                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                       )
ROSEMARY LOVE, et al.,                 )
                                       )
                      Plaintiffs,      )
                                       )
       v.                              )    Civil Action No. 00-2502 (RBW)
                                       )
TOM J. VILSACK,                        )
Secretary, United States Department of )
Agriculture,                           )
                                       )
                      Defendant.       )
____________________________________)

                                      MEMORANDUM OPINION

        The plaintiffs in this civil action are female farmers who allege that the United States

Department of Agriculture (“USDA”) discriminated against them on the basis of gender by

denying them “equal and fair access to farm loans and loan servicing, and of consideration of

their administrative complaints.” Fourth Amended and Supplemental Complaint (“Am.

Compl.”) at 3. Most relevant for present purposes, the plaintiffs also claim that the “USDA

offered and is implementing voluntary administrative claims programs to adjudicate the claims

of members of other minority groups who suffered similar discrimination,” but “has arbitrarily

refused to offer equivalent terms to women, further depriving them of equal protection and due

process.” Id. Currently before the Court is the USDA’s motion to dismiss Counts III through VI

of the fourth amended complaint. Upon careful consideration of the parties’ submissions, 1 the

Court concludes for the following reasons that the USDA’s motion must be granted. 2


1
  In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: the Memorandum in Support of Defendant’s Motion to Dismiss Counts III through VI of Plaintiffs’ Fourth
Amended and Supplemental Complaint (“Def.’s Mem.”); the Plaintiffs’ Memorandum in Opposition to Defendant’s
Motion to Dismiss Counts III through VI of Plaintiffs’ Fourth Amended and Supplemental Complaint, and in
(continued . . . )
                                               I. BACKGROUND

         Between 1997 and 2000, African-American, Native American, Hispanic, and female

farmers filed four similar class action lawsuits alleging that “the USDA routinely discriminated

in its farm benefit programs on the basis of race, ethnicity, and gender, and failed to investigate

the claims of farmers who filed discrimination complaints with the agency.” Am. Compl. ¶ 75;

see Pigford v. Glickman, Nos. 97-1978, 98-1693 (D.D.C.) (“Pigford I”) (African-American

farmers); Keepseagle v. Vilsack, No. 99-3119 (D.D.C.) (Native American farmers); Garcia v.

Vilsack, No. 00-2445 (D.D.C.) (Hispanic farmers); Love v. Vilsack, No. 00-02502 (D.D.C.)

(female farmers). A brief overview of those cases is necessary to understand the claims that are

the subject of the USDA’s motion to dismiss.

         On October 9, 1998, Judge Paul L. Friedman of this Court certified Pigford I as a class

action pursuant to Federal Rule of Civil Procedure 23(b)(2) for purposes of liability. 3 Pigford v.

Glickman, 182 F.R.D. 341, 352 (D.D.C. 1998). Judge Friedman later vacated his original class

certification order on January 5, 1999, and certified a new class pursuant to Rule 23(b)(3). 4

Pigford v. Glickman, 185 F.R.D. 82, 92 (D.D.C. 1999). Following the Court’s class certification

rulings, the parties in Pigford I negotiated a class-wide settlement, which Judge Friedman


( . . . continued)
Support of Plaintiffs’ Motion for Partial Summary Judgment as to Counts III through VI (“Pls.’ Opp’n”); and the
Reply Memorandum in Support of USDA’s Motion to Dismiss Counts III-VI of Plaintiffs’ Fourth Amended and
Supplemental Complaint (“Def.’s Reply”).
2
 The Court is contemporaneously issuing on this date a Memorandum Opinion in Cantu v. United States, No. 11-
541 (D.D.C.), which addresses claims of Hispanic farmers similar to those asserted in this case.
3
  Rule 23(b)(2) permits class certification where, among other things, “the party opposing the class has acted or
refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory
relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
4
  Rule 23(b)(3) permits class certification where, among other things, “the court finds that the questions of law or
fact common to class members predominate over any questions affecting only individual members, and that a class
action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P.
23(b)(3).



                                                           2
approved in a consent decree issued on April 14, 1999. Id. at 113. The Pigford I consent decree

“did not provide for the automatic payment of damages to any plaintiff”; rather, “it established a

non-judicial mechanism,” i.e., an administrative claims process, “by which each class member

would have an opportunity to demonstrate that he or she had been the victim of past

discrimination by the USDA and therefore was entitled to compensatory damages.” In re Black

Farmers Discrim. Litig., 856 F. Supp. 2d 1, 9 (D.D.C. 2011).

       The Pigford I consent decree imposed a deadline for African-American farmers to submit

their claims for administrative adjudication, id. at 10, and many farmers tried, unsuccessfully, to

file claim packages after the deadline expired, id. at 11. To address this problem, “Congress

resurrected the claims of those who had unsuccessfully petitioned the Arbitrator for permission

to submit late claim packages” by enacting “the Food, Conservation, and Energy Act of 2008.”

Id. This Act provides that “[a]ny Pigford claimant who has not previously obtained a

determination on the merits of a Pigford claim may, in a civil action brought in the United States

District Court for the District of Columbia, obtain that determination.” Pub. L. 110–234, §

14012(b), 122 Stat. 923, 1448 (2008). After the Act became effective, thousands of African-

American farmers filed suit in this Court. In re Black Farmers, 856 F. Supp. 2d at 13. Those

cases are collectively known as Pigford II. Id. The parties in Pigford II reached a class-wide

settlement agreement on February 18, 2010, id., which Judge Friedman approved, id. at 42. The

settlement agreement largely maintained the administrative claims process utilized in Pigford I,

with some modifications. Id. at 22.

       Keepseagle proceeded much like Pigford I, albeit at a different pace. Judge Emmet G.

Sullivan of this Court certified that case as a class action pursuant to Rule 23(b)(2). See

Keepseagle v. Veneman, No. 99-03119, 2001 WL 34676944, at *1 (D.D.C. Dec. 12, 2001).




                                                 3
Nine years later, in 2010, the parties reached a class-wide settlement agreement, which Judge

Sullivan approved. See Keepseagle v. Veneman, No. 99-03119, ECF No. 577 (D.D.C. Nov. 1,

2010) (order granting preliminary approval of settlement). The settlement agreement in

Keepseagle established an administrative claims process for Native American farmers that was

similar, though not identical, to the process established in Pigford I. See Am. Compl. ¶ 87;

Def.’s Mem. at 4.

        This case and Garcia followed a different path. Judge James Robertson, a former

member of this Court, denied the plaintiffs’ motions for class certification in both actions. 5 See

Love v. Veneman, 224 F.R.D. 240 (D.D.C. 2004), aff’d in part, remanded in part sub nom. Love

v. Johanns, 439 F.3d 723 (D.C. Cir. 2006); Garcia v. Veneman, 224 F.R.D. 8 (D.D.C. 2004),

aff’d and remanded sub nom. Garcia v. Johanns, 444 F.3d 625 (D.C. Cir. 2006). And the USDA

has not offered to settle the cases on a class basis pursuant to Rule 23, as it had in the Pigford and

Keepseagle cases. See Am. Compl. ¶¶ 102-104. The USDA has, however, developed a different

administrative claims process for female and Hispanic farmers. See id. ¶ 88; Cantu v. United

States, No. 11-541, ECF No. 46 ¶ 51 (D.D.C.).

        On July 13, 2012, the plaintiffs, with leave of the Court, filed their fourth amended

complaint. Counts III through VI of the fourth amended complaint challenge the administrative

claims process established for female farmers on the ground that it “is significantly inferior to the

administrative programs offered to African-American and Native American farmers who

suffered similar discrimination and filed virtually identical complaints.” Am. Compl. ¶¶ 88, 123-

139. Claiming that this disparity is the result of gender discrimination, the plaintiffs assert that

the USDA’s administrative claims process violates the equal protection and due process

5
 Upon Judge Robertson’s retirement from the Court, this case and Garcia were reassigned to the undersigned
member of the Court.



                                                       4
guarantees of the Fifth Amendment to the United States Constitution, and the Administrative

Procedure Act (“APA”), 5 U.S.C. § 706(2) (2006). See id. ¶¶ 123-139.

        The USDA has now moved to dismiss Counts III through VI of the fourth amended

complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). 6

                                      II. STANDARD OF REVIEW

        Rule 12(b)(1) allows a party to move to dismiss “for lack of subject-matter jurisdiction.”

Fed. R. Civ. P. 12(b)(1). When a defendant moves to dismiss under Rule 12(b)(1), “the

plaintiff[] bear[s] the burden of proving by a preponderance of the evidence that the Court has

subject matter jurisdiction.” Biton v. Palestinian Interim Self-Gov’t Auth., 310 F. Supp. 2d 172,

176 (D.D.C. 2004); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A court

considering a Rule 12(b)(1) motion must “assume the truth of all material factual allegations in

the complaint and ‘construe the complaint liberally, granting [a] plaintiff the benefit of all

inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d

1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).

However, “the district court may consider materials outside the pleadings in deciding whether to

grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm., Inc. v. FDA, 402

F.3d 1249, 1253 (D.C. Cir. 2005) (citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C.

Cir. 1992)).

                                               III. ANALYSIS

        In moving to dismiss for lack of subject-matter jurisdiction, the USDA argues, among

other things, that the plaintiffs lack standing to challenge the administrative claims process.

Def.’s Mem. at 10. For the reasons that follow, the Court agrees.

6
 Because the Court grants the defendants’ motion on jurisdictional grounds under Rule 12(b)(1), it does not
consider the defendants’ arguments urging dismissal pursuant to Rule 12(b)(6).



                                                         5
         “Because Article III limits the constitutional role of the federal judiciary to resolving

cases and controversies, a showing of standing ‘is an essential and unchanging’ predicate to any

exercise of [federal] jurisdiction.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir.

1996) (en banc) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “‘The

irreducible constitutional minimum of standing contains three elements: (1) injury-in-fact, (2)

causation, and (3) redressability.’” Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C.

Cir. 2011) (citation omitted). “‘Thus, to establish standing, a litigant must demonstrate a

personal injury fairly traceable to the [opposing party’s] allegedly unlawful conduct [that is]

likely to be redressed by the requested relief.’” Id. (citation omitted). “The absence of any one

of these three elements defeats standing.” Newdow v. Roberts, 603 F.3d 1002, 1010 (D.C. Cir.

2010).

         The injury asserted by the plaintiffs is that the administrative claims process established

for female farmers is “more onerous” than the “claims programs offered to similarly situated

African-American and Native American farmers,” and thus the plaintiffs “are unable to compete

for a benefit offered by the government on equal footing with other groups.” Pls.’ Opp’n at 16.

As redress for this alleged injury, the plaintiffs ask the Court to

         issue an Order mandating that [the] USDA implement a voluntary administrative
         claims program for women farmers with material terms that are equally beneficial
         to those offered to African-American and Native American farmers with similar
         claims of discrimination, including but not limited to: (a) not imposing on women
         farmers a higher standard than required of other minority farmers in order to be
         granted an award; (b) not imposing limitations on women farmers’ use of legal
         counsel; (c) providing free legal advice and counsel to claimants as part of the
         program; and (d) not requiring women farmers to broadly release all credit-related
         discrimination claims against [the] USDA before notice of receipt of their claim
         and confirmation that their claim will be considered on the merits.

Am. Compl. at 46 (emphasis in original). The plaintiffs also seek a declaratory judgment that the

USDA’s administrative claims process is unlawful. Id. at 44.



                                                   6
         The parties’ standing arguments focus on whether the plaintiffs have satisfied the first

element of Article III standing—injury-in-fact. According to the USDA, the plaintiffs “have

suffered no harm whatsoever as a result of” the administrative claims process “because their

participation in it is strictly optional, not mandatory.” Def.’s Mem. at 11 (emphasis omitted).

The plaintiffs characterize the USDA’s position as “meritless,” and contend that “courts

regularly entertain challenges to government programs and benefits in which individual

participation is ‘voluntary.’” Pls.’ Opp’n at 17.

         The Court need not address these arguments because, even assuming the plaintiffs have

established a sufficient injury-in-fact, they have failed on the final element of the standing test—

redressability. 7 To satisfy this element, a plaintiff must show in the first instance that the court is

capable of granting the relief sought. See Newdow, 603 F.3d at 1010-11 (plaintiffs could not

establish redressability because “[i]t [was] impossible for th[e] court to grant [their requested]

relief”); Swan v. Clinton, 100 F.3d 973, 976 (D.C. Cir. 1996) (indicating that the

“‘redressability’ element of standing” entails the question of “whether a federal court has the

power to grant [the plaintiff’s requested] relief”); Lozansky v. Obama, 841 F. Supp. 2d 124, 132

(D.D.C. 2012) (“Plaintiffs . . . lack standing because the Court cannot issue the requested writ of

mandamus, and thus cannot redress the [claimed] injury.”). Here, the primary relief sought by

the plaintiffs is “an injunction compelling [the] USDA to offer women farmers a program

comparable to those offered to African-American and Native American farmers.” Pls.’ Opp’n at

17; see Am. Compl. at 46. But it is settled law that “[a] judge may not coerce a party into

settling.” Gevas v. Ghosh, 566 F.3d 717, 719 (7th Cir. 2009); accord In re NLO, Inc., 5 F.3d

7
  Because “[t]he federal courts are under an independent obligation to examine their own jurisdiction,” and because
“standing ‘is perhaps the most important of [the jurisdictional] doctrines,’” FW/PBS, Inc. v. City of Dallas, 493 U.S.
215, 231 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)), the Court is not limited to the arguments
raised in the parties’ briefs in evaluating whether the plaintiffs have Article III standing.



                                                          7
154, 157 (6th Cir. 1993); Newton v. A.C. & S., Inc., 918 F.2d 1121, 1128 (3d Cir. 1990); G.

Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989) (en banc); In

re Ashcroft, 888 F.2d 546, 547 (8th Cir. 1989) (per curiam); Kothe v. Smith, 771 F.2d 667, 669

(2d Cir. 1985); Del Rio v. Northern Blower Co., 574 F.2d 23, 26 (1st Cir. 1978); see also

MacLeod v. D.C. Transit Sys., Inc., 283 F.2d 194, 195 n.1 (D.C. Cir. 1960) (indicating that a

trial judge may “convey[] his views about [a] settlement [offer] to the litigants’ counsel . . . who

[are] free to accept or reject the [j]udge’s views,” so long as the judge does not “in any way

[bring] ‘pressure’ on the parties” to settle). Coercing parties to settle is not only beyond a federal

court’s authority, but also is prohibited by the ethical rules that govern the conduct of federal

judges. See Code of Conduct for United States Judges Cannon 3A(4) (Commentary) (“A judge

may encourage and seek to facilitate settlement but should not act in a manner that coerces any

party into surrendering the right to have the controversy resolved by the courts.”). And in cases,

such as this one, “in which the United States is interested,” only designated government officials

and agencies are “authorized to settle litigation.” United States v. LaCroix, 166 F.3d 921, 923

(7th Cir. 1999). Issuing the plaintiffs’ requested injunction compelling the USDA to make a

specific settlement offer to the plaintiffs would improperly “transfer the litigant’s authority to

th[is] judge,” in violation of the Court’s duty to “respect th[e] decision[s] . . . made by those in

the Executive Branch of government entitled to manage litigation.” Id. Because this Court is

powerless to compel the USDA to settle with the plaintiffs in any particular manner or on any

particular terms, it cannot grant the injunctive relief requested by the plaintiffs.

       The plaintiffs also appear to seek a declaratory judgment that the USDA’s administrative

claims process is unconstitutional and violative of the APA. See Am. Compl. at 44. While the

Court has authority to grant such relief, see Declaratory Judgment Act, 28 U.S.C. § 2201 (2006);




                                                   8
APA, 5 U.S.C. § 706(2), a question remains as to whether granting this relief would actually

redress the plaintiffs’ alleged injury, see Newdow, 603 F.3d at 1011 (the plaintiffs’ “second

redressability problem is that declaratory and injunctive relief against the defendants . . . would

not prevent the claimed injury”). As previously noted, the plaintiffs’ claimed injury is the

USDA’s denial of equal treatment to the plaintiffs in settling their discrimination claims, as

compared to the settlement offers the USDA provided to similarly-situated African-American

and Native American farmers. Pls.’ Opp’n at 16. The District of Columbia Circuit has

recognized that there are “two remedial alternatives” to redress an equal protection injury such as

the one asserted in this case: (1) wholesale invalidation of the government action, or (2)

extension of the government benefit to those aggrieved by the exclusion. See Jacobs v. Barr, 959

F.2d 313, 317 (D.C. Cir. 1992) (quoting Heckler v. Matthews, 465 U.S. 728, 738-39 (1984)).

Neither type of relief would be afforded to the plaintiffs by a ruling holding the USDA’s

administrative claims process in this case unlawful and setting it aside. Indeed, such a ruling

would not (and could not) invalidate the settlement offers provided by the USDA to African-

American and Native American farmers, nor would it (or could it) compel the USDA, for the

reasons set forth above, to make an equivalent settlement offer to the plaintiffs. In other words,

it would not provide either of the two forms of relief that would redress the plaintiffs’ alleged

equal protection injury. See id. The ruling would merely place the plaintiffs in the position they

were in prior to the settlement offer made by the USDA. Thus, the plaintiffs’ requested

declaratory relief would not redress the injury they claim.

                                       IV. CONCLUSION

       For the foregoing reasons, the Court concludes that the plaintiffs have failed to satisfy the

redressability element of Article III standing with respect to their claims challenging the USDA’s




                                                  9
administrative claims process. Accordingly, the Court grants the USDA’s motion to dismiss

Counts III through VI of the fourth amended complaint for lack of subject-matter jurisdiction.

           SO ORDERED this 11th day of December, 2012. 8

                                                                     REGGIE B. WALTON
                                                                     United States District Judge




8
    The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.



                                                       10
