Pigford v. Vilsack, Civil Action Nos. 97–1978 (PLF), 98–1693(PLF).
| Decision Date | 08 August 2013 |
| Docket Number | Civil Action Nos. 97–1978 (PLF), 98–1693(PLF). |
| Citation | 961 F.Supp.2d 82 |
| Parties | Timothy PIGFORD, et al., Plaintiffs, v. Tom VILSACK, Secretary, United States Department of Agriculture, Defendant. Cecil Brewington, et al., Plaintiffs, v. Tom Vilsack, Secretary, United States Department of Agriculture, Defendant. |
| Court | U.S. District Court — District of Columbia |
OPINION TEXT STARTS HERE
Anthony Herman, Covington & Burling LLP, David A. Branch, Richard Talbot Seymour, Law Office of David A. Branch and Associates, PLLC, Jacob A. Stein, Stein, Mitchell & Muse, L.L.P., Washington, DC, Charles Jerome Ware, Charles Jerome Ware, P.A., Columbia, MD, Faya R. Toure, Selma, Alm, for Plaintiffs.
Claimant Maurice G. McGinnis prevailed on a so-called “Track A” claim in this case but refused to cash the award check that was issued to him, insisting that he had requested to have his claim arbitrated under “Track B” instead. He now asks the Court to order that his claim be heard anew under Track B. Having carefully considered Mr. McGinnis' motion to enforce the Consent Decree, the government's opposition, and the available record, the Court concludes that Mr. McGinnis is entitled to the relief that he seeks. The Court therefore will grant his motion.1
The Consent Decree negotiated by the parties to this case and approved by the Court in April 1999 created a mechanism for resolving the individual claims of class members outside the traditional litigation process. See Pigford v. Glickman, 185 F.R.D. 82, 94 (D.D.C.1999). Class members were permitted to choose between two claims procedures, known as Track A and Track B. Track A claims were decided by a third-party neutral known as the Adjudicatorand resulted in awards of $50,000 in monetary damages to those claimants able to meet a minimal burden of proof. See id. at 103. Track B claims, which were decided by a different neutral known as the Arbitrator, imposed no cap on damages but required claimants to prove their claims by a more demanding preponderance-of-the-evidence standard in one-day mini-trials. See id. at 106.
Maurice McGinnis completed a Pigford claim form in August 1999 with the assistance of an attorney. See McGinnis Decl., Ex. 1. He opted to pursue a Track A claim, although his claim form suggests that he harbored some confusion or indecision about that choice.2 Later the same month, Mr. McGinnis attests, he telephoned the Claims Facilitator and asked for his claim to be processed under Track B instead of Track A. McGinnis Decl. ¶ 2. Although not part of the record or essential to the resolution of this motion, the Court has been informed that the Claims Facilitator has telephone records showing that Mr. McGinnis called the Facilitator on August 31, 1999 regarding a switch to Track B and was instructed to send a letter to the Facilitator. Mr. McGinnis then wrote a letter to the Claims Facilitator, dated September 1, 1999, that states in part: “Per our phone conversation, this is to confirm that under the current status of this settlement, I have indeed filed my claim and/or petition under ‘Plan B’ instead of Plan A as originally thought.” Id., Ex. 2. A copy of this letter provided by Mr. McGinnis shows a Claims Facilitator date-stamp of September 7, 1999, indicating that the letter was received. See id.
Although Mr. McGinnis requested in writing that his claim be switched from Track A to Track B, and although the Claims Facilitator appears to have received his letter, the Facilitator nevertheless sent his claim form to the Adjudicator for a Track A determination, rather than to the Arbitrator for a Track B determination.
In June 2000, the Adjudicator denied Mr. McGinnis' claim, based on a lack of supporting evidence and on perceived discrepancies between his allegations of discrimination and the documentary record. See Opp., Ex. 1.
In 2001, Mr. McGinnis petitioned for Monitor review of the Adjudicator's denial of his claim. See McGinnis Decl., Ex. 3. Under the Consent Decree, the Monitor was empowered to direct the Adjudicator to reexamine a claim determination where the Monitor concluded “that a clear and manifest error has occurred in the ... adjudication ... of the claim and has resulted or is likely to result in a fundamental miscarriage of justice.” Pigford v. Glickman, Civil Action No. 97–1978, Consent Decree ¶ 12(b)(iii) (D.D.C. Apr. 14, 1999).
Mr. McGinnis' petition to the Monitor, which was prepared by Pigford class counsel—specifically Alexander J. Pires, Jr.—and not the attorney who had assisted him with his claim form, argued that the Adjudicator's denial of his claim represented a clear and manifest error because Mr. McGinnis “mistakenly chose the wrong Track and the facilitator failed to correct it.” McGinnis Decl., Ex. 3, at 1. The petition further explained:
Because Claimant thought he was proceeding under [Track B] he thought he would have a later opportunity in the process to furnish the details of his claim. Thus, his claim form omitted some further allegation[s] of the numerous incidents of discrimination he encountered. Claimant, therefore, requests that his claim be remanded to the facilitator to be placed into Track B.
Id.3 “In the alternative,” Mr. McGinnis requested “that his claim be remanded to the Adjudicator for readjudication” under Track A. Id. In support of this alternative form of relief, the petition contended that “[t]he record before the Adjudicator was incomplete because of an error/miscommunication between Claimant and the individual assisting him with his claim.” Id. It continued:
Due to above referenced error/miscommunication between Claimant and the individual assisting him with his claim form, the original claim form failed to give all of the years the discriminatory conduct took place and all of the correct details surrounding the discriminatory conduct. Claimant was under the impression that his case would be handled under Track B, he did not delve into all of the incidents of discrimination under the belief that he would build his whole case under Track B.
Accompanying Mr. McGinnis' petition for Monitor review were a number of documents that the petition argued should be admitted into the record if his request to switch to Track B were rejected and his claim were reexamined by the Adjudicator under Track A. McGinnis Decl., Ex. 3, at 3.
The Monitor's task of reviewing thousands of Track A decisions was a lengthy process that took many years. Moreover, according to Pigford co-lead class counsel David Frantz, who assisted Mr. McGinnis during the pendency of his petition for Monitor review: “The request in a PMR [ i.e., petition for monitor review] for a track switch from Track A to Track B was an unusual request.” Frantz Decl. ¶ 3. Perhaps for that reason, in 2007 the Claims Facilitator contacted Mr. Frantz about Mr. McGinnis' request to switch tracks and asked whether—six years after the submission of his petition—he still wished to have his claim arbitrated under Track B. Id. After consulting with Mr. McGinnis, Mr. Frantz sent an email to the Claims Facilitator in December 2007 that stated in full: “I have spoken with Mr. McGinnis, and he wishes for his PMR to proceed as is.” Id., Ex. 1.
Apparently misunderstanding Mr. Frantz's terse message, the Claims Facilitator promptly sent an email to the Monitor conveying precisely the opposite meaning from the one Mr. Frantz says he, on behalf of Mr. McGinnis, intended. This email read: “Class Counsel has communicated with Mr. McGinnis and has confirmed that the original election of Track A should stand.” Frantz Decl., Ex. 2. Mr. Frantz was not copied on the email, which he first learned about only recently as a result of Mr. McGinnis' motion. Id. ¶ 5.4At the time, Mr. Frantz had no apparent reason to suspect that anything had gone amiss, because the Claims Facilitator replied to his message the same day by writing: Id., Ex. 1.
The Monitor issued a lengthy opinion in January 2008 granting the alternative request made in Mr. McGinnis' petition— i.e., that his claim be reexamined under Track A by the Adjudicator in light of the additional documents that he had provided in support of his allegations. See McGinnis Decl., Ex. 4, at 1. The Monitor did not consider Mr. McGinnis' primary request—that she remand the case to the Claims Facilitator with instructions that it be processed under Track B. Instead, consistent with the information provided to her by the Claims Facilitator, she simply explained in a footnote: Id. at 6 n. 27; see also id. at 25 n. 125 (same).5 The Monitor directed the Adjudicator to reexamine Mr. McGinnis' claim under Track A in light of the supplemental materials he furnished with his petition. See id. at 21.
Upon reexamination, the Adjudicator approved Mr. McGinnis' claim in May 2008. See Opp., Ex. 2. But Mr. McGinnis never cashed the $50,000 award check that subsequently was issued to him. The reasons, he explains, are that this award did not nearly approximate the actual losses he experienced because of the USDA's discrimination, and that his claim should have been arbitrated under Track B, as he requested, in order to allow him to prove and recover his actual damages. See McGinnis Decl. ¶ 5 ( ); id. ¶ 3 ( ...
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