The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on the defendant's motion to dismiss the complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Mot."); the pro se plaintiff's opposition thereto ("Opp."); and the defendant's reply ("Reply"). The Court will grant the defendant's motion and dismiss this case.
A. The Pigford Litigation
On October 9, 1998, this Court certified a class of African American farmers who alleged that the United States Department of Agriculture ("USDA") willfully discriminated against them when they applied for various farm loan and benefits programs, and then failed to properly investigate their administrative complaints of discrimination. See Pigford v. Glickman, 182 F.R.D. 341, 351 (D.D.C. 1998). The Court approved a Consent Decree settling the Pigford class action suit on April 14, 1999. See Pigford v. Glickman, 185 F.R.D. 82, 113 (D.D.C. 1999).
The Pigford Consent Decree creates a mechanism for resolving individual claims of class members outside the traditional litigation process. See Pigford v. Glickman, 185 F.R.D. at 94-98. Class members may choose between two claims procedures, known as Track A and Track B. Track A awards $50,000 in monetary damages, debt relief, tax relief, and injunctive relief to those claimants able to meet a low burden of proof. See Consent Decree ¶ 9. Track A claims are decided by a third-party neutral known as the adjudicator. Track B imposes no cap on damages and also provides for debt relief and injunctive relief. See id. ¶ 10. Claimants who choose Track B must prove their claims by a preponderance of the evidence in one-day mini-trials before a third-party neutral known as the arbitrator. Decisions of the adjudicator and the arbitrator are final, except that the monitor, a court-appointed third-party neutral, may on petition direct the adjudicator and the arbitrator to re-examine claims if the monitor determines that "a clear and manifest error has occurred" that is "likely to result in a fundamental miscarriage of justice." See id. ¶¶ 9(a)(v), 9(b)(v), 10(I), 12(b)(iii). There is no provision in the Consent Decree for review by this Court of the third-party neutrals' decisions. The Court does, however, retain jurisdiction to enforce the Consent Decree through contempt proceedings if a party alleges a violation of its terms. See id. ¶¶ 13, 21.
B. The Plaintiff's Track B Claim
Farmers who wished to seek relief under the Pigford Consent Decree were required to file claim packages by October 12, 1999. See Consent Decree ¶ 5(c). The plaintiff in this case, Lucious Abrams, submitted his claim package on October 11, 1999, see Complaint at 2 ("Compl."), and chose to pursue the procedures under Track B. On May 31, 2005, the arbitrator rejected Mr. Abrams' Track B claim, concluding that Mr. Abrams had failed to demonstrate by a preponderance of the evidence that he had suffered racial discrimination. See Mot., Ex. 1, In Re: The Arbitration of Lucious Abrams & Sons, Claim No. 21365 at 6 (May 31, 2005) ("Arb. Decision").
The arbitrator also explained, however, that Mr. Abrams' case was peculiar. To begin with, it was clear that Mr. Abrams had been victimized by his attorney, Heidi Pender. See Arb. Decision at 3 (a primary "barrier to the successful prosecution of Mr. [Abrams'] claim was his prior counsel, Heidi Pender"). It appears that Ms. Pender -- who was neither class counsel nor of counsel in the Pigford case -- failed to appear for hearings, failed to submit evidence in support of Mr. Abrams' Track B claim, and failed to file a memorandum of legal and factual issues in dispute as required. See Compl. at 8-9; see also Arb. Decision at 3. Eventually, for reasons not revealed by the record, Ms. Pender withdrew as Mr. Abrams' attorney.*fn2
After Ms. Pender withdrew, Mr. Abrams asked the arbitrator to extend the deadlines in his Track B case so that he could seek representation, gather evidence and continue to prosecute his claim. Citing two decisions of the undersigned addressing that issue, see Pigford v. Veneman, Civil Action No. 97-1978, Memorandum Opinion and Order at 3 (D.D.C. May 5, 2005); Pigford v. Veneman, 344 F. Supp. 2d 149, 152 (D.D.C. 2004), the arbitrator concluded that he had no authority to grant that request. See Arb. Decision at 2-3. Thus, in his view "he [was bound to] examine the record before him, namely the exhibits filed by [Mr. Abrams himself] and [the USDA]." Id. at 3. Finding in that limited record no direct evidence of discriminatory animus or any evidence that "others outside the protected class [ -- i.e., white farmers --] were treated more favorably than [Mr. Abrams]," the arbitrator concluded that Mr. Abrams' discrimination claim could not succeed. Id. at 5.
At that point the arbitrator confronted "a difficult choice[.]" Arb. Decision at 6. The Pigford Consent Decree suggests that all Track B claimants are entitled to an evidentiary hearing before their claims are decided, and it does not expressly authorize dismissal of claims without a hearing. See Consent Decree ¶ 10(a)-(g). Mr. Abrams had not received a hearing. Thus, the arbitrator was required to choose between "permitting the claim to go forward [to a hearing], understanding that [Mr. Abrams] has not made a prima facie showing of discrimination, or dismissing the claim absent specific language in the Consent Decree authorizing that action." Arb. Decision at 6. On the state of the record before him, the arbitrator concluded that a hearing would be "an exercise in futility," and that the parties to the Consent Decree could not have intended to require hearings in such cases. Id. The arbitrator therefore dismissed Mr. Abrams' case without holding a hearing. Mr. Abrams did not petition the monitor for review of the arbitrator's decision. See Opp. at 4.
C. Paragraph 5(g) of the Consent Decree and the Food, Conservation, and Energy Act of 2008
As noted above, farmers who wished to seek relief under the Pigford Consent Decree were required to file claim packages by October 12, 1999. See supra at 2. The only way for a farmer to become part of the settlement after that deadline was to file under paragraph 5(g) of the Consent Decree, which allowed late-filing applicants to join the settlement if their failure to file on or before October 12, 1999 resulted from "extraordinary circumstances beyond [their] control." Consent Decree ¶ 5(g).
After the October 12, 1999 deadline passed, the Court learned that a large number of individuals planned to seek permission to late file under paragraph 5(g). Finding that it would be more efficient and expeditious to let these claims be decided on a case-by-case basis by the arbitrator, the Court delegated its authority to the arbitrator to apply the "extraordinary circumstances" standard set out in paragraph 5(g). See Pigford v. Veneman, Civil Action No. 97-1978, Order at 1 (D.D.C. Dec. 20, 1999). Farmers were permitted to submit these so-called "5(g) petitions" until September 15, 2000. See Pigford v. Veneman, Civil Action No. ...