United States District Court, District of Columbia
L. FRIEDMAN, UNITED STATES DISTRICT JUDGE
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
FACTUAL AND PROCEDURAL BACKGROUND
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
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.
The Initial Proceedings Under Track A
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
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.
The Proceedings Under Track B
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.
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
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.
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.
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
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.
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.
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.