United States District Court for the District of Columbia
March 10, 2004.
TIMOTHY PIGFORD, et al., Plaintiffs,
ANN VENEMAN, Secretary, United States Department of Agriculture, Defendant, CECIL BREWINGTON, et al., Plaintiffs, v. ANN VENEMAN, Secretary, United States Department of Agriculature, Defendant
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
1. Criminal v. Civil Sanctions
Class counsel first argues that the progressive schedule of fines
imposed by the Court's Orders constitutes criminal sanctions and that
such sanctions cannot be imposed without a criminal trial. See
Class Counsel's Motion to Vacate the Sanctions Set Forth in the April 27,
2001 Memorandum Opinion and Order and the May 15, 2001 Memorandum Opinion
and Order of the Court ("Mot. Vacate Sanctions") at 30.
The Court has both an inherent and a statutory power to enforce
compliance with its orders and may exercise that authority through a
civil contempt proceeding. See Shillitani v. United States,
384 U.S. 364, 370 (1966); United States v. United Mine Workers of
America, 330 U.S. 258, 330-32 (1947); Petties v. District of
Columbia, 897 F. Supp. 626, 629 (D.D.C. 1995); Securities and
Exchange Commission v. Bankers Alliance Corp., 881 F. Supp. 673, 678
(D.D.C. 1995). "A party commits contempt when it violates a definite and
specific court order requiring him to perform or refrain from performing
a particular act or acts with knowledge of that order." Securities
and Exchange Commission v. Bankers Alliance Corp., 881 F. Supp. at
678. Civil contempt is a remedial device intended to achieve full
compliance with a court's order. See Int'l Union, United Mine
Workers of America v. Bagwell, 512 U.S. 821, 826 (1994); Hicks v.
Feiock, 485 U.S. 624, 631-32 (1988). A contempt fine therefore is
civil and remedial not criminal if it either "coerces the
defendant into compliance with the court's order, [or] . . . compensates
the complainant for losses sustained." Int'l Union, United Mine
Workers of America v. Bagwell, 512 U.S. at 829 (citing United
States v. United Mine Workers of America, 330 U.S. at 303-304).
a. Compensatory Fines
"As a part of the bargain struck between the parties and approved by
the Court in the Order of July 14, 2000, Class Counsel agreed to meet the
120 day deadline [for filing petitions for Monitor review] in return for
the government's agreement to admit more than 1,100 Track A claimants
into the class who otherwise would have been excluded." Pigford v.
Veneman, 144 F. Supp.2d at 19 n.2. The government abided by the
terms of the agreement, but class counsel failed to meet its deadline.
The government argues that the sanctions imposed by the Court's orders
serve a function of being "partially compensatory" for class counsel's
breach. See Defendant's Response to Motion of Class Counsel to
Vacate the Sanctions Set Forth in the April 27, 2001 Memorandum Opinion
and Order of the Court and the May 15, 2001 Memorandum Opinion and Order
of the Court ("Def. Resp.") at 11 n. 11. The Court has previously
expressed this same sentiment, noting that although the schedule of fees
would not "fully recompense" the government, it would "provide at least a
degree of compensation." Pigford v. Veneman, 144 F. Supp.2d at
19 n.2. In exchange for class counsel agreeing to deadlines for petitions
for Monitor review, the government gave up its right to contest
approximately 1,100 untimely filed claims. See id. Assuming a
60% success rate in Track A claims, allowing those claims to proceed was
a governmental concession worth at least $33 million in class member
relief. See id. Because class counsel failed to comply with the
deadlines imposed by the agree-to Stipulation and Order, the government
did not realize the intended benefit of its bargain, and the sanctions
imposed by the Court therefore are compensatory in nature.
b. Coercive Fines
Even assuming the sanctions were not compensatory, they still would be
civil in nature. "Civil contempt sanctions, or those penalties designed
to compel future compliance with a court order, are considered to be
coercive and avoidable through obedience, and thus may be imposed in an
ordinary civil proceeding upon notice and opportunity to be heard."
Int'l Union, United Mine Workers of America v.
Bagwell, 512 U.S. at 826. The Court imposed a per diem fine on class
counsel for each day they failed to submit the completed petitions for
Monitor review. As soon as class counsel fully complied with the Court's
Order, the accumulation of fines ceased. Although the Supreme Court held
in Bagwell that certain fixed fines for prospective conduct
that violates a court order may be characterized as punitive in nature,
the D.C. Circuit has noted that the Bagwell decision "did not
call into question the traditional classification of some categories of
contempt sanctions compensatory fines, coercive imprisonment, and
per diem fines to coerce compliance with affirmative court orders
as civil in nature." National Organization for Women v. Operation
Rescue, 37 F.3d 646, 659 (D.C. Cir. 1994) (emphasis added). "A close
analogy to coercive imprisonment is a per diem fine imposed for each day
a contemnor fails to comply with an affirmative court order. Like civil
imprisonment, such fines exert a constant coercive pressure, and once the
jural command is obeyed, the future, indefinite, daily fines are purged."
Int'l Union, United Mine Workers of America v. Bagwell, 512
U.S. at 829.
Class counsel contends that the sanctions at issue were more closely
akin to a suspended, determinate fine than a per diem fine. See
Mot. Vacate Sanctions at 38. Class counsel relies heavily on the court of
appeals' decision in Evans v. Williams, 206 F.3d 1292
(D.C. Cir. 2000), to support their position that the instant
sanctions were punitive. The district court in Evans had
adopted a plan by which whenever defendant District of Columbia failed to
pay a vendor's invoice within thirty days, a fine would be imposed.
See Evans v. Williams, 206 F.3d at 1294. In finding that these
fines constituted criminal contempt, the court of appeals noted that
"each missed payment was a separate violation of the consent decree and a
separate act of contempt." Id. at 1296. The court determined
that it was "improper to regard the District as capable of purging itself
of contempt by paying a bill before the thirtieth day it simply
was not in contempt until it failed to pay on the thirtieth day."
Id. In this case, by contrast, there is only one deadline at
issue. Class counsel was put on notice on April 27, 2001 that the Court
was considering instituting a daily fine that would continue every day
after May 15, 2001 until class counsel complied with the Court's Order.
Class counsel was in contempt for the same act, failing to timely
complete the petition process, throughout the entire sanctions period.
Class counsel could have halted the accumulation of fines at any time by
complying with the Court's Order. The fines imposed on class counsel
therefore were not criminal in nature.
Evans can be further distinguished in that the court of
appeals focused on the nature of the injunction itself as "key" both to
the Supreme Court's finding of criminal contempt in Bagwell and
the court of appeals' own finding in Evans. See Evans v.
Williams, 206 F.3d at 1296. The court of appeals noted that the
injunction that defendant had been sanctioned for violating established a
"detailed code of conduct" through which the court was governing "an
entire governmental program in the District of Columbia." Id.
at 1296-97. "When a district judge assumes the responsibility to regulate
the activities of a large institution and then seeks to identify and
punish violators of his or her injunction, he or she comes perilously
close to fusing
the powers which our Constitution separates." Id. at
1297. There is no such concern in this case. The Court ordered only that
class counsel timely submit petitions for Monitor review, as it had
previously agreed to do in a Stipulation with the government. When class
counsel failed to meet the deadlines they had agreed to and then those
ordered by the Court, the Court instituted a daily fine as a "financial
incentive" to encourage class counsel to comply expeditiously with the
Court's Order. The per diem, coercive fine imposed on class counsel in
this case is the epitome of a civil sanction.
Class counsel next argue that sanctions are not appropriate because it
was impossible for class counsel to meet the November 2000 deadline or
the May 2001 deadline. "[I]mpossibility of performance constitutes a
defense to a charge of contempt[,] and a respondent who raises the
defense of impossibility must demonstrate his inability to comply
categorically and in detail," despite its good faith efforts.
Securities and Exhange Commission v. Bankers Alliance Corp.,
881 F. Supp. at 678; see Evans v. Williams, 206 F.3d at 1299;
Tinsley v. Mitchell, 804 F.2d 1254, 1256 (D.C. Cir. 1986). When
a district court determines, however, that a contemnor has "not done all
within its power" to comply with the court's orders, contempt may be
appropriate even where compliance is difficult. Twelve John Does v.
District of Columbia, 855 F.2d 874, 877 (D.C. Cir. 1988).
Class counsel agreed to the deadlines imposed by the July 14, 2000
Stipulation and Order and maintained that they could complete the
petition process within four months. The Stipulation and Order
specifically provided that "no extensions of these deadlines will be
for any reason." Stipulation and Order at 4. Despite being granted
an additional six months by the Court, class counsel still failed to
fulfill its responsibilities. Particularly since class counsel negotiated
for the deadlines in question and agreed to them in advance, and in view
of the "no extensions . . . for any reason" language in the Stipulation
and Order, the Court finds that class counsel has not demonstrated that
it should be relieved from civil contempt on grounds of impossibility.
3. Due Process
Class counsel also argue that they were deprived of due process because
the fines were imposed without prior notice from the Court and because
class counsel did not receive any opportunity to be heard. But class
counsel were given notice in the April 27, 2001 Memorandum Opinion and
Order that fines would begin to accrue after the May 15, 2001 deadline.
That message was reiterated in the Memorandum Opinion and Order of May
15, 2001. The accumulation of fines could have been avoided at any time
through compliance with the Court's Order. Even were such notice not
sufficient, the issues involved have been exhaustively briefed since the
time of class counsel's motion. The imposition of the sanctions has been
suspended for nearly two years while the matter has been extensively
briefed and carefully considered.
As for a hearing, due process does not require a hearing every time
sanctions are imposed. See LaPrade v. Kidder Peabody & Co.,
146 F.3d 899, 907 (D.C. Cir. 1998); McLaughlin v. Bradlee,
803 F.2d 1197, 1205 (D.C. Cir. 1986) ("While it is perhaps conceivable that
due process could require a hearing on sanctions under [Fed.R.Civ.P.
11] in certain circumstances, [appellant] offers no basis for any further
proceedings on that subject here."). Moreover, on December 11, 2002, the
parties appeared for a status conference to discuss, among
other topics, the "consolidated issue of fees and sanctions."
November 22, 2002 Order at 2. Although the December 11, 2002 status
conference was not a "hearing" on the issue of sanctions in the
traditional sense, it gave the parties the opportunity to air their views
with the Court for nearly ninety minutes.*fn4 The Court has determined
that no further hearing is necessary in this case and that class
counsel's right to due process has been satisfied.
4. Chestnut, Sanders, Sanders, Pettaway and Campbell
At the time the sanctions were imposed, the Court did not delineate
between the various attorneys and firms involved in the Court's
imposition of a progressive schedule of fines against "class counsel."
Pigford v. Veneman, 144 F. Supp.2d 16 at 20. In addition to
challenging the imposition of the sanctions themselves, Chestnut,
Sanders, Sanders, Pettaway, Campbell & Albright, LLC ("Chestnut")
also contends in its motion for reconsideration that it should be
relieved of liability because Mr. Chestnut was named as class counsel
only after the July 14, 2000 Stipulation and Order was signed and only
after class counsel missed the key November 2000 deadline. See
supra note 2. The Court makes no findings in this Opinion regarding
who was involved in and aware of the negotiation of the July 14, 2000
Stipulation and Order and to what extent responsibility for the actions
predating the sanctions attaches to which class counsel. The Court
declines to allocate the $308,000 fine between the various counsel and
is confident that counsel can decide among themselves the fairest
method of allocating the payment to the government.
B. Sanctions for Failure to Meet September 15, 2001
The Court's Order of May 15, 2001 also provided that class counsel
would be fined $50,000 for each petition that the Monitor reported was
not supported or withdrawn by the ultimate deadline of September 15,
2001. Defendants argue that class counsel should be sanctioned for any
petition that was filed or supplemented after September 15, 2001 and that
resulted in an award for the claimant. See Def. Sanctions Mem.
at 7-8. All of the petitions listed on the Register were either supported
or withdrawn by the September 15, 2001 deadline. See Monitor's
Final September 2001 Report Regarding Registers of Petitions at 7. The
only remaining petitions that could be construed as triggering this
sanction were those included in class counsel's motion for relief for
four groups of claimants. Subsequent to the briefing on the sanctions
issue, however, the Court denied relief to the claimants in question and
declined to allow the untimely petitions for Monitor review to be filed.
See Pigford v. Veneman, 265 F. Supp.2d 41 (D.D.C. 2003). In an
Opinion and Ordered entered this same day, the Court has declined to
reconsider that decision. See March 10, 2004 Opinion and Order.
Thus, all petitions listed on the Register were either fully supported or
withdrawn by the September 15, 2001 deadline and any question regarding
these sanctions is moot.*fn5
C. Sanctions for Violation of Second Supplemental
Privacy Act Protective Order
In its Order of January 17, 2002, the Court noted that it would
consider imposing sanctions on class counsel for the release of hundreds
of Track A files to Covington. The government maintains that "any fees,
costs, and expenses to which class and of counsel otherwise may be
entitled should be reduced" as a sanction for these violations of the
Protective Order. Def. Sanctions Mem. at 12. The government proposes that
an "easily calculable" option for reducing any fee award would be to
assess a $1,000 reduction in fees for each disclosure of an individual's
Privacy Act-protected records. Id. at 14 n. 16.*fn6
In its January 17, 2002 Memorandum Opinion and Order, the Court
"closely reviewed the language" of the Protective Order and concluded
that class counsel violated the Protective Order by releasing Track A
files to Covington and that they did so "both knowing[ly] and
willful[ly]." Pigford v. Veneman, 182 F. Supp.2d at 55, 57.
Class counsel concedes that they incorrectly interpreted the Protective
Order in releasing the protected information to pro bono counsel.
Plaintiffs' Opposition to Defendant's Memorandum Regarding Sanctions to
be Imposed Upon Class Counsel and Of Counsel to the Class Filed Pursuant
to Order of December 30, 2002 at 8. They contend, however, that civil
contempt sanctions are not appropriate because no actual harm resulted
from the sharing of the files. Id. The Court is inclined to
agree. The Court ordered that no more files be improperly released by
class counsel and none have been. Had Covington gone directly to the
government with the request for white farmer files, this Court
would have expected the government to produce files in compliance
with both the spirit and the letter of the Consent Decree. Moreover,
government compliance with the request would have been fully authorized
by the Second Supplemental Security Act Protective Order. See
Protective Order at 1-2. Although class counsel's conduct in violation of
the Protective Order cannot be excused or condoned, no harm resulted from
the improper release of the files to Covington. See
Pigford v. Veneman, 182 F. Supp.2d at 56-57. The Court
therefore declines to impose monetary sanctions for class counsels'
violation of the Protective Order.
An Order consistent with this Opinion will issue this same day.
For the reasons stated in the Opinion issued this same day, it is
ORDERED that class counsel shall be fined $308,000 in accordance
with the progressive schedule of fines announced in this Court's Order of
May 15, 2001. These fines will be suspended until such time as the
pending motions for attorneys' fees have been resolved. At that time, the
fines shall be paid to the government (or deducted from the government's
payment of fees to class counsel); it is
FURTHER ORDERED that civil contempt sanctions will not be imposed on
class counsel for violations of the Second Supplemental Privacy Act
Protective Order; it is
FURTHER ORDERED that J. L. Chestnut and Rose M.
Sanders' motion for reconsideration  is DENIED; and it is
FURTHER ORDERED that class counsel's motion to vacate  is DENIED.