 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued December 16, 2019           Decided February 21, 2020

                        No. 19-5023

                TIMOTHY C. PIGFORD, ET AL.,
                        APPELLEE

                              v.

 SONNY PERDUE, SECRETARY, UNITED STATES DEPARTMENT
                  OF AGRICULTURE,
                      APPELLEE

   MAURICE MCGINNIS, BY HIS CONSERVATOR DERRICK K.
                       JONES,
                     APPELLANT


                 Consolidated with 19-5027


        Appeals from the United States District Court
                for the District of Columbia
                    (No. 1:97-cv-01978)
                    (No. 1:98-cv-01693)


    John M. Shoreman argued the cause and filed the briefs for
appellant.
                                2
     Casen B. Ross, Attorney, U.S. Department of Justice,
argued the cause for appellee Sonny Perdue. With him on the
brief were Jessie K. Liu, U.S. Attorney, and Charles W.
Scarborough, Attorney. Jennifer L. Utrecht, Attorney, entered
an appearance.

   Before: WILKINS, Circuit Judge, and WILLIAMS and
SENTELLE, Senior Circuit Judges.

   Opinion for the Court filed by Senior Circuit Judge
SENTELLE.

     SENTELLE, Senior Circuit Judge: Maurice G. McGinnis
brought this action to claim damages under the Consent Decree
created in the 1999 settlement between the Department of
Agriculture and a class of African American farmers. The
arbitrator responsible for adjudicating claims under the
Consent Decree denied McGinnis’s claim because he did not
timely submit evidence of racial discrimination. McGinnis
then petitioned the district court for “monitor review” of the
arbitrator’s decision. The district court denied that petition and
McGinnis’s two motions for reconsideration. Because we
agree with the district court that such review would have been
futile, we affirm the district court’s holding. We also affirm
the district court’s decision declining to modify the Consent
Decree under Federal Rule of Civil Procedure 60(b)(5).

                               I.

     In 1997, three African American farmers, representing a
putative class of 641 African American farmers, filed a class
action lawsuit against the Department of Agriculture alleging
racial discrimination in denying their applications for farm
loans, credit and other benefit programs. Pigford v. Glickman,
185 F.R.D. 82, 86, 89 (D.D.C. 1999). The parties settled in
                               3
1999 and agreed to a Consent Decree that would “ensure that
in the future all class members in their dealings with the USDA
will ‘receive full and fair treatment’ that is ‘the same as the
treatment accorded to similarly situated white persons.’” Id. at
95 (quoting J.A. 292).

     The Consent Decree established two tracks for class
members to claim monetary damages: Track A and B. Id. On
Track A, a class member must “demonstrate[] by substantial
evidence that he was the victim of race discrimination.” J.A.
303. The class member submits the required documentation
and an adjudicator issues a decision. Id. at 303–06. If the
adjudicator determines that the USDA discriminated against
the class member, the adjudicator can “discharge all of the class
member’s outstanding debt to USDA” that was affected by
discrimination and grant the class member a cash payment of
$50,000. Id. at 304. Track A “provides those class members
with little or no documentary evidence with a virtually
automatic cash payment of $50,000, and forgiveness of debt
owed to the USDA.” Pigford, 185 F.R.D. at 95.

     On Track B, class members have a higher evidentiary
hurdle: they must demonstrate that they were discriminated
against by a preponderance of the evidence. Id.; J.A. 308.
Class members submit a “claim package” to an arbitrator who
then schedules an evidentiary hearing. J.A. 306–07. The
hearing can include witnesses and exhibits to prove
discrimination. Id. at 307. Following the hearing, the arbitrator
issues a decision and can award actual damages and discharge
outstanding debt affected by discrimination. Id. at 308.
Because the arbitrator can award actual damages, class
members who pursue claims on Track B can receive much
more than the $50,000 available on Track A, but the
evidentiary standard required to show discrimination is higher.
                                 4
     The Consent Decree makes the adjudicator’s decisions on
Track A and the arbitrator’s decisions on Track B “final.” Id.
at 306, 309. There is a narrow review provision that empowers
a “monitor” to direct the arbitrator or adjudicator “to reexamine
a claim where the Monitor determines that a clear and manifest
error has occurred . . . and has resulted or is likely to result in a
fundamental miscarriage of justice.” Id. at 311. “Generally,
the Monitor’s review will be based only on the Petition for
Monitor Review, any response thereto, the record that was
before the Facilitator, Adjudicator or Arbitrator, and the
decision that is the subject of the Petition for Monitor Review.”
Id. at 285. For Track B claims, “the Monitor will not be
permitted to consider additional materials on review or to
supplement the record for review upon reexamination.” Id. at
286.

     Maurice G. McGinnis is an African American farmer from
Mississippi who sought but was denied farm credit from the
Department of Agriculture. Pigford v. Vilsack, 777 F.3d 509,
510 (D.C. Cir. 2015). In 1999, he initiated a claim under the
Consent Decree. Id. at 512. In an earlier phase of this
litigation, “the persons responsible under the Consent Decree
for processing his claim ignored or misinterpreted his clearly
expressed wishes” to proceed under Track B. Id. at 510. There
was extensive confusion between the claims facilitator, who
processed class member claims, and McGinnis as to whether
he was pursuing a claim under Track A or Track B. Id. at 512–
13. The facts and circumstances of that phase of the litigation
are more fully explained in Pigford, 777 F.3d at 512–13.
McGinnis was represented by his privately retained attorney
John M. Shoreman during part of that litigation. Pigford v.
Perdue, 330 F. Supp. 3d 1, 4 (D.D.C. 2018). As relevant for
this phase of the litigation, McGinnis was ultimately able to
submit his claim under Track B, as he intended. Pigford, 777
F.3d at 510, 518.
                               5

     On May 29, 2015, the arbitrator issued a formal hearing
notice for McGinnis’s Track B claim. Pigford, 330 F. Supp.
3d at 4. McGinnis was again represented by Shoreman. Id.
Before the scheduled hearing, the parties jointly requested
several stays of the proceeding while they discussed settlement.
Id. at 5. The settlement negotiations stalled because McGinnis
did not give Shoreman permission to disclose the expert report
supporting his claim of racial discrimination. Id. Several times
during December 2015, the parties and the arbitrator discussed
McGinnis’s reticence to disclose the expert report and
Shoreman’s efforts to convince his client to allow its release.
Id. The arbitrator even offered to speak with McGinnis ex
parte about releasing the report, and the government did not
object, but it is not clear if that conversation ever took place.
Id. Finally, on December 23, 2015, the arbitrator informed
Shoreman and the government that he would give McGinnis
until December 28, 2015, to release the report or he would
restart the schedule for a Track B arbitration. Id. at 5–6. When
the report was not released, the government proposed a
schedule for the proceeding including deadlines for filing
expert reports, direct testimony and legal memoranda, and for
completing discovery and depositions. Id. at 6. The
government also requested that, if McGinnis failed to meet the
deadlines, “he would be ‘precluded from offering any expert
report, testimony, or other expert evidence in this case.’” Id.

     On January 21, 2016, the arbitrator issued a formal hearing
notice adopting the schedule proposed by the government and
set the hearing for July 20, 2016. Id. “The arbitrator’s formal
revised hearing notice made clear: ‘Should [McGinnis] 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.’” Id.
(second alteration in original). McGinnis did not disclose his
                               6
expert’s report or submit direct testimony, and neither he nor
his counsel sought to depose the government expert or take
discovery on the government’s expert report. Id. On June 30,
2016, Shoreman filed an “unsigned economic damages report,”
“a package of miscellaneous documents that included a three-
page letter from Mr. McGinnis himself,” and other documents
with handwritten annotations. Id. at 7. On July 5, 2016, the
arbitrator excluded the damages report because it was not
timely. Id. He determined, based on the rest of the documents
filed at the same time, he would not hold a hearing. Id. On
December 13, 2016, the arbitrator released his decision
denying McGinnis damages because he “introduced no
evidence in support of his claim” of discrimination. J.A. 277–
78.

     Approximately four months after the arbitrator’s decision,
in a state court proceeding, Derrick K. Jones was appointed as
conservator on behalf of McGinnis. J.A. 262 n.1; Pigford, 330
F. Supp. 3d at 7. Jones is McGinnis’s “nephew and long-time
personal attorney.” Pigford, 330 F. Supp. 3d at 14. Shortly
after Jones was appointed, Shoreman filed a petition for
monitor review of the arbitrator’s decision, “purportedly on
behalf of Derrick K. Jones.” Id. at 7–8. The petition asserts
that the arbitrator made a “clear and manifest error resulting in
a fundamental miscarriage of justice” when it denied
McGinnis’s claim. Id. Specifically, the petition asserts that
McGinnis’s failure to meet deadlines for the arbitration process
was attributable to his mental health conditions, which the
petition asserted from the record were obvious to the
participants in the process. Id. at 7–9.

     The district court dismissed the petition for monitor
review. Id. at 14. It first explained that monitor review would
be futile because the monitor can direct a reexamination of the
decision only when there is a clear error based on the evidence
                               7
in the record before the arbitrator. Id. at 11–12. Crucially, the
new evidence introduced as part of McGinnis’s competency
proceeding was not before the arbitrator and, therefore, could
not be considered during a reexamination. Id. Next, sua
sponte, the district court considered, but ultimately rejected,
modifying the Consent Decree under Federal Rule of Civil
Procedure 60(b)(5). Id. at 12–14. In reaching that conclusion,
the district court relied on Supreme Court precedent that a party
is bound by the conduct of voluntarily chosen counsel. Id. at
13 (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507
U.S. 380, 396–97 (1993); Link v. Wabash R.R. Co., 370 U.S.
626, 633–34 (1962)). The district court explained, “Because
Mr. McGinnis has been represented by Mr. Shoreman in this
matter since at least 2012, he is not entitled to a Rule 60(b)(5)
modification for any failures or mistakes made by his retained
counsel. Rather, he is bound by his agent’s acts and
omissions.” Id. (internal citation omitted).

     McGinnis filed a motion for reconsideration on June 28,
2018, but the district court denied the motion without prejudice
on August 6, 2018, because Shoreman had not properly added
Jones, the conservator, as a party to the case. J.A. 234. After
the court granted Shoreman’s motion to substitute Jones as a
party, Shoreman filed a renewed motion for reconsideration on
October 31, 2018. Id. at 234–35. The motion did not assert
that there had been an intervening change in the law; instead,
“using language almost identical to that found in the original
petition,” the petition argued that the court should reconsider
its decision because it represented a “fundamental and manifest
injustice.” Id. at 236–37. The district court denied the renewed
motion for reconsideration on January 2, 2019, because the
motion merely retread the grounds in the original petition for
monitor review. Id. at 237–40. McGinnis filed a timely notice
of appeal on February 8, 2019, for both the dismissal of the
                               8
petition for monitor review and the denial of the renewed
motion for reconsideration. See 28 U.S.C. § 1291.

                              II.

     The district court’s decision to dismiss the petition for
monitor review represents an assessment that McGinnis’s
arguments failed to demonstrate a colorable claim that the
arbitrator committed a clear and manifest error. See Pigford,
330 F. Supp. 3d at 11–12. The district court undertakes a
similar analysis in the context of a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim: determining whether “[a] claim has facial
plausibility.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). As
the district court was considering whether McGinnis had a
claim under the Consent Decree and not interpreting said
decree, we will review the district court’s dismissal of
McGinnis’s petition for monitor review de novo, as we do for
12(b)(6) motions to dismiss. Capitol Servs. Mgmt., Inc. v.
Vesta Corp., 933 F.3d 784, 788 (D.C. Cir. 2019).

     Next, we turn to McGinnis’s Federal Rule of Civil
Procedure 59(e) motion for renewed reconsideration. “A Rule
59(e) motion is discretionary and need not be granted unless
the district court finds that there is an intervening change of
controlling law, the availability of new evidence, or the need to
correct a clear error or prevent manifest injustice.” Ciralsky v.
CIA, 355 F.3d 661, 671 (D.C. Cir. 2004). We therefore review
denials of motions for reconsideration for abuse of discretion,
id., unless, in considering the motion, the district court also
reached the merits of a new argument or legal theory, Dyson v.
District of Columbia, 710 F.3d 415, 420 (D.C. Cir. 2013).
Because the district court did not address any new arguments,
J.A 236–40, we review the district court’s denial of the
                               9
renewed motion for reconsideration for abuse of discretion,
Ciralsky, 355 F.3d at 671.

     We also review the district court’s denial of relief under
Federal Rule of Civil Procedure 60(b)(5) for abuse of
discretion. Am. Council of the Blind v. Mnuchin, 878 F.3d 360,
366 (D.C. Cir. 2017).

                              A.

     We agree with the district court that monitor review would
be futile because there was no evidence of McGinnis’s
incompetency in the record before the arbitrator. The record
contained evidence of McGinnis’s potential frustration and
confusion with the process, including: McGinnis’s refusal to
allow his attorney to release the expert report, Pigford, 330 F.
Supp. 3d at 5; the arbitrator’s offer to speak to McGinnis to
resolve his reluctance to release the report, id.; McGinnis’s
May 10, 2016 letter submitted to the arbitrator lamenting his
treatment during the proceeding, J.A. 265–66; McGinnis’s
failure to comply with the deadlines established by the
arbitrator, Pigford, 330 F. Supp. 3d at 6–7; and, finally, a
reference in the arbitrator’s decision that “McGinnis seriously
misunderstood the nature of what he was required to do in the
Track B process,” J.A. 275. But, as the district court explained,
these examples could indicate McGinnis’s frustration or
confusion with the process but do not raise an inference of
mental incompetence. Pigford, 330 F. Supp. 3d at 12.

     There is also no evidence that Shoreman raised the issue
of McGinnis’s potential incompetence before the arbitrator
either by alerting the arbitrator or by moving to stay the case
pending conservatorship proceedings in state court. Nor does
Shoreman’s briefing explain why he failed to take action to
                               10
protect his client’s interests if he believed that competency was
an issue.

     The lack of evidence is crucial because the Consent Decree
permits only a limited review. The monitor may instruct the
arbitrator to reexamine the claim when there is a clear error in
the record, but the evaluation of error is limited to what was in
the record before the arbitrator. J.A. 285–86. These limitations
mean that the monitor cannot consider the new evidence from
medical evaluations of McGinnis and the competency
proceeding. Instead, the monitor could rely only on the
evidence of McGinnis’s conduct during the proceeding, like
the instances cited above. We agree with the arbitrator and the
district court that McGinnis’s actions could be interpreted as a
product of irrationality or confusion or frustration but do not
support an inference of incompetence. Thus, a monitor review
would be futile.

                              B.

     The district court did not abuse its discretion when it
refused to modify the Consent Decree. See Pigford, 330 F.
Supp. 3d at 12–14. As the district court explained, Rule
60(b)(5) permits relief from a “final judgment, order, or
proceeding” if “applying it prospectively is no longer
equitable.” Fed. R. Civ. P. 60(b)(5). “Modification [of a
consent decree] is also appropriate when a decree proves to be
unworkable because of unforeseen obstacles.” Rufo v. Inmates
of Suffolk Cty. Jail, 502 U.S. 367, 384 (1992). One such
unforeseen obstacle could be an attorney’s failure to meet
deadlines. This court has recognized the vital importance of
competent representation for eligible farmers seeking damages
pursuant to the Consent Decree. Pigford v. Veneman, 292 F.3d
918, 925–27 (D.C. Cir. 2002). In fact, we modified the
deadlines in the Consent Decree when the class counsel failed
                               11
to meet them. Id. at 925–26. But, importantly, in that decision,
the presumption that clients are bound by the mistakes of their
“voluntarily chose[n]” attorney, Link, 370 U.S. at 633, was
rebutted because the class counsel was appointed by the district
court, Veneman, 292 F.3d at 926. Because McGinnis
voluntarily chose his attorney, the presumption is not rebutted
on that ground. He is therefore bound by his attorney’s failure
to submit documents and memoranda by the arbitrator-imposed
deadlines. As a result, the district court did not abuse its
discretion when it declined to modify the Consent Decree
because Shoreman did not meet the arbitration deadlines.

     McGinnis’s failure or inability to cooperate with his
attorney may be another unforeseen obstacle. But the district
court did not abuse its discretion in declining to modify the
Consent Decree because McGinnis’s alleged incompetence
made it impossible for him to cooperate with or supervise his
attorney.     The district court reasonably explained that
modification was not warranted for two reasons. First,
Shoreman never raised the issue of competency in the record.
Pigford, 330 F. Supp. 3d at 13–14. Second, modifying the
Consent Decree would lead to “a mini-trial on a matter
ancillary to the merits of this case”—namely Shoreman’s
“options for advancing [McGinnis’s] interests independent of
[his] relative competence.” Id. at 14. The district court further
noted that “any grievance Mr. McGinnis may have with his
counsel would be more properly resolved in a separate
malpractice action.” Id. In sum, the district court provided a
reasoned and reasonable explanation for its decision not to
modify the consent decree.
                              12
                             III.

    For the foregoing reasons, we affirm the district court’s
denial of the petition for monitor review and the denial of the
motion for reconsideration.
