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Pigford v. Veneman

August 7, 2006

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

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

On December 7, 2005, class members Elmore and Ludean Hicks filed a motion to enforce the Consent Decree entered in this case, claiming that they had not received the relief granted to them by the Adjudicator under the Decree. Through the briefs submitted by the parties, the Court learned that the Hicks' Adjudicator decision and other final decisions of the Adjudicator had been "amended." For the Hicks, this "amendment" in effect reduced the amount of cash relief awarded in the Adjudicator's initial decision by $47,000, as well as eliminating various forms of injunctive and debt relief.

The Consent Decree provides authority for certain Court-appointed neutrals, including the Adjudicator, to issue decisions regarding class members' entitlement to relief. The Consent Decree states that these decisions are final, except as provided in the portion of the Consent Decree that authorizes review by an independent Monitor. See Consent Decree ¶¶ 9(a)(v), 9(b)(v), 12(b)(iii). Because the "amended" decisions issued by the Adjudicator to the Hicks and others fell outside the procedures authorized under the Consent Decree, on February 23, 2006, the Court ordered the Monitor to investigate this situation and report to the Court certain information regarding these "amended" decisions. See February 23, 2006 Memorandum Opinion and Order [Docket No. 1254].

On April 7, 2006, the Monitor filed her Report, which concerned four different categories of amended or potentially amended decisions: (1) forty-three decisions in the "conservation loan" group; (2) twenty-three decisions that had "other substantive" amendments; (3) sixty-one decisions that had "technical" amendments; and (4) possible additional "amended" Facilitator eligibility decisions. See Monitor's Report on Amended Adjudicator Decisions [Docket No. 1269].

The Court has considered the Monitor's April 7, 2006 Report and believes that additional information is required concerning certain of these categories of amended or potentially amended decisions.

II. MONITOR'S REPORT

A. The "Conservation Loan" Group

The Monitor's Report states that amended decisions have been issued in forty-three conservation loan claims. The Report includes the Facilitator's explanation as to why amended Adjudicator decisions have been issued in this group, despite the fact that the Consent Decree does not authorize such amendments. In light of the Court's February 23, 2006 Memorandum Opinion and Order stating that the Court has serious concerns as to how and why these amendments were undertaken, the parties appear to have discussed and negotiated a resolution to this issue. To that end, on June 12, 2006, the parties submitted a joint proposed stipulation regarding those conservation loan claims. See [Joint Proposed] Stipulation and Order [Docket No. 1287].

The proposed stipulation and order has the effect of reinstating the original Adjudicator decisions for claims where class members had not already petitioned for Monitor review, subject to the USDA's right to petition for review of those reinstated decisions on the sole issue of whether the class member should receive credit relief under Paragraph 9(a)(iii) of the Consent Decree or non-credit relief under Paragraph 9(b)(iii) of the Decree. The Court was satisfied that the parties' stipulation and order adequately addressed the issues related to the conservation loan group of amended Adjudicator decisions, and therefore it approved the stipulation and order on June 30, 2006. See Stipulation and Order, entered June 30, 2006 [Docket No. 1296].

B. Twenty-Three "Other Substantive" Amendments

In her April 7, 2006 Report to the Court, the Monitor explained that the Facilitator categorizes some amendments as "substantive" when they result from re-review by the Adjudicator, and categorizes others as "technical" when they are simply the correction of an administrative or clerical error.*fn1 The Monitor reported that in addition to the "substantive" amendments to the forty-three conservation loan claims, there were twenty-three other claims in which the Adjudicator had made "substantive" amendments. These claims are listed in Exhibit of the Monitor's Report with unique identifiers 44 through 66.

In some of the twenty-three additional claims, it appears that the amended Adjudicator decision decreased the cash relief (and other corresponding relief) provided to the class member. In others, it appears that the amended Adjudicator decision may have affected the class member's debt relief. The Facilitator's letter in Exhibit A states generally that amended Adjudicator decisions were issued in response to errors that had been called to the Facilitator's attention through internal quality-control measures, contact from a class member, and/or contact from the government. Some of these twenty-three class members petitioned for Monitor review; others did not. The Monitor's Report does not contain sufficient information for the Court to evaluate ...


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