UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


PIGFORD, TIMOTHY

v.

GLICKMAN, DAN


99-5222a

D.C. Cir. 2000


*	*	*


Rogers, Circuit Judge: Leonard C. Cooper appeals the  district court's
order approving a consent decree settling  lawsuits brought by a class
of approximately 20,000 African- American farmers, of which Mr. Cooper
is a member, against  the United States Department of Agriculture
("USDA").1  See Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999). Un-
der the decree, 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' complaint alleging  that USDA
systematically discriminated against them on the  basis of their race.
See id. at 111. Making no claim that the  farmers' individual claims
cannot be fairly and justly resolved  under the decree, Mr. Cooper
contends instead that the  benefits of the consent decree are illusory
because USDA has 




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n 1 Mr. Cooper is the only member of the class to appeal although  in
noting his appeal he purported to file on behalf of himself 
individually and as a representative of a class of African-American 
farmers, sending copies to nine named persons. None of those  persons
is a named appellant, however. The class representatives,  the named
plaintiffs in the district court, and the Secretary of  Agriculture
are appellees.


reserved the right in paragraphs 19 and 21 to undo the  decree by
regulatory fiat, depriving the farmers of any judi- cial relief and,
thus, the district court abused its discretion in  approving the
decree as fair, adequate, and reasonable under  Rule 23(e) of the
Federal Rules of Civil Procedure. As  clarified by stipulations in the
briefing and oral argument on  appeal, no basis exists to conclude
that USDA would promul- gate such a regulation under laws in effect
when the decree  was approved by the district court. While paragraph
19  leaves the class exposed to potential congressional enact- ments
nullifying or modifying the consent decree, the class  would bear that
risk in any event, at least so long as the  decree remains executory.
Additionally, Mr. Cooper's con- tention concerning the limitation of
the district court's author- ity by paragraph 21 is inconsistent with
the plain language of  that provision. Accordingly, because Mr.
Cooper's conten- tions are unpersuasive on their own terms, and, in
light of the  benefits conferred on the class by the decree taken as a
 whole, we find no abuse of discretion by the district court,  and we


I.


The consent decree settling the class action was the prod- uct of
lengthy and, at times, contentious negotiations. The  background is
set forth in Judge Friedman's comprehensive  opinion, Pigford, 185
F.R.D. at 89-92, familiarity with which  is assumed, and we repeat
only the details necessary for this  opinion.2


USDA indirectly administers programs that provide credit  and other
benefits to farmers. The USDA's credit and  benefit programs are
federally funded, but the decisions to  approve or deny applications
for credit or benefits are made  at the county level by a committee of
three to five members  elected by local farmers and ranchers. In
addition to acting  on credit and benefit applications, the county
committee  appoints a county executive to assist farmers in completing




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n 2 The district court's opinion appears as an appendix to this 
opinion.


their applications and to recommend to the county committee  which
applications should be approved. Id. at 86. USDA has  promulgated a
number of regulations governing how these  officials are to administer
the credit and benefit programs,  but the evidence before the district
court shows that USDA  has exercised little oversight regarding how
applications his- torically have been processed at the county level.
Id. at 86- 88. For years, African-American farmers, who have been 
significantly underrepresented on the county committees, see  id. at
87, have complained that county officials have exercised  their power
in a racially discriminatory manner, resulting in  delayed processing
or denial of applications for credit and  benefits by African-American
farmers not experienced by  white farmers who are similarly situated.
Id. at 87-88. Such  discriminatory treatment is prohibited by statute
and by  regulation. See 15 U.S.C. s 1691(a) (1994); 7 C.F.R.  ss
15.51, 15.52 (1999). In December 1996, the Secretary of  Agriculture
appointed a Civil Rights Action Team to investi- gate allegations of
racial discrimination in the administration  of USDA credit and
benefit programs, and, in February 1997,  the USDA Inspector General
reported that USDA had a  backlog of discrimination complaints in need
of immediate  attention. The President and the Secretary thereafter 
sought appropriations to carry out the recommendations to  improve
USDA's civil rights efforts. Pigford, 185 F.R.D. at  111.


On August 28, 1997, three African-American farmers filed  suit on
behalf of a putative class of similarly situated African- American
farmers alleging racial discrimination in the admin- istration of USDA
programs and further harm from the  allegedly surreptitious
dismantling of USDA's Office of Civil  Rights in 1983, which together
were alleged to violate the  Fifth Amendment, the Administrative
Procedure Act, 5  U.S.C. s 551 et seq.; Title VI of the Civil Rights
Act of 1964,  42 U.S.C. s 2000d; and the Equal Credit Opportunity Act 
("ECOA"), 15 U.S.C. s 1691, prohibiting discrimination in  consumer
credit. Following amendments to the complaint,  the district court
granted class certification in October 1998.  See Pigford, 185 F.R.D.
at 90. At that time, most of the 


farmers' ECOA claims were arguably barred by a two-year  statute of
limitations. See 15 U.S.C. s 1691e(f). Responding  to petitions from
class members, Congress enacted, and the  President signed in November
1998, an amendment to retro- actively extend the limitations period
for persons who had  filed administrative complaints between January
1, 1981, and  July 1, 1997, for acts of discrimination occurring
between  January 1, 1981, and December 31, 1996.3 A second class 
action, Brewington v. Glickman, Civ. No. 98-1693, filed in  July 1998
and making similar allegations covering a different  time period, was
consolidated with Pigford for purposes of  settlement, and a new class
was certified. See Pigford, 185  F.R.D. at 90.


As the February 1999 trial date drew near, the parties'  negotiations
shifted from individual claims to a global settle- ment, id., and with
the assistance of a court-appointed media- tor, the parties developed
and agreed to a consent decree that  contemplated a two-track dispute
resolution mechanism to  determine whether individual class members
had been the  victims of discrimination and, if so, the amount of
monetary  relief to which they were entitled. If a class member opts
for  resolution under Track A, "class members with little or no 
documentary evidence [will receive] a virtually automatic cash 
payment of $50,000 and forgiveness of any debt owed to  USDA," id. at
95; whereas, class members opting for Track  B resolution have the
opportunity to prove their claims in a  one-day mini-trial before an
arbitrator and, if successful, the  amount of monetary damages is not
capped. Id. Class  members dissatisfied with the opportunity for
resolution of  their claims under either Track A or Track B could opt
out of  the class within 120 days of entry of the consent decree, and




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n 3 See Pub. L. No. 105-277, s 741, 112 Stat. 2681 (codified at 7 
U.S.C. s 2297, notes); see also Statement By President William J. 
Clinton Upon Signing H.R. 4328, 34 Weekly Comp. Pres. Doc. 2108  (Nov.
2, 1998) ("This bill will also address the long-standing discrim-
ination claims of many minority farmers by adopting my request to 
waive the statute of limitations on USDA discrimination complaints 
that date back to the early 1980s."), reprinted in 1998 U.S.C.C.A.N. 


file individual lawsuits. Id. The district court is to appoint a 
monitor from a list of names provided by the parties "to track  and
report on USDA's compliance with the terms of the  Consent Decree."
Id. at 109.


By law, the proposed consent decree could not take effect  until the
district court had approved it, see Fed. R. Civ. P.  23(e), and the
district court's approval could not be granted  until notice had been
given to the class of the proposed  settlement and a fairness hearing
had been held to determine  whether the "settlement is fair, adequate,
and reasonable and  is not the product of collusion between the
parties." Pigford,  185 F.R.D. at 98 (quoting Thomas v. Albright, 139
F.3d 227,  231 (D.C. Cir. 1998)). The district court held a day-long 
hearing in which representatives of eight organizations and  sixteen
individuals, including Mr. Cooper, voiced their objec- tions to the
terms of the proposed consent decree. Many,  including Mr. Cooper,
objected to the absence of certain  forms of prospective structural
relief, notwithstanding the  fact that the complaint, as amended, did
not seek such  injunctive relief. Id. at 110. While USDA was likely to
face  billion-dollar monetary liability under the decree, no changes 
to the county committee system were mandated, and objec- tors feared
that no improvements would be made to the way  in which the farm
credit and non-credit programs are admin- istered. See Transcript of
Fairness Hearing ("Tr."), Mar. 2,  1999 at Joint Appendix (JA) 388
(Mr. Bowens); 493 (Mr.  Cooper). They also maintained that
insufficient information  had been exchanged during the discovery
period leading up to  the settlement. However, at the fairness
hearing, neither  Mr. Cooper nor his counsel voiced the objections
raised now  on appeal to paragraphs 19 and 21 of the decree. Instead
the  National Council of Community Based Organizations in Agri-
culture ("NCCBOA") argued to the district court that para- graph 19
"contemplates that a future statute or regulation  may interfere with
the relief that is provided by the decree."  Tr. at JA 410. Without
specifically mentioning paragraph 21,  NCCBOA objected to that
provision on the grounds that the  class members "are remitted to
contract law claims against  the Government, but the contract here


that they can't have their claims reinstated and the Govern- ment has
got a defense because of its new regulation to the  relief that's
provided by the Consent Decree." Tr. at JA 411.


Following the hearing, the district court suggested fourteen  changes
to the proposed consent decree, including modifying  paragraph 19 to
require USDA to use its best efforts to  comply with laws prohibiting
discrimination and modifying  paragraph 21 to make clear that the
district court retained  jurisdiction to enforce the consent decree
with its contempt  power. The class and USDA rejected the first
suggestion  and adopted the second. The district court then allowed 
another round of written objections to be filed to the revised 
consent decree.4 After considering all of the objections and  the
entire record, the district court approved the proposed  consent
decree as fair under Rule 23 and ordered that the  decree be entered.
Mr. Cooper noted an appeal from the  order, but he did not seek a stay
of proceedings under the  consent decree pending appeal.5




__________

n 4 Objections made directly by Mr. Cooper questioned whether  class
counsel truly represented the interests of the class members  and
suggested that the decree contain a provision rendering it void  if
either USDA or class counsel took steps to obstruct the district 
court's jurisdiction to enforce the proposed decree. Mr. Cooper's 
counsel, on behalf of Mr. Cooper, filed eight pages of objections, 
which also questioned the capacity of class counsel to represent the 
class, but made no mention of either paragraphs 19 nor 21 nor of  the
enforceability of the decree as a general matter. In addition,  the
North Carolina Association of Black Lawyers Land Loss Pre- vention
Project at North Carolina Central University Law School  filed a set
of objections jointly with three other organizations,  including
NCCBOA, which stressed, among other things, the view  that in light of
paragraphs 19 and 21, the district court's contempt  power was


5 Although the figures differ, USDA and class counsel repre- sented in
their respective briefs that more than 20,000 persons have  filed
claims under the decree. See Appellee USDA's Br. at 15;  Appellee
Plaintiff Class' Br. at 12. At oral argument, class counsel 
represented that as of February 25, 2000, decisions in 9,573 Track A 
cases had been rendered of which 5,746 claims were granted and 


II.


The law is well settled that the decision to approve a  consent decree
is committed to the sound discretion of the  district court. See,
e.g., In re Prudential Ins. Co. of Am. Sales  Practices Litig., 148
F.3d 283, 299 (3d Cir. 1998). The  district court's role in reviewing
the decree is to protect the  interests of absent class members, and
that is done primarily  by evaluating the terms of the settlement in
relation to the  strength of their case. See Thomas, 139 F.3d at 231.
The  appellate court is not to substitute its views of fairness for 
those of the district court and the parties to the agreement,  see
Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th  Cir.
1992), but is only to determine whether the district  court's reasons
for approving the decree evidence apprecia- tion of the relevant facts
and reasoned analysis of those facts  in light of the purposes of Rule
23. See Thomas, 139 F.3d at  231; see also Kickapoo Tribes v. Babbitt,
43 F.2d 1491, 1495  (D.C. Cir. 1995). Mr. Cooper bears the burden on
appeal of  making a "clear showing" that an abuse of discretion has 
occurred. See Moore v. National Ass'n of Sec. Dealers, 762  F.2d 1093,
1107 (D.C. Cir. 1985). He has not done so; on the  contrary, the
district court fulfilled the requirements of Rule  23 in exemplary


On appeal Mr. Cooper has abandoned the objections he  raised in the
district court regarding the lack of prospective  structural relief
and confines his challenge to the consent  decree to paragraphs 19 and
21, which he contends give  USDA, in effect, the right to unilaterally
withdraw from the  consent decree leaving class members with no
judicial reme- dy. Mr. Cooper thus contends that the district court
erred  by failing to notify class members specifically of the terms of




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n paid in an amount totaling $359,125,000. Of the 3,827 Track A  claims
that were denied in whole or in part, one third have been  appealed
under the terms of the consent decree. In addition,  approximately 146
class members have opted for resolution under  Track B. Four cases
have been completed, and eighty others are in  discovery.


the two paragraphs and by approving the decree without  requiring
alteration or deletion of the two paragraphs.6


In his opening brief, Mr. Cooper contended that USDA can  use paragraph
19 to renege on its agreement in the consent  decree in one of three
ways: (1) Congress could pass new  legislation that USDA could
interpret to preclude some or all  of the relief provided by the
decree; (2) USDA could promul- gate new regulations to the same effect
without new legisla- tion; or (3) USDA could interpret existing law to
bar the  relief provided in the decree without promulgating a rule. In
 subsequent briefing by appellees class counsel and USDA, 




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n 6 The paragraphs under attack provide:


19. Defendant's Duty Consistent With Law and Regulations


Nothing contained in this Consent Decree or in the Final  Judgment
shall impose on the defendant any duty, obligation or  requirement,
the performance of which would be inconsistent  with federal statutes
or federal regulations in effect at the time  of such performance.


....


21. No Effect if Default


Subject to the terms of p 17, above, [conditioning the decree's 
obligations on a final judgment dismissing the complaint] and 
following entry by the Court of Final Judgment, no default by  any
person or party to this consent Decree in the performance  of any of
the covenants or obligations under this Consent  Decree, or any
judgment or order entered in connection there- with, shall affect the
dismissal of the complaint, the preclusion  of prosecution of actions,
the discharge and release of the  defendant, or the judgment entered
approving these provisions.  Nothing in the preceding sentence shall
be construed to affect  the Court's jurisdiction to enforce the
Consent Decree on a  motion for contempt filed in accordance with p 13
[requiring  parties to conciliate before filing contempt motion].


The last sentence of paragraph 21 was added after the fairness 
hearing.


and at oral argument, it has been clarified that there was no  intent
that paragraph 19 include the second and third possi- bilities;
rather, USDA stipulates, and class counsel concurs,  in their
respective briefs that paragraph 19 "simply recog- nizes the legal
reality that Congress makes the laws, and that  it is the obligation
of the government to perform prospective- ly in conformance with the
then binding laws enacted by  Congress." See Appellee USDA's Br. at
25; Appellee Plain- tiff Class' Br. at 11.


With that clarification, USDA's promise to perform under  the consent
decree is not illusory because USDA has not  reserved a unilateral
right to withdraw, cf. Gray v. American  Express Co., 743 F.2d 10, 19
(D.C. Cir. 1984) (interpreting  New York law), rather it would take
action by Congress to  enable USDA to withdraw from the consent
decree. Conse- quently, under elementary principles of contract law,
USDA's  promise to perform was backed by consideration at the time  it
was made and the parties have assigned to the plaintiff  class the
marginal risk that Congress might nullify the agree- ment in some
respect by future legislation. Although the  evidence before the
district court establishes the basis for  class members' mistrust of
USDA and concern that the risk  may be more than hypothetical, see
Pigford, 185 F.R.D. at  110, the fact that Congress and the President
acted quickly to  remove a limitations bar to the plaintiffs' recovery
indicates  that as of October 1998 all three branches of the federal 
government had taken steps to aid in the final resolution of  the
farmers' claims on the merits. The district court noted  the priority
commitment of the President and the Secretary  of Agriculture, spurred
by the efforts of the African-Ameri- can farmers, to obtain funding to
carry out recommendations  improving USDA's civil rights efforts, as
well as Congress'  "unprecedented action of tolling the statute of
limitations."  Id. at 111. And Mr. Cooper acknowledged through counsel
 on appeal that he has no evidence that this three-branch  commitment
has waned. The district court could therefore  reasonably conclude
when approving the decree that the risk  of a radical about-face in


More fundamentally, even in the absence of paragraph 19,  the class
would bear the risk of such hypothetical legislation,  at least so
long as the decree remains executory. See Penn- sylvania v. Wheeling
and Belmont Bridge Co., 59 U.S. (18  How.) 421, 431-32 (1855);
BellSouth Corp. v. FCC, 162 F.3d  678, 692-93 (D.C. Cir. 1998); see
also Landgraf v. USI Film  Products, 511 U.S. 244, 273-274 (1994);
Rufo v. Inmates of  Suffolk County Jail, 502 U.S. 367, 378 (1992).7
Thus, we  need not pass upon Mr. Cooper's' contentions concerning 
possible constitutional limitations on Congress' power to enact  such
legislation, see Plaut v. Spendthrift Farm, Inc., 514 U.S.  211
(1995), nor address the ramifications of such legislation  under the
reasoning of United States v. Winstar Corp., 518  U.S. 839 (1996), to
conclude that the district court did not  abuse its discretion by
approving the proposed consent de- cree, as amended, which assigns a
risk to the plaintiff class  that it would have borne in any event.


As to Mr. Cooper's contention that paragraph 21 deprives  the farmers
of the right to ask the district court to modify the  decree or
reinstate their lawsuit in the unlikely event that  Congress passes
legislation nullifying the decree, it too relies  on a misplaced
concern. Paragraph 21 provides that if the  government defaults on its
obligations under the decree, the  plaintiff class can enforce the
decree only by motion for civil  contempt. Mr. Cooper reads this
provision to also "strip[ ]  the district court of its authority to
reopen the final judg- ment" if Congress enacts legislation allowing
for the decree to  be nullified in whole or in part. However, the very
basis for  Mr. Cooper's contention concerning paragraph 19 is, and 
USDA agrees, that USDA would not be in default under the  agreement if
Congress passed new legislation nullifying, or  directing the
Secretary to nullify by regulation, the consent  decree. Because that
action would not qualify as a default,  the provisions of paragraph 21




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n 7 It is to be noted that the relief Mr. Cooper seeks, an order 
vacating the decree and remanding for trial, could require that 
plaintiffs' cases be tried over a number of years, see Pigford, 185 
F.R.D. at 104, and thus could expose class members to this risk for  a
far longer period.


Cooper's contention that the consent decree is unfair because  the
class would not be able to seek relief under Rule 60(b) of  the
Federal Rules of Civil Procedure is mistaken. On its  face, paragraph
21 does not foreclose that avenue of relief  when USDA has not
defaulted, and thus were Congress to  enact the hypothesized
legislation, paragraph 21 would not  bar the class from seeking
modification of the decree, subject  to its ability to "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."  Rufo, 502 U.S. at 393.


Moreover, not only do Mr. Cooper's contentions collapse  under their
own weight, but even were they to retain some  persuasive force, the
court must evaluate the district court's  decision to approve the
consent decree, with whatever short- comings paragraphs 19 and 21
might present, in light of the  agreement as a whole. See Thomas, 139
F.3d at 231. In that  context, there is no doubt that the district
court exercised its  discretion well within the boundaries of the law.
The serious  concerns and objections to the proposed consent decree
were  carefully considered by the district court and balanced  against
the likely alternatives in a manner reflecting a consid- ered and
compassionate conclusion. See, e.g., Pigford, 185  F.R.D. at 101-04,
109-111. Neither Mr. Cooper nor, to our  knowledge, any other class
member contends at this point  that the provisions of the consent
decree providing monetary  payments and loan forgiveness are unfair or
unreasonable,  and we have no occasion to consider whether these
provisions  are otherwise unfair or unreasonable. As a result, Mr. 
Cooper has failed to meet his burden to show that the  enforcement
provisions of the decree are so infirm as to  render the entire
agreement unfair or unreasonable. Fur- thermore, our reasons for
finding Mr. Cooper's substantive  contentions unpersuasive also lead
us to reject his procedural  contentions that the district court did
not address the objec- tions to paragraphs 19 and 21 with sufficient
specificity and  that notice to the class was inadequate because it
did not  specifically describe paragraphs 19 and 21.


The ultimate question before the court is whether the  district court
abused its discretion by approving a consent  decree, the principal
provisions of which are an indisputably  fair and reasonable
resolution of the class complaint, contain- ing one paragraph that
assigns to the class a risk it would  have borne in any event and
another paragraph that limits  the mode of enforcing the decree in the
event of default. To  ask the question is to answer it. Because it is
clear that no  abuse of discretion occurred we do not reach the
govern- ment's alternative argument concerning whether it would be 
equitable for this court to vacate the decree in light of the  number
of claims that have been resolved in reliance on the  decree.


Accordingly, we affirm the order of approval of the district  court.


APPENDIX


(Pages 14 through 79 of slip opinion not available electronically)