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Pigford v. Vilsack

United States District Court, District of Columbia

September 15, 2016

TIMOTHY PIGFORD et al, Plaintiffs,
v.
TOM VILSACK, Secretary, United States Department of Agriculture, Defendant. CECIL BREWINGTON et al, Plaintiffs,
v.
TOM VILSACK, Secretary, United States Department of Agriculture, Defendant.

          OPINION

          PAUL L. FRIEDMAN, United States District Judge.

         Before the Court are eight motions and one "objection" filed by four sets of pro se parties, three of whom are individuals or groups of individuals who either filed unsuccessful Track A claims, unsuccessfully attempted to late-file Track A claims, or opted-out of the plaintiff class: (1) Eddie and Dorothy Wise (collectively, "the Wises"); (2) Theodore F.B. Bates, Ava L. Bates, Karla K. Bates, Terrie L. Bates, Theodore B. Bates, Jr., Theodore F.B. Bates, Sr., and Ada C. and Kerry F. Bates (collectively, "the Bateses"); and (3) Carl Parker on behalf of the Estate of Robert J. Parker ("Parker"). The fourth party is Corey Lea, a representative of the Cowtown Foundation, Inc. ("Cowtown"), who appears to have no prior connection to this case. The defendant - the United States Department of Agriculture ("USDA") - opposes the motions and has supplied a declaration by Bob Etheridge, North Carolina Executive Director of the USDA's Farm Service Agency, with respect to the Wises' motions. The motions seek various forms of relief, discussed in further detail below, but generally ask for further hearings under the Consent Decree in this case.

         The Court has previously considered similar motions - including some by these same pro se parties - raising the same arguments on which the movants now base the present motions. See, e.g., Pigford v. Vilsack, 78 F.Supp.3d 247 (D.D.C. 2015), appeal dismissed (July 20, 2015); Pigford v. Vilsack, No. 97-1978, 2014 WL 6886607 (D.D.C. Dec. 8, 2014); Memorandum Opinion and Order (Jan. 29, 2013) [Dkt. 1873]. The Court at that time concluded that it had no authority to entertain these arguments, which were clearly foreclosed by the terms of the Consent Decree. The same conclusion holds true today - indeed, even more so in light of the Wind-down Stipulation and Order rendered on November 2, 2015 [Dkt. 2008]. Where not foreclosed on jurisdictional grounds, the pro se motions are barred by the doctrine of res judicata. The Court therefore will deny the pro se motions and objection.[1]

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In this action, a class of African-American farmers sued the USDA for discriminating against them in the provision of farming credit and benefits. In April 1999, this Court approved a Consent Decree that settled the plaintiffs' claims and created a mechanism for resolving individual claims of class members outside the traditional litigation process. Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999). Class members could choose between two claims procedures, known as Track A and Track B. Pigford v. Schafer, 536 F.Supp.2d 1, 4 (D.D.C. 2008). Track A claims were decided by a third-party neutral known as an adjudicator, and claimants who were able to meet a minimal burden of proof were awarded $50, 000 in monetary damages, debt relief, tax relief, and injunctive relief. Id. Track B imposed no cap on damages and also provided for debt relief and injunctive relief; but claimants who chose Track B were required to prove their claims by a preponderance of the evidence in one-day mini-trials before a third-party neutral known as an arbitrator. Id. Decisions of the adjudicator and the arbitrator were final and not subject to review in any judicial forum, except that the Monitor, a court-appointed third-party neutral, could - on a petition filed within 120 days of the decision - direct the adjudicator and the arbitrator to reexamine claims if the Monitor determined that "a clear and manifest error ha[d] occurred" that was "likely to result in a fundamental miscarriage of justice." Id. (citing Consent Decree ¶¶ 9(a)(v), 9(b)(v), 10(i), 12(b)(iii) (April 14, 1999) [Dkt 1671); see also Pigford v. Johanns, 416 F.3d 12, 14 (D.C. Cir. 2005).

         Potential class members in 1999 were not required to participate in that alternative claims resolution process; those African-American farmers who wished to pursue their individual claims against the USDA in court were permitted to opt out of the Pigford plaintiffs' class by submitting an opt-out request within 120 days of the entry of the Consent Decree. Consent Decree ¶¶ 2(b), 18; Pigford v. Glickman, 185 F.R.D. at 95-96. The Court entered the Consent Decree on April 14, 1999 and, by its terms, it extinguished the claims against the USDA of all members of the Pigford plaintiffs' class who did not opt out of the Consent Decree in a timely fashion. Consent Decree ¶¶ 2(b), 18; Pigford v. Veneman, 208 F.R.D. 21, 23 (D.D.C. 2002).

         By the end of the claims resolution process, nearly 23, 000 claimants had been found eligible to participate, and the federal government had provided more than $ 1 billion in total relief to prevailing claimants. See Monitor's Final Report on Good Faith Implementation of the Consent Decree and Recommendations for Status Conference at 1 (Apr. 1, 2012) [Dkt. 1812]. In addition, Congress enacted in the Food, Conservation, and Energy Act of 2008 a provision that potentially would subsequently resurrect the claims of more than 60, 000 potential claimants who were unable to participate in this case because they had not submitted timely claims. In re Black Farmers Discrimination Litig., 856 F.Supp.2d 1, 11-12 (D.D.C. 2011). On May 13, 2011, after "extensive negotiations, " the Court preliminarily approved a class-wide Settlement Agreement between those plaintiffs and the USDA, Id. at 14, 22-23, which led to the implementation of another non-judicial claims resolution process with a potential total payout of more than $1 billion in relief. Id. at 22-23 (explaining the claims resolution process of "expedited" Track A versus "actual damages" Track B); see also Claims Resolution Act of 2010, Pub. L. 111-291 § 201(b), 124 Stat. 3064 (2010) (appropriating funds for the claims resolution process). In fact, the claims process in that case is now completed, and over $1 billion have been paid out to successful claimants.

         On November 2, 2015, the Court entered a Wind-down Stipulation and Order in this case, which "which "execute[d] an orderly wind-down of all obligations imposed on the parties by the Consent Decree" in this action, and "forever discharged and released" Class Counsel, the Neutrals, and Defendant from "all duties under or related to the Consent Decree." Dkt. 2008 at 3, 7. Subsequent to the entry of the Wind-down Stipulation and Order, the Court "retain[s] jurisdiction solely to enforce the terms of this Wind-down Stipulation and Order, " as well as for certain other limited aspects of the Consent Decree that are not relevant to the pro se motions under consideration here. Id. at 7.

         II. DISCUSSION

         The Court will discuss the background of each of the four sets of pro se parties separately and separately analyze the merits of their respective motions and objection.

         A. The Wises

         On April 15, 1999 - one day after the Court entered the Consent Decree - a letter to the Court from Eddie and Dorothy Wise was entered on the public docket in this case. Wises' Letter [Dkt. 177].[2] In it the Wises wrote that "the Consent Decree is very unfair" and asked to "go to trial or declare the Consent Decree null and void." Id. at 1. If this letter was intended to be a formal opt out, as other courts have concluded it was, see infra at 6, it was timely filed. See supra at 3-4. The docket in this case indicates that the Wises did not participate further in this litigation until October 9, 2015, when they filed the instant motions to compel and for contempt, Dkts. 2002 and 2003.

         In the interim, the Wises filed a class action suit against the USDA, with the assistance of counsel, in the United States District Court for the Eastern District of North Carolina, alleging identical discrimination claims to those contained in the complaint in this case. Wise v. Vilsack, 496 F.App'x 283, 284 (4th Cir. 2012) (per curiam). In that case, the Wises explained to the district court that they "chose to opt out of the Pigford v. Veneman class action lawsuit and become lead plaintiffs in a new class action lawsuit." Dkt. 2010-1 at 4; see also United States v. Wise, No. 14-0844, 2015 WL 5918027, at *4 (E.D. N.C. Oct. 9, 2015) ("The evidence of record conclusively establishes the fact that [the Wises] opted out of the Pigford settlement."), reconsideration denied. No. 14-0844, 2015 WL 7302245 (E.D. N.C. Nov. 18, 2015), affd, 639 F.App'x 193 (4th Cir. 2016), and affd, 639 F.App'x 193 (4th Cir. 2016); Wise v. Glickman, 257 F.Supp.2d 123, 129 (D.D.C. 2003) ("Eddie Wise[ and] Dorothy Monroe-Wise . . . opted out of the Pigford class."). The Eastern District of North Carolina ultimately dismissed the Wises' putative class action in 2011 under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to plead any facts comparing their treatment to the treatment of non-minority farmers. Wise v. Vilsack. No. 10-0197, 2011 WL 381765, at *4 (E.D. N.C. Feb. 2, 2011), affd sub nom. 496 F.App'x 283.[3]

         In November 2014, the USDA brought a foreclosure proceeding against the Wises in the U.S. District Court for the Eastern District of North Carolina in order to collect on defaulted USDA loans and, in October 2015, the court granted summary judgment in favor of USDA. United States v. Wise, 2015 WL 5918027, at *6; see also United States v. Wise, No. 14-0844, 2016 WL 755627 (E.D. N.C. Feb. 25, 2016) (denying stay), reconsideration denied. No. 14-0844, 2016 WL 1448641 (E.D. N.C. Apr. 12, 2016). "On April 4, 2016, the United States Marshal for the Eastern District of North Carolina sold at public auction ...


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