Timothy Pigford v. Thomas Vilsack

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 2014 Decided February 6, 2015
No. 13-5303
TIMOTHY C. PIGFORD, ET AL.,
APPELLEES
v.
THOMAS J. VILSACK, SECRETARY OF AGRICULTURE,
APPELLANT
MAURICE MCGINNIS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:97-cv-01978)
Charles W. Scarborough, Attorney, U.S. Department of
Justice, argued the cause for appellant. With him on the
briefs were Stuart F. Delery, Assistant Attorney General,
Ronald C. Machen Jr., U.S. Attorney, and Marleigh D.
Dover, Attorney.
John M. Shoreman argued the cause and filed the brief
for appellee Maurice McGinnis.
Before: TATEL and WILKINS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: Appellee Maurice McGinnis
farmed cotton and soybeans in the Mississippi River Delta
near Yazoo City, Mississippi. Like millions of other small
family farmers, he sought a loan through federal farm credit
programs administered by the United States Department of
Agriculture. And he alleges that, like tens of thousands of
other African-American farmers, he was denied access to
those programs by the Department because of his race.
McGinnis participated in a claims process established by
a class action settlement agreement to resolve his and other
farmers’ discrimination claims. There is no question that,
under this scheme, many claimants’ rights were vindicated.
Yet in McGinnis’ case the process failed dramatically.
Repeatedly, the persons tasked under the Consent Decree with
processing his claim ignored or misinterpreted his clearly
expressed wishes about how his claim should proceed.
Finally, over a decade after McGinnis first filed his claim, he
turned to the courts to vindicate his rights. Recognizing the
Kafkaesque ordeal he had endured, the District Court awarded
McGinnis the relief he sought: not an award on the merits of
his claim, but merely the opportunity to make his case in the
arbitration forum provided for under the settlement
agreement. We affirm.
I.
The underlying class action settlement in this case is not
new to our Court. In 1997, four hundred and one African-
American farmers from the South and Midwest brought suit
against the United States Department of Agriculture (the
“Department”)—now headed by Appellant Secretary Thomas
3
Vilsack—under the Equal Credit Opportunity Act, 15 U.S.C.
§ 1691 et seq., alleging that the Department discriminated
against them in denying applications for credit and benefit
programs. See generally Pigford v. Glickman, 185 F.R.D. 82
(D.D.C. 1999). The District Court certified a class for the
purpose of determining the Department’s liability in October
1998, Pigford v. Glickman, 182 F.R.D. 341 (D.D.C. 1998),
and certified a slightly modified class for all purposes in early
1999. The class included all African-American farmers who
(i) farmed between 1981 and 1996, (ii) applied to the
Department for a federal farm credit or benefit program
during that period and believed the Department discriminated
against their application on the basis of race, and (iii) filed a
discrimination complaint before mid-1997. Pigford v.
Glickman, 185 F.R.D. at 92.
After several months of negotiations, the parties reached
a settlement of their claims and filed a proposed consent
decree (the “Consent Decree”) with the District Court, which
it approved. Id. at 85-86. We upheld the settlement as “an
indisputably fair and reasonable resolution of the class
complaint.” Pigford v. Glickman, 206 F.3d 1212, 1219 (D.C.
Cir. 2000). Eventually, 21,546 claimants were accepted as
class members for review under the settlement agreement.
Pigford v. Veneman, 292 F.3d 918, 921 (D.C. Cir. 2002).
The Consent Decree establishes a two-track claim-
resolution process to determine the validity of claims and
appoints (or empowers the District Court to appoint) several
third-party neutrals to administer the scheme. Depending on
which track a claimant chooses, his claim is resolved by either
an “adjudicator” (Track A) or an “arbitrator” (Track B).
Under Track A, a claimant’s allegations are reviewed under
the forgiving “substantial evidence” standard. A prevailing
claimant is entitled to a one-time payment of $50,000 and
4
forgiveness of any debt he owes the USDA. J.A. 11
(Consent Decree ¶ 1(l)), 20-22 (Id. ¶ 9). Those who select
Track B must establish their claim by a preponderance of the
evidence—a higher burden of proof—but may seek an
unlimited amount in monetary damages if they prevail after a
day-long live hearing. J.A. 23-26 (Consent Decree ¶ 10).
The Consent Decree also appoints a “facilitator” to publicize
the settlement, mail claim packages to claimants, receive and
process completed claim packages, determine whether those
who submit a claim package are class members, and transmit
the claim packages of class members to the adjudicator or
arbitrator for determination. See J.A. 11 (Consent Decree ¶
1(i)) (defining “facilitator” as third-party tasked with
“assign[ing] claims to adjudicators and arbitrators for final
resolution”). Finally, the Consent Decree provides for the
court to select a monitor, who must, among other duties,
direct the facilitator, adjudicator, or arbitrator to reexamine
any claim in which it finds “clear and manifest error has
occurred in the screening, adjudication, or arbitration of the
claim and has resulted in . . . a fundamental miscarriage of
justice.” J.A. 28 (Consent Decree ¶ 12(b)(iii)).
Under Paragraph 13 of the Consent Decree, the District
Court retains jurisdiction to issue orders “concerning the
alleged violation of any provision.” See J.A. 29 (Consent
Decree ¶ 13); see also J.A. 34 (Consent Decree ¶ 21) (District
Court retains authority to enforce the Consent Decree on a
party’s motion for contempt). However, the Consent Decree
also includes a “finality provision” that specifies that
decisions of the adjudicator and arbitrator are “final,” subject
to review only by the monitor, and the parties consent “to
forever waive their right to seek review in any court” of “any
claim that is, or could have been[,] decided by” the
adjudicator or arbitrator. J.A. 22 (Consent Decree ¶ 9(a)(v));
26 (Id. ¶ 10(i)).
5
On August 6, 1999, Appellee Maurice McGinnis filed a
claim sheet and election form alleging the Department
discriminatorily denied him operating loans between 1991
and 1996 and emergency loans in 1994 and 1996, purportedly
because he had an unpaid prior loan balance and insufficient
cash flow. J.A. 39-40. He alleged that the Department had
granted loans to similarly situated white farmers during the
same period. On his claim sheet, McGinnis appears to have
initially written an “X” in the box corresponding to Track B,
but later crossed that out and initialed beside it and wrote an
“X” in the box corresponding to Track A. J.A. 38. McGinnis
then completed in some detail an addendum to the claim sheet
entitled “TRACK A – ADJUDICATION CLAIM
AFFIDAVIT” that instructed claimants to “[o]nly complete
this affidavit if you have elected to settle your claim under the
Track A – Adjudication option.” J.A. 39; see id. at 38-41.
The District Court therefore concluded that, although he “may
have initially selected Track B before changing his mind,”
McGinnis’ claim sheet “unambiguously selected Track A.”
Pigford v. Vilsack, 961 F. Supp. 2d 82, 84 n.2 (D.D.C. 2013).
Soon thereafter, however, McGinnis called the
facilitator—then the Poorman-Douglas Corporation,
subsequently acquired by Epiq Systems (“Epiq”)—and asked
to switch his choice to Track B, and sent the facilitator a letter
“confirm[ing] that . . . I have indeed filed my claim and/or
petition under ‘Plan B’ instead of Plan A as originally
thought.” J.A. 42. Nevertheless, the facilitator forwarded
McGinnis’s claim to the adjudicator, responsible for
determinations of entitlement under Track A, who determined
on June 14, 2000 that McGinnis had not established his claim
by substantial evidence and denied his claim. J.A. 43-45.
6
McGinnis then filed a Petition for Monitor Review
(“PMR”), prepared by a member of class counsel and not the
attorney who assisted him in submitting his initial claim,
requesting that the monitor remand his claim to the arbitrator
for determination under Track B. See J.A. 46-48. McGinnis
explained that he had intended to proceed under Track B, 1
and therefore omitted certain supporting details of the
discrimination he suffered from his claim sheet. J.A. 46. In
the alternative, he requested remand of his case to the
adjudicator for reconsideration, and submitted additional
evidence. J.A. 46-48. Over six years later—by which point
the monitor still had not acted on McGinnis’ four-page
PMR—Epiq contacted class counsel David Frantz, who had
not advised McGinnis in completing his claim sheet or
assisted in preparing his PMR, and asked whether McGinnis
still wished to switch to Track B. J.A. 91. Neither Epiq nor
the monitor attempted to contact McGinnis or his counsel
directly. After speaking with McGinnis, Frantz emailed Epiq
that McGinnis “wishe[d] for his PMR to proceed as is.” J.A.
94. Rather than request clarification, Epiq interpreted
Frantz’s vague, one-sentence email, by which he apparently
meant that McGinnis continued to seek a determination under
Track B, to mean that McGinnis wished to proceed with his
“original election of Track A.” J.A. 92, 95. Epiq emailed the
monitor to that effect. In a decision issued in January 2008,
the monitor concluded that the adjudicator made a “clear and
manifest error” in rejecting McGinnis’ claim sheet and
1
Confusingly, McGinnis’s PMR, in trying to explain that he
believed his claim would be determined under Track B, actually
states that he “thought he was proceeding under Track A.” J.A. 46.
As the District Court concluded and as McGinnis’ repeated requests
to switch to Track B after submitting his claim sheet and
throughout his PMR demonstrate, however, this reference to Track
A was merely a “particularly unfortunate” typographical error.
Pigford v. Vilsack, 961 F. Supp. 2d at 85 n.3.
7
admitted into the record much of McGinnis’s new evidence.
J.A. 49-80. 2 Although she concluded that the determination
of McGinnis’s claim under Track A rather than Track B had
been a “mistake in the claims process,” the monitor explained
that “pursuant to discussions with the facilitator, the parties
and the Monitor have established that [McGinnis] will
proceed as a Track A claimant,” and remanded his case to the
adjudicator for reconsideration. J.A. 71-72. Upon
reexamination in May 2008, the adjudicator found McGinnis
had established an entitlement to relief and awarded him
$50,000. J.A. 81-84. McGinnis refused to accept payment.
J.A. 88.
McGinnis’s sister contacted the arbitrator in the autumn
of 2010 to explain that McGinnis had intended to pursue a
Track B claim. The arbitrator expressed his sympathy that,
due to confusion about his selection, McGinnis had been
sorted into Track A, but explained that he lacked the authority
to arbitrate McGinnis’ claim under the Consent Decree. J.A.
85.
In November 2012, McGinnis petitioned the District
Court for an order instructing the arbitrator to determine his
claim. In granting the petition, the court first rejected the
Department’s position that Paragraph 13 of the Consent
2
The monitor’s response to McGinnis’s PMR provides the most
comprehensive summary of his claim, since he did not attach his
full PMR (including exhibits) to his District Court petition, or in the
Joint Appendix he filed with this Court. See Motion to Enforce
Consent Order, Pigford v. Vilsack, No. 1:97-cv-01978 (D.D.C.
Nov. 2, 2012), ECF No. 1853. Her analysis mentions that
McGinnis claims he lost $160,000 in farm revenue due to the
Department’s denial of his credit applications, which explains why
he wishes to proceed under Track B rather than Track A, which
permits recovery of only $50,000. J.A. 53.
8
Decree only authorized court review of the parties’—not the
third-party neutrals’—actions. Pigford v. Vilsack, 961 F.
Supp. 2d at 88-89. The Government does not appeal this
conclusion. See Appellant’s Reply Br. at 3. It then held that
McGinnis’s petition did not implicate the finality provisions
of the Consent Decree because he did not request review of
the adjudicator’s decision, but rather the facilitator’s decision
to shunt McGinnis’ claim into Track A adjudication. Pigford
v. Vilsack, 961 F. Supp. 2d at 89-90. The court reasoned that
nothing in the text of the Consent Decree renders the
decisions of the facilitator unreviewable, and the “apparent
purpose” of the finality provision is to prevent the parties
from appealing adverse determinations by the adjudicator or
arbitrator on the merits, not an erroneous claim processing
decision. Id. at 90. The District Court then found it beyond
argument that the third-party neutrals had erred both in
designating McGinnis’ claim a Track A claim at the outset
and in disregarding his subsequent attempt to change to Track
B, in violation of Paragraph 3(a)(vii) of the Consent Decree,
and vacated his Track A award and remanded his claim to the
arbitrator for Track B consideration. Id. at 91. The
Department timely appealed the District Court’s decision.
II.
We review a district court decision interpreting a consent
decree and any underlying agreement de novo. Richardson v.
Edwards, 127 F.3d 97, 101 (D.C. Cir. 1997).
As a threshold matter, and as the Department notes, the
District Court only possessed jurisdiction to remedy
violations of provisions of the Consent Decree. See Appellant
Br. 16-17. While it may be a “well-established principle. . .
that a district court retains jurisdiction under federal law to
enforce its consent decree[s],” Beckett v. Airline Pilots Ass’n,
9
995 F.2d 280, 286 (D.C. Cir. 1993), it retains this authority
only if the parties’ agreement or the court order dismissing the
action reserves jurisdiction to enforce compliance. Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994).
Even where, as here, the Consent Decree does retain
jurisdiction in the District Court to enforce its terms, the court
still lacks a “free-ranging ‘ancillary’ jurisdiction,” and is
limited by the explicit terms of the parties’ agreement.
Pigford v. Veneman, 292 F.3d at 924 (reversing District Court
order permitting arbitrators to extend the deadlines mandated
by the Consent Decree). Here, Paragraph 13 of the Consent
Decree limits the District Court to remedying violations of the
terms of the Consent Decree and the accompanying order. Id.
The District Court recognized this limitation on its
jurisdiction, observing that it only retained jurisdiction to
enforce the Consent Decree’s specific terms. See Pigford v.
Vilsack, 961 F. Supp. 2d at 87.
We conclude that Paragraph 13 of the Consent Decree
empowers the District Court to correct an error by the
facilitator in transmitting a claim to the wrong track. The
Department suggests the court overstepped the narrow scope
of its jurisdiction, but any action by the facilitator transmitting
to the adjudicator a claim package that selects Track B would
violate the Consent Decree’s explicit command that the
facilitator “shall . . . transmit to the arbitrator the claims
packages of class members . . . who elect to proceed under
Track B.” J.A. 13 (Consent Decree ¶ 2(a)(vii)) (emphasis
added). Hence, if it is true that McGinnis selected Track B
and the facilitator nevertheless sent his claim package to the
adjudicator, the District Court did no more than enforce the
parties’ agreement.
The Department makes much of the fact that reversing
the facilitator’s claim transmittal to the adjudicator
10
incidentally required the District Court to vacate the
adjudicator’s merits determination that McGinnis was entitled
to relief. Appellant’s Br. at 15, 18-19. While it is true that
the Consent Decree renders any determination by the
adjudicator “final” and unreviewable by any court once the
monitor has considered any petition for review, J.A. 22
(Consent Decree ¶ 9(a)(v)); 26 (Id. ¶ 10(i)), this argument
begs the question. McGinnis’s petition and the court’s review
focused not on the adjudicator’s conduct, but on the
facilitator’s. The decision McGinnis appeals—the allocation
of his claim to Track A—is not one the adjudicator made or
was empowered to make under the Consent Decree. Only the
facilitator was authorized to refer a completed claim package
to the adjudicator or arbitrator. See J.A. 17 (Consent Decree ¶
5(f)). The facilitator sorted McGinnis’ claim into Track A
adjudication, and the adjudicator had no involvement in this
screening determination. The Consent Decree does nothing to
insulate the facilitator’s decisions from appeal.
Moreover, vacating the adjudicator’s determination was a
matter of black letter contract law. The Consent Decree, as a
written reflection of the parties’ bargain resolving their case,
should be interpreted as a contract. United States v. Volvo
Powertrain Corp., 758 F.3d 330, 339 (D.C. Cir. 2014) (citing
Segar v. Mukasey, 508 F.3d 16, 21 (D.C. Cir. 2007)). In
interpreting a settlement agreement, the use of aids to
construction, including “the circumstances surrounding the
formation of the consent order,” is permitted. United States v.
ITT Cont’l Baking Co., 420 U.S. 223, 238 (1975). Looking to
the circumstances that led the parties to strike the bargain
embodied by the Consent Decree, which it well knew from its
decades-long supervision of the settlement agreement and
claims mechanism, the District Court reasonably concluded
that the purpose of the finality provision was to prevent either
party from appealing an adverse determination on the merits.
11
Pigford v. Vilsack, 961 F. Supp. 2d at 90. The District Court
had noted in its 1999 opinion approving the settlement that
the finality provision stemmed from class counsels’ fears that
the Government would appeal decisions granting class
members relief, thereby delaying recovery. See Pigford v.
Glickman, 185 F.R.D. at 107-08. The Government argues
that even non-adverse adjudicator determinations are
unappealable because allowing any appeal would disserve the
goal of “avoid[ing] endless rounds of duplicative litigation,”
but the incentives of a class member like McGinnis, seeking
a reversal of the procedural claim processing that landed him
before the arbitrator, will not lead to such a result. See
Appellant Br. at 13. What he seeks is not a “second bite at the
apple” but to have a “first bite” in front of the decisionmaker
he asked for to begin with. Even conceding, therefore, that
the parties “have a strong interest in ensuring the finality” of
merits determinations under a claimant’s elected track, see
Appellant Br. at 18, does not imply that determinations made
on the wrong track are beyond review.
Given the contradiction between the finality provision
and the section of the Consent Decree governing the
facilitator’s duties, the District Court reasonably looked to the
parties’ purpose in rendering adjudicator decisions final. The
Department objects, noting that, in Pigford v. Veneman, 292
F.3d at 924, we foreclosed any reliance on the Consent
Decree’s “overarching remedial purposes.” Appellant Br. at
16-18. But disregarding the unambiguous text of the Consent
Decree in favor of its purpose is a world away from simply
looking to the “apparent purpose” of one contractual
provision to resolve a contradiction with another clause. The
District Court was clearly justified in looking to the finality
provision’s aims to ensure that its interpretation of the
potentially contradictory text corresponded to the parties’
understanding of their bargain. See Volvo Powertrain, 758
12
F.3d at 339 (“[U]ltimately the question for the lower court,
when it interprets a consent decree incorporating a settlement
agreement, is what a reasonable person in the position of the
parties would have thought the language meant.”) (alteration
in original) (quoting Richardson, 127 F.3d at 101).
Most importantly, to deny review of a facilitator’s
erroneous claim transmittal would frustrate the purpose of
Paragraph 13 of the Consent Decree, in which the parties
explicitly provided for judicial review to enforce compliance
with the agreement’s terms. Pigford v. Veneman, 292 F.3d at
924. See Fort Sumter Tours, Inc. v. Babbitt, 202 F.3d 349,
358 (D.C. Cir. 2000) (A reviewing court “must give
reasonable meaning to all parts of the contract and not render
portions of [it] meaningless.”); RESTATEMENT (SECOND) OF
CONTRACTS § 203 cmt. b (1981) (“Since an agreement is
interpreted as a whole, it is assumed in the first instance that
no part of it is superfluous.”). The Consent Decree provides
no mechanism for a claimant to learn that his claim package
was transmitted to the adjudicator before he receives a
decision on the merits. McGinnis consequently did not know
that the facilitator had ignored his Track B request until after
he was informed that his claim had been denied by the
adjudicator in mid-2000. By this point, under the
Department’s reading of the Consent Decree, the error in
processing his claim was fully insulated from any judicial
review.
The District Court was correct to note the perverse result
that would follow from allowing the adjudicator or
arbitrator’s decision to shield the facilitator’s violation of the
Consent Decree from review, simply because the adjudicator
or arbitrator had proceeded to a determination on the merits
before the court could intervene. See Pigford v. Vilsack, 961
F. Supp. 2d at 89-90. The Court will not sanction a result that
13
would permit, for example, the facilitator to simply refuse to
transmit any claim packages to the adjudicator, or reject valid
claim packages based on some arbitrary criteria such as the
geographical origin or age of a claimant. To hold that any
action by the facilitator or monitor that violates the Consent
Decree becomes unreviewable the moment the adjudicator
unilaterally ratifies it would work a patent injustice and thwart
the aim of the settlement. See Pigford v. Veneman, 292 F.3d
at 925 (noting that parties bargained to give the District Court
enforcement authority to correct violations of the decree). We
therefore affirm the District Court’s conclusion that it could
review the facilitator’s claim processing and vacate the
adjudicator’s determination.
III.
It remains for the Court to determine whether McGinnis’
completed claim package actually selected Track B. We think
that McGinnis’ request to change his claim to Track B was
sufficiently close in time to his submission of the claim
package, and the language of the Consent Decree defining
what constitutes a “completed claim package” is sufficiently
ambiguous, to justify the District Court in granting his
petition.
The Consent Decree cautions that “[a]t the time a
claimant . . . submits his completed claim package, he must
elect whether to proceed under Track A . . . or Track B,” a
selection that “shall be irrevocable and exclusive.” J.A. 16
(Consent Decree ¶ 5(d)). The Department argues that, even if
the District Court had the authority to reverse the
adjudicator’s decision based on the facilitator’s error, this
provision makes McGinnis’ selection of Track A on his claim
sheet final. Appellant’s Br. at 20-22.
14
The Consent Decree does not define what renders a claim
package “completed,” but it is clear to us from a separate
definitional provision that McGinnis’ claim package was not
completed at the moment he sent a claim sheet to the
facilitator. The agreement defines a “claim package” as “the
materials sent to claimants who request them in connection
with submitting a claim for relief . . . includ[ing] (i) a claim
sheet and election form and a Track A Adjudication claim
affidavit, . . . and (ii) associated documentation and
instructions.” J.A. 10 (Consent Decree ¶ 1(d)). As the
District Court found, McGinnis “unambiguously” selected
Track A at the time he submitted his claim sheet, election
form, and Track A affidavit. Pigford v. Vilsack, 961 F. Supp.
2d at 84 n.2. But, as the above-quoted paragraph indicates, a
claim sheet, election form and affidavit do not constitute the
entirety of a “claim package”; it also includes any “associated
documentation” a claimant chooses to submit.
A written agreement must be interpreted as a whole, with
all words interpreted in the light of the circumstances.
RESTATEMENT (SECOND) OF CONTRACTS § 202(1)-(2).
Reading the Consent Decree in a manner that gives effect to
all its provisions and attempts to render them consistent with
one another, see Segar, 508 F.3d at 22, we think the meaning
of “associated documentation” must include McGinnis’
written instructions—submitted only days after he mailed his
claim sheet—that he wished to change his selection to Track
B.
A contract provision that is “reasonably susceptible of
different constructions” is ambiguous, but a provision “is not
ambiguous merely because the parties later disagree on its
meaning.” Bennett Enters., Inc. v. Domino’s Pizza, Inc., 45
F.3d 493, 497 (D.C. Cir. 1995). Here, the Court is faced with
the former situation: there are two potential meanings of
15
“associated documentation.” It could refer to documentation
about the case that the facilitator was to mail to claimants.
The Consent Decree states that the claim package consists of
“materials sent to claimants who request them,” suggesting
that the parties might have expected the facilitator to mail
potential claimants some “documentation and instructions”
along with a blank claim sheet to fill in. We have examined
the District Court docket, however, and no such materials
were attached as an exhibit to the copy of the Consent Decree
that the District Court approved. “[A]ssociated
documentation” could also, however, refer to additional
materials that claimants choose to submit as part of their
claim. Notably, the Consent Decree only makes one other use
of the word “documentation,” and it supports this meaning.
Paragraph 5 requires claimants to “complete the claim sheet
and return it and any supporting documentation to the
facilitator.” J.A. 15 (Consent Decree ¶ 5(b)). The same
paragraph separately instructs claimants to submit evidence
that they had filed a discrimination claim with the
Department, demonstrating that the term “associated
documentation” was meant to include whatever other
information supporting entitlement to relief a claimant might
opt to communicate to the facilitator along with his claim
sheet, election form, and affidavit. After determining the
existence of ambiguity in a contract term, the Court must
“determine what a reasonable person in the position of the
parties would have thought the disputed language meant.”
Armenian Assembly of Am., Inc. v. Cafesjian, 758 F.3d 265,
278 (D.C. Cir. 2014). We find this latter meaning of
“associated documentation” more plausibly corresponds to
what a reasonable person in the parties’ shoes would have
understood, and we believe this supports the District Court’s
determination that the facilitator erred in transmitting
McGinnis’ claim to the adjudicator. Pigford v. Vilsack, 961
F. Supp. 2d at 91.
16
Under this reading of the Consent Decree, McGinnis’
claim package did not become complete—and, therefore, his
claim selection did not become “irrevocable and exclusive”—
until the facilitator received his “associated documentation,”
that is, his express instructions asking that his claim be
considered under Track B. In addition to being a reasonable
interpretation of the parties’ agreement, this result does
nothing to displace the parties’ expectation about the bargain
they struck. McGinnis informed the facilitator in writing of
his desire to proceed under Track B just a few days after he
submitted his claim sheet. At this time, the facilitator had not
yet transmitted McGinnis’ claim sheet for resolution under
either track, and McGinnis’ now completed claim was still
timely. At the time he “completed” his claim package by
submitting the letter, then, the Department had no fixed
expectation about the track on which McGinnis would
proceed or his ability to recover. The adjudicator did not even
determine McGinnis’ claim in the first instance until nearly
ten months later. J.A. 45.
For a class action settlement scheme—especially one
with minimal court supervision—to work, its administrators
must execute their tasks punctually and attentively.
Thousands of claims have been filed in this case, and it may
be that in many occasions “both the parties and the neutrals . .
. expend[ed] every effort to see that [claims processing]
move[d] as quickly and smoothly as possible.” Pigford v.
Veneman, 355 F. Supp. 2d 148, 160 (D.D.C. 2005) (denying
motion to modify Consent Decree and to disqualify lead class
counsel). Yet, in two instances in McGinnis’ case, the
facilitator’s errors led to miscommunications that significantly
delayed the proper resolution of his claim. As summarized
above, McGinnis initially called and wrote to the facilitator in
1999 requesting that his claim proceed under Track B, after
17
submitting a claim sheet that manifested his indecision
between the two tracks. He made this request before the 180-
day cutoff for submitting claims mandated by the Consent
Decree. See J.A. 16 (Consent Decree ¶ 5(d)). At this point,
given the centrality of a claimant’s choice of track to his
ability to obtain relief and the amount of monetary damages
available if he establishes his claim, the facilitator should
have either informed McGinnis of its understanding that his
initial choice of Track A was irrevocable, or honored his
wishes and forwarded his claim package to the arbitrator. The
facilitator did neither. Instead, it allowed McGinnis to think
he had successfully switched to Track B, only to be surprised
nearly a year later when he received an initial decision from
the adjudicator. Once again, when the facilitator contacted
class counsel Frantz in late 2007 and received an inscrutable
reply as to whether McGinnis continued to seek Track B
arbitration, it had the opportunity to demonstrate a modicum
of capability in its role and follow up to confirm which track
McGinnis wanted. For the second time, the facilitator failed.
It pains us to contemplate that such a simple exercise of basic
administrative competence could have prevented over a
decade of delay and the need for judicial review at both the
trial and appellate levels. Instead, fifteen years after he filed a
claim, McGinnis has not yet had the opportunity to appear
before the factfinder of his choice. We agree with the District
Court that McGinnis has earned the remand of his claim to the
arbitrator.
IV.
For the foregoing reasons, we affirm the judgment of the
District Court.
So ordered.