Pigford, Timothy v. Johanns, Michael

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2005 Decided July 15, 2005

No. 04-5171

TIMOTHY C. PIGFORD ET AL .,
APPELLANTS

v.

MIKE JOHANNS, SECRETARY,
THE UNITED STATES DEPARTMENT OF AGRICULTURE,
APPELLEE

No. 04-5172

CECIL BREWINGTON ET AL .,
APPELLANTS

v.

MIKE JOHANNS, SECRETARY,
THE UNITED STATES DEPARTMENT OF AGRICULTURE,
APPELLEE

Appeals from the United States District Court
for the District of Columbia
(No. 97cv01978)
(No. 98cv01693)
 2

Alexander J. Pires, Jr. argued the cause for the appellants.
Howard S. Scher, Attorney, United States Department of
Justice, argued the cause for the appellee. Peter D. Keisler,
Assistant Attorney General, United States Department of
Justice, Kenneth L. Wainstein, United States Attorney, and
Robert M. Loeb, Attorney, United States Department of Justice,
were on brief.
Before: SENTELLE, HENDERSON and ROGERS, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Separate opinion concurring in part and dissenting in part
filed by Circuit Judge ROGERS.
KAREN LECRAFT HENDERSON, Circuit Judge: This appeal
arises from a longstanding discrimination action by black
farmers against the United States Department of Agriculture
(Department) alleging racial discrimination in the administration
of federally-funded credit and benefit programs. The appellants
are farmers whose discrimination claims were denied in
adjudications conducted pursuant to a Consent Decree and
whose petitions for review of the adverse adjudications were
rejected as untimely because they were filed after the stipulated
deadlines that the parties negotiated and the court approved in
a Stipulation and Order (S&O). The appellants challenge the
district court’s denial of their motions for relief from the
stipulated deadlines under Fed. R. Civ. P. 60(b)(5) and the
court’s inherent equitable authority. Because the court did not
abuse its discretion in denying the motions, we affirm its
judgment.
I.
In 1997 a class of black farmers filed this action in the
district court alleging racial discrimination in violation of the
 3

Equal Credit Opportunity Act, 15 U.S.C. §§ 1691 et seq.1 On
April 14, 1999 the district court entered the Consent Decree
which established a two-track system for resolving the
individual class members’ claims. Pigford v. Glickman, 185
F.R.D. 82 (D.D.C. 1999), affirmed, 206 F.3d 1212 (D.C. Cir.
2001). Under Track A, a class member with little or no
documentary evidence could submit his claim to an adjudicator
and obtain payment of $50,000 and forgiveness of debt owed the
Department if he proved discrimination by substantial evidence.
Such a claimant “has a fairly low burden of proof but his
recovery is limited.” Id. at 96. Track B, by contrast, set no
dollar cap on a claimant’s recovery but the claimant must prove
discrimination by a preponderance of the evidence, “a higher
burden of proof.” Id. A claimant in either track could file a
petition for review of an adverse decision by the adjudicator
with an independent monitor who “shall direct the adjudicator
to reexamine the claim if he determines that ‘a clear and
manifest error has occurred’ that is ‘likely to result in a
fundamental miscarriage of justice.’ ” Id. at 97 (quoting
Consent Decree ¶ 12(b)(iii), at 21.
Because the Consent Decree provided no timetable for
seeking review by the monitor, the parties negotiated filing
deadlines which are set out in the S&O entered by the district
court on July 14, 2000. Under the S&O any claimant who had
received an adverse adjudicator decision as of the date of the
S&O had 120 days from that date (i.e., by November 13, 2000)
to file a petition with the monitor. Any claimant who received

1
The complaint also alleged violation of the Fifth Amendment to
the United States Constitution, the Administrative Procedure Act, 5
U.S.C. §§ 551 et seq., and Title VI of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq., but, according to the district court, “both
sides agree that this case essentially is brought under the Equal Credit
Opportunity Act.” Pigf ord v. Glickman, 185 F.R.D. 82, 86 (D.D.C.
1999), affirmed, 206 F.3d 1212 (D.C. Cir. 2001).
 4

an adverse decision after the S&O’s date had 120 days from the
date of the adjudication to file a petition. The S&O expressly
recites: “No extensions of these deadlines will be granted for
any reason.” Id.
On October 31, 2000 the claimants’ class counsel filed a
motion seeking to “redesign” the “unworkable” petition filing
process, noting that as of that date counsel had filed petitions on
behalf of only 297 of the 3,873 claimants requesting filing
assistance. Pls.’ Mot. for Expedited Hearing at 7, 3-4 (filed Oct.
31, 2000). Following a conference with the parties the district
court issued an order on November 8, 2000 directing that, in lieu
of a completed petition for each of the claimants, counsel could
satisfy the November 13, 2000 deadline by submitting a
“Register of Petitions” (Register) which simply listed the name
and claim number of each claimant who had sought counsel’s
assistance in filing a petition for review of an adverse decision
issued as of the S&O date. Pigford v. Glickman, C.A. Nos. 97-
1978, 98-1693 (D.D.C. filed Nov. 8, 2000), 2000 WL 34292618.
The court explained that, while “counsel should be held to the
commitments to which they agreed,” nonetheless “counsel’s
failings should not be visited on their clients.” Id. at 3, 4, 2000
WL 34292618, at *1. The court further directed that class
counsel file 400 of the Register’s petitions by December 15,
2000 and another 400 by the 15th of each month thereafter up to
a final filing date of May 15, 2001. The order recited: “Under
no circumstances shall the Monitor accept supporting materials
or withdrawals after May 15, 2001.” Id. at 5, 2000 WL
34292618, at *3. In effect, the court doubled the stipulated time
to file a petition for review of an adjudication decided as of the
date of the S&O.
On March 15, 2001 the appellants filed a motion for an order
suspending the May 15, 2001 deadline. The district court held
a status conference and on April 27, 2001 issued an order
directing “that all deadlines set forth in the Court’s Order of
 5

November 8, 2000, are suspended until further order of the
Court” pending a scheduled meeting on May 1, 2001 between
class counsel and outside lawyers “who might be able to
assemble a team of pro bono lawyers to assist class counsel on
an emergency basis.” Pigford v. Veneman, 144 F. Supp. 2d 16,
20 (D.D.C. 2001). In addition, the court ordered that if, after the
May 1 meeting, class counsel decided additional time was
necessary they should file a motion for extension no later than
May 4, 2001 setting out a “realistic” filing schedule.
After the pro bono meeting the appellants proposed
extending the filing deadline to September 15, 2001 and the
district court so ordered on May 15, 2001, finding the new
deadline “both realistic and reasonable” in light of the
“impressive commitment made by pro bono counsel to assist
Class Counsel.” Pigford v. Veneman, 143 F. Supp. 2d 28, 30
(D.D.C. 2001). The May 15, 2001 order warned that “[u]nder
no circumstances . . . shall the Monitor accept supporting
materials or withdrawals that are filed after September 15,
2001.” Id. at 31. Class counsel, with pro bono assistance,
succeeded in filling all of the remaining petitions by the new
deadline.
On July 19, 2002 class counsel filed a motion seeking relief
under Fed. R. Civ. P. 60(b)(5) or the court’s inherent equitable
authority on behalf of 387 claimants whose review petitions had
been rejected as untimely. On June 2, 2003 the district court
denied the motion, concluding there were no changed
circumstances that justified modifying the S&O deadlines (as
amended). Pigford v. Veneman, 265 F. Supp. 2d 41 (D.D.C.
2003). The claimants moved for reconsideration, which the
district court denied on March 10, 2004. Pigford v. Veneman,
307 F. Supp. 2d 43 (D.D.C. 2004). This appeal followed.
 6

II.
The appellants comprise two groups of late-filing claimants:
(1) those represented by class counsel, now numbering 92, and
some 208 others who either proceeded pro se or were
represented by lawyers unaffiliated with class counsel. Class
counsel argues on behalf of each group that the district court
erred in denying relief from the filing deadlines under either
Rule 60(b)(5) or its inherent equitable power. We review the
district court’s decision whether to modify a consent order,
either under Fed. R. Civ. P. 60(b)(5) or pursuant to its inherent
authority, for abuse of discretion. See Rufo v. Inmates of Suffolk
County Jail, 502 U.S. 367, 389 (1992) (Rule 60(b)); Shepherd
v. Am. Broad. Cos., 62 F.3d 1469, 1475 (D.C. Cir. 1995)
(inherent authority). We conclude the district court did not
abuse its discretion in denying the appellants’ motion for relief.
A. Class Counsel Petitions
The district court denied the appellants’ motion for relief as
to the 92 petitions filed late by class counsel because the
appellants failed to demonstrate “changed circumstances” to
warrant modifying the S&O schedule under Rule 60(b)(5),
which provides in relevant part: “On motion and upon such
terms as are just, the court may relieve a party or a party’s legal
representative from a final judgment, order, or proceeding for
the following reasons: . . . (5) . . . it is no longer equitable that
the judgment should have prospective application . . . .” The
appellants challenge the court’s Rule 60(b)(5) decision on two
grounds. We address each in turn.
First, the appellants assert the district court incorrectly
invoked Rule 60(b)(5) because the rule governs only orders that
are final.2 The appellants contend that the S&O was not a final

2
Initially the appellants moved to modify the S&O under Rule
60(b)(5). It was not until their motion for reconsideration that they
 7

order and that therefore the court should have decided whether
to grant relief solely under its inherent equitable authority. See
Envtl. Defense Fund, Inc. v. Costle, 636 F.2d 1229, 1240 (D.C.
Cir. 1980) (“The power of a District Court sitting as a court of
equity to modify the terms of a settlement agreement it
previously adopted cannot be drawn into question.”). As a
practical matter, it makes little difference whether the district
court resolved the motion under Rule 60 or under its equitable
authority as the standard for each is substantially the same.
Compare Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367,
393 (1992) (under Rule 60(b)(5), “a party seeking modification
of a consent decree must establish that a significant change in
facts or law warrants revision of the decree and that the
proposed modification is suitably tailored to the changed
circumstance”), with Envtl. Defense Fund, Inc, 636 F.2d at 1240
(“[S]ound exercise of judicial discretion may require that terms
of a consent decree be modified when there has been a
significant change in the circumstances obtaining at the time the
consent decree was entered.”). Nonetheless, we conclude that
the court correctly invoked Rule 60(b)(5).
The appellants do not dispute that the Consent Decree itself
is final within the meaning of Rule 60(b)(5). See Appellants’
Br. at 19. They contend, however, that because the S&O simply
“establish[es] procedures for enforcing or implementing the

first suggested the S&O was not final and therefore not subject to Rule
60(b). Hedging their bets on appeal, they invoke the court’s
jurisdiction either under 28 U.S.C. § 1291, which establishes this
court’s “jurisdiction of appeals from all final decisions of the district
courts of the United States,” or under 28 U.S.C. § 1292(a)(1), which
allows appeals of “[i]nterlocutory orders of the district courts of the
United States . . . granting, continuing, modifying, refusing or
dissolving injunctions, or refusing to dissolve or modify injunctions,
except where a direct review may be had in the Supreme Court.” See
Appellants’ Br. at 1.
 8

decree,” the S&O is “not considered ‘final’ within the meaning
of Rule 60.” Id. (citing United States v. W. Elec. Co., 777 F.2d
23 (D.C. Cir. 1985); Bogard v. Right, 159 F.3d 1060 (7th Cir.
1998)). The authorities the appellants cite do not support their
position. In Western Elec. this court reviewed the district
court’s denial of a request for waiver from restrictions in a
consent decree based on the district court’s decision not to
consider the merits of such a waiver request until a later time
when “ ‘there is substantial competition in local tele-
communications service.’ ” 777 F.2d at 25 (quoting United
States v. W. Elec. Co., 592 F. Supp. 846, 868 (D.D.C. 1984)).
We explained that the district court’s order denying the request
was not “final” “because the district court contemplated further
proceedings before ruling on the requests.” Id. at 26. Similarly
in Bogard, the Seventh Circuit concluded that an order that
extended the term of a monitor initially appointed for a three-
year term “unless extended by order of this court” was not a
final order because it had “no termination date” and therefore
“[t]he postjudgment proceeding could drag on for many years
and involve a host of far-reaching orders the consequences of
which could not be undone when (if ever) the postjudgment
proceeding ended with a showing of compliance so complete
that the monitor’s services could be dispensed with.” 159 F.3d
at 1062-63. By contrast, the district court’s S&O fixed final
deadlines for filing petitions with the monitor. See S&O ¶ 5, at
4 (“No extensions of these deadlines will be granted for any
reason.”). As with the Consent Decree, which the S&O
supplemented, no further court action was contemplated at the
time the S&O issued. That the S&O was in fact subsequently
modified by the court in response to the appellants’ requests
does not make it any less final. Such modification of a final
order is precisely what Rule 60(b) contemplates.3

3
Because the S&O is a final order subject to Rule 60(b), the
district court’s order denying relief is likewise final so that we have
 9

Next, the appellants contend that even if the S&O is a final
order subject to Rule 60(b), the district court abused its
discretion in failing to modify the S&O for changed
circumstances. Again we disagree.
In the June 2, 2003 order denying the appellants’ motion for
relief, the district court rejected their contention that “the large
volume of claimants requesting assistance with petitions during
a short period of time” constituted a changed circumstance
because it “occurred before, not after, the relevant deadlines
were agreed to by the parties and endorsed by the Court.” 265
F. Supp. 2d at 46 (emphasis by court). The court explained:
“The exponential increase in claimants was fully apparent when
plaintiffs and defendant negotiated and agreed to the July 14,
2000 Stipulation and Order, including its clear provision that ‘no
extensions of these deadlines will be granted for any reason.’ ”
Id. at 46 (quoting (S&O ¶ 5, at 4)). The appellants do not
quibble with the court’s analysis, see Appellants’ Br. at 22, but
contend the court abused its discretion by failing to grant relief
based on four other changed circumstances: (1) the unusually
high number of claimants with meritorious grounds for review
of their claim denials (caused by an unusually high rate of errors
by the adjudicators); (2) the extreme work load borne by the two
small class counsel firms because outside “of counsels”
participated only “minimally” in the review petition filing
(particularly after the court’s March 8, 2001 ruling that
attorney’s fees for monitor review work not be available until
after readjudication of reviewed claims produced a “disincentive
to work on the monitor review process,” Appellants’ Br. at 24);

appellate jurisdiction under 28 U.S.C. § 1291 rather than under 28
U.S.C. § 1292(a)(1), see supra note 2. See Lasky v. Cont’l Prods.
Corp. 804 F.2d 250, 253 (3d Cir. 1986) (“ ‘[I]t is now well established
that orders denying a motion for relief from a judgment under Civil
Rule 60 are final.’ ” (quoting 15 C. Wright, A. Miller & E. Cooper,
Federal Practice and Procedure § 3916, at 610-11 (1976)).
 10

(3) the exhaustion of class counsel’s funds and credit by March
2, 2001; and (4) the “extra step” created by the Register
provision. It is no surprise that the district court did not address
these four changed circumstances in its initial decision as the
appellants raised them for the first time in their motion for
reconsideration. Compare Pls.’ Mem. in Supp. of Mot. for
Relief at 32-34 (filed July 19, 2002) and Pls.’ Reply to Def.’s
Opp’n to Mot. for Relief at 4-7 (filed Nov. 6, 2002) with Pls.’
Mot. for Recons. at 9-16 (filed June 16, 2003). When the court
addressed these newly raised circumstances in the
reconsideration order, its response was admittedly brief: “The
Court is well aware of the circumstances surrounding these
petitions and further elaboration does not change this Court’s
opinion that plaintiffs have not demonstrated changed
circumstances sufficient to justify modification of the Court’s
Orders under Rule 60(b)(5).” 307 F. Supp. 2d at 48. The
court’s brevity, however, is understandable given what had
come before.
To the extent the four new circumstances adversely affected
the petition filing process, the court had already taken them into
account and provided the appellants with relief. In response to
class counsel’s October 31, 2000 plea of an unexpectedly high
volume of meritorious review petitions, the court modified the
S&O on November 8 to permit class counsel to satisfy the
November 13, 2000 filing deadline through the simple Register
listing, a remedy the appellants accepted without complaint.4
When class counsel sought relief in spring 2001 because of their

4
Contrary to the appellants’ characterization, the Register was not
an “extra step” but a substitute step, and a less onerous one, which
relieved class counsel of their commitment to file all petitions by the
November 13, 2001 deadline. The district court therefore reasonably
rejected the notion that the Register was a changed circumstance
warranting relief.
 11

depleted resources, both financial and human,5 the court granted
a four-month extension until September 15, 2001, by which
deadline all of the remaining petitions were filed. Given the
district court’s repeated accommodation of class counsel’s
continuing delinquency, we cannot say the court abused its
discretion in denying the appellants’ motion for further relief.6
The dissent contends the district court erred in two respects.
First, it argues the court erred in relying on a finding of fact that
the “critical changed circumstances” occurred before the parties
agreed to the deadline in the S&O. Dissent at 5, 11. We
perceive no such error. The court was correct when it found as
a fact in its June 2, 2003 decision denying relief that “[t]he
exponential increase in claimants was fully apparent when
plaintiffs and defendant negotiated and agreed to the July 14,
2000 Stipulation and Order,” 265 F. Supp. 2d at 47, as the

5
After the court ordered payment of an interim $7 million fee
award on August 4, 2000, class counsel did not seek additional fees
until they moved for a third interim award on January 12, 2001, when
they did not allege any existing financial hardship but only that they
the n “face[d] significant hardship based on their financing of the
implementation of the Consent Decree” for which they had “incurred
substantial financial obligations in the form of bank loans.” Mem. in
Supp. of Mot. for Third Award of Atty’s Fees at 3 (filed Jan. 12, 2001)
(emphasis added).

6
The court’s abbreviated response on reconsideration may have
been influenced as well by its perception of class counsel’s
indifference toward the filing deadlines: “At the April 19 status
conference, Class Counsel made the remarkable admission that they
never had a realistic expectation of meeting the November 13, 2000,
deadline they had negotiated with the government, nor did they have
any intention of meeting the modified May 15, 2001, deadline set by
the Court.” 144 F. Supp. 2d at 18.
 12

appellants acknowledge.7 The district court was also correct
when it stated in the June 2, 2003 order that “the critical
‘changed circumstance’ on which plaintiffs rely occurred before,
not after, the relevant deadlines were agreed to by the parties
and endorsed by the Court.” 265 F. Supp. 2d at 47 (first
emphasis added).8 The appellants had argued at that stage that
relief from the deadlines was warranted because of “[t]he
predominant change in circumstances, since the Consent Decree
was approved in 1999,” namely, that “the number of
participants, with or without counsel, has increased 400-500%,
overwhelming the system set up by the Consent Decree,” Pls.’
Reply to Def.’s Opp’n to Mot. for Relief at 4-5, plainly referring
to the increased number of claimants. It is not at all surprising
if, as the dissent notes, Dissent at 3, the court’s June 2, 2003
order “ignored the key distinction argued by appellants in the
motion for reconsideration” of the order, which was filed on
June 16, 2003. Further, as we noted supra, the court had already
granted relief from the increase in meritorious petitions when it

7
The appellants state in their brief: “In its June 2, 2003 order, the
District Court correctly noted that, as of July 14, 2000 plaintiffs were
aware of the vastly greater number of claimants than originally had
been anticipated.” Appellants’ Br. at 22.

8
Notwithstanding the contrary suggestion in the Dissent at 11, the
only reference to “critical changed circumstances” in the
reconsideration decision came when the court repeated the statement
first made in its June 2, 2003 decision to explain (correctly) that the
new argument raised by lawyers who had been “of counsel” when the
S&O was entered—that the S&O “itself was a change in
circumstances” because non-class counsel “was not involved in the
decision to negotiate and agree to the deadlines imposed” in
it—likewise suffered from “ ‘the fundamental flaw . . . that the critical
‘changed circumstance’ on which plaintiffs rely occurred before, not
after, the relevant deadlines were agreed to by the parties and endorsed
by the Court.’ ” 307 F. Supp. 2d at 49 (quoting 265 F. Supp. 2d at 46).
 13

established the simplified Register procedure for meeting the
November 13, 2000 filing deadline.
Second, the dissent asserts the district court erred as a matter
of law by failing to consider whether class counsel’s failures to
meet the deadlines amounted to an “unforeseen obstacle
warranting relief.” Dissent at 11. The dissent relies on the
court’s decision in Pigford v. Veneman, 292 F.3d 918 (D.C. Cir.
2002) (Pigford I), for the proposition that “where class members
lack competent counsel, counsel’s failure to meet deadlines
itself may amount to an ‘unforeseen obstacle’ that makes the
decree ‘unworkable.’ ” Dissent at 6 (quoting Pigford I, 292 F.3d
at 925). Pigford I, however, presented a different situation in
two respects. First, contrary to the dissent’s characterization,
Pigford I did not present “the same issue of modification of
deadlines” as here, Dissent at 9 (emphasis by dissent), so as to
implicate law of the case. In Pigford I the court modified the
consent order to permit arbitrators to extend the deadlines for
filing evidentiary materials in Track B litigation, set out in
paragraph 10 of the Consent Decree, based on class counsel’s
“malpractice” in the Track B litigation, namely, “its inability to
represent all Track B claimants adequately,’ ” Pigford I, 292
F.3d at 925 (quoting 182 F. Supp. 2d at 52), as exemplified by
one lawyer’s failure to timely file a claimant’s direct testimony
with the arbitrator. Here, the appellants seek to modify the
S&O’s Track A deadlines for filing review petitions under
paragraph 12(b)(iii), relying on their repeated failures to meet
the filing deadlines. Second, Pigford I came before us in a
different posture. In that decision, we rejected the district
court’s determination that the consent decree could be
interpreted to permit extending deadlines but affirmed the
decision to extend deadlines based on the alternative ground, not
addressed by the district court, that the decree could be so
modified under Rule 60(b)(5) because counsel’s failures
amounted to changed circumstances warranting relief under
Rule 60(b)(5). Because we affirmed the district court’s
 14

decision, we were free to do so, as we did, on a ground not
reached by the district court and without reviewing the district
court’s rationale. EEOC v. Aramark Corp, 208 F.3d 266, 268
(D.C. Cir. 2000) (“Although the district court never addressed
the safe harbor provision, the issue is fully briefed, and because
we review the district court’s judgment, not its reasoning, we
may affirm on any ground properly raised.”) (citing Doe v.
Gates, 981 F.2d 1316, 1321-22 (D.C. Cir. 1993)). In this case,
however, we review the district court’s decision not to grant
relief and “may overturn such an order only for abuse of
discretion.” Summers v. Howard Univ., 374 F.3d 1188, 1192
(D.C. Cir. 2004) (citing Computer Prof’ls for Soc. Responsibility
v. U.S. Secret Serv., 72 F.3d 897, 903 (D.C. Cir. 1996); Twelve
John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C.
Cir. 1988)). Although the district court might have been
warranted in modifying the deadlines based on class counsel’s
failure to meet deadlines, as we explained supra, the court did
not abuse its discretion in declining to do so. For us to decide
the question sua sponte or require the district court to do so as
a matter of law, as the dissent suggests, would infringe on the
district court’s discretion and run counter to “the presumption of
client accountability for attorney conduct” which, as we
confirmed in Pigford I, applies in class actions. See Pigford I,
292 F.3d at 927.
B. Pro Se and Unaffiliated Counsel Petitions
Next, the appellants contend the district court abused its
discretion in denying relief under its inherent equitable authority
to the late filing claimants who were not represented by class
counsel and did not, class counsel contends, receive actual
notice of the S&O deadlines.9 In their motion for relief the

9
We note that the appellants did not establish below that all of the
208 claimants in fact lacked notice and there is reason to believe that
at least some of them did not. See Surreply to Pls.’Reply to Def.’s
 15

appellants cited lack of notice as a “changed circumstance”
supporting modification of the S&O under either Rule 60(b)(5)
or the court’s inherent authority because “Track A decision
letters issued after July 14, 2000 mistakenly omitted language
informing claimants that they had 120 days from the date of the
decision to petition the Monitor for review.” Pls.’ Mem. in
Supp. of Mot. for Relief at 13-14. The district court rejected this
argument because the S&O did not require the letters to include
such notice and therefore its absence was not a changed
circumstance.10 On reconsideration, the appellants took a
different tack, arguing that when class members “do not receive
actual notice of a deadline by which they must take some action
to preserve their claims, and therefore miss the deadline, the
District Court may ‘exercise its equitable authority to excuse the
late filings.’ ” Pls.’Reply to Def.’s Resp. to Mot. for Recons. at
11-12 (quoting In re Orthopedic Bone Screw Prods. Liability
Litig., 246 F.3d 315, 320 (3d Cir. 2001) (alteration original)).
The appellants further urged the court to apply the “excusable
neglect” standard in exercising its inherent authority as well as
the four factors the Third Circuit adopted under the standard in
Orthopedic, namely:

Resp. to Mot. for Recons. at 6 (filed Aug. 15, 2003).

10
The S&O expressly required only that a copy of its text be
posted in every Department Farm Services Agency county office and
mailed to everyone who “requested a Claim Sheet and Election Form”
but “did not submit a [timely] completed Claim Form.” S&O ¶ 7, at
5. The actual notification procedures, however, were far more
extensive as the monitor mailed notices to all claimants who filed a
completed claim form by August 17, 2000 (approximately 20,652 in
all) and all decision letters sent after November 15, 2001 explained the
filing deadline. Monitor’s Report to Court Regarding Class Notice at
3-5.
 16

1) the danger of prejudice to the nonmovant; 2) the length of
the delay and its potential effect on judicial proceedings; 3)
the reason for the delay, including whether it was within the
reasonable control of the movant; and 4) whether the movant
acted in good faith.
246 F.3d at 322-23 (citing Pioneer Inv. Servs. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). The district
court applied the Third Circuit’s formulation and under the first
and third factors found no excusable neglect warranting
equitable relief because of the potential prejudice to the
Department and the appellants’ role in drafting the S&O. The
court concluded (1) that the government “ ‘will “be prejudiced
to the tune of almost one million dollars” if the Court permits
consideration of the late petitions and if even five percent of
them are successful,’ ” 307 F. Supp. 2d at 50 (quoting Pigford
v. Veneman, 265 F. Supp. 2d at 50), and (2) “because the
deadlines were negotiated and agreed to by plaintiffs, it logically
follows that the resulting failure to meet those deadlines had
been within the reasonable control of plaintiffs,” id. at 50-51. In
so concluding the court did not abuse its discretion. As the
district court pointed out in the May 27, 2001 order suspending
the deadlines: “As part of the bargain struck between the parties
and approved by the Court in the Order of July 14, 2000, class
counsel agreed to meet the 120 day deadline in return for the
government’s agreement to admit more than 1,100 Track A
claimants into the class who otherwise would have been
excluded.” 144 F. Supp. 2d at 19 n.2. If the district court had
granted the requested relief from the deadlines, the government
would have lost the benefit of its bargain—certainty and finality
as to its maximum liability as of the agreed upon date—while
the claimant class would have recovered the bargained-away
right to compensation for claimants filing review petitions
 17

beyond the stipulated deadlines (as extended by the court).11 The
prejudice to the government distinguishes this case from In re
Orthopedic in which the court found the defendant would suffer
no prejudice because the addition of claimants would have “no
effect on the amount [the defendant] would pay to those
aggrieved by its products” as its liability had been capped by a
settlement agreement. 246 F.3d at 323. Here, because there is
no cap, the expansion of the number of successful claimants
(which would result from extending the deadline) will
substantially expand the Department’s monetary liability. See
id. (noting consideration of prejudice there was “a unique
inquiry” and expansion of plaintiff class “in the ordinary class
action will be to the detriment of the defendant”); cf. Grace v.
Detroit, 145 F.R.D. 413, 417 (E.D. Mich. 1992) (“Unlike the
cases cited by Plaintiff, . . . in this case there is no fixed
settlement fund. Every tardy claim accepted would be an
expansion of Defendant City’s liability for a reason not
originally ordered. The total sum of Defendant’s liability is yet
to be determined, and increases with each successive
claimant.”).

11
The dissent inexplicably faults our reference to the district
court’s May 27, 2001 finding that the government bargained for the
November 13, 2000 filing deadline in explaining the district court’s
finding of prejudice to the government made in its June 2, 2003 order
denying the appellants’ motion for Rule 60(b) relief. See Dissent at
13. We doubt that in the interim the district court either forgot or
changed its mind about the quid pro quo nature of the order setting the
deadlines, the modification of which, the court found, would prejudice
the government in an amount upwards of $1 million. Nor do we agree
with the dissent’s characterization of the district court’s findings
regarding the government’s negotiation of the July 14, 2000 S&O
deadline and potential prejudice from its extension as “ironic ” or in
any way inconsistent with its earlier finding on the fairness of the
Consent Decree (which notably lacked a filing deadline) in its April
14, 1999 order. See Dissent at 13.
 18

For the foregoing reasons, the district court’s orders denying
the appellants’ motions are affirmed.
So ordered.
 ROGERS, Circuit Judge, concurring in part and dissenting in
part: The history of this litigation bears witness to the many
obstacles to relief for the class of African American farmers
covered by a consent decree based on their allegations of
unlawful racial discrimination by the United States Department
of Agriculture in administering its farm loan programs. The task
has not been easy for a number of reasons, including the
complications necessarily associated with ensuring relief to
eligible class members and the deficiencies of class counsel, as
determined by the district court. While the district court’s
efforts so far have ensured that only a small portion of the class
will not have their claims for Monitor review considered, as a
result of the court’s decision today, the claims of 305 class
members are unduly extinguished: 97 farmers will lose the
opportunity to have independent administrative review of their
claims by a Monitor in accordance with the claims procedure in
the consent decree, and 208 farmers (170 without counsel), who
may not have received notice of the filing deadlines, will lose
their opportunity to pursue their claims at all.

In denying appellants’ motion of July 19, 2002 for relief for
these 305 class members, and the motions for reconsideration of
June 13 & 16, 2003, the district court clearly erred in relying on
a finding of fact regarding the increased claims workload, and
erred, alternatively, as a matter of law by failing to consider, in
accordance with Pigford v. Veneman, 292 F.3d 918 (D.C. Cir.
2002) (“Pigford I”), whether class counsel’s untimely filings
was a changed circumstance within the meaning of Federal Rule
of Civil Procedure 60(b)(5). It also erred by failing to inquire
whether 208 claimants’ late filings were due to the inadequacy
of the notice procedures before determining whether to deny any
relief under Federal Rule of Civil Procedure 6(b). Accordingly,
while I concur in the holding that the July 14, 2000 Order
establishing the original filing deadlines was a final appealable
order, see Op. at 8, I would reverse and remand the case to the
 2

district court to determine whether the filing deadlines were
“unworkable,” and thus warranting relief for 97 class members
pursuant to Rule 60(b)(5), and to determine whether 208 class
members failed to receive notice of the filing deadlines as a
result of inadequate notice procedures and were entitled to relief
under Rule 6(b).

I.
The question on appeal is whether the district court abused
its discretion in denying appellants’ motions for an extension of
the filing deadlines, and for reconsideration under Rule 60(b).
Evans v. Williams, 206 F.3d 1292, 1299 (D.C. Cir. 2000); Peters
v. Nat’l R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir.
1992). While our review is deferential, an abuse of discretion
occurs when the district court relies on clearly erroneous
findings of fact, fails to consider a relevant factor, or applies the
wrong legal standard. See In re Vitamins Antitrust Class
Actions, 327 F.3d 1207, 1209 (D.C. Cir. 2003); Evans, 206 F.3d
at 1298; Marina Mgmt. Servs. Inc. v. Vessel My Girls, 202 F.3d
315, 321 (D.C. Cir. 2000); see also Kickapoo Tribe of Indians
v. Babbitt, 43 F.3d 1491, 1497 (D.C. Cir. 1995).

Rule 60(b)(5) provides, in relevant part, that “the court may
relieve a party . . . from a final judgment, order or proceeding
[if] . . . it is no longer equitable that the judgment should have
prospective application.” Fed. R. Civ. P. 60(b)(5). A movant
under Rule 60(b)(5) must demonstrate “changed circumstances”
since the entry of the judgment from which relief is sought.
Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 383,
385 (1992). Such change need not be “unforeseeable, but only
unforeseen.” Id. at 385. The Supreme Court in Rufo explained,

Ordinarily . . . modification should not be granted
where a party relies upon events that actually were
anticipated at the time it entered into a decree.
 3

[citations omitted] If it is clear that a party anticipated
changing conditions that would make performance of
the decree more onerous but nevertheless agreed to the
decree, that party would have to satisfy a heavy burden
to convince a court that it agreed to the decree in good
faith, made a reasonable effort to comply with the
decree, and should be relieved of the undertaking under
Rule 60(b).

Id. In Pigford I, the court held that changed circumstances may
include “unforeseen obstacles” that make an order
“unworkable.” Pigford I, 292 F.3d at 925; see Rufo, 502 U.S. at
384.

The district court found that the large increase in the
number of claimants occurred before the deadlines in the July
14th Order were agreed to, and therefore did not amount to
unanticipated “changed circumstances” rendering the deadlines
“unworkable” within the meaning of Rule 60(b)(5). See Pigford
v. Veneman, 265 F. Supp.2d 41, 47 (D.D.C. 2003),
reconsideration denied, Pigford v. Veneman, 307 F. Supp.2d 43
(D.D.C. 2004). In so finding the district court, as does the court
today, Op. at 12-13, ignored the key distinction argued by
appellants in their motion for reconsideration and supported by
evidence in the record. Appellants pointed out that the critical
“changed circumstance” was not the vastly greater number of
total claimants, but the unanticipated large number of claimants
seeking Monitor review because their claims likely had been
denied erroneously in the first instance by the adjudicator, and
had potentially meritorious grounds for seeking Monitor review.
Appellants explained that class counsel originally had
anticipated that the vast majority of would-be seekers of
Monitor review would not meet the high standards for such
review set forth in the consent decree — “clear and manifest
error” that is “likely to result in a fundamental miscarriage of
 4

justice,” Consent Decree ¶ 12(b)(iii) — and therefore, at the
time they agreed to the July 14th Order deadlines, had estimated
that only approximately 2,500 petitions would require
processing for Monitor review. However, class counsel
subsequently discovered that a much higher number of the
claims rejected by the adjudicator were potentially meritorious
claims even under the high standard for Monitor review. In fact,
the total volume of claims actually processed for Monitor review
was much higher than 2,500: Class counsel and the of-counsel
law firm Chestnut, Sanders ended up processing 3,700 Track A
requests for Monitor review, with other firms processing other,
smaller numbers of requests.

In support of this distinction, appellants pointed to the high
success rates of claims upon Monitor review: The facilitator’s
report cited by appellants indicated that approximately 48% of
the claimants who had filed for review with the assistance of
counsel had been approved by the Monitor for reexamination by
the adjudicator, and 100% of reexamined petitions prevailed on
the merits. This statistical evidence substantiated class
counsel’s argument that many meritorious claims had been
erroneously denied by the adjudicator, necessitating the filing of
petitions for Monitor review and creating more work for class
counsel than was anticipated when the July 14th Order deadlines
were agreed to.

The record further indicates that the number of class
members seeking Monitor review was unanticipated by either
party or by the district court when the parties agreed to those
deadlines. As noted, when the district court established the
Register of Petitions process in the November 11, 2000 Order,
class counsel was estimating a total of 2,500 petitions for
Monitor review. The district court relied on this estimate to set
the filing schedule for fully supported petitions. The November
11th Order further indicated that the higher volume of petitions
 5

for Monitor review was not anticipated, for the district court
acknowledged that neither the Department nor the Monitor were
prepared to handle and process the higher volume of petitions.
The court stated:

It is obvious that if Class Counsel, Of Counsel and all
unaffiliated counsel were forced to file thousands of
fully supported Petitions by November 13, the
government would be unable to respond to them in a
meaningful way within the 60 days that it has to file a
response. [citation omitted] Furthermore, the Monitor
informed the Court at the hearing that even if the
government had the resources to complete such a task,
the Monitor initially will be unable to decide the
Petitions at a pace greater than 200 to 300 each month.

Indeed, the district court later acknowledged at the April 19,
2001 status conference that “some of the failings of the lawyers,
if we want to call them that, are simply because people were
overworked. There was much more to be done than people
thought.” (emphasis added).

In light of the record evidence that the high number of class
members seeking Monitor review was unanticipated at the time
the July 14th Order deadlines were agreed to, the district court
clearly erred in relying on its finding in its opinion of June 2,
2003 that the “critical ‘changed circumstance’” had “occurred
before, not after, the relevant deadlines were agreed to,” in
denying appellants’ motion for reconsideration in its opinion of
March 19, 2004, Pigford, 307 F. Supp. 2d at 48, without
distinguishing between the overall number of claimants and the
number of petitions for Monitor review. Instead, the district
court denied reconsideration stating that, notwithstanding
appellants’ “further elaboration,” “the [c]ourt declines to revisit
its determination that the asserted ‘changed circumstances’
 6

presented by [appellants] do not justify modification of the
[c]ourt’s prior orders under Rule 60(b)(5).” Id. While the court
states that the district court established the Register procedure
to provide relief from the increased volume of meritorious
petitions, Op. at 13, that relief created filing problems of its
own and, in any event, the district court underestimated the
volume of Monitor-review petitions even then.

Moreover, in denying appellants’ motions, the district court
failed to consider the instruction of Pigford I that where class
members lack competent counsel, counsel’s failure to meet
deadlines itself may amount to an “unforeseen obstacle” that
makes the decree “unworkable” under Rule 60(b)(5). Pigford
I, 292 F.3d at 925. In Pigford I, this court embraced the concept
that the district court has a duty to protect class members where
such members did not choose their counsel and where retention
of other lawyers is unlikely, 292 F.3d at 926-27, a concept
embraced by other circuits as well.1 Noting that the consent
“decree’s express purpose is to ‘ensur[e] that in their dealings
with [the Department], all class members receive full and fair
treatment,’ Consent Decree at 2, and its ‘main accomplishment
was the establishment of a process to adjudicate individual
claims,’” this court distinguished between the failings of class

1
See In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396
F.3d 922, 932 (8th Cir. 2005) (citing Fed. R. Civ. P. 23(e)); In re
Orthopedic Bone Screw Prods. Liab. Litig., 246 F.3d 315, 321 (3d Cir.
2001); In re Fine Paper Antitrust Litig., 617 F.2d 22, 27 (3d Cir.
1980); Zients v. LaMorte, 459 F.2d 628, 629-30 (2d Cir. 1972); see
also In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 307 (3d Cir. 2005);
Reynolds v. Beneficial Nat. Bank, 288 F.3d 277, 280-81 (7th Cir.
2002); Gonzales v. Cassidy, 474 F.2d 67, 75 (5th Cir. 1973). While
the district court noted that these cases involved earlier stages of class
action proceedings, it failed to articulate any reason why this principle
would not apply at the remedial stages of class action proceedings.
See Pigford, 307 F. Supp.2d 43, 50 (D.D.C. 2004).
 7

counsel and the opportunity of class members to avail
themselves of the remedial scheme under the consent decree:
The court opined that there was “no basis for holding [the class
members] responsible for [counsel’s] failure” to meet deadlines
which had been bargained for by the parties, Pigford I, 292 F.3d
at 927, and held that relief was appropriate under Rule 60(b)(5)
because “class counsel’s failure to meet critical Track B
deadlines amounts to an ‘unforeseen obstacle’ that makes the
decree ‘unworkable,’” id. at 927 (quoting Rufo, 502 U.S. at
384).

This conclusion in Pigford I is no less applicable now than
it was then, for “[t]o hold otherwise would sanction the farmers’
double betrayal: first by the Department . . . and then by their
own lawyers.” Id. In granting an extension of Track B
deadlines missed due to attorney error, the district court had
previously acknowledged that the general rule that attorney error
is not excusable should not apply here, where “[t]he history of
this case is unique . . . and requires more than hasty application
of general practice.” Pigford v. Veneman, 182 F. Supp.2d 50, 52
(D.D.C. 2002). This court observed in Pigford I that,

[T]he decree itself assumes competent representation
for the farmers. The decree’s express purpose is to
“ensur[e] that in their dealings with [the Department],
all class members receive full and fair treatment,” . . .
and its “main accomplishment was the establishment of
a process to adjudicate individual claims.” . . . Unless
the farmers have competent counsel, we cannot
imagine how they could ever obtain “full and fair
treatment” in a claims process where . . . missing a
single deadline could be fatal.

292 F.3d at 927 (quoting Consent Decree, at 2; Pigford v.
Glickman, No. 97cv01978 (D.D.C. Mar. 8, 2001)). Not only has
 8

the district court found class counsel’s performance sanctionable
and imposed severe monetary fines on them, Pigford v.
Veneman, 307 F. Supp.2d 51 (D.D.C. 2004), but at a time when
there was, as the district court stated, “much more to be done
than people thought,” and the critical filing deadlines were
drawing near, class counsel and of-counsel were in dire financial
straits as a result of the lack of payment of interim fees by the
government, as appellants reminded the district court in their
motion for reconsideration. 2 The district court recognized at a

2
Six months before the November filing deadline, the motion
of May 8, 2000 for an interim award of attorneys’ fees, costs and
expert fees filed by class counsel and certain of-counsel stated:

It is now nearly three years since this case began.
During this time the firms incurred crushing expense.
For example, [class counsel] Conlon, Frantz incurred
substantial obligations - borrowing $1,000,000
simply to remain solvent. Mr. Pires was not paid for
over 15 months. He obtained multiple mortgages to
pay his personal expenses. . . . [The Of-counsel law
firm of] Chestnut, Sanders was forced by the scope of
the litigation to borrow $1 million, hire new
employees and cut partner salaries by 60%.

On August 4, 2000, the dis trict court, acknowledging “the dire
financial straits in which several firms affiliated with class counsel
currently find themselves,” ordered an immediate preliminary award
to counsel of $7 million, which covered only previously incurred costs
and amounted to less than one-half the cumulative loadstar amount of
$14,582,703. Although, in response to class counsel’s motion for an
extension of the July 14th Order deadlines, the district court set up the
Register of Petitions process in November 2000, counsel still missed
filing deadlines. When the parties’ attempt, at the district court’s
suggestion, to resolve their differences regarding counsel’s May 8th
request fees and costs proved unsuccessful, on January 12, 2001 class
counsel, of-counsel, and one counsel moved for additional interim fees
 9

status conference held on April 19, 2001 that the delay in
awarding interim fees

had an impact on the number of lawyers and the
amount of time that those lawyers are spending on the
Monitor petition process. . . . if you have to succeed or
prevail to get paid, then getting new lawyers in the act
would be hard, and I understand that it is also having
an impact on the existing lawyers. [Class counsel] has
cut back on [its] staff.

(emphasis added).

Today, by affirming the denial of appellants’ motions, the
court ignores our analysis in Pigford I and the duty of the trial
judge to protect class members who do not chose their own
counsel when unanticipated circumstances have created “a
situation where there were too many cases and too few lawyers.”

alleging “significant hardship” as a result of continued financing of
implementation of the Consent Decree, without the regular payment
of fees, through bank loans to cover staff salaries and expenses. A
further payment of interim fees and costs was ordered on March 8,
2001, well after the filing deadlines, and still, because of the
government’s resistence, class couns el did not receive any payment
until July 2001, of $14.9 million, see Pigford v. Veneman, 369 F.3d
545 (D.C. Cir. 2004); a further payment of $500,000 was ordered on
December 2, 2002, Pigford v. Veneman, 239 F. Supp. 2d 68, 71
(D.D.C. 2002). The delay in approving payment and the delay in
actual receipt of interim fees by class counsel are ignored by the court
in discussing the district court’s “repeated accommodation of class
counsel’s continuing delinquency.” Op. at 11.
 10

Br. for Appellants at 22. By declining to account for Pigford I’s
contrary holding as an infringement of the district court’s
discretion, Op. at 14, the court ignores that Pigford I involved
the same unique history, the same consent decree, the same class
counsel, and the same issue of modification of deadlines missed
by class counsel under Federal Rule of Civil Procedure 60(b)(5)
considered in the same court, and as such its holding is nearly
akin to the law of the case, in addition to being law of the
circuit. See LaShawn A. v. Barry, 87 F.3d 1389, 1393, 1395
(D.C. Cir. 1996) (en banc). That Pigford I involved claims
under Track B rather than Track A does not change the fact that
the legal issue before the court is the same: whether appellants
are entitled to relief under Rule 60(b)(5) for counsel’s failures
to meet filing deadlines. See Op. at 13-14. While the court
points out that Pigford I acknowledged “the presumption of
client accountability for attorney conduct,” id., it ignores that
Pigford I also found this presumption overcome because class
counsel was not freely chosen by class members and the
circumstances of the case, together with the terms of the decree,
made retention of other lawyers “unlikely.” Pigford I, 292 F.3d
at 926. Here, the very same circumstances remain, and were
further exacerbated by additional unanticipated circumstances
which created “a situation where there were too many cases and
too few lawyers.” Br. for Appellants at 22. This court cannot
avoid, by pointing to “a different procedural posture,” Op. at 13,
that the district court is bound, under Pigford I, see LaShawn A.,
87 F.3d at 1393, 1395, to separate class counsel’s failings from
the claims of the class members, particularly in light of the
district court’s affirmative duty to “renew its stringent
examination of the adequacy of class representation throughout
the entire course of the litigation,” In re Fine Paper Antitrust
Litigation, 617 F.2d 22, 27 (3d Cir. 1980), and that the district
court’s failure to do so is an abuse of discretion, Evans, 206 F.3d
at 1298.
 11

Finally, while the Secretary would distinguish Pigford I as
concerned with extinguishing a class member’s claim, see
Pigford I, 292 F.3d at 922, from the denial of an opportunity to
seek Monitor review, from the perspective of the class member
whose claim has been wrongfully denied, the effect is the same:
Neither class member will have the opportunity to utilize the
remedial process established in the consent decree. Taken
together, the circumstances identified in appellants’ motions
suggest that the 97 class members should not bear the burden of
counsel’s failures to meet filing deadlines. In order to avoid a
“double betrayal” of the class members, the district court was
required to separate the failures of counsel from the claims of
the class members in order to ensure that the opportunity to
pursue the claims process established in the consent decree not
be foreclosed. Id. at 927. It did not do so, and the court today
fails to explain how the district court fulfilled its responsibilities
in accordance with the analysis in Pigford I.

Because the district court, in denying the motion for
reconsideration, erroneously relied on its finding in its opinion
of June 2, 2003 that the “critical changed circumstance”
occurred before the July 14th Order deadlines were agreed to
without taking into account record evidence demonstrating that
the volume of petitions for Monitor review – the relevant change
in circumstance – was not anticipated at the time the deadlines
were agreed to, and in the alternative erred as a matter of law by
failing to consider whether class counsel’s failures to meet the
deadlines amounted to an “unforeseen obstacle” warranting
relief, I would reverse and remand the case to the district court
to address whether the deadlines were “unworkable” under Rule
60(b)(5).

II.
Additionally, the district court failed to inquire whether
adequate notice was provided to 208 class members, for whom
 12

appellants proffered evidence that these class members had not
received notice of the filing deadlines for Monitor review, in
determining whether relief was warranted under the “excusable
neglect” standard of Federal Rule of Civil Procedure 6(b).

The July 14 Order modified the consent decree to limit the
period within which class members could seek Monitor review
of denied claims and, as the district court noted, it did not
provide for individual notice to unsuccessful Track A class
members. Instead, the July 14th Order required only that a copy
of it be (1) posted in every USDA Farm Services Agency county
office, and (2) sent by the facilitator to those persons who
requested a claim sheet and election form. According to the
Monitor’s Report, “few people eligible to file a petition with the
Monitor would have received direct notice of the 120-day
deadline from the mailing,” and many claimants would not see
a posting in a USDA Farm Services Agency county office. See
Monitor’s Report to the Court Regarding Notice to the Class of
the 120-Day Deadline to File a Petition for Monitor Review
(May 30, 2003). The Monitor attempted to remedy the situation
by mailing additional notices to farmers who had either
requested or made telephonic inquiries regarding claim forms.
Still, appellants proffered evidence that 208 class members had
received no notice of the filing deadlines. See, e.g., Joint
Appendix at 186; 218-233, 248, 254, 256, 258, 265, 268, 269,
286, 321; id. at 423.

Nonetheless, the district court denied relief under the
“excusable neglect” standard of Rule 6(b). Applying the four-
factor test of Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 398-99 (1993), the district court found
first, that the government would be “prejudiced to the tune of
almost one million dollars” by allowing consideration of late
petitions if five percent were successful, and second, that
“because the [July 14th Order] deadlines were negotiated and
 13

agreed to by the [appellants], it logically follows that the
resulting failure to meet those deadlines had been within the
reasonable control of [appellants].” Each finding is problematic
given the district court’s duty to ensure that adequate notice
procedures were, in fact, established to provide class members
with notice of filing deadlines. The district court made no
finding that appellants were not proceeding in good faith or that
there would be undue delay of the proceedings by granting
relief.

The district court’s finding of “prejudice” to the
government is ironic. See Pigford v. Glickman, 185 F.R.D. 82,
95 (D.D.C. 1999); see also Pigford I, 292 F.3d at 927. In
approving the consent decree, the district court observed that
“the settlement is a fair resolution of the claims brought in this
case and a good first step towards assuring that the kind of
discrimination that has been visited on African American
farmers since Reconstruction will not continue into the next
century.” Pigford, 185 F.R.D. at 86 (emphasis added). The July
14th Order deadlines were not imposed in order to limit the
government’s liability as such, but rather, according to the
district court, to bring closure to the process through fair
procedures that would identify the number of class members
seeking Monitor review. Moreover, the dollar amount of
prejudice claimed by the Secretary represents 0.04% of the
estimated settlement, see Pigford, 206 F.3d at 1244, and 0.125%
of the amount actual paid out by the government at that time.
This court, in turn, mistakenly relies on the Secretary’s
argument that class counsel’s agreement that the July 14th Order
deadlines would not be extended was the quid pro quo for its
agreement to admit other Track A claimants into the class who
would otherwise have been excluded. See Op. at 16-17; Br. for
the Appellee at 24. This is not the analysis adopted by the
district court in denying appellants’ motions; instead, the district
court addressed that quid pro quo in imposing monetary
 14

sanctions on class counsel in a separate order, see Pigford v.
Veneman, 144 F. Supp.2d 16, 19 n.2 (D.D.C. 2001), which is not
on appeal.

The district court’s second finding, that the failure to meet
the deadlines was within the farmers’ control because they
agreed to the July 14th Order deadlines, is clearly erroneous
because it ignored the threshold question of whether the agreed-
to notice provisions ensured that adequate notice would be
provided to class members, many proceeding pro se, whose
claims had been denied by the adjudicator. The fact that class
counsel agreed to the notice procedures did not discharge the
district court’s obligation to ensure notice was directed in a
reasonable manner. Cf. Fed. R. Civ. P. 23(e)(1)(B); Doe v.
Lexington-Fayette Urban County Gov't, 2005 U.S. App. LEXIS
7771, at *11-12 (3d Cir. 2005); Pigford I, 292 F.3d at 926
(citing Fed. R. Civ. P. 23(a)(4)). Once the Monitor determined
that the notice procedures were inadequate and appellants
proffered evidence that 208 class members claimed not to have
received notice, the district court had a duty to inquire whether
the notice procedures were adequate in fact. In an analogous
context, the Second Circuit pointed out that the district court has
“the inherent power and duty to protect unnamed, but interested
persons,” Zients v. LaMorte, 459 F.2d 628, 630 (2d Cir. 1972),
and although the notice procedures in the settlement agreement
were complied with, the Second Circuit reversed the exclusion
of claims filed late due to the lack of actual notice, id. As the
Third Circuit observed, the district court’s equitable powers
under Rule 23 “are retained by the court until the settlement
fund is actually distributed.” In re Orthopedic Bone Screw
Prods. Liab. Litig., 246 F.3d 315, 321 (3d Cir. 2001).

Whether the prejudice to the government outweighed other
considerations could not be determined by the district court until
it first determined – in light of the proffered evidence that the
 15

agreed-to notice procedures were inadequate for 208 class
members – the adequacy of the agreed-to notice procedures, and
whether the late filings were the result of inadequate notice.
Only then could the district court determine whether the 208
class members were entitled to relief under Rule 6(b).
Therefore, I would reverse and remand the case for the district
court to determine the adequacy of the notice procedures and
whether the 208 class members were entitled to relief. See
Pigford I, 292 F.3d at 925-27; In re Orthopedic Bone Screw
Prods. Liab. Litig., 246 F.3d at 321-29; Zients, 459 F.2d at 630.

Accordingly, I respectfully dissent from Part II of the
court’s opinion.