United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 1, 2002 Decided June 21, 2002
Nos. 02-5052 & 02-5053
Timothy C. Pigford, et al.,
Appellees
v.
Ann M. Veneman, Secretary,
United States Department of Agriculture,
Appellant
Appeals from the United States District Court
for the District of Columbia
(No. 97cv01978)
(No. 98cv01693)
Howard S. Scher, Attorney, U.S. Department of Justice,
argued the cause for appellant. With him on the briefs were
Roscoe C. Howard, Jr., U.S. Attorney, and Robert M. Loeb,
Attorney, U.S. Department of Justice.
Jason A. Levine argued the cause for appellants. With
him on the brief were Anthony Herman and Alexander J.
Pires, Jr.
Before: Sentelle, Randolph and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: The question presented in this ap- peal concerns a district court's authority to interpret or
modify a consent decree--here, the settlement of a class
action brought by over 20,000 African-American farmers
charging the United States Department of Agriculture with
racial discrimination in lending practices. Due to class coun- sel's failure--"bordering on legal malpractice," the district
court called it--to meet critical consent decree deadlines, the
district court interpreted the decree to allow extension of
such deadlines "so long as justice requires." Although we
find that the district court exceeded its interpretive authority
under the decree, we hold that class counsel's conduct justi- fies modifying the decree under Federal Rule of Civil Proce- dure 60(b)(5). But because the order does not satisfy the
"tailor[ing]" requirement for a Rule 60(b)(5) modification, see
Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367" date_filed="1992-01-15" court="SCOTUS" case_name="Rufo v. Inmates of Suffolk County Jail">502 U.S. 367, 383
(1992), we reverse and remand for further proceedings.
I.
Proceeding under the Equal Credit Opportunity Act, 15
U.S.C. ss 1691-1691f, three African-American farmers filed
this class action against the United States Department of
Agriculture alleging racial discrimination in the administra- tion of federally funded credit and benefit programs. The
class ultimately included 22,000 similarly situated farmers
from fifteen states. Shortly before the farmers filed suit, the
Department released a report commissioned by then- Secretary Dan Glickman "to address [the agency's] long- standing civil rights problems," documented since the 1960s
by numerous federal government "[s]tudies, reports, and task
forces." Civil Rights Action Team, USDA, Civil Rights at
the United States Department of Agriculture 2-3 (1997),
available at http://www.usda.gov/news/civil/cr_next.htm. Ex- amining the "painful history" of its dealings with African- American farmers, the Department concluded that local cred- it and loan agencies responsible for administering Depart- ment programs often discriminated against the farmers. Id.
at 6. According to the Glickman report, Department officials
had "effectively dismantled" the Office for Civil Rights En- forcement--the very office charged with addressing discrimi- nation complaints. Id. at 47-48 (internal quotation marks
and citation omitted). "[O]ften mak[ing] matters worse," the
"complaints processing system" was a "bureaucratic night- mare" that "processed [complaints] slowly, if at all," resulting
in a huge "backlog," while at the same time the agency
"proceed[ed] with farm foreclosures--even where discrimina- tion may have contributed to the farmers' plight." Id. at 22- 25. "Minority farmers," the report concluded, "lost signifi- cant amounts of land and potential farm income as a result of
discrimination by [USDA] programs." Id. at 30.
After Congress intervened to preserve the farmers' claims
by tolling the Equal Credit Opportunity Act's two-year stat- ute of limitations, see Pigford v. Glickman, 185 F.R.D. 82" date_filed="1999-04-14" court="D.D.C." case_name="Pigford v. Glickman">185 F.R.D. 82, 88- 89 (D.D.C. 1999) (citing 15 U.S.C. s 1691e(f)), the parties
entered into a consent decree. Designed to "ensur[e] that in
their dealings with USDA, all class members receive full and
fair treatment that is the same as the treatment accorded to
similarly situated white persons," the decree establishes pro- cedures for resolving class members' individual claims. Con- sent Decree at 2. Specifically, the decree allows class mem- bers to choose between two claims procedures, known as
Tracks A and B. In recognition of the fact that "most ...
[class] members ... had little in the way of documentation or
proof" of either discriminatory treatment or damages suf- fered, Track A awards $50,000 to those farmers able to "meet
only a minimal burden of proof." Pigford, 185 F.R.D. 82" date_filed="1999-04-14" court="D.D.C." case_name="Pigford v. Glickman">185 F.R.D. at 103.
Track B--the mechanism at issue here--imposes no cap on
damages, but requires farmers who choose this track, after
limited discovery consisting "essentially [of] an exchange of
lists of witnesses and exhibits and depositions of the opposing
side's witnesses," to prove their claims by a preponderance of
the evidence in one-day mini-trials before an arbitrator. Id.
at 106. Set forth in paragraph 10 of the decree, Track B
establishes strict time frames: the arbitrator sends a hearing
notice within 10 days of receiving a Track B claim and holds a
hearing no more than 150 days later; at least 90 days before
the hearing, the Department and claimant file and serve on
each other witness lists, summaries of direct testimony, and
copies of all exhibits; discovery ends no later than 45 days
before the hearing; and no fewer than 21 days before the
hearing, both sides list witnesses they intend to cross- examine and file summaries of all legal and factual issues.
Consent Decree p 10(a)-(e). Track A and B decisions are
final, except that the losing side may petition for review by a
court-appointed monitor. Id. p p 9(a)(v), 9(b)(v), 10(i),
12(b)(iii).
Following notice to the class and a hearing, the district
court approved the consent decree as "fair, adequate, and
reasonable," pursuant to Federal Rule of Civil Procedure 23.
Pigford, 185 F.R.D. 82" date_filed="1999-04-14" court="D.D.C." case_name="Pigford v. Glickman">185 F.R.D. at 113. According to the district court,
the decree represents an "historical first step toward righting
the wrongs visited upon thousands of African-American farm- ers for decades by the [USDA]." Pigford v. Veneman, 127
F. Supp. 2d 35, 40 (D.D.C. 2001). Our opinion affirming the
district court's approval of the decree noted its importance for
both the farmers and the government: the "United States is
likely to provide an estimated $2 billion in debt relief and
monetary payments in consideration for the dismissal of the
class'[s] complaint." Pigford v. Glickman, 206 F.3d 1212" date_filed="2000-03-31" court="D.C. Cir." case_name="Timothy C. Pigford,appellees, Leonard C. Cooper v. Dan Glickman, Secretary, the United States Department of Agriculture">206 F.3d 1212, 1214
(D.C. Cir. 2000). Ultimately, 21,546 claims were accepted for
review--21,358 under Track A and 188 under Track B.
The decree provided for class counsel to receive an advance
payment of $1 million in fees to cover decree "implementa- tion." Consent Decree p 14(b). The decree entitled counsel
to seek additional fees under the Equal Credit Opportunity
Act, 15 U.S.C. s 1691e(d), for their work in connection with
filing the action and implementing the decree, Consent De- cree p 14(a). One year into the implementation process, the
district court "took the extraordinary step of awarding a
second advance"--this time for $7 million. Order of the
United States District Court for the District of Columbia at 2
(Mar. 8, 2001) (No. 97cv01978). The Department and class
counsel eventually settled all fee claims for $14.9 million.
Attorneys and firms sharing the fees were: Alexander J.
Pires, Jr., of Conlon, Frantz, Phelan, Pires & Leavy; Phillip
L. Fraas, of Tuttle, Taylor & Heron; J.L. Chestnut, of
Chestnut, Sanders, Sanders & Pettaway; T. Roe Frazer, of
Langston, Frazer, Sweet & Freese; Hubbard Saunders IV, of
The Terney Firm; Othello Cross, of Cross, Kearney &
McKissic; Gerard Lear, of Speiser Krause; and William J.
Smith.
Several months after class counsel received their second fee
advance and just two weeks prior to the deadline for filing
petitions for monitor review for the "vast majority of claim- ants [in both tracks]," class counsel filed an emergency
motion seeking an extension of time. Order of the United
States District Court for the District of Columbia at 2 (Nov.
8, 2000) (No. 97cv01978). Counsel revealed that they had
filed only a small fraction of the total petitions requested by
the farmers. Concerned that "counsel's failings ... not be
visited on their clients," id. at 3, and relying on "explicit
assurances" by counsel as to the work load they could realis- tically shoulder into the future, Pigford v. Veneman, 141
F. Supp. 2d 60, 62 (D.D.C. 2001), the district court permitted
counsel to file pro forma petitions by the original deadline and
then to either file supporting materials or to withdraw the
petitions at the rate of at least 400 petitions per month, see
Order of the United States District Court for the District of
Columbia at 5-6 (Nov. 8, 2000) (No. 97cv01978).
A few months later, the district court observed "a very
disturbing trend": class counsel had failed to meet their
monthly quota "even once." Pigford, 141 F. Supp. 2d at 62.
Worse still, counsel had "drastically cut its staff, bring[ing]
Class Counsel's ability to represent the [farmers] into serious
question." Id. "[A]larmed by Class Counsel's consistent
failure" to meet decree timelines, the district court noted
counsel's "remarkable admission that they never had a realis-
tic expectation of meeting" agreed-upon or court-ordered
deadlines for the monitor review process. Order of the
United States District Court for the District of Columbia at
2-3 (Apr. 27, 2001) (No. 97cv01978). The court described
counsel's performance as "dismal"--"border[ing] on legal mal- practice"--and "wonder[ed]" whether class counsel would
have been in such a predicament had they not filed "three
new sister class actions" against the Department. Id. at 2-3
& n.1, 5.
The district court eventually imposed a series of escalating
daily fines on class counsel for untimely monitor review
filings. Pigford v. Veneman, 143 F. Supp. 2d 28" date_filed="2001-05-15" court="D.D.C." case_name="Pigford v. Veneman">143 F. Supp. 2d 28, 32 (D.D.C.
2001). Instead of simply submitting materials in support of
their clients' petitions in a more timely fashion, however,
counsel drastically increased the rate at which they withdrew
petitions for monitor review--from 19% to 48%--"once again"
leading the district court to "question Class Counsel's fidelity
to their clients." Pigford v. Veneman, 148 F. Supp. 2d 31" date_filed="2001-06-28" court="D.D.C." case_name="Pigford v. Veneman">148 F. Supp. 2d 31, 33
& n.1 (D.D.C. 2001).
Class counsel's failure to cope with their responsibilities
extended to the Track B process. Consider the case of Earl
Kitchen, a farmer from Arkansas who filed a Track B claim.
Kitchen was initially represented by Jesse L. Kearney, a
member of one of the firms sharing in the fee award, Cross,
Kearney & McKissic. During the course of representing
Kitchen, Kearney obtained extensions of several paragraph 10
deadlines either with consent or over the Department's objec- tion. Around the time the Department agreed to pay class
counsel $14.9 million, Kearney missed the deadline (already
extended by mutual consent) to submit written direct testimo- ny. Kearney's failure could have drastic consequences, for
absent submission of testimony, Kitchen's claim will "be
extinguished." Appellees' Br. at 12; see also Consent Decree
p 10(g) (putting the burden of proof on the claimant).
In the meantime, the district court, deeply concerned about
the decree's viability, asked the American Bar Association
Committee on Pro Bono and Public Services to "assemble a
team of pro bono lawyers to assist Class Counsel on an
emergency basis." Order of the United States District Court
for the District of Columbia at 7 (Apr. 27, 2001) (No.
97cv01978). In response, lawyers from the Pro Bono Com- mittee and the firms of Arnold & Porter and Crowell &
Moring recruited some of Washington's largest law firms:
Covington & Burling; Sidley, Austin, Brown & Wood; Step- toe & Johnson; Swidler, Berlin, Shereff & Friedman; and
Wilmer, Cutler, and Pickering. The district court, recogniz- ing the competing demands on class counsel arising out of
their representation of multiple claimants in both tracks and
at various stages of the claims resolution process, hoped that
this added assistance would lift the "heavy burden of Track B
litigation from the shoulders of Class Counsel," enabling them
to "focus on the petition [for monitor review] process." Pig- ford, 143 F. Supp. 2d 28" date_filed="2001-05-15" court="D.D.C." case_name="Pigford v. Veneman">143 F. Supp. 2d at 30 n.1.
Pro bono counsel took over the representation of Earl
Kitchen and asked the Department to extend the time for
filing written direct testimony. The Department refused. As
a result and because class counsel had apparently missed
deadlines in other Track B cases, pro bono counsel filed a
"motion to endow," asking the district court "to interpret (and
if necessary, to modify) the Consent Decree, so that Arbitra- tors have discretion to extend deadlines when strict compli- ance with the original scheduling framework would defeat the
Decree's overarching remedial purposes." Pls.' Mot. to En- dow at 1. Granting the motion, the district court found it
"implicit" in the Decree's terms that arbitrators have such
discretion. Pigford v. Veneman, 182 F. Supp. 2d 50" date_filed="2002-01-17" court="D.D.C." case_name="Pigford v. Veneman">182 F. Supp. 2d 50, 53
(D.D.C. 2002).
The Department appeals. At its request, we entered a stay
pending appeal.
II.
District courts possess two types of authority over consent
decrees. First, they may interpret and enforce a decree to
the extent authorized either by the decree or by the related
order. See Bd. of Trustees of Hotel & Rest. Employees Local
25 v. Madison Hotel, Inc., 97 F.3d 1479" date_filed="1996-10-15" court="D.C. Cir." case_name="Board of Trustees of the Hotel and Restaurant Employees Local 25 and Employers' Health and Welfare Fund v. The Madison Hotel, Inc.">97 F.3d 1479, 1484 n.8 (D.C. Cir.
1996) (observing that a district court retains enforcement
jurisdiction over a settlement if litigants so provide in their
stipulation of dismissal or the dismissal order incorporates
the settlement terms). Second, they may modify a decree
pursuant to Federal Rule of Civil Procedure 60(b)(5). See
Rufo, 502 U.S. 367" date_filed="1992-01-15" court="SCOTUS" case_name="Rufo v. Inmates of Suffolk County Jail">502 U.S. at 378-79 (holding that the Rule 60(b)(5)
standard for modifying judgments applies to consent de- crees). These two sources of authority reflect a consent
decree's hybrid character, having qualities of both contracts
and court orders. See id. at 378 (explaining that a consent
decree "is contractual in nature" but also "an agreement that
the parties desire and expect will be reflected in, and be
enforceable as, a judicial decree").
The farmers based their "motion to endow" on both sources
of authority. In granting the motion, the district court
explained that it was exercising its "authority to enforce and
to interpret an approved Consent Decree." Pigford, 182
F. Supp. 2d at 51. Although the court thus never addressed
the question of its Rule 60(b)(5) authority, the farmers main- tain that we may affirm the order on either ground. We
consider each in turn.
Interpretation and Enforcement
Reasoning that the decree "explicitly allows for its con- struction in a liberal manner," and that paragraph 10 "dele- gate[s]" the district court's authority over Track B claims to
arbitrators, the district court found it "implicit in the terms of
the Consent Decree" that arbitrators "have essentially the
same authority over Track B hearings that a trial judge
would have over a trial or related pre-trial proceedings,"
including "discretion to allow for revision of certain deadlines,
even after the deadlines have passed, so long as justice
requires the revisions and provided that the burden on the
defendant is not so great as to outweigh the interest of the
claimant in fully presenting his or her claim." Id. at 51-53.
The Department argues that the consent decree gives the
district court no such authority. According to the Depart- ment, the district court's only authority either to interpret or
enforce the consent decree comes from paragraph 13, which
"concern[s] ... alleged violation[s] of any provision of th[e]
... Decree," and directs "[t]he person seeking enforcement of
a provision of th[e] ... Decree" to attempt to resolve any
problems without court intervention and then to seek enforce- ment through contempt proceedings. Consent Decree p 13;
see also id. p 21 (retaining the court's authority to enforce the
decree through contempt proceedings). Since the farmers
neither alleged a violation nor invoked the procedures for
"seeking enforcement," the Department contends that the
district court lacked jurisdiction to consider the "motion to
endow." Defending the district court's order and relying on
our statement in Beckett v. Air Line Pilots Ass'n that it is a
"well-established principle that a trial court retains jurisdic- tion to enforce its consent decrees," 995 F.2d 280" date_filed="1993-07-23" court="D.C. Cir." case_name="Captain Stewart W. Beckett v. Air Line Pilots Association">995 F.2d 280, 286 (D.C.
Cir. 1993), the farmers argue that the order was "properly
grounded on jurisdiction 'ancillary' to that explicitly conferred
by paragraph 13," Appellees' Br. at 21. Pursuant to this
"ancillary jurisdiction," the farmers contend, the district court
properly "enforce[d]" the decree's "overarching remedial pur- poses." Id. at 20. The farmers also argue that quite apart
from paragraph 13, the district court had "inherent" authority
to interpret the decree. Id. at 21.
We agree with the Department. In Kokkonen v. Guardian
Life Insurance Co. of America, the Supreme Court held that
a district court lacked "ancillary jurisdiction" to enforce a
consent decree because neither the decree nor the order
dismissing the case expressly retained jurisdiction to do so.
511 U.S. 375" date_filed="1994-05-16" court="SCOTUS" case_name="Kokkonen v. Guardian Life Insurance Co. of America">511 U.S. 375, 380-81 (1994). Although Kokkonen differs from
the situation here--the consent decree in this case does retain
certain enforcement jurisdiction--the decision teaches that
district courts enjoy no free-ranging "ancillary" jurisdiction to
enforce consent decrees, but are instead constrained by the
terms of the decree and related order. See id. at 381
(explaining that if the dismissal order had retained jurisdic- tion or incorporated the settlement, then "a breach of the
agreement would be a violation of the order, and ancillary
jurisdiction to enforce the agreement would therefore exist").
Accordingly, an enforcement clause limited by its plain lan- guage, as is paragraph 13, to situations involving decree
violations confers no ancillary jurisdiction to enforce the
decree's "overarching ... purposes." Indeed, when the dis- trict court approved the decree, it observed that the parties
added the enforcement provision because the original version
"appeared to prevent the Court from exercising jurisdiction in
the event that the USDA did not comply with [its] terms,"
Pigford, 185 F.R.D. 82" date_filed="1999-04-14" court="D.D.C." case_name="Pigford v. Glickman">185 F.R.D. at 110, bolstering our view that the
enforcement provision means what it says.
Beckett does not warrant a different result. Not only did
the Beckett decree preserve the district court's "jurisdiction
over [the] case to enforce the terms of [the] ... decree," 995
F.2d at 286, but the party seeking enforcement in Beckett-- unlike the farmers here--alleged that the other party had
violated the decree's terms, id. at 281.
Equally unpersuasive is the farmers' argument that we
need not worry about paragraph 13's limitations because the
district court possesses "inherent" interpretive power over
the decree "whether or not for explicit enforcement pur- poses." Appellees' Br. at 21. For one thing, we see no way
the district court's interpretive authority can be unhinged
from its enforcement authority. If the district court lacks
paragraph 13 enforcement authority (because the farmers
alleged no violation), then the farmers gain nothing from an
interpretation that arbitrators may adjust paragraph 13 dead- lines. Furthermore, none of the appellate cases cited by the
farmers supports their assertion that "many cases ... have
recognized the 'inherent' jurisdiction of courts to interpret
consent decrees," id., apart from any enforcement power.
Two of the cases involved decree modifications, not interpre- tations. See Waste Mgmt. of Ohio, Inc. v. Dayton, 132 F.3d
1142, 1146 & n.4 (6th Cir. 1997); Alberti v. Klevenhagen, 46
F.3d 1347, 1365 (5th Cir. 1995). The third upheld, as a valid
consent decree interpretation, a district court's imposition of
interim deadlines not specified in the decree. See Juan F.
By and Through Lynch v. Weicker, 37 F.3d 874" date_filed="1994-10-13" court="2d Cir." case_name="Juan F. v. Lowell Weicker">37 F.3d 874 (2d Cir.
1997). The order in that case, however--unlike the one
here--provided for court intervention "when plaintiffs showed
the defendant was 'likely' to be in noncompliance"; the addi-
tional deadlines represented a permissible interpretation be- cause they served to "ensur[e] compliance." Id. at 879.
Our conclusion that the district court's interpretive and
enforcement authority depends on the terms of the decree
and related court order, rather than on some "ancillary" or
"inherent" power, comports with a consent decree's contrac- tual character. See Rufo, 502 U.S. 367" date_filed="1992-01-15" court="SCOTUS" case_name="Rufo v. Inmates of Suffolk County Jail">502 U.S. at 378. In this case, for
example, the farmers and the Department bargained over
Track B's time frames. Track B's "abbreviated and unambig- uous deadlines," the Department candidly tells us, serve its
interests by "limit[ing] the number of class members who ...
opt for the Track B process and ... enhanc[ing] the govern- ment's ability to defend against [those] claims." Appellant's
Br. at 24-25. The parties also bargained over paragraph 13,
agreeing to limit district court enforcement authority to situa- tions where the decree is violated. To now hold that the
district court, through either some "ancillary" authority to
enforce the decree absent a violation or "inherent" authority
to interpret it, may permit extensions of Track B deadlines
would not only deny the Department the benefit of its bar- gain, but would also discourage settlements. Who would sign
a consent decree if district courts had free-ranging interpre- tive or enforcement authority untethered from the decree's
negotiated terms?
Modification
The farmers argue that even if the district court lacked
authority to interpret the decree to allow extension of Track
B deadlines, we may still affirm the order as a proper
modification pursuant to Rule 60(b)(5). This rule permits
courts, "upon such terms as are just," to "relieve a party or a
party's legal representative from a final judgment, order, or
proceeding ... [if] it is no longer equitable that the judgment
should have prospective application." "[A] significant change
in circumstances," the Supreme Court has held, may "war- rant[ ] revision of [a] decree." Rufo, 502 U.S. 367" date_filed="1992-01-15" court="SCOTUS" case_name="Rufo v. Inmates of Suffolk County Jail">502 U.S. at 383. Such
changed circumstances include "unforeseen obstacles" that
make a decree "unworkable." Id. at 384. Any modification
must be "suitably tailored to the changed circumstances." Id.
at 383.
According to the farmers, two "significant change[d] ...
circumstances" make the consent decree "unworkable." They
first point to a "dramatic and unexpected expansion in class
size"--from 2000 (the number originally estimated) to 22,000
(the final number). Appellees' Br. at 31. As the Department
points out, however, at the time the district court approved
the decree, the parties realized the class already had between
"15,000 and 20,000" members. Pigford, 185 F.R.D. 82" date_filed="1999-04-14" court="D.D.C." case_name="Pigford v. Glickman">185 F.R.D. at 94.
Although this may well suggest that the actual increase was
not "significant" enough to justify modification, we decline to
resolve that issue, for the district court did not rely on the
larger class size as a basis for the order at issue here.
Class counsel's "inability to represent all Track B claimants
adequately," Pigford, 182 F. Supp. 2d 50" date_filed="2002-01-17" court="D.D.C." case_name="Pigford v. Veneman">182 F. Supp. 2d at 52, the farmers next
argue, also provides a basis for a Rule 60(b)(5) modification.
The Department concedes not only that counsel for "Kitchen
and a number of other class members" committed "what
appears to be malpractice," but also that this represents a
"relevant new fact." Appellant's Br. at 28. Even so, the
Department insists, the farmers' remedy is not to deny the
Department the benefit of its bargained-for Track B dead- lines, but rather to sue class counsel for malpractice.
" '[C]lients must be held accountable for the acts and omis- sions of their attorneys.' " Id. at 29 (quoting Pioneer Inv.
Servs. Co. v. Brunswick Assocs., 507 U.S. 380" date_filed="1993-03-24" court="SCOTUS" case_name="Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership">507 U.S. 380, 396-97 (1993)).
As a general matter, the Department is correct. In Link v.
Wabash Railroad Co., the case on which the Department
primarily relies, the Supreme Court held that the failure of
plaintiff's lawyer to attend a pretrial conference justified
dismissing the case for want of prosecution. 370 U.S. 626" date_filed="1962-06-25" court="SCOTUS" case_name="Link v. Wabash Railroad">370 U.S. 626,
633 (1962). Because plaintiff "voluntarily chose [his] attorney
as his representative," the Court held, he could "[ ]not ...
avoid the consequences of the acts or omissions of this freely
selected agent." Id. at 633-34.
Neither Link nor any other case the Department cites,
however, was a class action. In this case, except for the three
named plaintiffs, not one of the thousands of class members
"voluntarily chose" class counsel. Quite to the contrary, by
certifying the class, the district court effectively appointed
counsel for the farmers. Under Rule 23(a)(4), moreover, the
district court, as a condition of class certification, had to find
that class counsel would "adequately protect the interests of
the class." Fed. R. Civ. P. 23(a)(4); see also McCarthy v.
Kleindienst, 741 F.2d 1406" date_filed="1984-08-17" court="D.C. Cir." case_name="Michael McCarthy Arthur Waskow v. Richard G. Kleindienst">741 F.2d 1406, 1411 n.3 (D.C. Cir. 1984) (noting
that Rule 23's requirement of adequate representation encom- passes "concerns about the competency of class counsel"
(internal quotation marks and citation omitted)). Exercising
this responsibility, the district court found that "Mr. Alexan- der Pires and Mr. Phillip Fraas as lead counsel and Mr. J.L.
Chestnut, Mr. Othello Cross, Mr. T. Roe Frazer, Mr. Hub- bard T. Saunders, IV, Mr. Gerald Lear and Mr. James Myart,
Jr., all serving as of counsel ... demonstrated that they will
advocate vigorously for the interests of the class" and there- fore "adequately will represent the interests of the class."
Pigford v. Veneman, 182 F.R.D. 341" date_filed="1998-10-09" court="D.D.C." case_name="Pigford v. Glickman">182 F.R.D. 341, 350 (D.D.C. 1998).
In so distinguishing Link, we do not mean to suggest that
the presumption of client accountability for attorney conduct
has no applicability in class actions. Certainly a contrary rule
would make class action settlements problematic. Moreover,
the Rule 23(a)(4) finding of class counsel adequacy may
partially substitute for the free choice found in conventional
non-class litigation. Like most presumptions, however, this
one is rebuttable. And in litigation involving a class--defined
from the outset by its numerosity--where counsel is not in
fact freely chosen by class members, it is logical that the
presumption should be more easily overcome than if the
clients had in fact freely chosen their attorneys.
At oral argument, the Department pointed out that even
though the farmers may not have "freely selected" class
counsel to pursue the underlying litigation, the decree per- mits them to choose other lawyers for Track A or B represen- tation. Accordingly, the Department argues, holding the
farmers accountable for their lawyers' dismal performance is
perfectly appropriate. We disagree. Although the decree
technically permits class members to retain other lawyers, we
think the circumstances of this case, together with the terms
of the decree itself, make such choices unlikely. For one
thing, the decree prohibits lawyers from charging for their
work in claims proceedings, see Consent Decree p 5(e), so
lawyers desiring payment must seek fees pursuant to the
Equal Credit Opportunity Act, 15 U.S.C. s 1691e(d). Class
counsel, however, received an advance fee award to provide
such services. Class counsel also benefit from the district
court's Rule 23 seal of approval. No wonder Earl Kitchen
(the only claimant for whom the record contains relevant
information) was represented by Jesse Kearney, a member of
one of the firms that shared in the fee advance and ultimately
the $14.9 million settlement. Because Kitchen did not "volun- tarily cho[o]se" Kearney in the usual sense, we see no basis
for holding Kitchen responsible for Kearney's failure to file
direct testimony on time.
Contrary to the Department's argument, we see nothing
unfair about this result. Although we have no doubt that the
Department expected Track B's tight deadlines to discourage
claims--even to make them less winnable--the Department
never counted on class counsel's virtual malpractice. Indeed,
the decree itself assumes competent representation for the
farmers. The decree's express purpose is to "ensur[e] that in
their dealings with USDA, all class members receive full and
fair treatment," Consent Decree at 2, and its "main accom- plishment was the establishment of a process to adjudicate
individual claims." Opinion and Order of the United States
District Court for the District of Columbia at 8 (Mar. 8, 2001)
(No. 97cv01978) (emphasis added). Unless the farmers have
competent counsel, we cannot imagine how they could ever
obtain "full and fair treatment" in a claims process where (as
in Kitchen's case) missing a single deadline could be fatal.
For all of these reasons, we conclude that class counsel's
failure to meet critical Track B deadlines amounts to an
"unforeseen obstacle" that makes the decree "unworkable."
Rufo, 502 U.S. 367" date_filed="1992-01-15" court="SCOTUS" case_name="Rufo v. Inmates of Suffolk County Jail">502 U.S. at 384. To hold otherwise would sanction the
farmers' double betrayal: first by the Department, see Civil
Rights at the United States Department of Agriculture 2-30,
and then by their own lawyers.
Having said all this, however, we cannot affirm the chal- lenged order as a proper Rule 60(b)(5) modification because
of Rufo's second requirement--that the modification be "suit- ably tailored to the changed circumstances." 502 U.S. 367" date_filed="1992-01-15" court="SCOTUS" case_name="Rufo v. Inmates of Suffolk County Jail">502 U.S. at 391.
Because the district court viewed its order as an interpreta- tion, not a modification, it had no occasion to consider the
tailoring requirement. In our view, the order, vesting arbi- trators with generic authority to revise deadlines "so long as
justice requires," Pigford, 182 F. Supp. 2d 50" date_filed="2002-01-17" court="D.D.C." case_name="Pigford v. Veneman">182 F. Supp. 2d at 52-53, is far too
broad. Although the order restores the farmers to the
position in which they would have been but for counsel's
dismal performance (it may even, as the Department argues,
put them in a better position), the order potentially deprives
the Department of all Track B deadlines. By contrast, a
"suitably tailored" order would return both parties as nearly
as possible to where they would have been absent counsel's
failures. In Kitchen's case, a properly "tailored" remedy
would, for example, reset the Track B clock at the point in
the process where Kearney dropped the ball, establishing a
new deadline for submitting direct testimony and leaving
subsequent deadlines unchanged. Whatever tailoring method
the district court ultimately adopts, see United States v.
Western Elec. Co., 46 F.3d 1198" date_filed="1995-02-17" court="D.C. Cir." case_name="United States v. Western Electric Company, Inc. American Telephone and Telegraph Company, Bellsouth Corporation, Bell Atlantic Corporation">46 F.3d 1198, 1207 (D.C. Cir. 1995) (recog- nizing a district court's "considerable discretion" in fashioning
a Rule 60(b)(5) modification), it must preserve the essence of
the parties' bargain: for the farmers, an opportunity to have
their individual claims pursued by competent counsel; and for
the Department, the benefit of the consent decree's tight
deadlines.
III.
We reverse the district court's order and remand the case
for proceedings consistent with this opinion, Rule 60(b)(5),
and Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367,
377 (1992). See 28 U.S.C. s 2106 (authorizing federal appel- late courts to "remand the cause and ... require such further
proceedings to be had as may be just under the circum- stances").
So ordered.