EAST ST. LOUIS – Chief U.S. District Judge Nancy Rosenstengel retrieved three Marion County farmers from a class action in Texas on Nov. 10, so she can hear their challenge to exclusion of whites from a loan forgiveness program.
Rosenstengel denied a government motion that would have forced Ryan Kent, Joshua Morton, and Matthew Morton to remain in the class action.
District Judge Reed O’Connor of Fort Worth exercised jurisdiction over them in October, but told them they could seek relief from Rosenstengel.
She granted it, finding she would unduly prejudice and tactically disadvantage them if she stayed their complaint to await a result in Texas.
She lifted a temporary stay, set a status conference for Nov. 23, and ordered the agriculture department to answer the complaint by Dec. 8.
Pacific Legal Foundation of Sacramento, Calif. filed the suit against agriculture secretary Tom Vilsack in June, aiming to overturn Section 1005 of March’s federal stimulus bill.
Section 1005 authorized 120 percent forgiveness of loans that the department guaranteed, for every ethnic group except white.
The first suit, Miller v. Vilsack, started in O’Connor’s court.
Eleven suits followed in district courts from Tennessee to Wyoming.
O’Connor and other judges granted preliminary injunctions against disbursement of forgiveness funds.
In July, O’Connor certified a farmer class and a rancher class.
He found the government put forth no evidence of intentional discrimination by the agriculture department in at least 10 years.
The department moved to stay proceedings in other district courts, claiming O’Connor included those plaintiffs in his classes.
In Rosenstengel’s court, the department claimed O’Connor granted the injunction that Kent, Morton and Morton sought.
The department claimed they would benefit from any judgment applicable to the classes and in the meantime they would have the protection of the injunction.
The department claimed separate litigation would burden judicial resources and impose hardship on the department. The department also claimed Miller deserved deference as the first to file.
In August, Glenn Roper of Pacific Legal Foundation responded that the department intended to put Kent, Morton and Morton on hold indefinitely.
Roper wrote that the parties in Texas “agreed to proceed at a rather leisurely pace, so there is every chance that plaintiffs here can reach final judgment first.”
He claimed the department might appeal class certification, Miller would likely amend the complaint, and final resolution might take several years.
He claimed a stay would force plaintiffs to associate with incompatible counsel who didn’t believe factual discovery was necessary.
He claimed that Kent, Morton and Morton didn’t press the same claims as Miller and that they found Miller’s claims problematic.
In O’Connor’s court, they moved to opt out of the farmer class.
In October, O'Connor decided they couldn’t opt out.
Rosenstengel decided they could.
"The first to file rule does not apply here because this case is not duplicative of the Miller litigation,” she wrote.
She wrote that Miller alleged violations of the Civil Rights Act of 1964, but Kent, Morton and Morton alleged violation of the Fifth Amendment and the Administrative Procedure Act.
"Plaintiffs will continue to be delayed if the court stays the case pending the Miller litigation,” Rosenstengel wrote.
She wrote that dispositive motions for a Pacific Legal Foundation case in Florida with similar claims are due Jan. 6.
She wrote that dispositive motions in Miller wouldn’t be completed until April.
In the conference she set for Nov. 23, she plans to hear discussion of discovery needs and the possibility of an expedited schedule.