The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge
The Court has before it one motion to vacate the sanctions imposed by
the Court in its May 15, 2001 Memorandum Opinion and Order and one motion
for reconsideration of the sanctions. The first motion was filed by class
counsel Alexander Pires and class counsel Phillip Fraas on September 25,
2001. The second motion was filed by class counsel J.L. Chestnut and his
partner Rose Sanders on September 13, 2002. On February 3, 2003,
defendant filed a supplemental memorandum regarding sanctions pursuant to
the Court's Order of December 30, 2002. Upon consideration of class
counsels' motions, defendant's responses, class counsels'
replies, defendant's supplemental memorandum, class counsels'
opposition and defendant's reply, the Court has concluded that class
counsels' motions must be denied. The Court will specify the fines that
are to be imposed.
Many of the facts surrounding these sanctions were discussed in this
Court's Opinion of this same day denying two motions for reconsideration
of a previous Order of the Court. The Court therefore will only briefly
summarize them here. On April 14, 1999, the Court approved and entered a
Consent Decree which established an adjudication and arbitration process
for the claims of race discrimination of those class members who opted to
have their claims resolved under the Consent Decree. See Pigford v.
Glickman, 185 F.R.D. 82 (D.D.C. 1999), aff'd, 206 F.3d 1212
(D.C. Cir. 2000). The Consent Decree provided that the Court would
appoint an independent Monitor and that the Monitor would have the
authority to direct the facilitator, adjudicator, or arbitrator to
reexamine a claim if the Monitor determined that a "clear and manifest
error" had occurred and had resulted in, or was likely to result in, a
"fundamental miscarriage of justice." Consent Decree ¶ 12(b)(iii).
The Consent Decree did not provide a time limit within which a claimant
could petition for Monitor review of his or her claim. See
To bring finality to the proceedings under the Consent Decree, the
parties stipulated on July 14, 2000, that any claimant who had already
received an adverse decision from the Adjudicator would have 120 days
from the date of the Order, until November 13, 2000, to file a petition
for Monitor review under the Consent Decree. See July 14, 2000
Order ("Stipulation and Order") at 4.*fn2 All future claimants
would have 120 days from the date of their adverse decision.
Id. The Stipulation specifically provided that "[n]o extensions
of these deadlines will be granted for any reason." Id. The
Court approved this Stipulation. Id.
The Court provided in a later Order that instead of filing fully
supported petitions for Monitor review, counsel could instead submit a
Register of Petitions that would list all claimants who received a
decision prior to the July 14, 2000 Stipulation and Order and had asked
for assistance with the filing of his or her petition for Monitor review.
See Pigford v. Veneman, No. 97-1978, 2000 U.S. Dist. LEXIS
16374, *9 (D.D.C. Nov. 8, 2000). The Order laid out a time frame for
filing fully supported petitions and withdrawals and provided that all
petitions and withdrawals had to be filed no later than May 15, 2001.
See id. On April 27, 2001, the Court temporarily suspended the
deadlines set forth in the November 8, 2000 Order while it considered
whether to extend the time for filing petitions for Monitor review.
See Pigford v. Veneman, 144 F. Supp.2d 16, 20 (D.D.C. 2001).
It also announced that if a change to the deadline ultimately were to be
granted, the Court would impose a progressive schedule of daily fines on
class counsel. See id. The Order provided that class counsel
would be fined for each day after May 15, 2001 that they had not
completed the petition process:
Class Counsel will be fined $1,000 for each day
during the first month after the [May 15, 2001]
deadline that all supporting materials or
withdrawals were not filed, they will be fined
$2,000 for each day during the second month after
the [May 15, 2001] deadline that all supporting
materials or withdrawals were not filed,
they will be fined $3,000 for each day during
the third month after the [May 15, 2001] deadline
that all supporting materials or withdrawals were
not filed, and so on.
On May 15, 2001, the Court permanently suspended the deadlines and
reluctantly changed the deadline for filing supporting materials and
withdrawals, setting a final deadline of September 15, 2001 to complete
the petition process. See Pigford v. Veneman, 143 F. Supp.2d 28,
31 (D.D.C. 2001). The Court then imposed the schedule of fines
announced in the April 27, 2001 Order, adding that class counsel would be
fined $4,000 for each day during the fourth month after May 15, 2001 that
all supporting materials or withdrawals were not filed. See id.
at 32. The Order further provided that "for each petition that the
Monitor reports was not supported or withdrawn by the ultimate deadline
of September 15, 2001, Class Counsel will be fined $50,000."
Id. As of September 15, 2001, the final deadline set by the
Order, class counsel had accumulated $308,000 in fines.*fn3
As of November 2001, attorneys from Covington and Burling ("Covington")
were serving as pro bono "plaintiffs' counsel" in sixteen Track
B cases. On November 7, 2001, class counsel filed a notice of intention
to produce files to pro bono counsel and then released several
hundred Track A files to Covington. Defendant moved for emergency
enforcement of the Second Amended Supplemental Privacy Act Protective
Order ("Protective Order") and for sanctions. The Protective Order had
set guidelines regarding who could obtain USDA files, or information
contained in those files, and under what conditions. Although Covington
attorneys were serving as plaintiffs' counsel for certain claimants and
therefore would have been authorized under the Protective Order to
receive files from the government, class counsel was not
authorized to release any files to Covington. See Pigford v.
Veneman, 182 F. Supp.2d 53, 55 (D.D.C. 2002). Because Covington was
solicited by class counsel and by the Court to assist in representing
certain Track B claimants, the Court nevertheless determined that it
would be unfair to deny Covington the benefits of access to Track A files
that class counsel would have been free to consult had they still been
representing the Track B claimants. See id. at 56-57. Covington
therefore was permitted to retain the files improperly released by class
counsel. See id.
The Court found that class counsel's violation of the Protective Order
was "both knowing and willful" in view of the Notice of Intention served
by class counsel, and that the Court would "seriously consider imposing
sanctions" on class counsel. Pigford v. Veneman, 182 F. Supp.2d
at 57. The actual decision on the sanctions was postponed until such
time as the Court addressed all of the potential sanctions against class
counsel. See id. Class counsel were permanently enjoined from
releasing protected files to any pro bono counsel in the future. See
id. The Court is not aware of any violation of this injunction and
presumes that class counsel have honored the terms of the Order.
A. Progressive Schedule of Fines