FILED

UNITED S'I`ATES DISTRICT COURT

FoR THE Disrizicr oF CoLUMBIA FEB ` 5 299
Clerk, U.S. Dlstrlct & Bankruptcy
Oourts for the Dlstrlct ct Columb|a

)

In re BLACK FARMERS DISCRIMINATION ) Misc. No. 08-051 1 (PLF)
LITIGAT1ON )
j

ORDER OF REFERENCE: APPOINTMENT OF OMBUDSMAN

On October 27, 2011, the Court entered an Order and Judgment and issued an
Opinion approving a Settlement Agreement that settled this lawsuit brought against the United
States Department of Agriculture ("USDA") for race discrimination. §e_e In re Black Farmers
Discr. Litig., --- F. Supp. 2d ----, 2011 WL 5114830 (D.D.C. Oct. 27, 2011) (Order and
Judgment); In re Black Farrners Discr. L@g., --- F. Supp. 2d ----, 2011 WL 5117058 (D.D.C.
Oct. 27, 2011, as amended Nov. lO, 201l) (Opinion). As part of the Settlement Agreement, the
parties agreed that the Court may appoint an independent Ombudsman. § Settlement
Agreement, 1n re Black Farmers Discr. Litig., Misc. No. 08-0511 (Feb. 18, 2010, revised and
executed as of May l3, 2011) ("Settlement Agreement"') [Dkt. No. 170-2], § VI.

The Ombudsman, if appointed, is to report directly to this Court. The
Ombudsman is not to be removed except for good cause and shall serve for as long as the Couit
has continuing jurisdiction to enforce the Settlement Agreement. Settlement Agreement § VI.A.

The Settlement Agreement and the Court’s Order and Judgment provide a limited,
clearly defined role for the Ombudsman. According to the Settlement Agreement, the
Ombudsinan shall: (1) be available to Class Members and the public through a toll-free telephone
number in order to address concems about the implementation of the Settlement Agreement;

(2) attempt to address any concems or questions that any Class Member may have with respect to

the implementation of the Settlement Agreement; (3) make periodic written reports (not less than
every six months) to the Court, the Secretary of Agriculture, and Class Counsel on the good faith
implementation of the Settlement Agreement; (4) have access to the records maintained by the
Claims Administrator and the Neutrals involved in the claim process; and (5) make
recommendations to the Court relating to the implementation of the Settlement Agreement.
Settlement Agreement § VI.B. The Ombudsman shall not have the power to alter in any way
substantive claims decisions made by the Neutrals or the Claims Administrator, nor shall the
Ombudsman have the power to direct the Secretary of Agriculture and/or the United States to
take any actions pursuant to the Settlement Agreement. M. § VI.C.

According to the Order and judgment issued by this Court on October 27, 201 l,
Class Counsel and the Neutrals shall promptly bring to the attention of, among others, the
Ombudsman information that they receive relating to potential scams on claimants and/or
misrepresentations being made to claimants relating to the claims process or the relief available
to claimants under the Settlement Agreement. In re Black Farmers Discr. Litii;, 2011 WL
5114830, at *6,1[ 25.

The Court has concluded that Stephen Carpenter is the best qualified person to
serve as independent Ombudsman in this case. This decision is based upon Mr. Carpenter’s
background, experience, and knowledge and understanding of the USDA programs involved in
this case, as well as Mr. Carpenter’s experience in legal education and advocacy in and on behalf

of African-American farming communities. lt is also based on Mr. Carpenter’s experience as

Senior Counsel for the Monitor in Pigford v. Vilsack.

The Court also has concluded that it is appropriate to appoint Alva Waller as
Deputy Ombudsman. Ms. Waller has an extensive background, experience, and knowledge of
USDA programs, as well as experience in advocacy. She was Senior Staff and Managing
Attomey for Claimant Services for the Office the Monitor in Pigford v. Vilsack.

Wherever this Order of Reference uses the tenn Ombudsman, it refers to both Mr.
Carpenter and Ms. Waller unless otherwise explicitly stated.

The Court understands that the Ombudsman intends to commence operations on
or about February 8, 2012. Until then, all calls from Class Members and the public should
continue to be directed to the Claims Administrator at 1-877-810-81 10. The Claims
Administrator will forward all messages previously directed to the Ombudsman once the
Ombudsman’s operations commence.

The Court further understands that the Ombudsman will need to be reasonably
compensated for time, the expenses of the office (including but not limited to reasonable rental
costs for private office space), and necessary travel. Pursuant to the Settlement Agreement, the
Ombudsman’s fees and expenses shall be paid, upon Court approval, out of the "2008 Funds"
and from the "Designated Account." § Settlement Agreement §§ II.V, VI.A.

Accordingly, in conformance with the terms of the Settlement Agreement and this
Court`s October 27, 201 1 Order and judgment and Opinion, and pursuant to the Court"s inherent
power, it is hereby

ORDERED that Stephen Carpenter is appointed as independent Ombudsman
under the Settlement Agreement, effective February 6, 2012, and that Alva Waller is appointed

Deputy Ombudsman, effective February 6, 2012, each of whom shall have all of the

responsibilities and obligations required under the Settlement Agreement and the October 27,
201 1 Order and Judgment of this Court; it is

FURTHER ORDERED that the Ombudsman, as an agent and officer of the Court,
shall have the responsibilities, powers, and protections set forth in the Settlement Agreement and
this Order of Reference; and it is

FUR'I`HER ORDERED that

1. In order to effectuate Ombudsman responsibilities regarding the
implementation of the Settlement Agreement, the Ombudsman may contact Lead Class Counsel,
the Court, the Track A Neutral, the Track B Neutral, the Claims Administrator, and the claimants
on an ex parte basis.

2. In addition to the powers and authority granted elsewhere in this Order that
are designed to allow the Ombudsman to effectuate responsibilities regarding the implementation
of the Settlement Agreement, the Ombudsman shall have all the responsibilities and powers
enumerated in the Settlement Agreement. Specifically, as set forth in Section VI.B of the
Settlement Agreement the Ombudsman shall:

(a) be available to Class Members and the public through a toll-free telephone

number in order to address concems about the implementation of the
Settlement Agreement;
(b) attempt to address any concems or questions any Class Member may have

with respect to the implementation of the Settlement Agreement;

(c) make periodic written reports (not less than every six months) to the
Court, the Secretary of Agriculture, and Class Counsel on the good faith
implementation of the Settlement Agreement;

(d) have access to the records maintained by the Claims Administrator and to

the final decisions of the Track A Neutral and the Track B Neutral; and

(e) make recommendations to the Court relating to the implementation of the

Settlement Agreement.

The Ombudsman shall not have the power to alter in any way substantive claims
decisions made by the Neutrals or the Claims Administrator, nor shall the Ombudsman have the
power to direct the Secretary of Agriculture and/ or the United States to take any actions pursuant
to the Settlement Agreement.

3. Pursuant to the Order and Judgment entered by the Court on October 27,
201 1, the Ombudsman shall also receive information from Class C ounsel and the Neutrals

relating to potential scams on claimants and/or misrepresentations being made to claimants

relating to the claims process or the relief available to claimants under the Settlement Agreement.

4. As an agent and officer of the Court, the Ombudsman shall enjoy the same
protections from being compelled to give testimony and from liability for damages as those
enjoyed by other federal judicial adjuncts performing similar functions.

5. In carrying out duties under Section V1 of the Settlement Agreement, the
Ombudsman shall have broad authority to work with claimants through correspondence, by

telephone, and, ifnecessary, in person.

6. Contacting the Ombudsman. In carrying out duties under Section VI of

the Settlement Agreement, the Ombudsman will be available to Class Members and to the public
through the following toll-free telephone number: 1-866-686-8682. The Ombudsman mailing
address is:

ln re Black Farmers Ombudsman

P.O. Box 19100

Washington, DC 20036
The Ombudsman will also maintain a website: www.inreblackfarmersombudsman.com.

7. Ombudsman Staffing. 'l`he Ombudsman shall have the authority to
employ and/or contract with all necessary staff within a budget cap and hourly rate approved by
the Court. The staff and contractors of the Ombudsman shall have whatever access to records
and documents to which the Ombudsman is entitled that the Ombudsman determines to be
necessary to fulfill the staff or contracting role; however, the staff and contractors shall be given
access only to non-privileged materials that are not otherwise prohibited from disclosure and that
are necessary to enable the Ombudsman to perform the duties set out in the Settlement
Agreement and this Order of Reference.

8. Fees and Expenses. Ombudsman fees and expenses will be paid as
follows. In general, fees and expenses of the Ombudsman and staff shall be paid out of the
"2008 Funds" and from the "Designated Account." Toll-free line expenses, however, will be
incorporated into Claims Administrator costs and be invoiced to Class Counsel by the Claims

Administrator. To the extent that the payment mechanism for the Ombudsman conflicts with the

Settlement Agreement, the mechanism found in this Order of Reference takes precedence.

9. Approval of Budgets. The Ombudsman shall submit budgets to the Court
for approval, Each budget shall, among other matters, include proposed hourly rates, travel, and
mailings. Each budget shall cover a period of three (3) to six (6) months. Copies of each budget
shall be made available to the USDA and Class Counsel, who will have a period of ten (10)
working days from their receipt of the budget within which they may file with the Court, with
copies to the Ombudsman and the opposing party, written comments on or objections to the
budget. Any party that does not comment on or object to a budget within these ten (10) working
days shall be deemed to have waived any objection permanently. At the end of the ten (10) days,
the Court will enter an order approving a total budget amount for the relevant time period.

10. USDA Pavment for Ombudsman Costs. Pursuant to Section lV.G of the

Settlement Agreement, upon a Court order approving an Ombudsman budget pursuant to
Section 9 of this Order of Reference, and ordering payment of Ombudsman costs, USDA shall,
within twenty (20) days of such order, provide the U.S. Department of the Treasury with all
necessary forms and documentation to direct a payment to the Designated Account for the fees
and expenses of the Ombudsman in the amount approved for the Ombudsman budget.

l1. Timing of B\Qget Submissions. The Ombudsman generally will submit

proposed budgets to the Court one (1) month in advance of the beginning of the budget period.
The first budget period to be submitted to the Court begins on February 6, 2012. For this first
period, the Ombudsman is directed to submit the budget for the period beginning February 6,

2012 by March 6, 2012.

12. Invoicing. The Ombudsman shall submit a statement to the Court
approximately monthly for approval of fees and expenses with copies to counsel for both parties.
Objections to the statement shall be filed with the Court, with copies to the Ombudsman and to
the opposing party, within ten (10) days of the submission of the statement. Any party that does
not object to a fee statement within ten (10) days of its submission shall be deemed to have
waived any objection perrnanently. At the conclusion of the ten-day period, the Court will enter
an order directing payment from the Court Registry of any sums approved. Any sum approved
by the Court shall be paid within fifteen (15) days unless otherwise ordered or agreed upon.

13. RLQQ§. The Ombudsman shall keep a complete record of all fees and
expenses, which shall be made available at the Court’s or the parties’ request for their inspection.

14. Pavment into Court Regi@. Within fifteen (15) days after a payment of

the amount of an approved Ombudsman budget to the Designated Account pursuant to Section
10 of this Order of Reference, Class Counsel shall deposit with the Clerk of Court, United States
Distn`ct Court for the District of Columbia, the full amount of the approved budget. Deposits
made by Class Counsel shall be placed by the Clerk of Court in an interest-bearing account. Any
monies on deposit with the Clerk of Court that are unspent in a given budget period shall be
carried over and applied to payment of future fees and expenses of the Ombudsman. The funds
deposited by Class Counsel with the Clerk of`Court come from "2008 Funds," as that tenn is

defined in the Settlement Agreement.

l5. Refilnd of Sur_plus. At such point as the Court concludes that the
Ombudsman’s duties are completed, any surplus funds on deposit with the Clerk’s Office will be
transmitted to Class Counsel for deposit in the "Designated Account," as that tenn is defined in
the Settlement Agreement.

SO ORDERED.

PAUL L. FRIEDMAN
United States District Judge

DATE; Q_\g\ \_)`

