Pigford v. Veneman, CIV.A. 97-1978(PLF).

• Citation: 355 F.Supp.2d 148
• Decision Date: 03 January 2005
• Docket Number: No. CIV.A. 98-1693(PLF).,No. CIV.A. 97-1978(PLF).,CIV.A. 97-1978(PLF).,CIV.A. 98-1693(PLF).
• Parties: Timothy PIGFORD, et al., Plaintiffs, v. Ann VENEMAN, Secretary, United States Department of Agriculture, Defendant. Cecil Brewington, et al., Plaintiffs, v. Ann Veneman, Secretary, United States Department of Agriculture, Defendant.
• Court: U.S. District Court — District of Columbia

355 F.Supp.2d 148

Timothy PIGFORD, et al., Plaintiffs, v. Ann VENEMAN, Secretary, United States Department of Agriculture, Defendant.

Cecil Brewington, et al., Plaintiffs, v. Ann Veneman, Secretary, United States Department of Agriculture, Defendant.

No. CIV.A. 97-1978(PLF).

No. CIV.A. 98-1693(PLF).

United States District Court, District of Columbia.

January 3, 2005.

COPYRIGHT MATERIAL OMITTED

Alexander John Pires, Jr., Conlon, Frantz, Phelan & Pires, Anthony Herman, Covington & Burling, David A. Branch, Law Office of David A. Branch, Jacob A. Stein, Stein, Mitchell & Mezines, Richard Talbot Seymour, Lieff, Cabraser, Heimann & Bernstein, LLP, Mona Lyons, Law Office of Mona Lyons, Caroline Lewis Wolverton, U.S. Department of Justice, Phillip L. Fraas, Washington, DC, J. L. Chestnut, Jr., Chestnut, Sanders, Sanders, Pettaway, Campbell & Albright, Selma, AL, Stephon J. Bowens, Marcus B. Jimison, Durham, NC, Charles J. Ogletree, Jr., Cambridge, MA, James W. Myart, Jr., San Antonio, TX, for Plaintiffs.

Daniel Edward Bensing, Michael Sitcov, Susan Hall Lennon, Terry M. Henry, Elizabeth Goitein, Elbert Lin, Marsha Stelson Edney, U.S. Department of Justice, David M. Souders, Weiner Brodsky Sidman Kider PC, Washington, DC, for Defendants.

OPINION

PAUL L. FRIEDMAN, District Judge.

This matter is before the Court on a motion to modify the Consent Decree filed by certain African American farmers and a motion to disqualify lead class counsel filed by a number of the same African American farmers and others. As a result, the Court again finds itself called upon to review the fairness of the Consent Decree memorializing a settlement agreement entered into more than five years ago by the United States Department of Agriculture and the plaintiff class of African American farmers, and the adequacy of plaintiff class counsel.

The terms of the Consent Decree were approved by this Court in April 1999. Since then, more than 13,500 farmers have received more than $830 million in cash and other relief from the government. In the present motions, however, a small number of individual African American farmers seek to overturn these gains, renegotiate with the government, and fashion what they believe would be a better solution. Because the motion to modify and the motion to disqualify concern common issues, the Court will address them together. As explained in this Opinion, the Court finds no grounds to grant the extraordinary relief sought by movants and again reminds all parties, movants and counsel that the Federal Rules of Civil Procedure and the relevant case law provide an avenue for such relief only in the rarest of circumstances. Consequently, the Court will deny both motions.

I. BACKGROUND

The issues raised by movants in their motions to modify the Consent Decree and to disqualify class counsel cover a broad range of matters related to the fairness of the negotiated settlement of this case, as approved by the Court after a fairness hearing and embodied in the Consent Decree, and the process of its implementation. Because these issues are bound up with the progress of the case over the past five years, a review of its history is appropriate. It is important to note that many of the arguments advanced by movants have already been raised and decided both by this Court and by the United States Court of Appeals for the District of Columbia Circuit. As counsel for movants is well aware, those decisions constitute the law of this case and therefore, absent extraordinary changed circumstances, must be followed. This Court and the court of appeals have described the history and context of the case as follows:

On August 28, 1997, three African-American farmers filed suit on behalf of a putative class of similarly situated African-American farmers alleging racial discrimination in the administration of USDA programs and further harm from the allegedly surreptitious dismantling of USDA's Office of Civil Rights in 1983, which together were alleged to violate the Fifth Amendment, the Administrative Procedure Act, 5 U.S.C. § 551 et seq.; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; and the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691, prohibiting discrimination in consumer credit. Following amendments to the complaint, the district court granted class certification in October 1998. See Pigford, 185 F.R.D. at 90. At that time, most of the farmers' ECOA claims were arguably barred by a two-year statute of limitations. See 15 U.S.C. § 1691e(f). Responding to petitions from class members, Congress enacted, and the President signed in November 1998, an amendment to retroactively extend the limitations period for persons who had filed administrative complaints between January 1, 1981, and July 1, 1997, for acts of discrimination occurring between January 1, 1981, and December 31, 1996. A second class action, Brewington v. Glickman, Civ. No. 98-1693, filed in July 1998 and making similar allegations covering a different time period, was consolidated with Pigford for purposes of settlement, and a new class was certified. See Pigford, 185 F.R.D. at 90.

As the February 1999 trial date drew near, the parties' negotiations shifted from individual claims to a global settlement, id., and with the assistance of a court-appointed mediator, the parties developed and agreed to a consent decree that contemplated a two-track dispute resolution mechanism to determine whether individual class members had been the victims of discrimination and, if so, the amount of monetary relief to which they were entitled.

Pigford v. Glickman, 206 F.3d 1212, 1215 (D.C.Cir.2000) (footnotes omitted).

Designed to "ensure that in their dealings with USDA, all class members receive full and fair treatment that is the same as the treatment accorded to similarly situated white persons," the decree establishes procedures for resolving class members' individual claims. Consent Decree at 2. Specifically, the decree allows class members to choose between two claims procedures, known as Tracks A and B. In recognition of the fact that "most ... [class] members ... had little in the way of documentation or proof" of either discriminatory treatment or damages suffered, Track A awards $ 50,000 to those farmers able to "meet only a minimal burden of proof." Pigford, 185 F.R.D. at 103. Track B ... imposes no cap on damages, but requires farmers who choose this track, after limited discovery consisting "essentially [of] an exchange of lists of witnesses and exhibits and depositions of the opposing side's witnesses," to prove their claims by a preponderance of the evidence in one-day mini-trials before an arbitrator. Id. at 106.... Track A and B decisions are final, except that the losing side may petition for review by a court-appointed monitor. [Consent Decree] at ¶¶ 9(a)(v), 9(b)(v), 10(i), 12(b)(iii).

Pigford v. Veneman, 292 F.3d 918, 920-21 (D.C.Cir.2002).

By law, the proposed consent decree could not take effect until the district court had approved it, see FED. R. CIV. P. 23(e), and the district court's approval could not be granted until notice had been given to the class of the proposed settlement and a fairness hearing had been held to determine whether the "settlement is fair, adequate, and reasonable and is not the product of collusion between the parties." Pigford, 185 F.R.D. at 98 (quoting Thomas v. Albright, 139 F.3d 227, 231 (D.C.Cir.1998)). The district court held a day-long hearing in which representatives of eight organizations and sixteen individuals ... voiced their objections to the terms of the proposed consent decree. Many... objected to the absence of certain forms of prospective structural relief, notwithstanding the fact that the complaint, as amended, did not seek such injunctive relief. 185 F.R.D. at 110. While USDA was likely to face billion-dollar monetary liability under the decree, no changes to the county committee system were mandated, and objectors feared that no improvements would be made to the way in which the farm credit and non-credit programs are administered. See Transcript of Fairness Hearing ("Tr."), Mar. 2, 1999 at Joint Appendix (JA) 388 (Mr. Bowens); 493 (Mr. Cooper). They also maintained that insufficient information had been exchanged during the discovery period leading up to the settlement....

Following the hearing, the district court suggested fourteen changes to the proposed consent decree, including modifying paragraph 19 to require USDA to use its best efforts to comply with laws prohibiting discrimination and modifying paragraph 21 to make clear that the district court retained jurisdiction to enforce the consent decree with its contempt power. The class and USDA rejected the first suggestion and adopted the second. The district court then allowed another round of written objections to be filed to the revised consent decree. After considering all of the objections and the entire record, the district court approved the proposed consent decree as fair under Rule 23 and ordered that the decree be entered.

Pigford v. Glickman, 206 F.3d at 1215-16 (footnotes omitted).

Shortly after the Court approved the Decree, seven individual putative class members appealed the Court's order approving the Consent Decree to the court of appeals, arguing that the Decree was unfair in certain respects and should be set aside. Appellants' arguments were considered and summarily rejected by the court of appeals. See Pigford v. Glickman, 206 F.3d 1212 (D.C.Cir.2000), aff'g Pigford v. Glickman 185 F.R.D. 82 (D.D.C.1999). While that appeal was pending, the same seven appellants/movants filed [a motion] asking the [District] Court to reconsider the fairness of the Consent Decree in light of "changed circumstances" which, they argue[d] justify vacating the Decree....

Pigford v. Glickman, 127 F.Supp.2d 35, 37 (D.D.C.2001). The motion to reconsider the fairness of the Consent Decree was denied, see id., and implementation...