Pigford v. Perdue
| Decision Date | 31 May 2018 |
| Docket Number | Civil Action No. 98–1693 (PLF),Civil Action No. 97–1978 (PLF) |
| Citation | 330 F.Supp.3d 1 |
| Parties | Timothy PIGFORD, et al., Plaintiffs, v. Sonny PERDUE, Secretary, United States Department of Agriculture, Defendant. Cecil Brewington, et al., Plaintiffs, v. Sonny Perdue, Secretary, United States Department of Agriculture, Defendant. |
| Court | U.S. District Court — District of Columbia |
Anthony Herman, Covington & Burling LLP, David A. Branch, Law Office of David Branch & Associates, PLLC, Jacob A. Stein, Stein, Mitchell & Muse, L.L.P., Richard Talbot Seymour, Law Office of Richard T. Seymour, P.L.L.C., Barbara Kim Kagan, Steptoe & Johnson, LLP, Joshua A. Doan, Caroline Lewis Wolverton, U.S. Department of Justice ENRD, Caroline Lewis Wolverton, U.S. Department of Justice, Mona Lyons, Law Offices of Mona Lyons, Phillip L. Fraas, Law Office of Phillip L. Fraas, Anurag Varma, Akin Gump Strauss Hauer & Feld LLP, David U. Fierst, Stein, Mitchell, Muse & Cipollone LLP, David Joseph Frantz, Conlon, Frantz & Phelan, LLP, David U. Fierst, Stein, Mitchell, Muse & Cipollone LLP, Washington, DC, Othello C. Cross, Cross, Kearney & McKissic, Jesse L. Kearney, Pine Bluff, AR, Faya R. Toure, Rose M. Sanders, Pro Hac Vice, Selma, AL, Stephon J. Bowens, Blanchard, Jenkins, Miller, Lewis And Styers, P.A., Raleigh, NC, Marcus B. Jimison, NCCU School of Law, Durham, NC, William Harold Dowdy, William H. Dowdy Attorney at Law, Lumberton, NC, Charles J. Ogletree, Jr., Charles J. Ogletree Consulting, Cambridge, MA, Charles Jerome Ware, Charles Jerome Ware, P.A., Columbia, MD, for Plaintiffs.
Carl J. Parker, Ashburn, VA, pro se.
Andrea Iris Newmark, Elizabeth Goitein, Daniel Edward Bensing, Herbert E. Forrest, Julie Straus Harris, Matthew A. Josephson, Tamra Tyree Moore, Terry Marcus Henry, Andrew Marshall Bernie, Joel L. McElvain, Stephen McCoy Elliott, Marsha Stelson Edney, Megan Anne Crowley, Andrew Marshall Bernie, U.S. Department of Justice, Washington, DC, Elbert Lin, Office of the West Virginia Attorney General, Charleston, WV, for Defendant.
PAUL L. FRIEDMAN, United States District JudgeThis matter is before the Court on the government's motion to dismiss the petition for monitor review of Maurice McGinnis's claim. For the following reasons, the Court will grant the motion and dismiss the petition for monitor review.1
The Court has previously recounted the history of this case in its opinion granting Mr. McGinnis's earlier motion to enforce the consent decree and permitting him to pursue his claim under Track B. See Pigford v. Vilsack, 961 F.Supp.2d 82, 83–87 (D.D.C. 2013). Thus, the Court limits its discussion here to those facts relevant to the instant motion.
In 1997, African–American farmers filed a class action lawsuit against the United States Department of Agriculture ("USDA") alleging that they had been denied access to federal farm credit programsadministered by the Department because of their race. The parties settled, and the Court entered a consent decree setting forth the parties' settlement agreement on April 14, 1999. The consent decree established two alternative claim resolution processes to evaluate individual class members' discrimination claims. See Consent Decree at ¶ 5(d). For class members who chose Track A, a third-party neutral "adjudicator" determined whether they had met a minimal burden of proof and, if so, awarded them $50,000 in monetary damages. See id. at ¶ 9. For class members who instead opted for Track B, a third-party neutral "arbitrator" determined whether they had proven their claims by the more demanding preponderance of the evidence standard in a one-day mini-trial and, if so, awarded actual damages without a cap. See id. at ¶ 10.
Mr. McGinnis completed his initial claim form in August 1999 and opted to pursue his claim under Track A, "although his claim form suggest[ed] that he harbored some confusion or indecision about that choice." See Pigford v. Vilsack, 961 F.Supp.2d at 84. Shortly thereafter, Mr. McGinnis sought to move his claim from Track A to Track B. See id. at 84–87. After a long-running series of errors and miscommunications, his requests were ignored or denied for over a decade and his claim proceeded under Track A. See id. Mr. McGinnis eventually prevailed under Track A, but never cashed the $50,000 award check. See id. at 86. He did not do so because he believed his claim should have been arbitrated under Track B, as he had requested, and because he did not think the $50,000 award nearly approximated the actual losses he had experienced as a result of the USDA's discrimination. See id. Ultimately, Mr. McGinnis looked to the Court for relief. His retained counsel—John M. Shoreman—formally entered his appearance on behalf of Mr. McGinnis and filed a motion to enforce the consent decree on November 2, 2012. See Entry of Appearance; Mot. to Enforce. The Court granted the motion and directed the arbitrator to resolve Mr. McGinnis's claim under Track B. See Pigford v. Vilsack, 961 F.Supp.2d at 90–91. In doing so, the Court noted:
Mr. McGinnis has been warned about the high standard of proof required to prevail on a claim under Track B, and the danger that by pursuing this course and giving up his Track A victory he will end up with nothing at all. Nevertheless he wishes to go down that path. He is entitled to do so ....
Id. at 91. The United States Court of Appeals for the District of Columbia Circuit affirmed this Court's decision, see Pigford v. Vilsack, 777 F.3d 509 (D.C. Cir. 2015), and Mr. McGinnis thereafter proceeded under Track B. He now challenges the outcome of the Track B proceedings.
On May 29, 2015, after the D.C. Circuit had issued its mandate, the arbitrator, Michael Lewis, issued a formal hearing notice adopting the Track B schedule by which the parties had agreed to proceed. See Mot. Ex. 3; Mot. Ex. 4. In accordance with the arbitrator's formal hearing notice, both Mr. McGinnis and the government, through their counsel, timely submitted their lists of witnesses and exhibits. See Mot. Ex. 5; Mot. Ex. 6. The list submitted by Mr. Shoreman on behalf of Mr. McGinnis indicated that he intended to rely on two witnesses: Mr. McGinnis himself and an expert witness who would testify as to the extent to which Mr. McGinnis had been treated differently from other program applicants and the amount of economicloss he had incurred as a result. See Mot. Ex. 5. at 1–2.
On July 28, 2015, the parties jointly requested, through their counsel, that the schedule be stayed in order for them to exchange expert reports and discuss potential settlement. See Mot. Ex. 7 at 1. The arbitrator granted this request, indicating that the parties should inform him of the status of the case on or before September 15, 2015. See Mot. Ex. 8 at 1. On September 15, 2015, counsel for both parties jointly requested that the arbitrator continue the stay for two additional months. See Mot. Ex. 12 at 1. They explained that, due to health issues, Mr. McGinnis's expert had not yet completed his report. See id. Once he did so, the government's expert planned to review the report and likely produce a report of his own, after which the parties would be in a better position to discuss the prospect of settlement. See id. On November 16, 2015, the parties' counsel jointly requested another extension of the stay, as the government had not yet received the report of Mr. McGinnis's expert. See Mot. Ex. 13 at 1. In doing so, they represented that counsel had agreed that Mr. McGinnis would provide the expert report to the government on or before November 30, 2015. See id.
On November 30, 2015, however, Mr. McGinnis did not provide the expert report to the government. Instead, Mr. Shoreman indicated in an email that, although the report had been completed, he had not yet received his client's final approval to disclose it. See Mot. Ex. 14. On December 4, 2015, counsel for the parties had a conference call with the arbitrator to discuss Mr. McGinnis's unwillingness to release the expert report. See Mot. Ex. 15 at 1–2. And on December 7, 2015, the government represented that it would not object to the arbitrator further discussing the matter with Mr. McGinnis ex parte in an effort to convince him to release the report. See id. at 1. It does not appear that any such conversation subsequently took place.
On December 14, 2015, the arbitrator scheduled an additional conference call in response to "the silence on Mr. Shoreman's part regarding progress on releasing Mr. McGinnis' expert's economic analysis." See Mot. Ex. 16; Mot. Ex. 17. It appears from the record that, during this conference call, counsel for the parties agreed that the expert report would be provided by December 16, 2015. See Mot. Ex. 18. But, again, this did not occur. Instead, on December 18, 2015, Mr. Shoreman emailed government counsel, stating: See Mot. Ex. 19 at 1. Unaware of this email from Mr. Shoreman to government counsel, the arbitrator requested an update from Mr. Shoreman on December 20, 2015. See Mot. Ex. 20. And on December 21, 2015, government counsel emailed Mr. Shoreman and the arbitrator to request an additional conference call if Mr. Shoreman did not provide the expert report that day. See Mot. Ex. 21.
On December 23, 2015, after the expert report was still not disclosed, counsel for the parties and the arbitrator held a conference call to discuss the matter. In an email memorializing the conversation, the arbitrator made clear that he would "permit Mr. McGinnis to have until noon, Monday, December 28, 2015 to release the report of his expert detailing the damages he has incurred due to alleged discrimination at the hands of USDA officials."See Mot. Ex. 22 at 1....
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Pigford v. Perdue
...512–13 . McGinnis was represented by his privately retained attorney John M. Shoreman during part of that litigation. Pigford v. Perdue , 330 F. Supp. 3d 1, 4 (D.D.C. 2018). As relevant for this phase of the litigation, McGinnis was ultimately able to submit his claim under Track B, as he i......
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Pigford v. Perdue, Civil Action No. 97-1978 (PLF)
...the government's motion to dismiss the petition for monitor review of Mr. McGinnis's Track B arbitration claim. See Pigford v. Perdue, 330 F. Supp. 3d 1 (D.D.C. 2018). The government has filed a memorandum in opposition to the Conservator's renewed motion for reconsideration, see Gov't Opp.......