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Pigford v. Veneman

March 10, 2004

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.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

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.

I. BACKGROUND

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 re-examine 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 id.*fn1

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 Stipulation and 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.

Id.

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.

II. DISCUSSION

A. Progressive Schedule ...


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