UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

TIMOTHY PlGFORD et a_l.,
Plaintiffs,
v.

Civil Action No. 97-1978 (PLF)

SONNY PERDUE, Secretary,
United States Department of Agriculture,

Defendant.

 

CECIL BREWINGTON e_t a_l.,
Plaintiffs,
v.

Civii Acrion NO. 98-1693 (PLF)

SONNY PERDUE, Secretary,
United States Department of Agriculture,

Defendant.

\_/\_/\/\_/\/\/\'/\/\/\_/\./\/\/\/\/\/\/\_/\/\/\/\./\_/V

 

Ml`:l\/IORANDUM Ol’lNlON AND ()RDF,R
This matter is before the Court on the renewed motion for reconsideration
[Dkt. No. 2077] filed by Derrick K. J ones as Conservator of then person and estate of l\/Iaurice

McGinnis.l The Conservator’s motion seeks reconsideration of the Court’s opinion and order of

 

l The Conservator’s renewed motion for reconsideration was originally filed on

October 31, 2018 as Dkt. No.` 2077. The Conservator filed an errata on November 5, 2018, in
which he re-filed the same motion - dated October 3 l, 2018 - with an amended exhibit as Dkt.
No. 2078. Based on the Conservator’s representation that the only difference between the

original motion and the errata is the amended exhibit, the Court shall issue its ruling based on the
motion filed as Dl<t. No. 2077.

l\/lay 31, 2018, granting the government’s motion to dismiss the petition for monitor review of
Mr. McGinnis’s Track B arbitration claim. E Pigford v. Pei'due, 330 F. Supp. 3d 1 (D.D.C.
2018). The government has filed a memorandum in opposition to the Conservator’s renewed
motion for reconsideration, § Gov’t Opp., and the Conservator filed a reply. § Reply.
Having considered the parties’ arguments, the relevant legal authorities, and the entire record in

this case, the Court will deny the Conservator’s renewed motion for reconsideration2

l. FACTUAL AND PROCEDURAL BACKGROUND

The Court’s prior opinions summarize the factual and procedural history of this
case, beginning with Mr. McGinnis’s Track A award and continuing through his Track B
arbitration proceeding E, gg_., Pig"l`o:'d v. Vilsack, 961 F. Supp. 2d 82, 83-87 (D.D.C. 2013),
a_ff_d, 777 F.3d 509 (D.C. Cir. 2015); Pigt`ord v. I’erclue, 330 F. Supp. 3d at 3-9. The Court
therefore limits its discussion here to those facts relevant to the instant motion, which pertains to
Mr. l\/chinnis’s Track B arbitration proceeding.

Throughout the course of his Track B arbitration proceeding, Mr. McGinnis was
represented by John M. Shoreman. §§ Pigford v. Perdue, 330 F. Supp. 3d at 4-8. According to
the Conservator, notwithstanding his representation by counsel, “[Mr.] l\/chinnis made a series

of irrational decisions not to comply with the requirements of the Consent Decree and the

 

2 The Court has reviewed the following filings in resolving the pending motion:

Conservator’s Renewed Motion for Reconsideration (“Ren. l\/Iot. Recon.”) [Dkt. No. 2077];
Government’s Opposition to the Conservator’s Renewed Motion for Reconsideration (“Gov’t
Opp.”) [Dkt. No. 2079]; Conscrvator’s Reply (“Reply”) [Dkt. No. 2080]; Government’s Motion
to Dismiss Mr. McGinnis’s Petition for Monitor Review (“Mot. to Dismiss”) [Dkt. No. 205 7];
August 6, 2018 Memorandum Opinion & Order (“Mem. Op. & Order”) [Dkt. No. 2069];
Consent Decree [Dkt. No. 167]; November 2, 2015 Stipulation and Order (“Stip. & Order”)
[Dkt. No. 2008]; Petition for Monitor Review, Mot. to Dismiss Ex. 43 (“Pet. Mon. Review”)
[Dkt. No. 2059 at 202]; Government’s Motion for Judgment as a Matter of Law, Mot. to Dismiss
Ex. 36 (“l\/Iot. J. Law”) [Dkt. No. 2059 at 88]; and Arbitrator’s Track B Decision, Mot. to
Dismiss Ex. 37 (“Arb. Decision”) [Dkt. No. 2059 at 105].

2

Revised Hearing Notice.” g Ren. Mot. Recon. at 4. He and his counsel failed to meet
deadlines ~ even after they were rescheduled - and failed to provide a timely expert report or any
written testimony. § Pigl`ord v. Pei'due, 330 F. Supp. 3d at 4-7. After a series of extensions of
time granted by the Arbitrator, the government moved for judgment as a matter of law, arguing
that Mr. McGinnis had not introduced any evidence and had not “articulate[d] the bases for his
discrimination claims or the source and nature of any alleged economic damages.” § Mot. J.
Law at 89. On December 13, 2016, the Arbitrator granted the government’s motion for
judgment as a matter of law and denied Mr. l\/chinnis’s Track B claim, reasoning that “[Mr.
McGinnis] ha[d] neither demonstrated by a preponderance of the evidence that [the] USDA
discriminated against him, nor ha[d] he established any damages.” § Arb. Decision at 111; g
a_l_s_o_ Pigford v. Perdue, 330 F. Supp. 3d at 7.

On April l2, 2017, Mr. Shoreman submitted a petition for monitor review of the
Arbitrator’s decision purportedly on behalf of Derrick K. Jones, the alleged conservator of Mr.
McGinnis’s person and estate. E Pet. Mon. Review at 202; § M Pigjt`ord v. Pez‘clue, 330 F.
Supp. 3d at 7-8. The initial petition for monitor review “[did] not dispute that Mr. l\/chinnis
repeatedly failed to meet deadlines and, as a result, did not submit sufficient evidence to prove
his claim by a preponderance of the evidence. Rather, the petition assert[ed] that these failures
resulted from Mr. McGinnis’s diminished mental capacity and deteriorating ability to assist his
counsel, issues which assertedly arose due to the stressful and long-running nature of the case.”
w Pigfoz‘d v. Perdue, 330 F. Supp. 3d at 8. The petition concluded that because “[t]he strict
application of procedural deadlines to a Claimant so obviously incompetent resulted in a
fundamental miscarriage of justice,” the Monitor should direct the Arbitrator to re-examine his

decision to grant the government’s motion for judgment and to re-set procedural deadlines so

that Mr. McGinnis’s Track B arbitration claim could proceed under the direction of Mr.
l\/chinnis’s conservator. § Pet. Mon. Review at 207-08.

The government moved to dismiss the petition for monitor review of l\/Ir.
McGinnis’s Track B arbitration claim. The matter was fully briefed and the Court granted the
government’s motion on May 31, 2018. w Pigfoi'd v. Perdue, 330 F. Supp. 3d at 12.3 In so
deciding the Court declined to reappoint the Monitor - who had been released from her duties
under the Consent Decree in March 2012 - and to direct her to review the petition because “there
[was] simply insufficient evidence in the relevant record [before the Arbitrator] of Mr.
McGinnis’s alleged mental incapacity to support a finding by the monitor that ‘clear and
manifest error’ ha[d] resulted or [was] likely to result in ‘a fundamental miscarriage of justice.”’
S_e§ i_d. at l2; § all Stip. & Order at 11 l(a)(5).4

Mr. Shoreman subsequently filed a motion for reconsideration [Dkt. No. 2067] of
the Court’s opinion and order by and through Derrick K. Jones, the alleged conservator of the
person and estate of Mr. McGinnis. The Court denied that motion without prejudice on August

6, 2018, because Mr. Jones had not been substituted as a party in this case pursuant to Rule 25(b)

 

3 The Court noted then and reiterates now that this matter may be more properly

resolved in a separate malpractice action against Mr. Shoreman. § Pigl`oi'd v. Pei'due, 330 F.
Supp. 3d at 14; Mem. Op. & Order at 2.

4 According to the Court’s wind-down stipulation and order issued on November 2,

2015, the Monitor was released from her duties under the Consent Decree on March 31, 2012.
§ Stip. & Order atjl l(a)(5); Pigfol'd v. Vilsack, 330 F. Supp. 3d at ll. The wind-down
stipulation and order explicitly provided for her potential reappointment with respect to Mr.
McGinnis’s claim: “ln the event that a Track B hearing is ever conducted in the matter of
Maurice l\/chinnis, the Court may request that the l\/lonitor resume her duties in the future for

the limited purpose of reviewing any Petition for Monitor Review of the Arbitrator’s decision in
that matter.” § Stip. & Order at ill(a)(S).

of the Federal Rules of Civil Procedure. _Sg Mem. Op. & Order.5 The Court has since granted
[Dkt. No. 2075] Mr. Jones’s motion for substitution of party [Dkt. No. 2070], and Mr. J ones has
been properly substituted for plaintiff Maurice l\/IcGinnis as a party to this action.

Pursuant to the Court’s order, Mr. Jones, as Conservator, filed a renewed motion
for reconsideration on October 31, 2018 on behalf of the estate of Mr. McGinnis. § Ren. l\/lot.
Recon. The Conservator’s renewed motion for reconsideration ~ now before the Court - asks the
Court to reconsider under Rule 59(e) of the Federal Rules of Civil Procedure its order and
opinion of May 31, 2018. w Ren. Mot. Recon. at 7. He requests that the Court deny the

government’s motion to dismiss the petition for monitor review. § Ren. Mot. Recon. Proposed

order [Di<t. No. 2077-3]. `

II. LEGAL STANDARD
The Conservator has styled the instant motion as a motion for reconsideration
pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. § Ren. l\/Iot. Recon. at 5.
Although the Federal Rules of Civil Procedure have no rule specifically addressing motions to
reconsider, “[t]he D.C. Circuit has stated that motions to reconsider are routinely construed as
motions to clarify or alter or amend judgment under Rule 59(e).” _S_e_e Pipei' v. U.S, Dep’t o|`
Mti_c_e, 312 F. Supp. 2d 17, 20 (D.D.C. 2004). After entry ofjudgment, a timely motion for

reconsideration under Rule 59(e) may be filed to “alter or amend [the] judgment.” E FED. R.

Civ. PRo. 59(e).

 

5 ln denying without prejudice Mr. McGinnis’s first motion for reconsideration, the

Court also admonished Mr. Shoreman for purportedly filing a motion on behalf of Mr. J ones as
Conservator while simultaneously attaching a document as an exhibit to that motion in which

Mr. Jones purports to be proceeding w §e. w Mem. Op. & Order at 3. The Court cautioned
Mr. Shoreman that such a contradiction not only violated the Federal Rules of Civil Procedure,

but also may have constituted violations of Mr. Shoreman’s professional and ethical obligations
S_ee §

The Supreme Court has explained that Rule 59(e) was enacted to allow a district
court “to rectify its own mistakes in the period immediately following the entry of judgment.”
w White v. N.l-l. Dep’t of Emp’t Sec., 455 U.S. 445, 450 (1982). But Rule 59(e) “may not be
used to relitigate old matters, or to raise arguments or present evidence that could have been
raised prior to the entry ofjudgment.” §§ Exxoii S|‘lipping Co, v. Bakei', 554 U.S. 471, 485 n.5
(2008); § also Pipei' v. U.S. Dep"t of.lustice, 312 F. Supp. 2d at 21 (“Rule 59(e) motions are
not granted if the court suspects the losing party is using the motion as an instrumentality of
arguing the same theory or asserting new arguments that could have been raised prior to final
judgment.”). A Rule 59(e) motion, therefore, “is discretionary and need not be granted unless
the district court finds that there is [l] an intervening change of controlling law, [2] the
availability of new evidence,' or [3] the need to correct a clear error or prevent manifest
injustice.” w Dvson v. Disti'ict of Columbia. 710 F.3d 415, 420 (D.C. Cir. 2013) (quoting
Ciralskv v. Cent. lnte]ligence Agencv, 355 F.3d 661, 671 (D.C. Cir. 2004)); § alj Fii'estoiic v.

Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996).

IIl. DISCUSSION
As noted, the Court may grant the Conservator’s motion to reconsider its prior

decision to dismiss the petition for monitor review of Mr. McGinnis’s Track B claim if it “finds
that there is [1] an intervening change of controlling law, [2] the availability of new evidence, or
[3] the need to correct a clear error or prevent manifest injustice.” w Dysoii v. Disl'i‘icl of
Coliinibia, 710 F.3d at 420 (quoting Cii‘alskv v. Cent. liitelli;zence Ageiicv, 355 F.3d at 671). ln
his motion, the Conservator does not suggest that there has been an intervening change of
controlling law or that new evidence has become available since the Court’s May 31, 2018

decision. lnstead, using language almost identical to that found in the original petition, the

Conservator argues that the Court should reconsider its decision because “under the
circumstances of this case[,] the Arbitrator’s strict application of procedural deadlines to a
Claimant so obviously incompetent resulted in a fundamental and manifest injustice.” E Ren.
Mot. Recon. at 5. The only question before the Court now, therefore, is whether it must reverse
its prior decision in order to prevent this alleged manifest injustice.

A Rule 59(e) motion to reconsider - even one based on asserted manifest injustice
~ is not simply an opportunity to reargue facts and theories upon which a court has already ruled.
§ Stale ol`N.Y. v. Uiiiled Stat'es, 880 F. Supp. 37, 38 (D.D.C. 1995) (per curiam); M
Peai'son v. 'l`hompson, 141 F. Supp. 2d 105, 107 (D.D.C. 2001) (“A motion for reconsideration
will not be granted if a party is simply attempting to renew factual or legal arguments that it
asserted in its original briefs and that were already rejected by the Court.”); O.R. v. Huiilei', 576
F. App’x 106, 110 (3d Cir. 2014) (“[Rule 59(e) cannot be employed to re-relitigate . . .
already-denied motions.”). Nor is it a “vehicle for presenting theories or arguments that could
have been advanced earlier.” § Klayman v. .luclicial Watch, Inc., 296 F. Supp. 2d 208, 213-14
(D.D.C. 2018) (quoting Eslatc of Gaither ex rel. Gaither v. Dislrict ofColumbia. 771 F. Supp. 2d
5, 10 & n.4 (D.D.C. 2011)). The Court must deny the Conservator’s motion because that is
precisely what the Conservator attempts to do here.

The Conservator relies upon the same reasoning that was put forth in the original
petition for monitor review. He has not addressed and does not dispute the reasons that the Court
gave for granting the government’s motion to dismiss in the first instance. § Ren. Mot. Recon;
gee alY Gov’t Opp. at 4-7. The only difference between the original petition for monitor review
and the Conservator’s motion for reconsideration is that Mr. J ones now has been properly

substituted as a party to the case. As in the original petition, the Conservator argues that “[i]t is

manifestly unjust, under these circumstances, not to permit the Track B arbitration to re-convene
under the direction of the Conservator to allow McGinnis to finally recover his just
compensation for years of past discrimination by the government.” w Ren. Mot. Recon. at 6;
Pet. Mon. Review at 207. lt can be inferred from the Conservator’s motion that he believes that
the Arbitrator would reach a different conclusion if he reinitiated review of l\/lr. McGinnis’s
Track B claim now that Mr. J ones has been substituted for Mr. McGinnis as a party to this case.
Without more, the Court declines to award the Conservator a second bite at the apple.

The Court has already ruled on the arguments made by the Conservator. And the
problem for the Conservator - and ultimately for Mr. McGinnis - remains the same: The
Consent Decree dictates the outcome here. As the Court has explained repeatedly, it has no
authority to “grant vacatur of the arbitrator’s decisions and resurrection of the claimants’ Track B
claims.” § l’igf`ord v. Vilsaick, 78 F. Supp. 3d 247, 250 (D.D.C. 2015) (quoting Abrams v,_
M, 655 F. Supp. 2d 48, 52 & nn. 4-5 (D.D.C. 2009)). The sole exception to this robust
finality was provided in Paragraph 12(b)(iii) of the Consent Decree, under which the Monitor
was given the limited power, on petition of a party, to review an arbitrator’s decision and to
direct the arbitrator to reexamine a claim where the Monitor determines that a clear and manifest
error has occurred in the arbitration and has resulted or is likely to result in a fundamental
miscarriage ofjustice. § Pigford v. Vilsacl\', 78 F. Supp. 3d at 251; Consent Decree
jj 12(b)(iii). Accordingly, the Court’s role in responding to l\/lr. McGinnis’s challenge to the
Arbitrator’s decision is very limited. lt has the authority to decide only whether there is reason
to reappoint the Monitor to consider the petition for review. The Court decided previously that
there is no such reason because reappointing the Monitor for this purpose would be in vain. §

Pigford v. Perdue, 330 F. Supp. 3d at 11-12. Nothing has changed.

The Consent Decree dictates that the Monitor - in determining whether to order
the Arbitrator to reexamine a Track B claim - is permitted to consider only the record that was
before the Arbitrator at the time of the Arbitrator’s initial Track B determination E l’igl"ord v.
I_’_M, 330 F. Supp. 3d at 11; g alj Court Order of Reference jj 8(e)(ii) [Dkt. No. 279] (“[I]n
Track B claims, the Monitor will not be permitted to consider additional materials on review or
to supplement the record for review upon reexamination.”). Once again, this limitation would
render monitor review futile. The Monitor would not be able to consider any evidence of Mr.
McGinnis’s diminished capacity that was not before the Arbitrator when it denied Mr.
McGinnis’s claim. And just as the Court reasoned-when it granted the government’s motion to
dismiss, so too here there is “simply insufficient evidence” in the record developed before the
Arbitrator of Mr. McGinnis’s alleged mental incapacity to support a finding by the Monitor that
“‘clear and manifest error’ has resulted or is likely to result in ‘a fundamental miscarriage of
justice.”’ w Pigl"oi'd \»‘. Perdue, 330 F. Supp. 3d at 12.6 The fact that the Conservator has
replaced Mr. McGinnis would not result in the different outcome that the Conservator seeks.

Even if the Monitor could consider the additional evidence and arguments

presented in the Conservator’s motion to prove Mr. McGinnis’s incapacity, the Court agrees with

the government that the Conservator still has not “demonstrated (or even suggested) any

 

6 The parties dispute whether Mr. McGinnis’s diminished mental capacity was

raised and preserved for the record during the course of the arbitration proceeding § Reply

at l; Gov’t Opp. at 4, 6. The Court has already decided this issue. lt concluded that there was
“some evidence which was before the arbitrator . . . that would have indicated to the arbitrator
that Mr. McGinnis was both frustrated with the handling of his claim and possibly confused
about its status. But this would not necessarily lead one to infer that Mr. McGinnis was mentally
incompetent More importantly, it does not explain why his counsel did not raise the issue of

competence with [the Arbitrator] at any point during the arbitration process.” E I’igforci v.
Perdue, 330 F. Supp. 3d at 11-12, 9 n.5.

connection between Mr. McGinnis’s supposed ‘incompetence’ and [l\/lr. Shoreman’s] failure to
meaningfully prosecute Mr. McGinnis’s claims.” §§ Gov. Opp. at 4.7

Ordering the Monitor to reexamine the Arbitrator’s decision could not prevent or
correct the alleged injustice that has befallen Mr. McGinnis. No evidence was before the
Arbitrator of Mr. McGinnis’s supposed mental incapacity and no such explanation was provided
to the Arbitrator for his or his counsel’s failure to comply with the terms of the Consent Decree
and the deadlines imposed (and generously extended) by the Arbitrator. While it is possible that
Mr. McGinnis’s alleged incapacity may have played a role in his Tack B arbitration process, the
Court must enforce the terms of the Consent Decree. The Conservator has failed to make any
new arguments, and the Court will not allow him to re-litigate the already-dismissed petition.

For the foregoing reasons, it is hereby

ORDERED that the Conservator’s Renewed Motion for Reconsideration [Dkt.

No. 2077] is DENiED.

SO ORDERED.

GDML j/j/:»¢»~;~”

PAUL L. 1-€'RIF,DMAN
United States District Judge

DATE: jj A\\ q

 

7 lnstead, the Conservator “submits it is unfair to hold counsel responsible for the

Consent Decree’s failure to make provision for mental incapacity affecting a claim in the middle
of arbitration proceedings.” §§ Ren. Mot. Recon. at 4. Even if the Court were to agree, the
Conservator has not provided any explanation for Mr. Shoreman’s failure to preserve Mr.
McGinnis’ incompetence for the record or to abide by the deadlines imposed by the Arbitrator

during the Track B proceedings, even after they were amended. S_ee Pigford v. Perclue, 330 F.
Supp. 3d at 9 n.5.

10

