NATIONAL LAW JOURNAL

Hispanic farmers again seek class certification in bias suit against USDA

Tresa Baldas
June 9, 2009

A group of Hispanic farmers claims the federal government is dragging its feet in a lawsuit against the U.S. Department of Agriculture (USDA) that claims they've been discriminated against for years, either being denied government loans or ignored altogether.

The nine-year-old lawsuit, Garcia v. Vilsack, has hit one snag after another since being filed in the U.S. District Court for the District of Columbia in 2000. To date, no money has been received by any of the plaintiffs, and class certification has not yet been granted, although similar class actions filed by African-American farmers and Native-American farmers have been certified.

Most recently, on Friday, attorneys for the Hispanic plaintiffs filed a petition requesting an en banc hearing in the D.C. Circuit, hoping to keep the prospect of class certification alive.

Attorney Stephen Hill of Washington's Howrey, who is representing the plaintiffs pro bono, alleges that his clients are being treated unfairly compared to the other minority plaintiffs. For example, he said, the African-American farmers who filed an identical class action in 1997 have received roughly $1 billion in settlements, plus another $1.25 billion recently proposed by President Obama.

"So in effect, $2.25 billion has been set aside for black farmers, and not one red cent for anyone else," said Hill, arguing that a delay or denial of farm loans is causing many Hispanics to lose their farms. "Farming is very time sensitive, and if you don't get your money when you need it, you are not going to get an optimal crop yield. Before you know it, you have a failed farmer."

Hill said that he reached out to the government in May, hoping to reach some type of settlement.

"We got a very curt reply — a three sentence letter saying, 'At the present time, we're not interested in trying to settle the case,' " Hill said.

The U.S. Department of Justice declined comment, citing government policy that prohibits it from commenting on pending litigation.

According to Hill, the case hinges on a crucial issue that he is hoping the entire D.C. Circuit agrees to listen to: whether or not USDA failed to investigate civil rights complaints filed by Hispanic farmers. Hispanic farmers for years have alleged that they are either denied loan applications upfront or that they are denied assistance in filling out the form, he said. They filed complaints with the USDA, but their complaints were ignored, he alleged.

In 2007, a federal court dismissed the failure-to-investigate claims. In April, a panel with the D.C. Circuit affirmed the lower court's dismissal. Now, plaintiffs are hoping the full bench hears them out.

What irks Hill is that the African-American farmers and Native-American farmers both won class certification using that failure-to-investigate argument, he said. He can't fathom why it's not working for his clients.

"There is a question of of fundamental fairness here because of our identical cases," Hill said. "Two were certified as classes under the very same basis that our judge refuses to certify....We are still fighting that issue. It seems like a long time to us. The process is a slow one."