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January 3, 2005.

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 Agriculture, Defendant.

The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge


This matter is before the Court on a motion to modify the Consent Decree filed by certain African American farmers and a motion to disqualify lead class counsel filed by a number of the same African American farmers and others. As a result, the Court again finds itself called upon to review the fairness of the Consent Decree memorializing a settlement agreement entered into more than five years ago by the United States Department of Agriculture and the plaintiff class of African American farmers, and the adequacy of plaintiff class counsel. The terms of the Consent Decree were approved by this Court in April 1999. Since then, more than 13,500 farmers have received more than $830 million in cash and other relief from the government. In the present motions, however, a small number of individual African American farmers seek to overturn these gains, renegotiate with the government, and fashion what they believe would be a better solution. Because the motion to modify and the motion to disqualify concern common issues, the Court will address them together. As explained in this Opinion, the Court finds no grounds to grant the extraordinary relief sought by movants and again reminds all parties, movants and counsel that the Federal Rules of Civil Procedure and the relevant case law provide an avenue for such relief only in the rarest of circumstances. Consequently, the Court will deny both motions.


  The issues raised by movants in their motions to modify the Consent Decree and to disqualify class counsel cover a broad range of matters related to the fairness of the negotiated settlement of this case, as approved by the Court after a fairness hearing and embodied in the Consent Decree, and the process of its implementation. Because these issues are bound up with the progress of the case over the past five years, a review of its history is appropriate. It is important to note that many of the arguments advanced by movants have already been raised and decided both by this Court and by the United States Court of Appeals for the District of Columbia Circuit. As counsel for movants is well aware, those decisions constitute the law of this case and therefore, absent extraordinary changed circumstances, must be followed. This Court and the court of appeals have described the history and context of the case as follows: On August 28, 1997, three African-American farmers filed suit on behalf of a putative class of similarly situated African-American farmers alleging racial discrimination in the administration of USDA programs and further harm from the allegedly surreptitious dismantling of USDA's Office of Civil Rights in 1983, which together were alleged to violate the Fifth Amendment, the Administrative Procedure Act, 5 U.S.C. § 551 et seq.; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; and the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691, prohibiting discrimination in consumer credit. Following amendments to the complaint, the district court granted class certification in October 1998. See Pigford, 185 F.R.D. at 90. At that time, most of the farmers' ECOA claims were arguably barred by a two-year statute of limitations. See 15 U.S.C. § 1691e(f). Responding to petitions from class members, Congress enacted, and the President signed in November 1998, an amendment to retroactively extend the limitations period for persons who had filed administrative complaints between January 1, 1981, and July 1, 1997, for acts of discrimination occurring between January 1, 1981, and December 31, 1996. A second class action, Brewington v. Glickman, Civ. No. 98-1693, filed in July 1998 and making similar allegations covering a different time period, was consolidated with Pigford for purposes of settlement, and a new class was certified. See Pigford, 185 F.R.D. at 90.

As the February 1999 trial date drew near, the parties' negotiations shifted from individual claims to a global settlement, id., and with the assistance of a court-appointed mediator, the parties developed and agreed to a consent decree that contemplated a two-track dispute resolution mechanism to determine whether individual class members had been the victims of discrimination and, if so, the amount of monetary relief to which they were entitled.
Pigford v. Glickman, 206 F.3d 1212, 1215 (D.C. Cir. 2000) (footnotes omitted).
Designed to "ensure that in their dealings with USDA, all class members receive full and fair treatment that is the same as the treatment accorded to similarly situated white persons," the decree establishes procedures for resolving class members' individual claims. Consent Decree at 2. Specifically, the decree allows class members to choose between two claims procedures, known as Tracks A and B. In recognition of the fact that "most . . . [class] members . . . had little in the way of documentation or proof" of either discriminatory treatment or damages suffered, Track A awards $50,000 to those farmers able to "meet only a minimal burden of proof." Pigford, 185 F.R.D. at 103. Track B . . . imposes no cap on damages, but requires farmers who choose this track, after limited discovery consisting "essentially [of] an exchange of lists of witnesses and exhibits and depositions of the opposing side's witnesses," to prove their claims by a preponderance of the evidence in one-day mini-trials before an arbitrator. Id. at 106. . . . Track A and B decisions are final, except that the losing side may petition for review by a court-appointed monitor. [Consent Decree] at ¶¶ 9(a)(v), 9(b)(v), 10(i), 12(b)(iii).
Pigford v. Glickman, 292 F.3d 918, 920-21 (D.C. Cir. 2002).
By law, the proposed consent decree could not take effect until the district court had approved it, see FED. R. CIV. P. 23(e), and the district court's approval could not be granted until notice had been given to the class of the proposed settlement and a fairness hearing had been held to determine whether the "settlement is fair, adequate, and reasonable and is not the product of collusion between the parties." Pigford, 185 F.R.D. at 98 (quoting Thomas v. Albright, 139 F.3d 227, 231 (D.C. Cir. 1998)). The district court held a day-long hearing in which representatives of eight organizations and sixteen individuals . . . voiced their objections to the terms of the proposed consent decree. Many . . . objected to the absence of certain forms of prospective structural relief, notwithstanding the fact that the complaint, as amended, did not seek such injunctive relief. 185 F.R.D. at 110. While USDA was likely to face billion-dollar monetary liability under the decree, no changes to the county committee system were mandated, and objectors feared that no improvements would be made to the way in which the farm credit and non-credit programs are administered. See Transcript of Fairness Hearing ("Tr."), Mar. 2, 1999 at Joint Appendix (JA) 388 (Mr. Bowens); 493 (Mr. Cooper). They also maintained that insufficient information had been exchanged during the discovery period leading up to the settlement. . . .
Following the hearing, the district court suggested fourteen changes to the proposed consent decree, including modifying paragraph 19 to require USDA to use its best efforts to comply with laws prohibiting discrimination and modifying paragraph 21 to make clear that the district court retained jurisdiction to enforce the consent decree with its contempt power. The class and USDA rejected the first suggestion and adopted the second. The district court then allowed another round of written objections to be filed to the revised consent decree. After considering all of the objections and the entire record, the district court approved the proposed consent decree as fair under Rule 23 and ordered that the decree be entered.
Pigford v. Glickman, 206 F.3d at 1215-16 (footnotes omitted).
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 that appeal was pending, the same seven appellants/movants filed [a motion] asking the [District] Court to reconsider the fairness of the Consent Decree in light of "changed circumstances" which, they argue[d] justify vacating the Decree. . . .
Pigford v. Glickman, 127 F.Supp. 2d 35, 37 (D.D.C. 2001). The motion to reconsider the fairness of the Consent Decree was denied, see id., and implementation of the Consent Decree continued unimpeded.
  Given the size of the class, disputes about the adjudication and arbitration processes were bound to arise. Fortunately, the Consent Decree anticipated these problems and established means to address them:
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 id.
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. See July 14, 2000 Stipulation and Order ("Stipulation and Order") at 4. They further stipulated that all claimants who were to receive adjudication decisions after July 14, 2000 would have 120 days from the date of their adverse decision to file a petition for Monitor review. See id. The Stipulation and Order specifically provided that "no extensions of these deadlines will be granted for any reason." Id.
Pigford v. Veneman, 307 F.Supp. 2d 43, 45-46 (D.D.C. 2004) (footnotes omitted).
  Less than a year after the denial of the first motion to reconsider the fairness of the Consent Decree, several pro se members of the plaintiff class filed motions before this Court to vacate the Decree and remove lead class counsel, arguing that the decision of the court of appeals in Pigford v. Veneman, 292 F.3d 918 (D.C. Cir. 2002), proved that the Consent Decree was "unworkable." The decision by the court of appeals, however, had focused on problems with the Track B process, and the court of appeals found that class counsel's failure to meet critical deadlines for arbitration of certain individual Track B claims amounted to an "unforeseen obstacle" that warranted a tailored modification of the Consent Decree to permit the arbitrator to set new deadlines for both parties in certain Track B cases. See id. at 927. Thus, when later considering the motion to vacate the Consent Decree and remove class counsel, this Court found the movants' reliance on the court of appeals' decision to be misplaced:
With respect to the motion to vacate the Consent Decree, movants rely on the court of appeals' statement that the Decree is "unworkable." See Motion to Vacate Consent Decree at 2. In making that determination, however, the court of appeals was referring only to the tight deadline schedule of the Track B process — since that was the matter before it — although the judgment was influenced by the court's assessment of counsel's overall performance when faced with a workload well beyond what anyone could have imagined and counsel's failure to seek assistance of this Court or other lawyers earlier. See Pigford v. Veneman, 292 F.3d at 926-27. The Consent Decree therefore was described as "unworkable" only with respect to the Track B process established by the Consent Decree and the relatively few Track B cases in which crucial deadlines were missed. See id.
Pigford v. Veneman, 217 F.Supp.2d 95, 98 (D.D.C. 2002).

  Today, slightly more than two years after that decision, certain individual class members once again ask the Court to modify the Consent Decree and remove class counsel. The present motions are significantly more expansive than the 2002 motions, however, and present a dizzying array of grounds for the Court to consider.*fn1

  Movants' complaints can be grouped into two overarching arguments: (1) the Consent Decree was unfair, and (2) implementation of the Decree has been flawed. See Movants' Reply to Oppositions to Amended Motion to Modify Consent Decree ("Mov. Reply (Consent Decree)") at 4. The first argument raises four primary concerns: (a) the number of objectors to the settlement was discounted by the Court, (b) the award amounts were insufficient and payments have been unduly delayed, (c) necessary forward-looking injunctive relief was not included in the Decree, and (d) notice of the settlement was inadequate. See id. at 5-14. The second argument is comprised substantially of three claims: (a) full recovery by claimants has been thwarted by unwarranted and aggressive opposition by the government, (b) discrimination at the USDA persists, and (c) class counsel has been inadequate. See Mov. Reply (Consent Decree) at 14-21. The last rationale is further expressed in movants' motion to disqualify class counsel. In that context, movants assert that class counsel: (a) failed to provide adequate notice to putative class members, (b) agreed to an allegedly deficient settlement and, in doing so, "fail[ed] to follow the demands" of class members, (c) performed poorly and missed crucial deadlines, (d) colluded with defendant regarding a "secret confidential [fee] settlement arrangement," and (e) refuse to communicate with class members. See Movants' Motion to Disqualify Class Counsel and Request for Emergency Hearing ("Mov. Mot. (Class Counsel)") at 3-5, 13-15.


  As the history of this case makes clear, the present motions are not the first of their kind. See Pigford v. Veneman, 217 F. Supp.2d 95 (D.D.C. 2002) (denying motions to vacate Consent Decree and remove lead class counsel); Pigford v. Glickman, 127 F. Supp.2d 35 (D.D.C. 2001) (refusing to vacate Consent Decree in light of alleged "changed circumstances"); 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) (upholding fairness of Consent Decree). Nor are the issues that movants raise novel. See Pigford v. Glickman, 185 F.R.D. 82, 102 (D.D.C. 1999) (notice to class members); Pigford v. Veneman, 208 F.R.D. 21, 23 (D.D.C. 2002) (same); Pigford v. Glickman, 185 F.R.D. at 102 (number of objectors); id. at 108-09 (sufficiency of Track A monetary award); id. at 110-12 (forward-looking injunctive relief); Pigford v. Glickman, 206 F.3d at 1215-16 (same); Pigford v. Glickman, 127 F.Supp. 2d at 38 (difficulty of recovery); Pigford v. Glickman, 182 F.R.D. 341, 350 (D.D.C. 1998) (adequacy of class counsel); Pigford v. Glickman, 127 F.Supp. 2d at 38-40 (same); Pigford v. Veneman, 292 F.3d. 918, 921-22 (D.C. Cir. 2002) (same); Pigford v. Veneman, 217 F. Supp.2d at 98-100 (same).

  With this background, it is important to note at the outset that many, if not all, of the issues raised by movants are foreclosed by this Court's approval of the Consent Decree after notice and a comprehensive fairness hearing and the entry of a final judgment in this case. See Pigford v. Glickman, 206 F.3d 1212, aff'g Pigford v. Glickman, 185 F.R.D. 82.*fn2 Because the Consent Decree operates as a final judgment in the case, see Consent Decree at ¶ 17, and given the length of time that has passed since it was approved (over five years), movants have limited avenues available for relief.*fn3 Consequently, as the present motions are addressed in turn, particular attention will be paid to whether movants' claims even qualify for reconsideration. A. Standing

  1. Motion to Modify Consent Decree

  The issue of movants' standing to seek modification of the Consent Decree has been raised by defendant and by class counsel. See Defendant's Opposition (Consent Decree) at 2 n. 1; Plaintiffs' Opposition (Consent Decree) at 2 n. 1. The doctrine of "standing" concerns which persons or entities have the right to make a legal claim or present an issue for resolution in court. The issue of the lack of standing of some of the movants has been invoked previously in response to motions to modify the Consent Decree. See, e.g., Pigford v. Veneman, 217 F. Supp.2d at 97 n. 1. Because some of the named movants are members of the class, it is conceivable that they could possibly have standing with respect to some of their claims. Since none of them speak for the class or for all of the class members — including Thomas Burrell, who inexplicably suggests in all of his filings that he does — it is highly unlikely, however, that these movants have standing to raise all or even most of their claims. For example, one of the primary grounds for relief posited by movants is that many farmers did not receive adequate notice of the settlement, see Mov. Reply (Consent Decree) at 10-14, but none of the movants actually appears to fall within this category.

  In fact, many of the movants have been involved in this case since before the terms of the settlement were proposed and the Consent Decree was approved. Thomas Burrell and Eddie Slaughter, for instance, both spoke in opposition to the Consent Decree at the fairness hearing this Court held in March 1999. See Transcript of Fairness Hearing, Mar. 2, 1999 at 105-14 (Burrell), 154-56 (Slaughter). Why neither individual chose to opt out of the class because of his disagreement with the terms of the settlement is unclear. Had they done so, of course, they could have pursued their individual claims as they saw fit. What is clear is that both had actual notice of the terms of the Consent Decree and both continue to lodge essentially the same objections they have held since 1999. Indeed, for Mr. Burrell, Mr. Slaughter and another movant, William Miller, this attempt to modify the Consent Decree is their second. See Pigford v. Veneman, 217 F. Supp.2d at 97. The Court understands their determination but suggests that their unwillingness to accept the Court's rulings — rulings that they are bound by because of their own decisions to remain within the class — is inconsistent with the class action process established by law and thus ultimately and predictably unlikely to bear fruit. These movants have attempted to have it both ways, accepting the benefits of class membership while attacking many of the limits they knew would be imposed upon it.

  Furthermore, at least eight of the eleven movants have been claimants under either Track A or Track B of the procedures established by the Consent Decree, some successful and some unsuccessful. Five of the unsuccessful ones have petitions for review pending before the Monitor and thus ultimately may obtain relief under the Consent Decree. See Plaintiffs' Motion to Strike or, in the Alternative, Opposition to Movants' Motion to Modify Consent Decree at 2 n. 1. It follows that they also had notice of the ...

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