article: On November 24, 1999, Plaintiffs first filed this lawsuit against the U.S. Department of Agriculture ("USDA") in the U.S. District Court for the District of Columbia. Plaintiffs, Native American farmers who alleged they were victims of discriminatory lending practices by the USDA, brought suit under the Declaratory Judgment Act, 28 U.S.C. §2201, and the Equal Credit Opportunity Act, 15, U.S.C. §1691. Specifically, Plaintiffs claimed that the USDA's Farm Service Agency ("FSA") had failed to respond to investigation reports submitted by the Civil Rights Action Team and the Office of the Inspector General, which found widespread discriminatory lending practices against Native American farmers. According to the reports, the FSA utilized subjective interpretations of loan approval guidelines improperly to the detriment of Native American farmers, failed to advise Native Americans of the availability of USDA loan and loan servicing opportunities, and systematically erected barriers that prevented Native Americans from receiving loans or loan servicing. Plaintiffs claimed that the USDA failed to supervise in response to these reports, and failed to investigate the civil rights complaints that its office received in response to those discriminatory practices. The "Omnibus Consolidated Appropriations Act for Fiscal Year 1999," 7 U.S.C. §2279, waived the statute of limitations for these civil rights claims, normally barred after two years. Plaintiff sought (1) declaratory judgment that the USDA had violated their rights to equal credit, participation in loan programs, and full and timely enforcement of discrimination complaints, and (2) monetary compensation and injunctive relief from the discriminatory practices outlined above. On July 22, 2000, the U.S. moved for judgment on the pleadings, or in the alternative, summary judgment. Plaintiffs moved on October 11, 2000 for a preliminary injunction. However, District Court Judge Emmitt G. Sullivan denied both motions on June 18, 2001. On November 28, 2001, Judge Sullivan granted certification of the class. 2001 WL 34676944. This class was described as "[a]ll Native American farmers and ranchers who (1) framed or ranched between January 1, 1981, and November 24, 1999, (2) applied to the USDA for participation in a farm program during that time period, and (3) filed a discrimination complaint with the USDA individually or through a representative during the time period." The U.S. filed an interlocutory appeal of the class certification with the Court of Appeals for the District of Columbia, and asked the District Court to stay the case pending the appeal on December 18, 2002. Judge Sullivan denied the motion to stay on December 28, 2001. The interlocutory appeal was denied by the Court of Appeals on October 29, 2002 (Judge David S. Tatel). 309 F.3d 789. On December 5, 2003, Judge Sullivan granted a motion by class-member Phil Givens to opt out of the class. In response, the Plaintiff class sought reversal by the Court of Appeals, petitioning the Court of Appeals for a writ of mandamus on February 9, 2004, but the petition was denied in a per curiam opinion on March 3, 2004. On March 23, 2006, Judge Sullivan entered an order granting the motions by multiple involuntary members to opt out of the class and pursue individual relief. 236 F.R.D. 1. Plaintiffs submitted their eighth amended (and final) complaint on February 11, 2008. On December 19, 2010, the parties notified the court that they had reached a settlement, and on December 22, Plaintiffs moved for preliminary approval of the settlement and settlement agreement class certification. Judge Sullivan granted the preliminary approval on November 1, 2010, and granted final approval of the settlement agreement on April 28, 2011. On April 29, 2011, Judge Sullivan entered an order of final judgment, dismissing this action with prejudice. This began the 180-day period of the settlement agreement claims process, ending on October 26, 2011. The settlement agreement created a total compensation fund of $680,000,000. In exchange for Plaintiffs' agreement to dismiss the suit, Defendants agreed to suspend all collection efforts that were currently in the Service Center Information Management System or on individuals who file claims pursuant to the agreement. In addition, all members of the class would be able to make a claim to an appointed "claim administrator," who would make its best effort to make a determination on the claim within 10 days. These claims would be in one of two tracks: "Track A" required "substantial evidence" of discrimination, and awarded a liquidated damage amount of $50,000. "Track B" claims required more--a preponderance of the evidence of discrimination--and could pay an award up to $250,000. If any claimant was also making a claim in response to the <a href=http://www.clearinghouse.net/detail.php?id=12515><i>Pigford v. Glickman</i></a> or <a href="http://www.clearinghouse.net/detail.php?id=12757"><i>Garcia v. Vilsack</i></a> settlements, that individual was not eligible for a claim award in this settlement. The deadline for claims under the settlement agreement was set at 180 days after final approval of settlement agreement. Pursuant to a cy pres provision, any leftover or unclaimed funds were to be distributed to non-profit organizations serving Native American farmers and ranchers. Additional provisions of the settlement included: the USDA agreed to create a Council for Native American Farming and Ranching (responsible for transmitting recommendations concerning changes to FSA regulations or internal guidance that would eliminate barriers to program participation by Native Americans), create an ombudsperson for Native Americans and other socially disadvantaged farmers and ranchers, and commence a review of their policies and training materials, promising to make all necessary revisions to prevent further discriminatory behavior. On August 30, 2013, the Plaintiffs filed a status report notifying the court that the claims process had concluded, but that approximately $380,000,000 remained available for cy pres distribution. On September 24, 2014, the Plaintiffs filed a motion to modify the settlement’s cy pres provision: while the cy pres funds would still go to non-profit organizations serving Native American farmers and ranchers, the plaintiffs proposed changes in the mechanism for distributing funds. However, on May 19, 2015, Marilyn and George Keepseagle (“the Keepseagles”), lead named plaintiffs and class representatives, opposed class counsel’s proposed modification, retained their own counsel, and filed their own motion to modify the settlement agreement, proposing that the court order a pro rata distribution of the remaining settlement funds to successful claimants. On July 24, 2015, Judge Sullivan denied both motions to modify the settlement agreement, concluding that there was no basis to approve the modifications under the law governing the disposition of unclaimed settlements nor under Federal Rules of Civil Procedure 60(b)(5) or 60(b)(6). 2015 WL 4510837. On December 14, 2015, all the plaintiffs, including the Keepseagles, filed an unopposed motion to modify the settlement agreement’s cy pres provision. The proposed modification was a compromise between class counsel’s and the Keepseagles’ prior proposals and provided for (1) a supplemental award of $18,500 to each claimant who prevailed in the original claims process, and (2) an amended process through which $38,000,000 of cy pres funds were to be distributed. On April 20, 2016, Judge Sullivan approved the modification. 2016 WL 9455764. In June 2016, two class members appealed Judge Sullivan’s approval to the U.S. Court of Appeals for the D.C. Circuit, contending that all of the remaining funds should have been distributed pro rata to the successful claimants and that the cy pres provision was unconstitutional. On May 16, 2017, the Court of Appeals (Judges Brown, Wilkins, and Edwards) affirmed the district court in finding that the modification was “fair, reasonable, and adequate”; the Court declined to reach the merits of the appellants’ legal challenges to the cy pres provision, finding that they had explicitly waived those claims before the district court and forfeited them because they had never raised any legal challenges to the cy pres provision previously despite multiple clear opportunities to do so. 2017 WL 2111020. The Supreme Court then declined to hear the case on March 26, 2018, finally permitting the modification to the agreement to be implemented.
summary: On November 24, 1999, a group of Native Americans farmers and ranchers who claimed that they had been victims of discriminatory lending practices between 1981 and 1999 brought suit against the U.S. Department of Agriculture ("USDA") in the U.S. District Court for the District of Columbia. On April 29, 2011, Judge Emmitt G. Sullivan of the District Court granted a final approval of the settlement agreement, in which the USDA agreed to revise policies to prevent further discrimination and create a compensatory fund of $680,000,000, from which claimants could bring evidence of discrimination in order to receive a monetary reward up to $250,000. On August 30, 2013, the Plaintiffs filed a status report notifying the court that the claims process had concluded, but that approximately $380,000,000 remained available for cy pres distribution. On December 14, 2015, the Plaintiffs filed an unopposed motion to modify the settlement agreement’s cy pres provision. The proposed modification provided for (1) a supplemental award of $18,500 to each claimant who prevailed in the original claims process, and (2) an amended process through which $38,000,000 of cy pres funds were to be distributed. On April 20, 2016, Judge Sullivan approved the modification. However, in June 2016, two class members appealed Judge Sullivan’s approval to the U.S. Court of Appeals for the D.C. Circuit. On May 16, 2017, the Court of Appeals affirmed the district court in finding that the modification was “fair, reasonable, and adequate.” The Supreme Court then declined to hear the case on March 26, 2018, finally permitting the modification to the agreement to be implemented.