No.

_______

In the Supreme Court of the United

States
♦

LEISL M. CARPENTER,
Petitioner,
v.
THOMAS J. VILSACK, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF AGRICULTURE, ET AL.,
Respondents.
♦
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
♦

PETITION FOR A WRIT OF CERTIORARI

♦

WILLIAM E. TRACHMAN* BRADEN BOUCEK

*Counsel of Record Southeastern Legal
JAMES L. KERWIN Foundation
GRADY J. BLOCK 560 W. Crossville Rd.,
Mountain States Legal Suite 104
Foundation Roswell, Georgia
2596 South Lewis Way Telephone: (770) 977-2131
Lakewood, Colorado 80227 [email protected]
Telephone: (303) 292-2021
[email protected]
[email protected]
[email protected]
Counsel for Petitioner

March 11, 2024

 QUESTIONS PRESENTED

Section 1005 of the American Rescue Plan Act of

2021 established a debt relief program for “socially
disadvantaged” farmers and ranchers. The United
States Department of Agriculture (USDA)
subsequently issued a Notice of Funds Availability
defining “socially disadvantaged farmers and
ranchers” based on race. Carpenter was ineligible for
Section 1005 debt relief because she is Caucasian.
Multiple lawsuits followed, including Carpenter’s.
Before Section 1005 was enjoined, at least four
payments were made to recipients in New Mexico.
In 2022, Congress repealed Section 1005, but did
not address the payments that USDA made before the
repeal. In short, Congress has never fixed the
imbalance between those who received a Section 1005
payment based on their race and those who did not.
Carpenter’s suit was dismissed, based on (1)
Carpenter’s residence in Wyoming, not New Mexico,
and (2) the government’s argument that the repeal of
Section 1005 mooted Carpenter’s case.
This petition thus presents the following questions:
1. Whether, when a statute treats individuals
differently based on race, a federal agency can defeat
a plaintiff’s standing after their complaint is filed by
adding non-statutory factors to benefit distributions
that are purportedly race neutral.
2. Whether the voluntary cessation doctrine
applies when Congress repeals a statute, but when
the government does not contend that it has
eradicated the effects of its previous racially
discriminatory conduct.

i
 PARTIES TO THE PROCEEDING

Petitioner Leisl Carpenter was the plaintiff-

appellant in the lower court proceedings in the Tenth
Circuit and the U.S. District Court for the District of
Wyoming. 1
Respondents were defendants-appellees in the
courts below. They are Thomas J. Vilsack, in his
official capacity as Secretary of the United States
Department of Agriculture; and Zach Ducheneaux, in
his official capacity as Administrator of the Farm
Service Agency (collectively, USDA or the USDA
Respondents).

1 Another plaintiff, Sara Rogers, also brought suit against

Section 1005, and the parties agreed before the Tenth Circuit
Court of Appeals to consolidate briefing, and that Rogers would
be bound by the ultimate ruling in Carpenter’s case.

ii
 STATEMENT OF RELATED PROCEEDINGS

The following proceedings are directly related to

this case under Rule 14.1(b)(iii):
United States District Court (D. Wyo.):
• Carpenter v. Vilsack, No. 21-CV-0103-F (D.
Wyo.), judgment entered on October 7, 2022.
United States Court of Appeals (10th Cir.):
• Carpenter v. Vilsack, No. 22-8079 (10th Cir.),
petition for rehearing en banc was denied on
December 12, 2023;
• Carpenter v. Vilsack, No. 22-8079 (10th Cir.),
judgment entered on October 16, 2023.

iii
 TABLE OF CONTENTS

QUESTIONS PRESENTED .......................... i

PARTIES TO THE PROCEEDING ............... ii
STATEMENT OF RELATED PROCEEDINGS iii
TABLE OF CONTENTS ................................ iv
TABLE OF AUTHORITIES .......................... vii
PETITION FOR A WRIT OF CERTIORARI 1
OPINIONS BELOW....................................... 1
JURISDICTION ............................................. 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ............................ 1
STATEMENT OF THE CASE ....................... 2
I. Legal Framework ................................ 2
II. Factual Background ............................ 5
III. Procedural History .............................. 10
REASONS FOR GRANTING THE PETITION 12
INTRODUCTION .......................................... 12
1. The Decision Below Creates a Roadmap
for Federal Agencies to Engage in
Invidious Race Discrimination, and
Creates a Split of Authority. ............... 13

iv
 a. An Individual Should Not Lose
Standing to Sue Based on
Internal Agency Administrative
Decisions Made After a
Complaint is Filed. ................... 13
b. Carpenter’s Suit is Not Moot,
Because There Remains an Order
that Could Have Real-World
Effect. ........................................ 20
c. Carpenter Seeks Prospective
Relief That a Court Could Order
With Respect to the USDA
Respondents—Compelling USDA
to Correct its Previous Racial
Discrimination. ......................... 25
2. A Court Should Not Dismiss a Case
Based on Mootness if the Defendant
Failed to Eradicate the Effects of its
Misconduct. ......................................... 27
3. This Case is an Ideal Vehicle to Resolve
the Questions Presented. .................... 32
4. At a Minimum, the Court May Consider
Holding the Petition for Subsequent
Vacatur and Remand Until After it
Issues an Opinion in FBI v. Fikre, 22-
1178. ..................................................... 33
CONCLUSION ............................................... 34

v
Appendix A — Court of Appeals Order
Denying Petition for Rehearing En Banc
(December 12, 2023)....................................... 2a

Appendix B — Court of Appeals Opinion

(October 16, 2023) .......................................... 5a

Appendix C — Order Granting Defendants’

Motion to Lift Stay and Dismiss as Moot
(October 7, 2022) ............................................ 33a

Appendix D — Statutory and Regulatory

Provisions:
American Rescue Plan Act of 2021,
Pl 117-2, March 11, 2021, 135 Stat
4.................................................... 40a

U.S. Const. amend. V .................. 42a

vi
 TABLE OF AUTHORITIES
Cases Page(s)

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) ................................ 3
Adarand Constructors, Inc. v. Slater,
528 U.S. 216 (2000) ................................ 5
Ayala v. Armstrong,
2017 WL 3659161 (D. Idaho, 2017) ....... 23
Barr v. Am. Ass’n of Political Consultants,
140 S. Ct. 2335 (2020) ............................ 24
Bolling v. Sharpe,
347 U.S. 497 (1954) ................................ 2
Boyd v. U.S.,
2023 WL 3118132 (Fed. Ct. Cl., 2023) .. 16
Bras v. California Public Utilities Comm’n,
59 F.3d 869 (9th Cir. 1995) .................... 19
C.M. ex rel. Marshall v. Bentley,
13 F. Supp. 3d 1188 (M.D. Ala. 2014) ... 24
Chafin v. Chafin,
568 U.S. 165 (2013) ................................ 4
City of Los Angeles v. Lyons,
461 U.S. 95 (1983) .................................. 21, 28
Clark v. Cohen,
794 F.2d 79 (3d Cir. 1986) ..................... 26
Cleveland Branch of the N.A.A.C.P. v. City of
Parma, Oh.,
263 F.3d 513 (6th Cir. 2001) .................. 31

vii
Day v. Bond,
500 F.3d 1127 (10th Cir. 2007) .............. 20
DeFunis v. Odegaard,
416 U.S. 312 (1974) ................................ 28, 30
Eng’g Contractors Ass’n of S. Fla. Inc. v.
Metro. Dade Cnty.,
122 F.3d 895 (11th Cir. 1997) ................ 18
Faust v. Vilsack,
519 F. Supp. 3d 470 (E.D. Wis. 2021) ... 7, 8
Fikre v. Fed. Bureau of Investigation,
904 F.3d 1033 (9th Cir. 2018) ................ 30
Fisk v. Bd. of Trs. of California State Univ.,
2023 WL 2919317 (S.D. Cal., 2023) ...... 3
Flint v. Dennison,
488 F.3d 816 (9th Cir. 2007) .................. 26
Forest Guardians v. Johanns,
450 F.3d 455 (9th Cir. 2006) .................. 25
Friends of the Earth, Inc. v. Laidlaw Env’t
Serv. (TOC), Inc.,
528 U.S. 167 (2000) ................................ 27
Ghailani v. Sessions,
859 F.3d 1295 (10th Cir. 2017) .............. 31
Golden State Transit Corp. v. City of Los
Angeles,
475 U.S. 608 (1986) ................................ 28
Graham v. Richardson,
403 U.S. 365 (1971) ................................ 27

viii
Gratz v. Bollinger,
539 U.S. 244 (2003) ................................ 3, 15, 18
Heckler v. Mathews,
465 U.S. 728 (1984) ................................22, 24, 26
Holman v. Vilsack,
582 F. Supp. 3d 568 (W.D. Tenn. 2022) 19
Holman v. Vilsack,
No. 21-1085-STA-jay, 2021 WL 2877915
(W.D. Tenn. Jul. 8. 2021) ....................... 9
Hunter v. U.S. Dep’t of Educ.,
2023 WL 172199 (D. Ore. 2023) ............ 23
In re Circuit City Stores, Inc.,
2022 WL 17722849 (Bankr. E.D. Va.
2022) ....................................................... 23
Indiana Emp. Sec. Div. v. Burney,
409 U.S. 540 (1973) ................................ 28
Johnson v. Jones,
42 F.3d 1385 (4th Cir. 1994) .................. 31
League of United Latin Am. Citizens v. Perry,
548 U.S. 399 (2006) ................................ 2
Los Angeles Cnty. v. Davis,
440 U.S. 625 (1979) ................................ 5, 28
Louisiana v. U.S.,
380 U.S. 145 (1965) ................................ 29
Miller v. Vilsack,
2021 WL 11115194 (N.D. Tex. 2021) .... 9

ix
Milliken v. Bradley,
433 U.S. 267 (1977) ................................ 20, 26
Monterey Mech. Co. v. Wilson,
125 F.3d 702 (1997)................................ 16
Moritz v. C. I. R.,
469 F.2d 466 (10th Cir. 1972) ................ 24
New York State Rifle & Pistol Ass’n, Inc. v.
City of New York, NY,
140 S. Ct. 1525 (2020) ........................... 21
Ne. Fla. Chapter of Associated Gen.
Contractors of Am. v. City of Jacksonville,
Fla.,
508 U.S. 656 (1993) ................................ 3, 15, 18
Price v. City of Charlotte, N.C.,
93 F.3d 1241 (4th Cir. 1996) .................. 18
Prison Legal News v. Fed. Bureau of Prisons,
944 F.3d 868 (10th Cir. 2019) ................ 25
Regents of the Univ. of California, v. Bakke,
438 U.S. 265 (1978) ................................ 4
Rio Grande Silvery Minnow v. Bureau of
Reclamation,
601 F.3d 1096 (10th Cir. 2010) .............. 31
Row 1 Inc. v. Becerra,
92 F.4th 1138 (D.C. Cir. 2024) .............. 29
State Emp. Bargaining Agent Coal. v.
Rowland,
494 F.3d 71 (2d Cir. 2007) ..................... 26

x
Students for Fair Admissions, Inc. v. President
and Fellows of Harvard Coll.,
600 U.S. 181 (2023) ................................2, 3, 13, 20
Sullivan v. Benningfield,
920 F.3d 401 (6th Cir. 2019) .................. 19, 21
Swann Charlotte-Mecklenburg Bd. of Educ.,
402 U.S. 1 (1971) ....................................22, 24, 29
Thomas S. by Brooks v. Flaherty,
902 F.2d 250 (4th Cir. 1990) .................. 23
Turner v. Fouche,
396 U.S. 346 (1970) ................................ 18
U.S. Commodity Futures Trading Comm’n v.
Escobio,
946 F.3d 1242 (11th Cir. 2020) .............. 30
United States v. Paradise,
480 U.S. 149 (1987) ................................ 22
United States v. W. T. Grant Co.,
345 U.S. 629 (1953) ................................ 30
Vitolo v. Guzman,
999 F.3d 353 (6th Cir. 2021) .................. 2
West Virginia v. EPA,
597 U.S. 697 (2022) ................................ 5
Wynn v. Vilsack,
545 F. Supp. 3d 1271 (M.D. Fla. 2021) . 9
Zukerman v. U.S. Postal Serv.,
64 F.4th 1354 (D.C. Cir. 2023) .............. 21

xi
Statutes
7 U.S.C. § 2279(a)........................................... 6
7 U.S.C. § 2279(a)(5) ...................................... 5
7 U.S.C. § 2279(a)(6) ...................................... 6
28 U.S.C. § 1254(1)......................................... 1
INFLATION REDUCTION ACT OF 2022,
PL 117-169, August 16, 2022, 136 Stat
1818 ........................................................ 9
Regulations

Notice of Funds Availability; American Rescue

Plan Act of 2021 Section 1005 Loan
Payment (ARPA),
86 Fed. Reg. 28329 (May 26, 2021) ....... 7
Other Authorities

13A Charles A. Wright et al., Federal Practice

and Procedure
§ 3533.1 n.22 (3d ed. 2023) .................... 29
Federal Bureau of Investigation v. Fikre, 22-
1178, Transcript of Oral Argument before
the Supreme Court of the United States 34

xii
 PETITION FOR A WRIT OF CERTIORARI

Leisl Carpenter respectfully petitions for a writ of

certiorari to review the judgment of the United States
Court of Appeals for the Tenth Circuit.
Alternatively, Carpenter asks that this Court hold
the petition, vacate the Tenth Circuit’s decision, and
remand in light of a case currently pending before this
Court that will address mootness questions in the
context of the voluntary cessation doctrine. See Fed.
Bureau of Investigation, et al., v. Yonas Fikre, 22-
1178.
OPINIONS BELOW

The Tenth Circuit’s opinion is reported at 2023 WL

6810960 (not reported in the Federal Reporter), and
reproduced at App. at 5a. The District Court’s opinion
for plaintiff-appellee Carpenter is reported at 2022
WL 20813305 (not reported in the Federal
Supplement), and reproduced at App. at 33a.
JURISDICTION

The judgment of the Court of Appeals was entered

on October 16, 2023. Petitioner timely filed for
rehearing en banc, which was denied on December 12,
2023. This Court has jurisdiction under 28 U.S.C. §
1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

Section 1005 of the American Rescue Plan Act of

2021 (ARPA) is reproduced in the appendix at App.
40a.

(1)
 2

Carpenter seeks relief under the equal protection

principles of the Fifth Amendment to the United
States Constitution, as incorporated against the
federal government. See Bolling v. Sharpe, 347 U.S.
497 (1954). The Fifth Amendment to the U.S.
Constitution is reproduced at App. at 42a.
STATEMENT OF THE CASE

I. Legal Framework
“It is a sordid business, this divvying us up by race.”
League of United Latin Am. Citizens v. Perry, 548 U.S.
399, 511 (2006) (Roberts, C.J., concurring). It is hard
to imagine a more straightforward effort to
discriminate than explicitly apportioning federal debt
relief based on the color of one’s skin. See Students for
Fair Admissions, Inc. v. President and Fellows of
Harvard Coll., 600 U.S. 181, 220 (2023) (SFFA) (“We
have time and again forcefully rejected the notion that
government actors may intentionally allocate
preference to those who may have little in common
with one another but the color of their skin.”) (internal
quotation marks omitted).
The Sixth Circuit recognized the irrationality of
relying on race for COVID-19-related benefits in the
context of another race-based subsidy program
contained within ARPA. See Vitolo v. Guzman, 999
F.3d 353, 364 (6th Cir. 2021) (“[I]ndividuals who trace
their ancestry to Pakistan and India qualify for
special treatment. But those from Afghanistan, Iran,
and Iraq do not. Those from China, Japan, and Hong
Kong all qualify. But those from Tunisia, Libya, and
 3

Morocco do not.”); accord SFFA, 600 U.S. at 216

(“When asked at oral argument ‘how are applicants
from Middle Eastern countries classified, such as
Jordan, Iraq, Iran, and Egypt,’ UNC’s counsel
responded, ‘I do not know the answer to that
question.’”) (cleaned up); id. at 291 (“Where do these
boxes come from? Bureaucrats.”) (Gorsuch, J.,
concurring).
Moreover, if race is even just one portion of the
government’s decision-making process, a plaintiff
establishes an injury that suffices to meet the
standing requirement under Article III. See Ne. Fla.
Chapter of Associated Gen. Contractors of Am. v. City
of Jacksonville, Fla., 508 U.S. 656, 666 (1993) (“To
establish standing, therefore, a party challenging a
set-aside program like Jacksonville’s need only
demonstrate that it is able and ready to bid on
contracts and that a discriminatory policy prevents it
from doing so on an equal basis.”); see also Gratz v.
Bollinger, 539 U.S. 244, 262 (2003) (describing the
holding of Northeastern Florida that a business was
not required “to show that one of its members would
have received a contract absent the ordinance in order
to establish standing”).
In other words, an equal protection injury is not
simply the unfair outcome that might result, but
rather “a discriminatory classification [that] prevents
the plaintiff from competing on an equal footing.”
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211
(1995); Fisk v. Bd. of Trs. of California State Univ.,
No.: 22-CV-173 TWR (MSB), 2023 WL 2919317, *9
 4

(S.D. Cal. Apr. 12 2023) (characterizing the injury in

Regents of the Univ. of California, v. Bakke, 438 U.S.
265 (1978), as “the medical school’s decision not to
permit him to compete for all 100 spots in the class . .
. regardless of whether he could prove that he would
have been admitted had he been allowed to compete
for all 100 spots”). Put simply, Carpenter has standing
to challenge Section 1005 if she suffered an injury
even in part based on her race.
Separately, as for mootness, courts generally reject
a defendant’s mootness argument where, if the court
entered the requested relief, it would impact the
parties. “[A] case becomes moot only when it is
impossible for a court to grant any effectual relief
whatever to the prevailing party.” Chafin v. Chafin,
568 U.S. 165, 172 (2013) (internal quotation marks
omitted). By contrast, “[a]s long as the parties have a
concrete interest, however small, in the outcome of the
litigation, the case is not moot.” Id. at 172 (emphasis
added); id. at 176 (“However small that concrete
interest may be due to potential difficulties in
enforcement, it is not simply a matter of academic
debate, and is enough to save this case from
mootness.”).
And where a defendant relies on its own voluntary
cessation to establish mootness, the general rule is
that courts may accept a showing of mootness if the
government can satisfy two factors: first, there must
be no reasonable expectation that the alleged
violation will recur, and second, interim relief or
events must have completely and irrevocably
 5

eradicated the effects of the alleged violation. See, e.g.,

Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979)
(setting out two-part test); see id. at 631 (“When both
conditions are satisfied it may be said that the case is
moot because neither party has a legally cognizable
interest in the final determination of the underlying
questions of fact and law.”) (emphasis added).
In the context of voluntary cessation, the
government bears a heavy burden in meeting the two-
part standard to show that it has mooted a claim. See
West Virginia v. EPA, 597 U.S. 697, 719 (2022) (“That
burden is ‘heavy’ where, as here, the only conceivable
basis for a finding of mootness in the case is the
respondent’s voluntary conduct.”) (internal brackets
and quotation marks omitted); Adarand Constructors,
Inc. v. Slater, 528 U.S. 216, 224 (2000) (“It is no small
matter to deprive a litigant of the rewards of its efforts
. . . . Such action on grounds of mootness would be
justified only if it were absolutely clear that the
litigant no longer had any need of the judicial
protection that it sought.”) (emphasis added).
II. Factual Background

President Biden signed ARPA on March 11, 2021.

Section 1005 of its text was blunt. It provided up to
120% debt relief for certain “socially disadvantaged”
farmers and ranchers. App. at 8a. That term was
given the same meaning as it was in the Food,
Agriculture, Conservation, and Trade Act of 1990. See
7 U.S.C. § 2279(a)(5) (“The term ‘socially
disadvantaged farmer or rancher’ means a farmer or
 6

rancher who is a member of a socially disadvantaged

group.”); 7 U.S.C. § 2279(a)(6) (“The term ‘socially
disadvantaged group’ means a group whose members
have been subjected to racial or ethnic prejudice
because of their identity as members of a group
without regard to their individual qualities.”).
In USDA’s Notice of Funds Availability, it
specifically identified which racial demographics were
therefore eligible for 120% debt relief: American
Indians or Alaskan Natives, Asians, Blacks or African
Americans, Native Hawaiians or other Pacific
Islanders, and Hispanics or Latinos.
Socially Disadvantaged Farmer or Rancher
means a farmer or rancher who is a member
of a socially disadvantaged group whose
members have been subjected to racial or
ethnic prejudice because of their identity as
members of a group without regard to their
individual qualities, as defined by section
2501(a) of the Food, Agriculture,
Conservation, and Trade Act of 1990 (7
U.S.C. 2279(a)). Members of socially
disadvantaged groups include, but are not
limited to:
American Indians or Alaskan Natives;
Asians;
Blacks or African Americans;
Native Hawaiians or other Pacific
Islanders; and
 7

Hispanics or Latinos.
See App. at 8a-9a; see also Notice of Funds
Availability; American Rescue Plan Act of 2021
Section 1005 Loan Payment (ARPA), 86 Fed. Reg.
28329 (May 26, 2021).
Section 1005 was one of the most brazen race-based
federal benefits programs in modern American
history. For that reason, it was swiftly enjoined. See
Faust v. Vilsack, 519 F. Supp. 3d 470, 476 (E.D. Wis.
2021) (“The obvious response to a government agency
that claims it continues to discriminate against
farmers because of their race or national origin is to
direct it to stop: it is not to direct it to intentionally
discriminate against others on the basis of their race
and national origin.”).
Petitioner Leisl Carpenter, a cattle rancher of
Norwegian ancestry in Wyoming, had a qualifying
loan but was ineligible for debt relief under Section
1005 based on her race. She brought suit in the United
States District Court for the District of Wyoming on
May 24, 2021, alleging that Section 1005 violated the
equal protection principles of the Fifth Amendment to
the United States Constitution.
Despite Carpenter’s pending complaint, and
motions for injunctive relief before the United States
District Court for the Eastern District of Wisconsin
and in other pending lawsuits, in June 2021, USDA
began implementing Section 1005 by making test
payments to farmers and ranchers in New Mexico.
According to a USDA official, the choice of New
 8

Mexico was based on the fact that “it had a relatively

large volume of direct loan borrowers eligible for
ARPA [debt relief] and a high level of experienced
staff.” App. at 9a. 2 Furthermore, USDA selected the
specific individuals who were chosen to receive
payments based on two other factors: (1) the
borrowers being sole proprietors, rather than entities,
and (2) “past interactions with [the Farm Service
Agency] that reflected a willingness to be part of pilot
initiative.” App. at 9a. None of these factors were
mentioned by Congress in ARPA, and none were even
included in the USDA’s Notice of Funds Availability.
After USDA began making payments, Section 1005
was halted by a Temporary Restraining Order entered
by the Eastern District of Wisconsin on June 10, 2021.
See e.g., Faust, 519 F. Supp. at 475 (“Here, Defendants
lack a compelling interest for the racial
classifications.”); see id. at 478 (“Defendants are
enjoined from forgiving any loans pursuant to § 1005
until the Court rules on Plaintiffs’ motion for a
preliminary injunction.”).
Respondents conceded below that they paid out at
least $160,218 under Section 1005. App. at 25a. And
they did not contest the district court’s
characterization of Section 1005: “Suffice to say that §
1005 provided debt relief to farmers and ranchers
based on race.” App. at 34a. They also never disputed

2 Note that this factor is not race-neutral, since eligibility for

ARPA was itself based on race. However, the district court and
Tenth Circuit Court of Appeals considered the choice to select
New Mexico as outcome-determinative for Carpenter’s standing.
 9

that Carpenter would have been eligible for relief

under the statutory text of Section 1005, but for her
race.
Following the Temporary Restraining Order,
Section 1005 was subject to three preliminary
injunctions. See Holman v. Vilsack, No. 21-1085-STA-
jay, No. 21-1085-STA-JAY, 2021 WL 2877915, at *1
(W.D. Tenn., Jul. 8, 2021) (“Plaintiff will be
irreparably harmed if he is denied his constitutional
right to equal protection.”); Wynn v. Vilsack, 545 F.
Supp. 3d 1271 (M.D. Fla. 2021) (“To allow the
perpetuation of discrimination in such a manner
would undermine the Supreme Court’s ultimate goal
of eliminating entirely from governmental
decisionmaking such irrelevant factors as a human
being’s race.”) (internal quotation marks omitted);
Miller v. Vilsack, No. 4:21-cv-0595-O, 2021 WL
11115194, at *9 (N.D. Tex., Jul. 1, 2021) (“[T]he loan
forgiveness program is simultaneously overinclusive
and underinclusive: overinclusive in that the program
provides debt relief to individuals who may never
have experienced discrimination or pandemic-related
hardship, and underinclusive in that it fails to provide
any relief to those who have suffered such
discrimination but do not hold a qualifying FSA
loan.”).
Rather than continuing to defend a race-based
program that no less than four federal courts
determined unlikely to survive, Congress repealed the
program as a provision of the Inflation Reduction Act
of 2022. Pub. L. No. 117-169 § 22008, 136 Stat. 1818,
 10

2023 (2022). USDA asserts that this fact alone

renders Carpenter’s lawsuit moot, and that there is no
redress for the racially discriminatory payments that
were made under Section 1005 before it was repealed.
But it is also undisputed that the new statute never
addressed the payments that were issued before
Section 1005 was halted. Thus, the unequal treatment
that Carpenter suffered, and continues to suffer, was
never remedied.
In other words, there is an order that a court could
issue to remedy Carpenter’s injury address the
payments that were made before Section 1005 was
repealed. And in the same vein, with respect to the
voluntary cessation doctrine, USDA has never argued
that it “completely and irrevocably eradicated the
effects” of Section 1005.
As it stands today, Carpenter remains as unequally
treated as when the discriminatory payments were
first made. As a result, Carpenter remains injured,
even if the elimination of the program means she will
not suffer further injuries in the future.
III. Procedural history

Carpenter filed her lawsuit on May 24, 2021,

asserting an equal protection violation. The suit was
stayed on August 16, 2021, pending the outcome of
Miller v. Vilsack, in which Carpenter was an unnamed
class member. After Miller was dismissed, the
government sought to dismiss Carpenter’s case as
well, arguing that the repeal of Section 1005 caused
her case to be moot.
 11

Carpenter opposed the motion to dismiss, pointing

out that the Inflation Reduction Act did not address
USDA’s pre-repeal payments under Section 1005, and
thus her case was not moot. The government argued
in a footnote in its reply brief that even if Carpenter’s
case were not moot, she lacked standing because there
was an independent, race-neutral reason why she was
not eligible for Section 1005 benefits: she lived in
Wyoming, while all of the Section 1005 payments
went to farmers or ranchers in New Mexico.
The District Court held that Carpenter lacked any
interest in her case because Section 1005 was
repealed. It also agreed with the government that
because all of the payments went to New Mexico
farmers or ranchers, Carpenter was not within the
“playing field” of those injured by Section 1005. App.
at 39a (“Completely apart from any considerations of
race, Plaintiff was never within that so-called ‘playing
field’ for the simple reason that her property is in
Wyoming.”).
On appeal, the Tenth Circuit affirmed the dismissal
of Carpenter’s lawsuit. It concluded that Carpenter’s
standing was defeated by the fact that Section 1005
payments were made only to New Mexico farmers.
Additionally, the Tenth Circuit rejected the
application of the voluntary cessation doctrine,
finding no indication of Congress being likely to re-
enact Section 1005. However, the Tenth Circuit
stopped there and rested its analysis solely on the fact
that Section 1005 was not likely to reoccur. It saw no
need to ask whether interim relief or events had
 12

completely and irrevocably eradicated the effects of the

alleged violation.
Carpenter timely files this petition for a writ of
certiorari, challenging the Tenth Circuit’s dismissal
and seeking redress for her ongoing equal protection
injury.
REASONS FOR GRANTING THE PETITION

INTRODUCTION

Leisl Carpenter suffered an equal protection injury

when similarly-situated farmers and ranchers
received federal benefits under a congressional
program for which she was not eligible, solely based
on her race. That injury was not alleviated when
Congress repealed the underlying federal benefits
program on a forward-looking basis only.
The Tenth Circuit’s opinion creates two strange
incentives for federal agencies: (1) engage in as much
unconstitutional conduct as possible, as swiftly as
possible, before a lawsuit can be filed or an injunction
obtained; and (2) make non-statutory internal
administrative decisions that “pick off” plaintiffs who
have already filed complaints against a federal
program, so as to defeat their standing and avoid
judicial review.
Having an appellate precedent establishing that
the government may strategically engage in these two
actions to avoid challenges to its race-based programs
works a disservice to justice and to equality under the
law.
 13

The issues raised herein are not just important to

the petitioner but apply to a host of federal benefits
programs that increasingly rely on race for eligibility
determinations. Given the substantial legal questions
presented and the far-reaching implications of the
Tenth Circuit’s decision, Carpenter respectfully
submits that this petition merits the Court’s
consideration. It is an opportune moment for the
Court not only to rectify the immediate injustice faced
by the petitioner, but also to guide the lower courts
and federal agencies in adhering to the constitutional
principles that safeguard equality and prevent
discrimination.
1. The Decision Below Creates a Roadmap
for Federal Agencies to Engage in
Invidious Race Discrimination and
Creates a Split of Authority.

a. An Individual Should Not Lose

Standing to Sue Based on Internal
Agency Administrative Decisions
Made After a Complaint is Filed.

Under Article III, a plaintiff possesses standing if

she can demonstrate: (1) an injury in fact; (2) that is
fairly traceable to the challenged conduct of the
defendant, and (3) which is likely to be redressed by a
favorable decision. SFFA, 600 U.S. at 191. In her
complaint, Carpenter pled that Section 1005 injured
her by creating a racial classification that excluded
her for the purpose of federal benefits, and that
prospective relief to address this discrimination would
 14

remedy the injury that was fairly traceable to Section

1005’s racial classification. App at 11a (“In the
Complaint, Ms. Carpenter alleges she would be
eligible for loan forgiveness under § 1005, and for
future FSA loans after such forgiveness, if she were
not white.”).
Section 1005 and USDA’s published Notice of
Funds Availability (NOFA) made clear that
Carpenter’s race disqualified her from participating in
the debt relief program. No one disputes that
payments were made under Section 1005 after the
NOFA was issued. No one disputes that they were
based on race. Instead, the only non-racial distinction
between Carpenter and those who received payments
is the fact that she lived in Wyoming, and that USDA
chose to first send payments to New Mexico
recipients—an irrelevant and arbitrary
administrative choice that was not based on anything
in the statute or NOFA.
Yet the Tenth Circuit made clear that it was relying
on this incidental geographic difference when it
affirmed the lower court’s holding based on the idea
that Carpenter was not within the “playing field” of
those who were eligible for Section 1005 benefits. App.
at 23a (“If Appellees’ administration of test payments
can be said to have excluded Ms. Carpenter from
consideration at all, it was because she lives in
Wyoming rather than New Mexico.”); id. (“Even if she
were not white, Ms. Carpenter would have been
excluded from the test payments.”); id. (“The test
payments to four New Mexico farmers therefore do not
 15

constitute an injury to Ms. Carpenter based on the

racial distinctions in § 1005.”).
But Carpenter’s injury stems from a racially
discriminatory policy implemented on a national
level, as shown by the statutory language of Section
1005. The essence of her equal protection claim does
not turn on some self-imposed internal criteria for
prioritizing where USDA would first send the money.
That USDA officials opted to implement Section 1005
in New Mexico before other states is immaterial in the
context of equal protection analysis. Such
administrative choices, while perhaps relevant to the
program’s rollout logistics, do not alter the
fundamental nature of Carpenter’s constitutional
injury—an injury that is rooted in the nationwide
application of a race-based eligibility criterion.
It is the written word that is law, and it is the law
that discriminates—not the incidental methods that
public officials may implement written policies. The
Tenth Circuit’s decision therefore creates a split in
authority regarding the scope of the “playing field” for
equal protection injuries. See Ne. Fla. Chapter of the
Associated Gen. Contractors of Am., 508 U.S. at 666
(“To establish standing, therefore, a party challenging
a set-aside program like Jacksonville’s need only
demonstrate that it is able and ready to bid on
contracts and that a discriminatory policy prevents it
from doing so on an equal basis.”) (emphasis added);
see also Gratz v. Bollinger, 539 U.S. 244, 262 (2003)
(describing the holding of Northeastern Florida that a
business was not required “to show that one of its
 16

members would have received a contract absent the

ordinance in order to establish standing.”) (emphasis
added); Monterey Mech. Co. v. Wilson, 125 F.3d 702,
706 (1997) (“Monterey Mechanical was prevented by
the statute from competing on an equal footing with
general contractors in the designated classes.”)
(emphasis added).
Compare, by contrast, the Tenth Circuit’s focus on
the initial geographic distribution of benefits: “But it
is precisely because the decision to do the test in New
Mexico was unrelated to the statutory language that
Ms. Carpenter cannot claim an injury based on §
1005’s racial distinctions.” App. at 23a (emphasis
added).
Yet fact that USDA officials opted to start with New
Mexico when they began implementing Section 1005
is a non-sequitur. They could just as easily have
started with borrowers whose last names started with
“A” or “B.” But plaintiffs whose names start with “C”
should not be deprived of the right to challenge
unconstitutional race discrimination in such
circumstances.
Notably, living in New Mexico was not one of the
textual criteria of Section 1005, nor could bureaucrats
have made it so. Accord Boyd v. U.S., No. 22-1473C,
2023 WL 3118132, *5 (Fed. Ct. Cl., Apr. 27, 2023) (“In
this case, however, no official was conferred with
contracting authority by ARPA § 1005.”). And simply
put, Carpenter could never have received payments
under Section 1005, regardless of which state she
lived in, due to her race.
 17

Moreover, the Tenth Circuit’s logic would not just

stop at geography. There were two other factors that
USDA officials considered when deciding to start with
New Mexico:
• The borrowers being sole proprietorships
rather than entities; and
• Past interactions with [the Farm Service
Agency] that reflected a willingness to be
part of a pilot initiative.
See App. at 8a-9a. The Tenth Circuit’s logic would
mean that even Carpenter did live in New Mexico, she
would also still need to meet these qualifications, too,
to have standing.
But the idea that USDA could rely on making these
distinctions among non-Caucasian recipients of
Section 1005 funds—a group that Carpenter was not
a part of, of course—in order to defeat her lawsuit for
lack of standing, would be truly anomalous. (That is
especially true since USDA was knew, at the time of
the payments, that no plaintiff in New Mexico had
challenged Section 1005.) Congress never mentioned
any of these qualifications when it enacted Section
1005, and none were in place when Carpenter brought
her suit on May 24, 2021.
In other words, Carpenter possessed a concrete
injury under Article III when she filed her complaint
on May 24, 2021. Binding Supreme Court case law—
and a wealth of appellate precedents—contradicts the
Tenth Circuit’s decision that she somehow lost that
standing based on the subsequent internal
 18

administrative decisions of USDA employees that

purportedly narrowed who was truly injured under
ARPA.
The Tenth Circuit’s conclusion also fundamentally
overlooks the broader constitutional question at hand:
whether the federal program’s design and
implementation, in its entirety, violated the
Constitution by considering race as one factor in
discriminating against individuals. As this Court and
numerous lower courts have recognized, race need
only be one factor that is part of the decision-making
process, for a plaintiff to have standing. See, e.g.,
Gratz, 539 U.S. at 262 (“The ‘injury in fact’ necessary
to establish standing in this type of case is the denial
of equal treatment resulting from the imposition of
the barrier, not the ultimate inability to obtain the
benefit.”) (cleaned up); Ne. Fla. Chapter of Gen. Contr.
of Am., 508 U.S. at 664 (“[O]ur holding [in Turner v.
Fouche, 396 U.S. 346 (1970)] did not depend upon an
allegation that he would have been appointed to the
board but for the property requirement. All that was
necessary was that the plaintiff wished to be
considered for the position.”).
Numerous lower courts have followed this Court’s
clear precedents, which are now all in tension with the
Tenth Circuit. See Eng’g Contractors Ass’n of S. Fla.
Inc. v. Metro. Dade Cnty., 122 F.3d 895, 906 (11th Cir.
1997) (“When the government loads the dice that way,
the Supreme Court says that anyone in the game has
standing to raise a constitutional challenge.”); Price v.
City of Charlotte, N.C., 93 F.3d 1241, 1248 (4th Cir.
 19

1996) (“[T]he injury Appellees suffered is the

ignominy and illegality of the City’s erecting a racial
bar to promotions…”); see also Sullivan v.
Benningfield, 920 F.3d 401, 408 (6th Cir. 2019)
(“Plaintiffs need not show the denial of an
independent right to make out an Article III injury in
fact.”); Bras v. California Public Utilities Comm’n, 59
F.3d 869, 873 (9th Cir. 1995) (“[P]laintiffs alleging
equal protection violations need not demonstrate that
rigid quotas make it impossible for them to compete
for any given benefit. Rather, they need only show
that they are forced to compete on an unequal basis.”);
Holman, 582 F. Supp. 3d at 577 (“[A]ny classification
that makes it more difficult for members of one racial
group to obtain a benefit is an injury sufficient to
confer standing.”) (cleaned up).
In sum, the Tenth Circuit’s reliance on the
geographic specificity of the program’s test payments
in New Mexico as a factor in evaluating Carpenter’s
injury overlooks the national scope of Section 1005,
and misapplies equal protection principles. The injury
that Carpenter alleges is tied to the discriminatory
nature of the program itself—a national policy from
which she was excluded based on race, rendering the
location of initial payments immaterial to the
determination of her constitutional injury. Put
simply, payments were made under a discriminatory
national policy, therefore, Carpenter has suffered an
injury.
Worse, the Tenth Circuit’s decision will distort a
host of legal outcomes, given that federal agency
 20

officials have no inherent authority to act without

congressional delegation arising from the text of
statutes. In that sense, the mere administrative
choices of bureaucrats do not and cannot undermine
the Court’s conventional analysis of when classes are
similarly situated. If the decision stands, clever
bureaucrats could easily evade legal challenges
through arbitrary administrative choices. Accord Day
v. Bond, 500 F.3d 1127, 1135 (10th Cir. 2007) (“[T]he
plaintiff must show he is not disqualified from
competing because of nondiscriminatory eligibility
criteria.”).
This is not the law, and if it were, it would invite
gamesmanship through informal modifications of
unconstitutional programs, to avoid pending suits for
injunctive relief, based on the identity and location of
existing plaintiffs. Accord SFFA, 600 U.S. at 257
(Thomas, J., concurring) (“This judicial skepticism is
vital. History has repeatedly shown that purportedly
benign discrimination may be pernicious, and
discriminators may go to great lengths to hide and
perpetuate their unlawful conduct.”).
b. Carpenter’s Suit is Not Moot,
Because There Remains an Order
that Could Have Real-World Effect.

There is no legal doctrine establishing that courts

cannot correct past mistakes. Indeed, courts possess
significant power to address bona fide equal
protection violations. See, e.g., Milliken v. Bradley,
433 U.S. 267, 280 (1977) (“[D]ecree[s] … must be
 21

designed as nearly as possible to restore the victims of

discriminatory conduct to the position they would
have occupied in the absence of such conduct.”)
(internal quotation marks omitted).
The Tenth Circuit’s decision in this case contrasts
with decisions from this Court and other circuits,
where courts have rejected mootness arguments in
the context of unremedied past injuries. City of Los
Angeles v. Lyons, 461 U.S. 95, 102 (1983) (past harm
can constitute an injury-in-fact for purposes of
pursuing injunctive relief if it causes continuing,
present adverse effects); Sullivan, 920 F.3d at 411
(prisoner suit was not moot despite plaintiffs’ release
from prison, and despite the repeal of a statute,
because “the statute fails to stop the differential
treatment Plaintiffs continue to suffer”); accord
Zukerman v. U.S. Postal Serv., 64 F.4th 1354, 1363
(D.C. Cir. 2023) (“[T]he customized postage program
has already been shuttered. … [Yet] Zukerman was
injured the moment the Postal Service refused to print
and recognize his stamp. The effects of that past
injury remain unremedied…”).
In short, when the government gives some people
the benefit of a program based on their race and not
others, an injury remains to be redressed even after
the government abandons its discriminatory policies.
See New York State Rifle & Pistol Ass’n, Inc. v. City of
New York, NY, 140 S. Ct. 1525, 1528 (2020) (Alito, J.,
concurring) (“[T]he changes in City and State law do
not provide petitioners with all the injunctive relief
they sought.”).
 22

Courts have long held that it is permissible to order

government officials to undo the constitutional
damage that they have done in the past. See, e.g.,
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. 1, 15 (1971) (“Once a right and a violation have
been shown, the scope of a district court’s equitable
powers to remedy past wrongs is broad, for breadth
and flexibility are inherent in equitable remedies.”).
This is especially true in the equal protection context.
Id. at 16-17 (“[A] school desegregation case does not
differ fundamentally from other cases involving the
framing of equitable remedies to repair the denial of a
constitutional right. The task is to correct, by a
balancing of the individual and collective interests,
the condition that offends the Constitution.”).
What that remedy looks like for Carpenter is, at
this stage, a premature question. But for this Court’s
purposes, the critical point is that there is no per se
bar to courts correcting ongoing injuries merely
because the injury had its genesis in the past. See
Heckler v. Mathews, 465 U.S. 728, 740 (1984) (“[T]he
right to equal treatment guaranteed by the
Constitution is not co-extensive with any substantive
rights to the benefits denied the party discriminated
against. Rather, as we have repeatedly emphasized,
discrimination itself, by perpetuating ‘archaic and
stereotypic notions’ or by stigmatizing members of the
disfavored group as ‘innately inferior’ can cause
serious non-economic injuries to those persons who
are personally denied equal treatment solely because
of their membership in a disfavored group.”) (internal
citations omitted); United States v. Paradise, 480 U.S.
 23

149, 191 (1987) (Stevens, J., concurring) (“In this case,

the record discloses an egregious violation of the
Equal Protection Clause. It follows, therefore, that the
District Court had broad and flexible authority to
remedy the wrongs resulting from this violation.”).
Indeed, in numerous contexts, lower courts have
held that government actors owe a duty to correct the
wrongs of the past, if an injury lingers. See Thomas S.
by Brooks v. Flaherty, 902 F.2d 250, 255 (4th Cir.
1990) (“If the present conditions under which class
members live do not meet constitutional requirements
as explained in Youngberg, or if a patient is presently
suffering from unconstitutional conditions imposed
while in the hospital, the decree provides appropriate
prospective relief.”); see id. at 255 (“The decree
addresses the present needs of the patients.”); Ayala
v. Armstrong, No. 1:16-cv-00501-BLW, 2017 WL
3659161, *2 (D. Idaho, Aug. 24, 2017) (“Here, the
State of Idaho’s past unconstitutional acts have led to
‘continuing conditions of inequality’ for same-sex
couples who desired to marry but were
unconstitutionally denied that right by the State of
Idaho.”); Hunter v. U.S. Dep’t of Educ., No. 6:21-cv-
00474-AA, 2023 WL 172199, *7 (D. Ore., Jan. 12,
2023) (students who had graduated from college still
had standing under Title IX because “the Court can
redress the stigmatic, emotional, and procedural
injuries that Plaintiffs are experiencing now.”)
(emphasis added); In re Circuit City Stores, Inc., No.
19-03091-KRH, 2022 WL 17722849, *3 (E.D. Va.
Bankr., Dec. 15, 2022) (“[T]he Court rejects the
Defendants’ argument that correcting the
 24

assessments on a going-forward basis is sufficient in

and of itself to provide adequate relief.”); C.M. ex rel.
Marshall v. Bentley, 13 F. Supp. 3d 1188, 1203 (M.D.
Ala. 2014) (injury was redressable by court if “other
students are no longer allowed to enjoy the benefits
that Plaintiffs are being denied.”).
While this Court need not figure out at this junction
how to remedy the ongoing violation of Petitioner’s
rights, courts are certainly institutionally capable of
addressing an equal protection violation. See Barr v.
Am. Ass’n of Political Consultants, 140 S. Ct. 2335,
2354 (2020) (“When the constitutional violation is
unequal treatment, as it is here, a court theoretically
can cure that unequal treatment either by extending
the benefits or burdens to the exempted class, or by
nullifying the benefits or burdens for all.”) (citing
Heckler, 465 U.S. at 740; Moritz v. C. I. R., 469 F.2d
466, 470 (10th Cir. 1972) (“Where a court is compelled
to hold such a statutory discrimination invalid, it may
consider whether to treat the provisions containing
the discriminatory underinclusion as generally
invalid, or whether to extend the coverage of the
statute.”).
To be sure, sometimes these cases can raise “knotty
questions” about whether to “extend benefits or
burdens,” id., but ultimately the onus should be on
USDA to “come forward with a plan that promises
realistically to work” Swann, 402 U.S. at 12-13, and
that courts can review for constitutional compliance.
Moreover, the “real-world” effect of an order
correcting past constitutional harm need not be earth-
 25

shaking. See Golden State Transit Corp. v. City of Los

Angeles, 475 U.S. 608, 613 n.3 (1986) (rejecting
mootness argument based on intervening events
when a party merely “would be more likely to have an
operating franchise now,” but for the government’s
unconstitutional conduct.); Prison Legal News v. Fed.
Bureau of Prisons, 944 F.3d 868, 881 (10th Cir. 2019)
(“A defendant’s corrective actions that do not fully
comport with the relief sought are also insufficient.”);
Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th
Cir. 2006) (“That burden is ‘heavy’; a case is not moot
where any effective relief may be granted.”) (original
emphasis).
c. Carpenter Seeks Prospective Relief
That a Court Could Order With
Respect to the USDA Respondents—
Compelling USDA to Correct its
Previous Racial Discrimination.

In rejecting the injury that Carpenter pled, the

Tenth Circuit focused on the fact that future
discriminatory payments would not occur. App. at 20a
(“The injunctions against implementation of § 1005
and the section’s eventual repeal rendered any equal
protection injury impossible.”). But that holding does
not address payments made before Section was
repealed by Congress.
The fact that the USDA Respondents are Executive
Branch agency officials is immaterial to Carpenter’s
claim. A court may freely impose duties on public
officials to prospectively comply with the
 26

Constitution, even if that means correcting past

mistakes. See Milliken v. Bradley, 433 U.S. at 290
(“That the programs are also ‘compensatory’ in nature
does not change the fact that they are part of a plan
that operates prospectively to bring about the delayed
benefits of a unitary school system. We therefore hold
that such prospective relief is not barred by the
Eleventh Amendment.”); Flint v. Dennison, 488 F.3d
816, 825 (9th Cir. 2007) (“Here, the injunctions Flint
seeks as related to past violations serve to expunge
from University records the 2003 censure and 2004
denial of his Senate seat, which actions may cause
Flint harm.”); State Emp. Bargaining Agent Coal. v.
Rowland, 494 F.3d 71, 96 (2d Cir. 2007) (“We are
specifically required by Ex parte Young to examine
whether there exists an ongoing violation of federal
law. … Thus, it is relevant—in considering the
existence vel non of an ongoing violation—to ask
whether the claimed remedy is still available.”)
(internal citation omitted); Clark v. Cohen, 794 F.2d
79, 84 (3d Cir. 1986) (“Given the square holding in
Milliken II that a federal court may order state
officials to fund from the state treasury remedial
measures found necessary to undo the harmful effects
of past constitutional violations, we hold that the
Commonwealth defendants’ eleventh amendment
argument is meritless.”); Heckler, 465 U.S. at 740
(“[W]hen the right invoked is that of equal treatment,
the appropriate remedy is a mandate of equal
treatment, a result that can be accomplished by
withdrawal of benefits from the favored class as well
as by extension of benefits to the excluded class.”).
 27

Here, neither the District Court, the Tenth Circuit,

or the USDA Respondents have ever contended that
correcting prior race discrimination is not prospective
relief, or that sovereign immunity shields them from
having to address racially discriminatory monetary
payments made under Section 1005. Accord Graham
v. Richardson, 403 U.S. 365 (1971) (discriminatory
welfare payment system was struck down as
unconstitutional, despite involving monetary
payments).
2. A Court Should Not Dismiss a Case Based
on Mootness if the Defendant Failed to
Eradicate the Effects of its Misconduct.

“It is well settled that a defendant’s voluntary

cessation of a challenged practice does not deprive a
federal court of its power to determine the legality of
the practice.” Friends of the Earth, Inc. v. Laidlaw
Env’t Serv. (TOC), Inc., 528 U.S. 167, 189 (2000)
(cleaned up); id. (“[T]he standard we have announced
for determining whether a case has been mooted by
the defendant's voluntary conduct is stringent.”).
The Tenth Circuit below alluded to the proper two-
prong test to establish an exception to the voluntary
mootness doctrine, App. 29a, but nevertheless
dismissed Carpenter’s case based merely on one
prong. The Tenth Circuit held that the government
had successfully met its burden merely by making a
particularly strong showing on the first factor. App. at
31a (“There is no indication in the Complaint or any
exhibit in this case that Congress intends to re-enact
 28

the provisions of § 1005, nor is it plausible Congress

would do so given that the emergency that prompted
§ 1005 in the first place—the sudden economic
devastation caused by the COVID-19 pandemic—no
longer exists.”).
That was error. To establish mootness through
voluntary cessation, the government must make a
proper showing on both prongs, not just one:
(1) it can be said with assurance that there is
no reasonable expectation that the alleged
violation will recur, and
(2) interim relief or events have completely
and irrevocably eradicated the effects of the
alleged violation.
Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979)
(cleaned up) (emphasis added); Indiana Emp. Sec.
Div. v. Burney, 409 U.S. 540, 541-42 (1973)
(remanding for consideration of whether other
members of a class had been made whole, even if the
named plaintiff Burney had been paid); see also Lyons,
461 U.S. at 101 (agreeing with Petitioner that the case
was not moot since “[i]ntervening events have not
irrevocably eradicated the effects of the alleged
violation”) (internal quotation marks omitted); accord
Golden State Transit, 475 U.S. at 613, n.3 (“It
therefore cannot be said that intervening events have
. . . irrevocably eradicated the effects of the alleged
violation. We conclude, therefore, that the case is not
moot.”) (cleaned up); DeFunis v. Odegaard, 416 U.S.
312, 317 (1974) (“[H]e now has also been irrevocably
 29

admitted to the final term of the final year of the Law

School course.”).
And with respect to both factors, it is the
defendant’s burden to establish mootness. See Row 1
Inc. v. Becerra, 92 F.4th 1138, 1144 (D.C. Cir. 2024)
(describing the “formidable burden” that the
government has in establishing mootness through
voluntary cessation, and referring to both factors);
13A Charles A. Wright et al., Federal Practice and
Procedure § 3533.1 n.22 (3d ed. 2023) (“If a plaintiff
begins with standing, a defendant who asserts that
voluntary cessation has mooted the action carries a
heavy burden to prove mootness, a clear difference
from the rule that a plaintiff has the burden to
establish standing.”).
Applying these principles to the instant case, the
mere repeal of § 1005 does not irrevocably eradicate
equal protection violations that occurred prior to the
statute’s repeal. The government has not even
contended that it tried to irrevocably eradicate the
effects of Section 1005.
While repealing Section 1005 prevented future
discrimination, it failed to address or rectify the past
unequal treatment that Carpenter suffered. See
Swann, 402 U.S. at 15 (“The objective today remains
to eliminate from the public schools all vestiges of
state-imposed segregation.”); id. at 28 (“The remedy
for such segregation may be administratively
awkward, inconvenient, and even bizarre in some
situations and may impose burdens on some.”);
Louisiana v. U.S., 380 U.S. 145, 154 (1965) (“We bear
 30

in mind that the court has not merely the power but
the duty to render a decree which will so far as
possible eliminate the discriminatory effects of the
past as well as bar like discrimination in the future.”)
(emphasis added).
In that vein, strict application of the voluntary
cessation doctrine plays a crucial role in the judicial
system’s oversight of constitutional violations,
particularly in cases where defendants may seek to
avoid judicial review by ceasing illegal conduct once
challenged. DeFunis, 416 U.S. at 318 (there is a
“public interest in having the legality of the practices
settled”). This doctrine ensures that mootness is not
merely a tool for evasion, but a genuine and lasting
resolution of the issues at hand. See United States v.
W. T. Grant Co., 345 U.S. 629, 632 (1953) (“The courts
have rightly refused to grant defendants such a
powerful weapon against public law enforcement.”).
The Tenth Circuit’s decision therefore creates a
split of authority with lower courts that have agreed
that both of the Davis prongs must be met to satisfy
the mootness standard. See, e.g., U.S. Commodity
Futures Trading Comm’n v. Escobio, 946 F.3d 1242,
1251 (11th Cir. 2020) (“Escobio’s adherence to the new
payment structure does not negate the possibility that
he will fail to pay in the future nor has it ‘completely
and irrevocably’ paid off the restitution award.”);
Fikre v. Fed. Bureau of Investigation, 904 F.3d 1033,
1040 (9th Cir. 2018) (“[W]e note that Fikre’s removal
from the No Fly List does not completely and
irrevocably eradicate the effects of the alleged
 31

violations.”) (cleaned up); Cleveland Branch of the

N.A.A.C.P. v. City of Parma, Oh., 263 F.3d 513, 533
(6th Cir. 2001) (second prong not satisfied in
discrimination case where the lingering effects of
discrimination remained in municipal employment);
Johnson v. Jones, 42 F.3d 1385, *2 (4th Cir. 1994)
(Table) (dismissing a discrimination claim based on
voluntary cessation only because “[t]he Citadel has
represented that the accommodations that will be
made for the 78 male veterans who had been enrolled
in the veterans program would also be made for
women”).
Likewise, many decisions support the position that
mootness can only be determined after reaching the
second prong. See Davis, 440 U.S. at 633 (the
government satisfied the second prong because it
“completely cured any discriminatory effects” of its
prior policy); Rio Grande Silvery Minnow v. Bureau of
Reclamation, 601 F.3d 1096, 1120 (10th Cir. 2010)
(dismissing as moot where there were “no lingering
effects from the federal agencies’ alleged violations of
the ESA in connection with the issuance of the 2001
and 2002 biological opinions”); see also Ghailani v.
Sessions, 859 F.3d 1295, 1302 (10th Cir. 2017)
(dismissing case as moot only after concluding “there
is no evidence that any of the former SAM restrictions
are currently affecting Mr. Ghailani”). 3

3 Note that despite the intra-circuit split of authority within the

Tenth Circuit, Carpenter’s request for en banc review was

denied. App. at 4a.
 32

The Tenth Circuit’s holding here therefore

represents a significant deviation from the voluntary
cessation doctrine as articulated by this Court. The
Tenth Circuit relied exclusively on the government’s
showing on the first Davis prong and never analyzed
the second prong. But the doctrine requires not just a
halt in the challenged conduct and the unlikeliness of
its further implementation, but also a comprehensive
remedy for its effects. This gap in the Tenth Circuit’s
analysis overlooks the enduring impact of the
discrimination Carpenter faced, an impact that
remains unaddressed by the legislative repeal alone.
Interestingly, USDA has never even contended that
the discriminatory payments made under § 1005 have
actually been eradicated or unwound. Instead, they
simply point to the statute’s repeal. This is
insufficient to satisfy the second prong of the
voluntary cessation test for mootness under this
Court’s jurisprudence. It is imperative that the Court
take up this matter to rectify the Tenth Circuit’s
flawed voluntary cessation analysis.
3. This Case is an Ideal Vehicle to Resolve
the Questions Presented.

This case presents the relatively straightforward

question of whether a plaintiff’s constitutional claim
based on racially discriminatory treatment must be
dismissed when payments are made to similarly
situated individuals who nevertheless have some
incidental difference with the plaintiff—such as their
geographic residence. Secondarily, it presents the
 33

question of whether monetary payments that were

made prior to the repeal of a racially discriminatory
program may be left unaddressed, once the program
is halted through injunction or repeal.
Neither the District Court, nor the Tenth Circuit,
questioned in their opinions whether Carpenter
adequately pled her claims; nor did they suggest that
Carpenter might lack standing for any other reason.
Moreover, there is no factual disagreement regarding
the payments that were made prior to Section 1005’s
repeal that is material to the legal questions in this
petition. Last, neither the District Court nor the
Tenth Circuit questioned whether some remedy might
exist, if a constitutional violation is found to have
occurred. Indeed, USDA has never contended that no
relief is possible in this case.
4. At a Minimum, the Court May Consider
Holding the Petition for Subsequent
Vacatur and Remand Until After it Issues
an Opinion in FBI v. Fikre, 22-1178.

In Federal Bureau of Investigation, et al., v. Yonas

Fikre, 22-1178, this Court is considering whether a
claim regarding an individual’s placement on the “No
Fly List” is moot. In Fikre, the Respondent was taken
off of the No Fly List after bringing suit, but the Ninth
Circuit Court of Appeals held that the suit was not yet
moot. This Court granted a writ of certiorari on
September 29, 2023—after briefing and oral
argument had already occurred Carpenter’s appeal—
and the Court heard argument on January 8, 2024.
 34

The Court’s discussion of the doctrine of voluntary

cessation in Fikre—regardless of whether it affirms or
reverses the Ninth Circuit Court of Appeals—may
shed light on whether Carpenter’s claim for relief is
moot, given that her ongoing unequal treatment has
never been remedied. See Transcript of Oral
Argument at 20, FBI v. Fikre, 22-1178, (Justice
Jackson: “So I understand here that what we’re really
talking about is the extent to which the government
can rely on voluntary cessation to claim that he no
longer has a—a claim.”); see id. at 38 (Justice Kagan:
“Well, that suggests— . . . that we’re not committed
to our voluntary cessation rule, which I think we’ve
given every indication we are extremely committed
to.”). 4 For that reason, this Court may opt to hold this
petition, and vacate and remand once its decision has
been issued in Fikre.
CONCLUSION

This Petition for a Writ of Certiorari presents

constitutional questions that warrant this Court’s
attention. The Tenth Circuit’s dismissal of
Petitioner’s claims, based on a narrow interpretation
of equal protection injuries and the voluntary
cessation doctrine, fails to recognize the enduring
harm inflicted by racially discriminatory policies
under Section 1005 of ARPA.

https://www.supremecourt.gov/oral_arguments/argument_trans
cripts/2023/22-1178_7lhn.pdf
 35

Moreover, the Tenth Circuit’s approach, if left

unchallenged, sets a dangerous appellate precedent
that undermines the judiciary’s role in safeguarding
constitutional rights against governmental
discrimination. The decision below not only lets stand
the injuries suffered so far by Carpenter, but also
provides federal agencies with a roadmap to evading
judicial review.
Therefore, Petitioner respectfully urges the Court
to grant this petition, reverse the Tenth Circuit’s
decision, and reaffirm the primacy of equal protection
rights in the face of racial discrimination by federal
programs.
Alternatively, Petitioner respectfully requests that
the Court hold the petition, and vacate and remand
upon issuing its opinion in Federal Bureau of
Investigation, et al., v. Fikre, 22-1178.

DATED: March 11, 2024.

Respectfully submitted,
William E. Trachman
James L. Kerwin.
Grady J. Block
Mountain States
Legal Foundation
2596 South Lewis Way
Lakewood, CO 80227
(303) 292-2021
[email protected]
Braden Boucek
 36

Southeastern Legal Foundation

560 West Crossville Rd. Suite
104
Roswell, Georgia 30075
(770) 977-2131
[email protected]

Counsel for Petitioner