UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
August 24, 2009
CECIL BREWINGTON, PLAINTIFF,
TOM VILSACK, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE,*FN1 DEFENDANT.
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.
Plaintiff Cecil Brewington was a class member in the Pigford litigation. See Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999). He pursued a claim of discrimination against the United States Department of Agriculture ("USDA") under the Consent Decree settling that suit. As provided by the Consent Decree, his claim was considered by a third-party neutral known as the arbitrator. The arbitrator dismissed his claim on June 6, 2005. See Mot., Ex. 1, In Re: The Arbitration of Cecil Brewington, Claim No. 21371 at 6-7 (June 6, 2005).
On June 18, 2008, Congress enacted the Food, Conservation, and Energy Act of 2008 ("FCEA"). Mr. Brewington contends that Section 14012 of the FCEA, see Pub. L. No. 110-246, 122 Stat. 1651, 2209, permits him to renew in this Court the discrimination claim rejected by the arbitrator in June 2005. See, e.g., Complaint at 17 ("Compl."); see also Opp. at 6. The USDA has moved to dismiss Mr. Brewington's complaint, arguing that he is not among the limited number of individuals eligible to seek relief under Section 14012. See Mot. at 7-8; see also Reply at 4-5.
Mr. Brewington's case does not differ in any material respect from the case of Lucious Abrams, another Pigford class member who filed suit in this Court pursuant to Section 14012 of the FCEA.*fn2 In a Memorandum Opinion issued on August 24, 2009, the Court explained that Mr. Abrams -- who, like Mr. Brewington, sought to renew in this Court a claim of discrimination previously dismissed by the arbitrator -- had failed to state a claim. Specifically, Mr. Abrams had failed to state a claim because (1) Section 14012 permits only those individuals "who previously submitted a late-filing request under [paragraph] 5(g) of the [Pigford Consent Decree]," FCEA § 14012(a)(4), to file a discrimination suit against the USDA in this Court; (2) Mr. Abrams admittedly did not submit a "late-filing request" under paragraph 5(g); and thus (3) Mr. Abrams did not fall within the class of individuals that Section 14012 was intended to benefit. See Abrams v. Vilsack, Civil Action No. 08-1760, Memorandum Opinion at 8-9 (D.D.C. Aug. 24, 2009).
The foregoing analysis applies with equal force to Mr. Brewington's complaint. Thus, the Court hereby incorporates the analysis and conclusion contained in its Memorandum Opinion of August 24, 2009 in Civil Action No. 08-1760. Accordingly, Mr. Brewington's complaint -- like Mr. Abrams' complaint -- must be dismissed for failure to state a claim.
An Order consistent with this Memorandum Opinion shall issue this same day.