United States District Court, S.D. Mississippi, Northern Division
BLACK FARMERS AND AGRICULTURISTS ASSOCIATION, INC. AND THOMAS BURRELL, Plaintiffs,
JIM HOOD, ATTORNEY GENERAL, STATE OF MISSISSIPPI, Defendant.
MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
This cause is before the court on the motion of defendant Jim Hood, Attorney General, State of Mississippi, in his official capacity, to dismiss pursuant to Rule 12(b)(1) or 12(b)(6) of the Federal Rules of Civil Procedure. Rather than respond to the substance of the motion, plaintiffs Black Farmers and Agriculturists Association, Inc. and its president, Thomas Burrell,  filed a motion for leave to file a second amended complaint which they contend "addresses all of the alleged concerns and defects in the original Complaint (and First Amended Complaint) as set forth in Defendant's Motion to Dismiss." The proposed second amended complaint further adds claims against Attorney General Hood in his individual capacity, and includes various federal and state law claims against numerous other defendants. Both motions have been fully briefed and the court, having considered the parties' submissions on the motions, concludes, first, that Attorney General Hood's motion to dismiss the claims against him in his official capacity is well taken and should be granted. The court further concludes that plaintiffs' motion to amend their complaint to cure deficiencies in the original complaint and to add claims against Hood in his individual capacity should be denied for reasons set forth herein. The court further concurs in Hood's contention that since plaintiffs have no legitimate current, or proposed claims against Hood, then their motion to amend should be denied in toto as it does not make sense to transform plaintiffs' lawsuit, (which was brought initially against only Hood) into a new one against an entirely different group of dissimilarly situated defendants.
In 1997 and 1998, two class-action lawsuits, Pigford v. Glickman and Brewington v. Glickman (collectively Pigford I), were filed on behalf of groups of African-American farmers who asserted that the United States Department of Agriculture (USDA) had systematically discriminated against African-American farmers on the basis of race. On April 14, 1999, following consolidation of the cases, the United States District Court for the District of Columbia entered a consent decree approving a settlement of the claims. That consent decree established an October 12, 1999 deadline for the filing of eligible claims, and approximately 22, 700 claims were filed by that date. However, the consent decree further provided that claimants who failed to file by the October 12, 1999 deadline could obtain an extension until a "late-filing" deadline of September 15, 2000 upon a showing of "extraordinary circumstances". Although approximately 61, 000 individuals requested permission to file by this "late-filing" deadline, fewer than 3, 000 of those individuals were found to have demonstrated the required "extraordinary circumstances". Consequently, nearly 58, 000 "late-filers" did not have their discrimination claims heard.
In June 2008, Congress passed the 2008 Farm Bill which gave African-American claimants a right to pursue their discrimination claims if they had petitioned to participate in Pigford I but did not have their petitions considered because they were filed late. While the 2008 Farm Bill created a cause of action for many thousands of black farmers, it capped funding for valid claims at $100 million. Approximately 40, 000 claimants filed lawsuits under the 2008 Farm Bill, which suits were consolidated into a single case called In re Black Farmers Discrimination Litigation, 08-mc-0511 (D.D.C.), or Pigford II. It was apparent in light of the large number of complainants that the existing funding of $100 million was inadequate. Therefore, on February 18, 2010, the plaintiffs reached a settlement with the USDA and the Justice Department which required Congress to fund an additional $1.15 billion for successful claimants (which would bring total funding for valid claims to $1.25 billion). In keeping with that settlement agreement, in the fall of 2010, Congress passed the Claims Resolution Act of 2010, which provided $1.15 billion (additional to the $100 million already provided in the 2008 Farm Bill) to fund the settlement agreement. By order entered October 27, 2011, the court approved the settlement and thus resolved all of the claims in the consolidated lawsuits. The order established a 180-day period for submitting claims under the settlement running from November 14, 2011 to May 11, 2012, and explicitly provided that claims postmarked after May 11, 2012 would not qualify for an award.
In addition to this litigation by black farmers, similar lawsuits were brought by Native American farmers and ranchers, see Keepseagle v. Vilsack, No. 1:99-cv-03119 (D.D.C. 1999); by Hispanic farmers and ranchers, see Garcia v. Vilsack, No. 1:00-cv-2445 (D.D.C. 2000); and by female farmers and ranchers, see Love v. Vilsack, No. 1:00-cv-2502 (D.D.C. 2000). In Keepseagle, which was certified as a class action, a settlement was reached in April 2011 which made up to $760 million available to eligible claimants who filed claims on or before a December 7, 2011 filing deadline.
Unlike Pigford I/Pigford II and Keepseagle, the court in the Love and Garcia cases declined to certify those cases as class actions. Ultimately, in response to the Love and Garcia lawsuits, the USDA established a voluntary claims process to resolve discrimination claims of Hispanic and female farmers and ranchers as an alternative to litigation. The USDA made available up to $1.33 billion for claimants who filed their claims by the May 1, 2013 filing deadline.
Black Farmers and Agriculturists Association, Inc.
According to the allegations of the complaint, Black Farmers and Agriculturists Association, Inc. (BFAA) is a not-for-profit advocacy association, whose membership consists mostly of socially disadvantaged farmers, ranchers, landowners and the heirs, administrators and assigns of farmers, ranchers and landowners, and whose purpose is to "advocat[e] lawful ends and vindicat[e] the rights of its members within the State of Mississippi and elsewhere." More particularly, plaintiffs allege that BFAA "has been helping it [sic] members who were denied in Pigford I and Pigford II as well as its members who are actual and/or potential claimants in the Garcia and Love settlements" by "traveling throughout the country holding meetings and workshops to acquaint and explain - particularly to the heirs and administrators of farmers and ranchers - some of the terms and questions necessary for them to better understand the claims process" and "helping them to prepared [sic] Affidavits summarizing, detailing and specifying their allegations of discrimination and calculating economic damages." In this regard, BFAA alleges that while 18, 000 of the 61, 000 claimants in Pigford II were successful, the remaining 43, 000 claimants were denied relief. Plaintiffs aver that many of these denied claimants are illiterate and/or were unfamiliar with the claims process and/or farming industry jargon and hence were unable to properly complete the required claim forms. Plaintiffs allege that since many of the Garcia and Love claimants labor under similar burdens, their claims are likely to experience a similar fate to that visited upon so many of the Pigford II claimants. Plaintiffs allege that their purpose in conducting the meetings and/or workshops is to reach these individuals who were either denied relief in Pigford II or who desire plaintiffs' assistance in becoming claimants in the Love and Garcia voluntary claims process and to provide them assistance in presenting their claims. Plaintiffs allege that while BFAA charges a $100 fee for membership in the organization, BFAA charges no admission fee for its meetings and/or workshops and does not require anyone to become a member of the organization as a basis for attending these meetings and/or workshops.
On December 5, 2013, plaintiffs filed the present action against Mississippi Attorney General Jim Hood, in his official capacity only, complaining about a press release issued by Hood on October 23, 2013, just one day after a BFAA meeting/workshop in Hattiesburg, Mississippi. The press release stated the following:
Jackson, MS-Attorney General Jim Hood is warning consumers to be aware of persons or organizations offering help in filing claims in the Black Farmers Discrimination Litigation involving the United States Department of Agriculture.
"It has been brought to our attention that there are individuals/organizations who are holding meetings statewide and charging a fee to help black farmers file claims and participate in lawsuits when, in fact, the deadline to do so has long since passed, " said Attorney General Hood. "We are looking into these allegations and what we can do about them, but feel the need to warn consumers to be wary."
The federal courts gave final approval to the settlement on October 27, 2011, providing over $1 billion to settle claims by African American farmers that the USDA discriminated against them between 1981 and 1996 based on race, wrongfully denying them farm loans, loan servicing, and other benefits, or giving them loans with unfair terms. The deadline to file a claim for the settlement was May 11, 2012, more than one year ago.
"Where there is money involved, we find scammers trying to steal it from those who most need it, " said Attorney General Hood. "What a shame that we have to send out such a warning. You can never be too careful these days."
If you feel you may have already fallen for such a scam, please contact the Attorney General's Office at 601-359-4230 or 1-800-281-4418. You may also fill out and submit a complaint form online at www.agjimhood.com.
In their complaint, plaintiffs allege that the statements in this press release were
untrue, erroneous, overly broad, and misleading. They suggest that the efforts of Plaintiff's organization are a scam (and/or without adequate merit or credit) when, in fact, Plaintiff's organization has merit and attempts to deal fairly on behalf of disadvantaged farmers. Approximately 43, 000 people were denied in Pigford II and Plaintiff is advocating on their behalf so that they may be allowed to file further claims. In addition, Rule 24 Motions to Intervene have been filed in the Guadalupe Garcia and Love cases. Plaintiff seeks to obtain Temporary Restraining Orders to ask that the filing periods not be allowed to expire and that they be able to include disadvantaged farmers based on Equal Protection arguments. It is not absolutely and finally determined, that the deadlines for filing have passed. In the alternative, even if this Court does consider that a deadline has passed, there is no foundation for the Attorney General to publicly suggest and claim that consumers should be aware of other efforts to help black farmers which are aimed at attempting to allow further relief through the legal process, and to raise arguments that deadlines should be extended. In the alternative and in addition, the statements of Attorney General Jim Hood are sufficiently broad and effectively discredit Plaintiff's organization. The statements have caused losses to Plaintiff. In the ...