                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 DAKOTA RURAL ACTION, et al.,
                                                         Civil Action No. 18-2852 (BAH)
                       Plaintiffs,
                                                         Chief Judge Beryl A. Howell
                       v.

 UNITED STATES DEPARTMENT OF
 AGRICULTURE, et al.,

                       Defendants.


                        MEMORANDUM OPINION AND ORDER

       The plaintiffs—Dakota Rural Action, Institute for Agriculture and Trade Policy, Iowa

Citizens for Community Improvement, Citizens Action Coalition of Indiana, Association of

Irritated Residents, White River Waterkeeper, Food & Water Watch, and Animal Legal Defense

Fund—have sued the United States Department of Agriculture (“USDA”), the Farm Service

Agency (“FSA”), and two federal officials—Sonny Perdue, Secretary of Agriculture; and

Richard Fordyce, Administrator of FSA. The suit alleges violations of both the National

Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq.; 40 C.F.R. § 1500, et seq., and

the Administrative Procedure Act (“APA”), 5 U.S.C. § 500, et seq., pertaining to the FSA’s

allegedly unlawful promulgation of a 2016 rule that categorically excludes FSA assistance loans

provided for construction of medium-sized concentrated animal feeding operations (“CAFOs”)

from requiring a prior environmental assessment or environmental impact statement. See

generally Compl., ECF No. 1. Simultaneously with the Complaint, the plaintiffs filed a Notice

of Related Case, ECF No. 2, representing that the present case “involves common issues of fact”

with Food & Water Watch v. United States Department of Agriculture, No. 17-cv-1714 (BAH),


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an earlier-filed case assigned to the undersigned judge. Under this Court’s rules, the present case

was then also assigned to the undersigned judge. See LCvR 40.5(c)(1) (“Where the existence of

a related case in this Court is noted at the time . . . the complaint is filed, the Clerk shall assign

the new case to the judge to whom the oldest related case is assigned.”). The defendants

promptly filed an Objection to Plaintiffs’ Notice of Related Case (“Defs.’ Obj.”), ECF No. 15.

For the reasons set forth below, the defendants’ objection is sustained and this case will be

transferred to the Calendar and Case Management Committee for random reassignment. LCvR

40.5(c)(1).

        The general rule is that “all new cases filed in this courthouse are randomly assigned . . .

in order ‘to ensure greater public confidence in the integrity of the judicial process,’ ‘guarantee[]

fair and equal distribution of cases to all judges,’ ‘avoid public perception or appearance of

favoritism in assignments, and reduce[] opportunities for judge-shopping.’” Singh v.

McConville, 187 F. Supp. 3d 152, 154–55 (D.D.C. 2016) (quoting Tripp v. Exec. Office of the

President, 196 F.R.D. 201, 202 (D.D.C. 2000). Yet, “in the interest of judicial economy,” Local

Civil Rule 40.5 creates an exception for “related cases.” Id. at 155. Under that rule, the plaintiff

may complete a form, to be provided to the Clerk of the Court and served on the defendant with

the complaint, designating the action as related to an earlier-filed action. LCvR 40.5(b)(2).

Defendants may lodge an objection at the time of the defendants’ first responsive pleading. Id.

        Civil cases are “related when the earliest is still pending on the merits in the District

Court and they (i) relate to common property, or (ii) involve common issues of fact, or (iii) grow

out of the same event or transaction, or (iv) involve the validity or infringement of the same

patent.” LCvR 40.5(a)(3). “The party requesting the related-case designation bears the burden

of showing that the cases are related under Local Civil Rule 40.5.” Singh, 187 F. Supp. 3d at



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155. The burden on the party claiming relation is heavy as random assignment of cases is

essential to the public’s confidence in an impartial judiciary. Deviating from that foundational

principle is appropriate only if the relationship between the two cases is certain. The judge to

whom a case is assigned resolves any objection to a related-case designation. Singh, 187 F.

Supp. 3d at 155; LCvR 40.5(c)(1). If the objection is sustained, the judge may transfer the later-

filed case to the Calendar and Case Management Committee, which then decides if good causes

exists for the transfer and thus random reassignment of the case. LCvR 40.5(c)(1).

       In Food & Water Watch, which is still pending, the plaintiffs challenge under both NEPA

and the APA the FSA’s “Finding of No Significant Impact, dated July 22, 2015, and [the FSA’s]

approval of One More Haul Farm’s application for a guaranteed loan to construct and operate a

poultry [CAFO].” Compl. ¶ 1, ECF No. 1 (No. 17-1714). The two cases, the plaintiffs claim,

share “common issues of fact,” as in each whether the “FSA improperly departed from or

disregarded the requirements of NEPA with regard to CAFO loans” depends on “whether the

alleged environmental impacts of CAFOs are ‘individually or cumulatively significant’ under

NEPA.” Pls.’ Reply Supp. Notice of Related Case (“Pls.’ Reply”) at 3, ECF No. 17. More

specifically, each case will turn on CAFOs’ individual and cumulative effect on surface water

pollution, groundwater quality and quantity, biological resources, air quality, community and

quality of life, and family farmers. Id.

       The plaintiffs’ claim of relation is not frivolous. Cases are related under the Rule

40.5(a)(3)(ii) if they share “common issues of fact,” but the rule offers no guidance as to how

much factual overlap is needed or how similar the underlying facts must be. As for these two

cases, both the validity of the single 2015 loan provided to One More Haul, at issue in Food &

Water Watch, and the FSA’s subsequent 2016 rulemaking that categorically exempts medium-



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sized CAFOs from undergoing environmental assessments prior to receipt of an FSA loan, at

issue in this case, require analyzing the same kinds of facts: CAFOs’ impact on a host of similar

environmental considerations. That, however, is insufficient to support a claim of relation. Such

a reading of the related-case rule would sweep too broadly, encompassing multiple actions

implicating common analyses of common types of facts. Rather, to satisfy the related-case rule,

the underlying facts themselves must be common, a standard these two cases do not meet. For

Food & Water Watch, the administrative record will present facts relevant only to the

environmental effects of a single CAFO in Maryland. By contrast, the administrative record will

present facts relevant to the baseline environmental effect of medium-sized CAFOs. Even if

NEPA requires consideration of whether the environmental impact of CAFOs is cumulatively

significant, in each case the question seems to be how the CAFOs at issue—in one case a single

CAFO and in the other case a class of CAFOs—contribute to the cumulative impact. At bottom,

the plaintiffs may have shown that the two cases will pose similar questions dependent on a

similar class of facts, but have failed to establish that the facts dictating the answers to those

questions are common.

       Treating this case as unrelated to Food & Water Watch is consistent with prior

interpretations of Rule 40.5. For example, in Keepseagle v. Glickman, an objection to relation

was sustained even though plaintiffs in the later-filed case claimed to “have been injured by the

same policies of defendant and in the same manner as were the plaintiffs” in the earlier-filed case

because one set of plaintiffs claimed to have been discriminated against because they were

Native American and another set because they were African American. 194 F.R.D. 1, 3 (D.D.C.

2000). Claiming that “both sets of plaintiffs are farmers who are members of protected classes

and both complain of similar discrimination at the hands of the Department of Agriculture” was



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not enough to “waiv[e] the normal judicial policy of random assignment of cases.” Id.

Likewise, in Stewart v. O’Neill, the Court rejected the plaintiff’s related-case designation when

one case alleged discrimination against African–American agents at the Bureau of Alcohol,

Tobacco, and Firearms, and the second case alleged discrimination against Hispanic agents at the

Uinited States Customs Service, despite both agencies being part of the Department of Treasury

and the alleged discriminatory conducted having been perpetrated by individuals governed by the

same Department of Treasury policies. 225 F. Supp. 2d 16, 20 (D.D.C. 2002).

        In comparison, in Autumn Journey Hospice, Inc. v. Sebelius, the cases at issue each

involved hospice care providers that had received a demand from the Department of Health and

Human Services for the repayment of funds that had been disbursed in excess of a cap set by the

Department’s applicable regulation. 753 F. Supp. 2d 135, 138 (D.D.C. 2010). Each hospice care

provider then raised an identical challenge to the lawfulness of the identical repayment demands.

Id. at 139. The objection to relation was overruled because each case concerned “a hospice care

provider subject to recently issued cap repayment demands calculated pursuant to the same

regulation.” Id. at 140. Similarly, in Singh v. McConville, an objection to relation was overruled

because each of the two cases under review involved observant Sikhs, all of whom had requested

on the same grounds an exemption from the Department of Defense’s and Army’s regulations

governing grooming and personal appearance. 187 F. Supp. 3d at 155–56. All plaintiffs had

been subjected to the same exemption process and challenged the grooming regulations as

applied to Sikh servicemembers. Id. at 156.

        The rest of the plaintiffs’ bases for relation are unavailing as well. According to the

plaintiffs, both the instant case and the first-filed case allege that procedural violations of the

NEPA and the APA “deprived the respective plaintiffs and the public of proper notice and an



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opportunity to comment on FSA’s decision-making process.” Pls.’ Reply at 4. The single loan

and 2016 rule-making, however, were separate processes and here too the plaintiffs’ claims

depend on distinct facts. Finally, the plaintiffs draw attention to the “commonality of parties” as

a reason to treat the cases as related. Pls.’ Reply at 6. Of the eight plaintiffs in this matter, only

Food & Water Watch is also a party in the earlier-filed case. Moreover, overlapping plaintiffs is

not among the bases for a related-case designation.

       At bottom, the plaintiffs have failed to meet their burden that departure from the practice

of random case assignment is warranted. For the reasons set forth above, the defendants’

objection is sustained. Consistent with Local Civil Rule 40.5(c)(1), this case shall be transferred

to the Calendar and Case Management Committee for random reassignment.

       SO ORDERED.

       Date: April 1, 2019

                                                       __________________________
                                                       BERYL A. HOWELL
                                                       Chief Judge




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