                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA

___________________________________
                                         )
TIMOTHY PIGFORD et al.,                  )
                                         )
               Plaintiffs,               )
                                         )
       v.                                )            Civil Action No. 97-1978 (PLF)
                                         )
TOM VILSACK, Secretary,                  )
United States Department of Agriculture, )
                                         )
               Defendant.                )
___________________________________ )
                                         )
CECIL BREWINGTON et al.,                 )
                                         )
               Plaintiffs,               )
                                         )
       v.                                )            Civil Action No. 98-1693 (PLF)
                                         )
TOM VILSACK, Secretary,                  )
United States Department of Agriculture, )
                                         )
               Defendant.                )
___________________________________ )


                       MEMORANDUM OPINION AND ORDER

               This matter is before the Court on motions filed by two Track B claimants

who seek vacatur of the arbitrator’s dismissal of their claims. Six years ago, these

claimants filed separate civil actions seeking somewhat different relief, yet in part raising

the same arguments on which they now base the present motions. 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 in this case. The same conclusion holds

true today, and the Court therefore will deny the claimants’ motions. 1


                                   I. BACKGROUND

               The two Track B claimants presently seeking relief are Lucious Abrams,

Jr. and Cecil Brewington. 2 Both were members of the original group of plaintiffs named

in the complaint in this action, in which a class of African American farmers sued the

United States Department of Agriculture (“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. See 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 that were able to meet a minimal burden of proof were
       1
               The papers considered in connection with the pending motions include:
motion to vacate and set aside arbitrator’s order filed by Lucious Abrams and Sons and
Lucious Abrams, Jr. [Dkt. No. 1943] and memorandum in support thereof (“Abrams
Mot.”) [Dkt. No. 1943-1]; Abrams’ motion to amend previously filed motion [Dkt. No.
1947] and memorandum in support thereof (“Abrams Mot. to Amend”) [Dkt. No.
1947-1]; Abrams’ amended motion [Dkt. No. 1948] and memorandum in support thereof
(“Abrams Am. Mot.”) [Dkt. No. 1948-1]; motion to vacate and set aside arbitrator’s order
filed by Cecil Brewington [Dkt. No. 1949] and memorandum in support thereof
(“Brewington Mot.”) [Dkt. No. 1949-1]; USDA’s opposition to Abrams’ motion and
amended motion (“USDA Abrams Opp.”) [Dkt. No. 1952]; USDA’s opposition to
Brewington’s motion (“USDA Brewington Opp.”) [Dkt. No. 1962]; Arbitrator’s
Decision, In re: The Arbitration of Lucious Abrams & Sons (“Arbitrator’s Abrams
Decision”) [Dkt. No. 1948-2]; and Arbitrator’s Reconsideration of Defendant’s Motion
for Default Judgment, In re: The Arbitration of Cecil Brewington (“Arbitrator’s
Brewington Decision”) [Dkt. No. 1949-3].
       2
             Mr. Abrams’ Track B claim was filed on behalf of “Lucious Abrams &
Sons.” See Arbitrator’s Abrams Decision at 1.


                                             2
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 that 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. Under the terms of the Consent Decree, all 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 petition for

review, direct the adjudicator or 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)).

               Claimants Abrams and Brewington both elected to pursue Track B claims.

On May 31, 2005, the arbitrator issued a decision dismissing Abrams’ claim, concluding

that, “Claimant cannot prove by a preponderance of the evidence any claims of

discrimination brought against Defendant.” Arbitrator’s Abrams Decision at 6.

Likewise, on June 6, 2005, the arbitrator dismissed Brewington’s claim. Arbitrator’s

Brewington Decision at 6-7. Neither Abrams nor Brewington invoked his right to seek

Monitor review of the denial of his claim. See Abrams Am. Mot. at 37-39; Brewington

Mot. at 37-39. Accordingly, under the terms of the Consent Decree and a subsequent

stipulation by the parties, the arbitrator’s decisions became final 120 days following the

issuance of the decision on each claim. See Consent Decree ¶ 10(i); Stipulation & Order

(July 14, 2000) (setting 120-day period within which to petition for Monitor review).




                                             3
               On October 14, 2008, Abrams and Brewington filed substantially identical

complaints in this Court in which they sought to renew their claims of discrimination

against USDA by bringing new civil actions. See Abrams v. Vilsack, 655 F. Supp. 2d 48,

52 (D.D.C. 2009); Brewington v. Vilsack, Civil Action No. 08-1762 (PLF), 2009 WL

2617910, at *1 & n.2 (noting identity of the two cases, and incorporating analysis and

conclusion contained in Court’s Memorandum Opinion relating to Abrams’ complaint).

Mr. Abrams and Mr. Brewington each invoked recently passed legislation that afforded

certain defined Pigford claimants who had not timely submitted claims the right to file

new lawsuits by tolling the statute of limitations and providing a cause of action for such

claims. See Abrams v. Vilsack, 655 F. Supp. 2d at 51-52. The Court dismissed both

Abrams’ and Brewington’s complaints for failure to state a claim, as neither claimant fell

within the class of Pigford claimants for whom Congress had provided relief.

See Abrams v. Vilsack, 655 F. Supp. 2d at 53; Brewington v. Vilsack, 2009 WL

2617910, at *1.

               The Court also noted that the claimants, in their complaints, had asserted

that the arbitrator’s decisions on their Track B claims were invalid, on the ground that the

arbitrator had dismissed the claims prior to holding a hearing on either claim. See

Abrams v. Vilsack, 655 F. Supp. 2d at 52 & n.4. Abrams and Brewington argued that the

arbitrator’s dismissals thus violated both the Consent Decree and their constitutional right

to due process. See id. But the Court stated that it lacked authority to entertain any such

claim, as the Consent Decree unequivocally provided that decisions of the arbitrator were

final and not subject to judicial review. Id. at 52 & n.5.




                                              4
               In late 2014, Mr. Abrams and Mr. Brewington filed the motions presently

before the Court. Both claimants are represented by the same counsel, and their motions

are virtually identical. 3 Abrams and Brewington complain that the arbitrator refused to

extend filing deadlines to allow them to supplement the evidentiary records supporting

their claims, and that the arbitrator then dismissed their claims prior to holding any

hearing on them, on the ground that the existing records failed to show prima facie cases

of discrimination. See Abrams’ Am. Mot. at 8-10 & nn.15-16; Brewington Mot. at 8-10

& nn.15-16. Invoking Rule 60(b) of the Federal Rules of Civil Procedure as well as the

Federal Arbitration Act, they contend that this Court should vacate the arbitrator’s

decisions on the basis of these purported violations of the Consent Decree and of due

process. Each maintains that he should be given a hearing before the arbitrator on his

claim. Abrams’ Am. Mot. at 40; Brewington Mot. at 40. The defendant, USDA, has

filed memoranda in opposition to the claimants’ motions, and neither Mr. Abrams nor

Mr. Brewington has filed any reply.


                                     II. DISCUSSION

               The Court will deny Mr. Abrams’ and Mr. Brewington’s motions for the

same reason that was set forth more than five years ago, when the Court previously

addressed their contention that the arbitrator’s dismissal of their Track B claims without a

hearing denied them due process of law and violated their rights under the Consent

Decree. Now, as then, “[t]he Court has no authority to address such claims,” as
       3
                Mr. Abrams actually has three motions before the Court at this moment:
his initial motion seeking vacatur of the arbitrator’s decision; a motion to amend that
initial motion; and the amended motion itself, which adds arguments under the Federal
Arbitration Act. Mr. Brewington’s motion is virtually identical to Abrams’ amended
motion. The Court here considers Abrams’ amended motion and Brewington’s motion
simultaneously.


                                              5
“[n]othing in the Consent Decree authorizes the Court to grant [vacatur of the arbitrator’s

decisions and resurrection of the claimants’ Track B claims].” Abrams v. Vilsack, 655 F.

Supp. 2d at 52 & nn.4-5. As the Court then explained, “[t]he Consent Decree provides

that decisions of the arbitrator are final (except that the parties may petition the [M]onitor

for review), and that those who seek relief under Track B ‘forever waive their right to

seek review in any court or before any tribunal of the decision of the arbitrator with

respect to any claim that is, or could have been decided, by the arbitrator.’” Id. at 52 n.5

(quoting Consent Decree ¶ 10(i)). This provision regarding the finality of the arbitrator’s

decisions, set forth in Paragraph 10(i) of the Consent Decree, mirrors virtually identical

provisions establishing the finality of the adjudicator’s decisions on claimants’ Track A

claims. See Consent Decree ¶¶ 9(a)(v), 9(b)(v) (concerning assertion of only non-credit

claims under a USDA benefit program). Thus, with respect to decisions of the

adjudicator on Track A claims and decisions of the arbitrator on Track B claims, the

parties, in negotiating the terms of the Consent Decree, agreed that these decisions would

be final and not subject to judicial review “in any court or before any tribunal.” Id.

¶¶ 9(a)(v), 9(b)(v), 10(i).

                Following a day-long fairness hearing at which all interested persons were

heard and their views carefully considered, the Court found that the terms of the Consent

Decree, including its finality provisions, were fair, adequate, and reasonable under Rule

23(e) of the Federal Rules of Civil Procedure. See Pigford v. Glickman, 185 F.R.D. at

107-08, 112-13. With respect to the finality provisions of the Consent Decree

specifically, the Court stated:




                                              6
                 [T]he decisions of the adjudicators on Track A claims and
                 the decisions of the arbitrators on Track B claims are
                 final; there is no right to appeal those decisions, except that
                 the Monitor shall direct the arbitrator or adjudicator to
                 reexamine the claim if he determines that a “clear and
                 manifest error has occurred” that is “likely to result in a
                 fundamental miscarriage of justice.” Consent Decree at
                 ¶¶ 9(a)(v), 9(b)(v), 10(i), 12(b)(iii). Many objectors
                 contend that the absence of appeal rights renders the
                 settlement structure unfair and/or that it gives the
                 arbitrators and adjudicators too much power. . . . While the
                 objection has force, class counsel made a strategic decision
                 not to press for appeal rights because the government
                 would have insisted that any appeal rights be a two-way
                 street. See Transcript of Hearing of March 2, 1999 at 179.
                 Any appeal process inevitably would delay payments to
                 those claimants who prevailed on their claims. Since it is
                 anticipated that most class members will prevail under the
                 structure of the settlement, the Court concludes that the
                 forfeit of appeal rights was a reasonable compromise.

Id. at 107-08.

                 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 or adjudicator decision and to “[d]irect the .

. . adjudicator[] or arbitrator to reexamine a claim where the Monitor determines that a

clear and manifest error has occurred in the . . . adjudication[] or arbitration of the claim

and has resulted or is likely to result in a fundamental miscarriage of justice.” Consent

Decree ¶ 12(b)(iii). Thus, by asking the Court itself to review and overturn the

arbitrator’s decisions, Mr. Abrams and Mr. Brewington are requesting the Court not only

to act in a manner inconsistent with the carefully negotiated, explicit terms of the Consent

Decree, but also in a way that would usurp the Monitor’s authority under the Consent

Decree. See Pigford v. Johanns, 421 F. Supp. 2d 130, 136 (D.D.C. 2006). As this Court

has explained:



                                               7
               The Monitor appointed by the Court in this case, Randi
               Roth, has established an office of professionals whose
               primary task is to review and examine decisions that have
               been petitioned under Paragraph 12(b)(iii) of the Consent
               Decree. Under Ms. Roth’s leadership, her staff has
               performed this task in a thorough and conscientious manner
               that does credit to both the Monitor’s Office and the
               process established under the Consent Decree. Ms. Roth
               herself has performed extraordinarily under the pressures of
               her role, a role which includes not only reviewing
               Arbitrator and Adjudicator decisions, but also handling
               “any problems that any class member may have with
               respect to any aspect of this Consent Decree.” Consent
               Decree ¶ 12(b)(ii). Over 20,000 persons filed timely claims
               and an additional 60,000 or more requested permission to
               file late claims in this case. The mandate, therefore, to deal
               with “any problems” that arise for “any class member” with
               respect to the Consent Decree created for Ms. Roth the
               almost Herculean task of reviewing and responding to a
               huge number of complaints on a wide variety of issues, in
               addition to her primary task of deciding the petitions for
               review. Despite the challenges presented in performing all
               the duties assigned to her, Ms. Roth has demonstrated at
               every turn an unwavering dedication to her work and an
               incredible level of competence in carrying out her
               responsibilities. The Court could not have chosen a better
               person for the job and continues to have the utmost
               confidence in Ms. Roth and her staff, including General
               Counsel Kenneth Saffold and Senior Counsel Stephen
               Carpenter.

Id. at 137.

               As noted supra at 3, neither Abrams nor Brewington elected to exercise

his right to seek Monitor review of the arbitrator’s dismissal of his claim. It also bears

mentioning that after this Court’s dismissal of Abrams’ and Brewington’s respective

complaints in 2009, see supra at 4, both claimants filed notices of appeal, but the D.C.

Circuit ultimately dismissed both appeals for lack of prosecution. See Order, Abrams v.




                                              8
Vilsack, No. 09-5327 (D.C. Cir. Dec. 14, 2009); Order, Brewington v. Vilsack,

No. 09-5332 (D.C. Cir. Dec. 11, 2009). 4

               To repeat, the terms of the Consent Decree provide unequivocally that

decisions of the arbitrator on Track B claims are final, and are not subject to review or

vacatur by this Court. “The Court has no authority under the Decree or under any

relevant statute or case law to overturn the carefully crafted process that has been put in

place by the Consent Decree.” Pigford v. Johanns, 421 F. Supp. 2d at 135. Mr. Abrams

and Mr. Brewington are not the first parties to this action whose requests for judicial

review of decisions made by the neutrals have been denied, as this Court has consistently

upheld the provisions of the Consent Decree concerning the finality of all such decisions.

See, e.g., Memorandum Opinion & Order, Pigford v. Vilsack, Civil Action No. 97-1978

(D.D.C. May 21, 2012) [Dkt. No. 1824] (denying motions seeking vacatur of arbitrator’s

Track B decisions, citing Paragraphs 10(i) and 12(b)(iii) of Consent Decree), aff’d,

Order, No. 12-5302 (D.C. Cir. July 30, 2013) (per curiam); Pigford v. Johanns, 421 F.

Supp. 2d at 134-36 (same); Order, Pigford v. Veneman, Civil Action No. 97-1978

(D.D.C. Aug. 9, 2005) [Dkt. No. 1169] (denying motion to reverse adjudicator’s Track A

decision, citing Paragraphs 9(a)(v) and 12(b)(iii) of Consent Decree); Order, Pigford v.

Veneman, Civil Action No. 97-1978 (D.D.C. Aug. 9, 2005) [Dkt. No. 1166] (same).

       4
                 With specific respect to the claimants’ present complaint regarding the
arbitrator’s refusal to extend filing deadlines to allow them to submit new evidence in
support of their claims, this Court previously determined that neither Abrams nor
Brewington would be entitled to such relief if their failure to meet those deadlines was
caused by mistakes of their privately chosen counsel. See Pigford v. Veneman, Civil
Action No. 97-1978 (PLF), 2005 WL 6783452, at *1-2 (D.D.C. May 5, 2005). The
arbitrator, in his decisions on their claims, determined that such was the case for both
claimants. See Arbitrator’s Abrams Decision at 2-3; Arbitrator’s Brewington Decision at
3-4.



                                              9
Neither the claimants’ invocation of Rule 60(b) of the Federal Rules of Civil Procedure

nor of the Federal Arbitration Act can alter the fact that the explicit and carefully

negotiated terms of the Consent Decree, which govern the disposition of Pigford class

members’ individual claims, preclude the relief that they seek from this Court.


                                    III. CONCLUSION

               For the foregoing reasons, it is hereby

               ORDERED that the motion to vacate and set aside the arbitrator’s order

filed by Lucious Abrams and Sons and Lucious Abrams, Jr. [Dkt. No. 1943] is DENIED;

Mr. Abrams’ motion to amend his previously filed motion [Dkt. No. 1947] is

GRANTED; and Mr. Abrams’ amended motion [Dkt. No. 1948] to vacate and set aside

the arbitrator’s order is DENIED; and it is

               FURTHER ORDERED that the motion to vacate and set aside the

arbitrator’s order filed by Cecil Brewington [Dkt. No. 1949] is DENIED. This is a final

appealable order. See FED. R. APP. P. 4(a).

               SO ORDERED.



                                                       /s/________________________
                                                       PAUL L. FRIEDMAN
                                                       United States District Judge
DATE: January 21, 2015




                                              10
