21

Declaration of Kara Boyd in Support of Motion to Appear as Amicus Curiae and Conditional Motion to Intervene as Defendants. Filed by Association of American Indian Farmers, National Black Farmers Association. (Related document(s): Motion to intervene, 19, Motion to appear as amicus curiae 18 .) (Dahab, Nadia) (Entered: 07/13/2021)

July 13, 2021

July 13, 2021

PACER
22

Declaration of Shade Marshall Lewis in Support of Motion to Appear as Amicus Curiae and Conditional Motion to Intervene as Defendants. Filed by Association of American Indian Farmers, National Black Farmers Association. (Related document(s): Motion to intervene, 19, Motion to appear as amicus curiae 18 .) (Dahab, Nadia) (Entered: 07/13/2021)

July 13, 2021

July 13, 2021

PACER
23

Declaration of Ivan Isidore Williams in Support of Motion to Appear as Amicus Curiae and Conditional Motion to Intervene as Defendants. Filed by Association of American Indian Farmers, National Black Farmers Association. (Related document(s): Motion to intervene, 19, Motion to appear as amicus curiae 18 .) (Dahab, Nadia) (Entered: 07/13/2021)

July 13, 2021

July 13, 2021

PACER
24

Response in Opposition to Motion for Stay of Pending Deadlines 17 . Filed by James Dunlap, Kathryn Dunlap. (Martin, Christina) (Entered: 07/13/2021)

July 13, 2021

July 13, 2021

PACER
25

Reply to Motion for Stay of Pending Deadlines 17 . Filed by All Defendants. (Feldon, Gary) (Entered: 07/15/2021)

July 15, 2021

July 15, 2021

PACER

Clerk's Review of Pro Hac Vice Motion

July 15, 2021

July 15, 2021

PACER
26

Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Randolph Chen. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-8157250. Filed by Association of American Indian Farmers, National Black Farmers Association. (Chen, Randolph) (Entered: 07/15/2021)

July 15, 2021

July 15, 2021

PACER

Clerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Randolph Chen. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-8157250 26 : Reviewed and Ready for Ruling. (ecp)

July 15, 2021

July 15, 2021

PACER
27

ORDER: Motion for Leave to Appear Pro Hac Vice regarding Randolph Chen 26 is GRANTED. Ordered by Magistrate Judge Patricia Sullivan. (dsg) (Entered: 07/16/2021)

July 16, 2021

July 16, 2021

PACER
28

ORDER: Granting Motion for Stay 17 .The Court GRANTS the Government's Motion to Stay further briefing on Plaintiffs' Motion for Preliminary Injunction pending completed briefing on the Government's Motion to Stay the case 16 . Ordered by Magistrate Judge Patricia Sullivan. (pk1) (Entered: 07/16/2021)

July 16, 2021

July 16, 2021

PACER

Leave to Appear Pro Hac Vice

July 16, 2021

July 16, 2021

PACER

Order on Motion for Stay

July 16, 2021

July 16, 2021

PACER
29

Joint Motion for Extension of Time to File Plaintiffs' Opposition to Motion for Stay, and Defendants' Answer. Expedited Hearing requested. Filed by James Dunlap, Kathryn Dunlap. (Martin, Christina) (Entered: 07/22/2021)

July 22, 2021

July 22, 2021

PACER
30

ORDER by Magistrate Judge Patricia Sullivan: GRANTING Joint Motion for Extension of Time to File Plaintiffs' Opposition to Motion for Stay, and Defendants' Answer (# 29 ). (eo) (Entered: 07/26/2021)

July 26, 2021

July 26, 2021

PACER

Order on Motion for Extension of Time

July 26, 2021

July 26, 2021

PACER
31

Response in Opposition to Motion to Appear as Amicus Curiae 18 . Filed by James Dunlap, Kathryn Dunlap. (Martin, Christina) (Entered: 07/27/2021)

July 27, 2021

July 27, 2021

PACER
32

Response in Opposition to Motion for Stay 16 . Filed by James Dunlap, Kathryn Dunlap. (Attachments: # 1 Exhibit 1 - Order, Holman v Vilsack, # 2 Exhibit 2 - Joint Report, Miller v Vilsack) (Martin, Christina) (Entered: 08/09/2021)

Aug. 9, 2021

Aug. 9, 2021

PACER
33

Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney David Samuel Muraskin. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-8190691. Filed by Association of American Indian Farmers, National Black Farmers Association. (Muraskin, David) (Entered: 08/12/2021)

Aug. 12, 2021

Aug. 12, 2021

PACER

Clerk's Review of Pro Hac Vice Motion

Aug. 12, 2021

Aug. 12, 2021

PACER
34

Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Jessica Leigh Culpepper. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-8190781. Filed by Association of American Indian Farmers, National Black Farmers Association. (Culpepper, Jessica) (Entered: 08/12/2021)

Aug. 12, 2021

Aug. 12, 2021

PACER

Clerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Jessica Leigh Culpepper. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-8190781 34, Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney David Samuel Muraskin. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-8190691 33 : Reviewed and Ready for Ruling. (sss)

Aug. 12, 2021

Aug. 12, 2021

PACER
35

ORDER: Motion for Leave to Appear Pro Hac Vice regarding David Samuel Muraskin 33 is GRANTED. Ordered by Magistrate Judge Patricia Sullivan. (dsg) (Entered: 08/13/2021)

Aug. 13, 2021

Aug. 13, 2021

PACER
36

ORDER: Motion for Leave to Appear Pro Hac Vice regarding Jessica Leigh Culpepper 34 is GRANTED. Ordered by Magistrate Judge Patricia Sullivan. (dsg) (Entered: 08/13/2021)

Aug. 13, 2021

Aug. 13, 2021

PACER

Leave to Appear Pro Hac Vice

Aug. 13, 2021

Aug. 13, 2021

PACER
37

Reply to Motion for Stay 16 . Filed by All Defendants. (Attachments: # 1 Exhibit, # 2 Exhibit) (Feldon, Gary) (Entered: 08/23/2021)

1 Exhibit

View on PACER

2 Exhibit

View on PACER

Aug. 23, 2021

Aug. 23, 2021

RECAP
38

Notice re Reply to Motion 37 (Supplemental Authority) Filed by All Defendants. (Related document(s): Reply to Motion 37 .) (Attachments: # 1 Exhibit) (Feldon, Gary) (Entered: 08/23/2021)

1 Exhibit

View on PACER

Aug. 23, 2021

Aug. 23, 2021

PACER
39

Notice re Reply to Motion 37 Errata Filed by All Defendants. (Related document(s): Reply to Motion 37 .) (Attachments: # 1 Errata) (Feldon, Gary) (Entered: 08/23/2021)

Aug. 23, 2021

Aug. 23, 2021

PACER
40

Notice of Attorney Withdrawal: Randolph T. Chen Filed by Association of American Indian Farmers, National Black Farmers Association. (Chen, Randolph) (Entered: 08/25/2021)

Aug. 25, 2021

Aug. 25, 2021

PACER
41

Notice re Motion for Stay 16 Filed by All Defendants. (Related document(s): Motion for Stay 16 .) (Attachments: # 1 Exhibit) (Feldon, Gary) (Entered: 08/31/2021)

Aug. 31, 2021

Aug. 31, 2021

PACER
42

OPINION & ORDER: Defendant's Motion to Stay 16 is GRANTED and this case is STAYED pending resolution of the class challenge to Section 1005 in Miller v. Vilsack, Case No. 4:21-cv-0595-O (N.D. Tex.) or until order of this Court. Defendants are ordered to file a status report every ninety (90) days on the progress of the Miller litigation. Signed on 9/21/2021 by Magistrate Judge Patricia Sullivan. (dsg) (Typo found in opinion heading. Main Document 42 replaced on 9/23/2021) (dsg). Modified on 9/23/2021 (dsg). (Entered: 09/21/2021)

Sept. 21, 2021

Sept. 21, 2021

RECAP
43

Notice of Case Reassignment: This case has been reassigned from Magistrate Judge Patricia Sullivan to Magistrate Judge Andrew D. Hallman. (dsg) (Entered: 09/29/2021)

Sept. 29, 2021

Sept. 29, 2021

PACER
44

Notice of Appearance of Alexander V Sverdlov appearing on behalf of All Defendants . Filed by Administrator, Farm Service Agency, Secretary of Agriculture. (Sverdlov, Alexander) (Entered: 12/20/2021)

Dec. 20, 2021

Dec. 20, 2021

PACER
45

Status Report by All Defendants. Filed by All Defendants. (Sverdlov, Alexander) (Entered: 12/20/2021)

Dec. 20, 2021

Dec. 20, 2021

RECAP
46

Status Report by All Defendants. Filed by All Defendants. (Sverdlov, Alexander) (Entered: 03/21/2022)

March 21, 2022

March 21, 2022

PACER
47

Status Report

June 21, 2022

June 21, 2022

RECAP

Case Details

State / Territory: Oregon

Case Type(s):

Public Benefits/Government Services

Special Collection(s):

Challenges to minority benefits in Biden Administration American Rescue Plan

Key Dates

Filing Date: June 24, 2021

Case Ongoing: Yes

Plaintiffs

Plaintiff Description:

White farmers -- a husband and wife -- from Baker City, Oregon.

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

U.S. Department of Agriculture (Washington), Federal

Farm Service Agency (Washington), Federal

Defendant Type(s):

Jurisdiction-wide

Case Details

Causes of Action:

Ex Parte Young (Federal) or Bivens

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

Ex parte Young (federal or state officials)

Constitutional Clause(s):

Equal Protection

Availably Documents:

Trial Court Docket

Complaint (any)

Outcome

Prevailing Party: None Yet / None

Nature of Relief:

None yet

Source of Relief:

Litigation

Content of Injunction:

Preliminary relief request withdrawn/mooted

Issues

General:

Funding

Public benefits (includes, e.g., in-state tuition, govt. jobs)

Discrimination-area:

Lending

Discrimination-basis:

Race discrimination

Race:

White

Benefit Source:

American Rescue Plan (ARP)