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Pigford v. Perdue

United States District Court, District of Columbia

May 31, 2018

TFMOTHY PIGFORD, et al., Plaintiffs,
SONNY PERDUE, Secretary, United States Department of Agriculture, Defendant. CECIL BREWFNGTON, et al, Plaintiffs,
SONNY PERDUE, Secretary, United States Department of Agriculture, Defendant.



         This matter is before the Court on the government's motion to dismiss the petition for monitor review of Maurice McGinnis's claim. For the following reasons, the Court will grant the motion and dismiss the petition for monitor review.[1]


         The Court has previously recounted the history of this case in its opinion granting Mr. McGinnis's earlier motion to enforce the consent decree and permitting him to pursue his claim under Track B. See Pigford v. Vilsack. 961 F.Supp.2d 82, 83-87 (D.D.C. 2013). Thus, the Court limits its discussion here to those facts relevant to the instant motion.

         In 1997, African-American farmers filed a class action lawsuit against the United States Department of Agriculture ("USD A") alleging that they had been denied access to federal farm credit programs administered by the Department because of their race. The parties settled, and the Court entered a consent decree setting forth the parties' settlement agreement on April 14, 1999. The consent decree established two alternative claim resolution processes to evaluate individual class members' discrimination claims. See Consent Decree at ¶ 5(d). For class members who chose Track A, a third-party neutral "adjudicator" determined whether they had met a minimal burden of proof and, if so, awarded them $50, 000 in monetary damages. See Id. at ¶ 9. For class members who instead opted for Track B, a third-party neutral "arbitrator" determined whether they had proven their claims by the more demanding preponderance of the evidence standard in a one-day mini-trial and, if so, awarded actual damages without a cap. See id. at ¶ 10.

         A. The Initial Proceedings Under Track A

         Mr. McGinnis completed his initial claim form in August 1999 and opted to pursue his claim under Track A, "although his claim form suggest[ed] that he harbored some confusion or indecision about that choice." See Pigford v. Vilsack, 961 F.Supp.2d at 84. Shortly thereafter, Mr. McGinnis sought to move his claim from Track A to Track B. See Id. at 84-87. After a long-running series of errors and miscommunications, his requests were ignored or denied for over a decade and his claim proceeded under Track A. See Id. Mr. McGinnis eventually prevailed under Track A, but never cashed the $50, 000 award check. See Id. at 86. He did not do so because he believed his claim should have been arbitrated under Track B, as he had requested, and because he did not think the $50, 000 award nearly approximated the actual losses he had experienced as a result of the USDA's discrimination. See Id. Ultimately, Mr. McGinnis looked to the Court for relief. His retained counsel - John M. Shoreman - formally entered his appearance on behalf of Mr. McGinnis and filed a motion to enforce the consent decree on November 2, 2012. See Entry of Appearance; Mot. to Enforce. The Court granted the motion and directed the arbitrator to resolve Mr. McGinnis's claim under Track B. See Pigford v. Vilsack, 961 F.Supp.2d at 90-91. In doing so, the Court noted:

Mr. McGinnis has been warned about the high standard of proof required to prevail on a claim under Track B, and the danger that by pursuing this course and giving up his Track A victory he will end up with nothing at all. Nevertheless he wishes to go down that path. He is entitled to do so ... .

Id. at 91. The United States Court of Appeals for the District of Columbia Circuit affirmed this Court's decision, see Pigford v. Vilsack, 777 F.3d 509 (D.C. Cir. 2015), and Mr. McGinnis thereafter proceeded under Track B. He now challenges the outcome of the Track B proceedings.

         B. The Proceedings Under Track B

         On May 29, 2015, after the D.C. Circuit had issued its mandate, the arbitrator, Michael Lewis, issued a formal hearing notice adopting the Track B schedule by which the parties had agreed to proceed. See Mot. Ex. 3; Mot. Ex. 4. In accordance with the arbitrator's formal hearing notice, both Mr. McGinnis and the government, through their counsel, timely submitted their lists of witnesses and exhibits. See Mot. Ex. 5; Mot. Ex. 6. The list submitted by Mr. Shoreman on behalf of Mr. McGinnis indicated that he intended to rely on two witnesses: Mr. McGinnis himself and an expert witness who would testify as to the extent to which Mr. McGinnis had been treated differently from other program applicants and the amount of economic loss he had incurred as a result. See Mot. Ex. 5. at 1-2.

         On July 28, 2015, the parties jointly requested, through their counsel, that the schedule be stayed in order for them to exchange expert reports and discuss potential settlement. See Mot. Ex. 7 at 1. The arbitrator granted this request, indicating that the parties should inform him of the status of the case on or before September 15, 2015. See Mot. Ex. 8 at 1. On September 15, 2015, counsel for both parties jointly requested that the arbitrator continue the stay for two additional months. See Mot. Ex. 12 at 1. They explained that, due to health issues, Mr. McGinnis's expert had not yet completed his report. See Id. Once he did so, the government's expert planned to review the report and likely produce a report of his own, after which the parties would be in a better position to discuss the prospect of settlement. See Id. On November 16, 2015, the parties' counsel jointly requested another extension of the stay, as the government had not yet received the report of Mr. McGinnis's expert. See Mot. Ex. 13 at 1. In doing so, they represented that counsel had agreed that Mr. McGinnis would provide the expert report to the government on or before November 30, 2015. See id.

         On November 30, 2015, however, Mr. McGinnis did not provide the expert report to the government. Instead, Mr. Shoreman indicated in an email that, although the report had been completed, he had not yet received his client's final approval to disclose it. See Mot. Ex. 14. On December 4, 2015, counsel for the parties had a conference call with the arbitrator to discuss Mr. McGinnis's unwillingness to release the expert report. See Mot. Ex. 15 at 1-2. And on December 7, 2015, the government represented that it would not object to the arbitrator further discussing the matter with Mr. McGinnis ex parte in an effort to convince him to release the report. See Id. at 1. It does not appear that any such conversation subsequently took place.

         On December 14, 2015, the arbitrator scheduled an additional conference call in response to "the silence on Mr. Shoreman's part regarding progress on releasing Mr. McGinnis' expert's economic analysis." See Mot. Ex. 16; Mot. Ex. 17. It appears from the record that, during this conference call, counsel for the parties agreed that the expert report would be provided by December 16, 2015. See Mot. Ex. 18. But, again, this did not occur. Instead, on December 18, 2015, Mr. Shoreman emailed government counsel, stating: "I have reached an impasse and may need to seek Mr. Lewis' assistance. Hopefully, I can work through a resolution this weekend. Either way I will let you know on [December 21, 2015]." See Mot. Ex. 19 at 1. Unaware of this email from Mr. Shoreman to government counsel, the arbitrator requested an update from Mr. Shoreman on December 20, 2015. See Mot. Ex. 20. And on December 21, 2015, government counsel emailed Mr. Shoreman and the arbitrator to request an additional conference call if Mr. Shoreman did not provide the expert report that day. See Mot. Ex. 21.

         On December 23, 2015, after the expert report was still not disclosed, counsel for the parties and the arbitrator held a conference call to discuss the matter. In an email memorializing the conversation, the arbitrator made clear that he would "permit Mr. McGinnis to have until noon, Monday, December 28, 2015 to release the report of his expert detailing the damages he has incurred due to alleged discrimination at the hands of USD A officials." See Mot. Ex. 22 at 1. If Mr. McGinnis failed to do so, the arbitrator directed that the parties should "propose a schedule to bring the claim to conclusion through a Track B arbitration hearing." See id. It also appears from the record that, during this conference call, Mr. Shoreman discussed the possibility that he would withdraw as counsel. See Id. ("Should Mr. Shoreman not continue as counsel for Mr. McGinnis, claimant shall have two weeks to identify new counsel.").

         After the expert report was not released on December 28, 2015, government counsel proposed a schedule for proceeding. See Mot. Ex. 23. The government proposed that Mr. McGinnis file and serve his expert report on or before February 11, 2016, and if he failed to do so, that he would be "precluded from offering any expert report, testimony, or other expert evidence in this case . . . ." See Id. at 1. The government also proposed other dates by which it would file and serve its own expert report (March 28, 2016), discovery would close (April 29, 2016), the parties would file and serve direct testimony (May 27, 2016), the parties would file pretrial factual and legal memoranda (June 30, 2016), and the parties would exchange the names of witnesses they intended to cross-examine (June 30, 2016). See id- at 1-2. On December 29, 2015, Mr. Shoreman responded that these proposed deadlines were "acceptable." See Mot. Ex. 24. In that same email to government counsel, however, Mr. Shoreman also stated that he would "need to withdraw" his appearance and that Mr. McGinnis would likely proceed pro se. See kiln light of Mr. Shoreman's response - purporting to accept proposed deadlines on behalf of a client from whom he planned to withdraw his representation - government counsel attempted to clarify whether Mr. McGinnis had personally agreed to the proposed schedule and how and when Mr. Shoreman planned to withdraw. See Mot. Ex. 25 at 1. Government counsel also recommended that Mr. Shoreman promptly notify the arbitrator of his need to withdraw. See id.

         On January 8, 2016, Mr. Shoreman provided Mr. McGinnis's mailing address to government counsel and the arbitrator, while clarifying that he did still represent Mr. McGinnis. See Mot. Ex. 28 at 1 ("I still represent Mr. McGinnis at this time."). Accordingly, the arbitrator issued a formal revised hearing notice on January 21, 2016, adopting the schedule to which counsel had agreed and setting a hearing for July 20, 2016. See Mot. Ex. 31 at 1-2. The arbitrator's formal revised hearing notice made clear: "Should Claimant fail to provide an expert report [on or before February 11, 2016, ] he shall be precluded from offering any expert report, testimony, or other expert evidence related to economic damages." See Id. at 2.

         Mr. McGinnis failed to meet the February 11, 2016, deadline. See Mot. at 12. He also failed to take any discovery before discovery closed on April 29, 2016. SeeId. at 12-13. Neither Mr. McGinnis nor his counsel sought to depose the government's expert witness or any other witness listed in the government's disclosures. SeeId. at 13. Nor did they take any discovery related to the government's expert witness report, the issues set forth in its disclosures, or any other topic. SeeId. Mr. McGinnis also failed to submit any written direct testimony by the May 27, 2016, deadline - he did not even submit testimony from himself. SeeId. at 14. The government, in contrast, complied with the deadlines set forth in the hearing notice. ...

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