In an unusual procedural move, Judge Friedman has written a letter back to the Network of Black Farm Groups and Advocates (“NBFG”)…
On August 29, 2013, Judge Friedman directly responded to the July 29 and August 9 letters sent to the Court by NBFG regarding the “469 denied claimants”. Class Counsel had also sent a letter to the Court on August 14 in response to NBFG’s letters.
As a summary, these letters had to do with a group of claimants who were placed on the Pigford II 5g list but were sent denial letters late in the process because the Settlement Administrator had determined that they had already received a “determination on the merits” in Pigford I. Receiving a determination on the merits in Pigford I disqualifies claimants from being a member of the class in Pigford II.
Following NBFG’s July 29th letter, Judge Friedman ordered the Settlement Administrator to file an affidavit with the Court explaining why these claimants were denied so late in the process. That affidavit was filed on August 5.
In his letter, Judge Friedman explains that the Settlement Agreement includes in its definition of a claimant who “previously obtained a determination on the merits of a Pigford claim”, any person “who submitted a timely claim form in Pigford, even if their claim form was determined to be incomplete and thus defective. It also includes everyone who submitted a successful late-filing request under section 5(g) of the Pigford consent decree.” In other words, ”The settlement agreement, therefore, excludes certain categories of people who had the opportunity to receive a determination on the merits in Pigford but did not take advantage of that opportunity.” Also excluded are people who were given permission under section 5(g) to file an untimely claim form, but then did not do so by their new deadline.
The judge points out that the Settlement Agreement was specifically negotiated for between Class Counsel and USDA, and that he approved the agreement after considering objections and holding a fairness hearing on September 1, 2011. No one objected to this language in the Settlement Agreement.
Judge Friedman admits that the 469 claimants did not literally receive a decision that their claim had either been approved or denied, but they did have the “opportunity to do so by curing a defect or omission in their claim form, or by filing a claim form after receiving permission under section 5(g) to do so.” They did not take advantage of this opportunity. He notes that he has no power to change the Settlement Agreement without the consent of both parties.
The Judge also recognizes the concerns that some denied claimants may have been led to believe that they were eligible to participate in the process and that they were not notified of their ineligibility until late in the process. For these concerns, the judge simply refers to Class Counsel’s explanations in its August 14 letter stating that the Settlement Administrator acted in a manner that it felt was efficient and legal.
Judge Friedman’s closing paragraph provides some empathy for the denied claimants but does not offer any relief. He states that he wishes the outcome for these claimants could be different, but, alas, it cannot:
- “Although the procedures and timing adopted by the Claims Administrator may have promoted accuracy and efficiency, one result, as you eloquently point out, is that some claimants waited a long time in anticipation of the outcomes of their adjudications, only to learn recently that their claims would not be decided at all. That is deeply unfortunate, and no doubt very difficult for these claimants to accept. But it does not provide a legal basis for me to allow them to participate in the case or receive payment under the settlement agreement. To echo what lead class counsel said in their August 14 letter, I wish that the outcome for these individuals could be different, but I am bound by the terms of the settlement agreement, negotiated by the parties and approved by me after notice and an opportunity for all interested persons and organizations to comment in writing or in person at the fairness hearing.”
Unfortunate and understandably disappointing for the 469 denied claimants. However, Judge Friedman obviously took great care to ensure that he could make the most fair decision possible – even taking the very unusual step of responding to the letter of a third party directly and filing it on the Court docket.
If there is a silver lining, this issue was one of the last outstanding issues to be dealt with before determination letters could be sent out. Keep checking your mailboxes…
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