MEMORANDUM OPINION AND ORDER
The Court has before it the motion of certain individual plaintiffs to reconsider the fairness of the Consent Decree approved by this Court on April 14, 1999, defendant's opposition, Class Counsel's response, and movants' reply to defendant's and Class Counsel's arguments. The Court heard oral argument on the motion and permitted movants and the defendant to file supplemental memoranda. Upon consideration of the pre-and post-hearing memoranda and the arguments of counsel, the Court will deny the motion.
On January 5, 1999, the parties filed a proposed Consent Decree which, if approved by the Court, would settle this case and establish a process for adjudicating claims by individual African American farmers who claimed that the United Stated Department of Agriculture had discriminated against them on the basis of their race when, among other things, it denied their applications for credit and/or benefit programs. After granting preliminary approval of the settlement, the Court conducted an extensive fairness hearing on March 2, 1999. On April 14, 1999, the Court gave final approval to the Consent Decree, finding that it represented a fair, reasonable and adequate resolution of the class members' claims under Rule 23(e) of the Federal Rules of Civil Procedure. See Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999
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 the appeal was pending, the same seven appellants/movants filed the instant motion asking this Court to reconsider the fairness of the Consent Decree in light of "changed circumstances" which, they argue, justify vacating the Decree and scheduling this case for trial.
Movants have asked the Court to reconsider the fairness of the Consent Decree under Rule 60(b)(5) of the Federal Rules of Civil Procedure. *fn1 Rule 60(b)(5) permits a court to "relieve a party or a party's legal representative from a final judgment, order, or proceeding . . . [if] it is no longer equitable that the judgment should have prospective application." Rule 60(b)(5), Fed. R. Civ. P; see Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378-83 (1992) (applying Rule 60(b) to request for modification of consent decree); United States v. Western Elec. Co., 46 F.3d 1198, 1203 (D.C. Cir. 1995) (applying Rufo analysis to request under Rule 60(b)(5) to modify consent decree).
A party seeking modification of a consent decree under Rule 60(b)(5) "must establish that a significant change in facts or law warrants revision of the decree and that the proposed modification is suitably tailored to the changed circumstances." Rufo v. Inmates of Suffolk County Jail, 502 U.S. at 377; see NLRB v. Harris Teeter Supermarkets, 215 F.3d 32, 35 (D.C. Cir. 2000). To succeed on their motion in this case, movants must demonstrate that events or changed facts (1) "make compliance with the decree substantially more onerous"; (2) make the decree "unworkable because of unforeseen obstacles"; or (3) make "enforcement [of the decree] detrimental to the public interest." Rufo v. Inmates of Suffolk County Jail, 502 U.S. at 384; NLRB v. Harris Teeter Supermarkets, 215 F.3d at 35. Movants meet none of these three tests.
In their original motion for reconsideration, movants cited several examples of "changed circumstances" regarding the Track A claims process that allegedly constituted sufficient justifications for either setting aside the Consent Decree in its entirety or modifying it in unspecified ways. Many of the issues raised in the motion, however, were resolved or had become moot by the time the Court heard oral argument on the motion. *fn2 Accordingly, movants' supplemental hearing memorandum narrowed the alleged changed circumstances to only those still outstanding at the time of oral argument, and the Court therefore focuses only on those issues.
The majority of the issues raised by movants are essentially complaints regarding the manner in which adjudicators have been deciding Track A claims. Movants believe that an unacceptably high rate of Track A claims are being denied; that too few farmers are receiving debt relief; that adjudicators are deciding claims in an arbitrary and capricious manner; that adjudicators have a tendency to resolve factual disputes against class members; and that adjudicators have in certain cases accepted false and possibly perjurious information submitted by the government.
These arguments are not properly before the Court. Even if the Court were presented with evidence sufficient to support movants' claims -- and it has not been -- it would still decline to act on those claims at this time. As the Consent Decree and the Order of Reference make very clear, disputes regarding decisions by arbitrators should be brought to the attention of the Monitor through a Petition for Monitor Review. See Consent Decree ¶¶ 9(b)(v), 12(b)(iii); Order of Reference ¶ 8.
Such complaints regarding the outcome of individual Track A adjudications do not constitute changed circumstances within the meaning of Rule 60(b)(5). The parties settled this case on the premise that such complaints, at least as an initial matter, would be referred to the Monitor, not the Court.
Movants also suggest that Class Counsel's use of non-lawyers to assist class members fill out their claims packages and Class Counsel's alleged inability to provide comprehensive information regarding similarly-situated white farmers to Track A claimants constitute changed circumstances justifying substantial modification or vacation of the Consent Decree. Movants' arguments ignore the reality of this case and are without merit.
The size of the class, which the parties originally estimated would reach 2,000 farmers, quickly ballooned to more than 21,000 farmers. In light of this enormous and unforeseen expansion of the class, and considering the relative unwillingness of lawyers other than Class Counsel and Of Counsel to assist class members, it is difficult to fathom how movants can argue that Class Counsel's decision to use non-lawyer assistants constitutes changed circumstances and somehow harms the class.
Faced with the need to assist a class more than 10 times larger than expected, Class Counsel made a wise decision: rather than tell potential class members that they could not participate in this case because there were not enough lawyers to assist each and every one of them with every aspect of the filing of their claims, Class Counsel chose to allow non-lawyers to assist some class members to assemble their claim packages, so long as an attorney ultimately ...