The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Claimants' Submission
Pursuant to the Court's January 14, 2003 Request Seeking
Clarification that the Court of Appeals' June 21, 2002 Opinion
Applies to Claimants Not Previously Represented by Class Counsel.
On April 4, 2003, the Court gave leave for nine claimants to file
an additional submission on this issue. On June 25, 2003, those
claimants filed Nine Named and or Lead Plaintiffs' Memorandum:
Submitted in Response to the Court's January 14th 2003 Order.
Upon consideration of claimants' submission, the government's
opposition, claimants' reply, the government's surreply, the nine
named plaintiffs' submission and the government's response, the Court
concludes that the relief granted by the court of appeals in its
June 21, 2002 opinion does not apply to claimants not
originally represented by class counsel. As noted below, however,
if any of these plaintiffs were, in fact, originally represented
by class counsel and injured by class counsel's actions, relief
On June 21, 2002, the court of appeals concluded that this
Court had erred in interpreting the Consent Decree to allow
extension of certain critical deadlines. See Pigford v.
Veneman, 292 F.3d 918 (D.C. Cir. 2002). Although the court of
appeals concluded that this Court "exceeded its interpretative
authority," it concluded that "class counsel's conduct
justifie[d] modifying the decree under Federal Rule of Civil
Procedure 60(b)(5)." See id. at 919. Rule 60(b)(5) permits
courts "upon such terms as are just" 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
judgement should have prospective application." Fed.R. Civ. P.
60(b)(5). "[A] significant change in circumstances," the Supreme
Court has held, may "warrant revision of [a] decree." Rufo v.
Inmates of the Suffolk County Jail, 502 U.S. 367, 383 (1992).
The court of appeals noted that, generally, an attorney's
mistakes cannot form the basis of a Rule 60(b)(5) modification of
a consent decree. See Pigford v. Veneman, 292 F.3d at 926.
Because a client voluntarily chooses his attorney, he cannot
"avoid the consequences of the acts or omissions of [the] freely
selected agent." Link v. Wabash Railroad Co., 370 U.S. 626,
633-34 (1962). The court of appeals in Pigford concluded,
however, that other than the three named plaintiffs, none of the
class members had "voluntarily" chosen class counsel and that the
general rule of Link may not apply. See Pigford v. Veneman,
282 F.3d at 926. The court of appeals therefore concluded that
the failure of class counsel not freely chosen by a class member to meet the critical Track B deadlines necessary to pursue that
particular class member's claim "amounts to an `unforeseen
obstacle' that [made] the decree `unworkable.'" See id. at
927. The court of appeals then remanded the case to this Court to
"suitably tailor" a remedy, or Rule 60(b)(5) modification, for
each claimant depending on what failings of his or her lawyer led
to the missing of Track B deadlines so as to "reset the clock" so
far as possible and provide an opportunity to have the individual
claims processed by competent counsel. See id. at 927.
The issue now before the Court is whether claimants who were
not originally represented by class counsel were covered by the
principles articulated in the court of appeals' opinion. See
Pigford v. Veneman, 239 F. Supp. 2d 68, 72 (D.D.C. 2003).
Claimants suggest that the court of appeals' decision clearly
applies to claimants not originally represented by class counsel
because the court of appeals' decision turned on the conduct of
counsel rather than on the identity of counsel. See
Claimants' Submission Pursuant to Court's January 14, 2003
Request at 5. Defendant maintains that the court of appeals was
quite clear that relief was appropriate only because plaintiffs
had not truly "chosen" their counsel and therefore that any
claimant who did elect to choose his own counsel was responsible
for the errors of that counsel. See Defendant's Response to
Claimant's Submission Pursuant to the Court's January 14, 2003
Request at 3. Defendant is right; the court of appeals could not
have been clearer.
Unlike the cases cited by claimants from this and other
circuits, this case does not involve the discretionary dismissal
of a case as a penalty for an attorney's misconduct. Instead,
claimants ask the Court to relieve them from bargained-for Track
B deadlines because their attorneys have failed to fulfill their
duties to their clients. In allowing for Rule 60(b) relief in
this case, the court of appeals relied exclusively on this case's
status as a class action and the lack of voluntary choice of counsel on the part of the class members.
See Pigford v. Veneman, 292 F.3d at 925-26. The D.C. Circuit
recently reiterated, in an unpublished opinion, that "parties are
generally considered bound by the acts of their lawyers, whom
they have voluntarily chosen to represent them." Sabbagh v.
United Arab Emirates, No. 03-7027, 2004 U.S. App. LEXIS 1785, *3
(D.C. Cir. February 4, 2004). Contrary to claimants' assertions,
the court of appeals in Pigford addressed the actual conduct of
class counsel only after determining that the claimants were not
bound by that conduct because the case was a class action and the
class members had not voluntarily chosen their counsel. It would
not be in keeping with the decision of the court of appeals to
expand its decision to those claimants not originally represented
by class counsel.
The arguments advanced by the pro se plaintiffs are
similarly unavailing. First, plaintiffs argue that they are due
special consideration as "private attorney generals" and lead
plaintiffs in the action. See Lead Pl. Mot. at 2. Plaintiffs
cite no law, however, to support their contention that the burden
under Rule 60(b) is any less for lead plaintiffs or pro se
plaintiffs in a class action than for other parties to an action.
Plaintiffs next argue that the court of appeals' decision is
rooted in the "intent of Congress" and that that intent weighs in
favor of modification and that it is the burden of the Court to
protect the class. See id. at 3. Neither of these arguments,
however, provides grounds for this Court to modify the Consent
Decree pursuant to Rule 60(b). Plaintiffs finally maintain that
the Court could simply send the cases back to the arbitrator for
rescheduling, allow the plaintiffs to opt out of the settlement,
or use the arbitration process used for Tim and Clara Pigford.
See id. That argument is similar to the one accepted by this
Court in its decision of January 17, 2002. See Pigford v.
Veneman, 182 F. Supp. 2d 50, 52-53 (D.D.C. 2002) ("the Court
concludes that the arbitrators do have discretion to allow for revision of certain deadlines, even after the deadlines have
passed, so long as justice requires the revisions and provided
that the burden on the defendant is not so great as to outweigh
the interest of the claimant in fully presenting his or her
claim."). Unfortunately for plaintiffs, this Court was reversed
by the court of appeals for reaching that conclusion. See
Pigford v. Veneman, 292 F.3d at 919. None of these options is
available because all would involve modification of the Consent
Decree under Rule 60(b) which, for the reasons listed above, is
not available relief in this case.
Defendant acknowledges, however, that in their pro se
filing the nine plaintiffs alleged that they "were represented by
class counsel from August 15th, 1997 until December 1999." Nine
Named and or Lead Plaintiffs' Memorandum: Submitted in Response
to the Courts' January 14th 2003 Order ("Lead Pl. Mot.") at 2;
Defendant's Response to Pro Se Plaintiffs' Submission Pursuant to
the Court's January 14, 2003 Request ("Def. Resp.") at 2.
Defendant agrees that, if these plaintiff were, in fact,
originally represented by class counsel and therefore were
injured by lead counsel's errors, they clearly are entitled to
the relief discussed in the court of appeals' June 21, 2002
decision. See Def. Resp. at 2. The Court is confident that
should this be the case, the affected claimants and the
government will work together to determine the appropriate
Accordingly, it is hereby
ORDERED that the relief granted by the court of appeals in its
June 21, 2002 Opinion does not apply to those claimants not
originally represented by class counsel.
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