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In April 2001, U.S. District Judge Paul Friedman recruited dozens of attorneys from top D.C. firms to bail out plaintiffs’ lawyers in a huge class action against the United States brought by black farmers. But more than a year later, pro bono lawyers are still struggling to clean up the mess they inherited from previous counsel — specifically, missed deadlines that may jeopardize dozens of claims in a case that has already cost the government more than $600 million. At the same time, they are facing stiffening opposition from Justice Department attorneys. On May 1, government lawyers argued before the U.S. Court of Appeals for the D.C. Circuit that deadlines for arbitrating individual claims should not be adjusted just because new lawyers have taken over some cases. If that means legitimate claims go uncompensated, plaintiffs can always sue their lawyers for malpractice, said government attorney Howard Scher at last week’s hearing. Plaintiffs’ lawyers complain that the government is taking advantage of the switch to pro bono counsel and fighting serious claims of racial discrimination on procedural issues rather than the merits. “Many of these claimants filed complaints with the USDA as early as 1981,” says Covington & Burling associate Jason Levine, who argued for the plaintiffs before the D.C. Circuit. “It would be tragic if the chance to present the claims after such long periods of delay was denied on a technicality.” The appeal — heard by Judges A. Raymond Randolph, David Sentelle and David Tatel — comes after a January ruling by Friedman that granted arbitrators broad discretion to extend deadlines and reset deadlines already missed, even over the objection of the government. According to lead arbitrator Michael Lewis, more than 50 cases still awaiting a hearing will be impacted by the court’s ruling. “In a substantial number of them, there have been missed deadlines,” says Lewis. “If deadlines cannot be extended, those claimants will have a very difficult to impossible job of prevailing.” Case in point: 82-year-old Earl Kitchen. Kitchen’s claim that he faced racial discrimination when applying for U.S. Department of Agriculture loans landed on the desk of Swidler Berlin Shereff Friedman partner Michael Lichtenstein June 28, 2001 — three days after the deadline for submission of direct testimony and less than a month before the scheduled hearing. “We were in no position to present our case,” says Lichtenstein. “The government took the position that they were entitled to summary judgment.” Kitchen’s arbitration has been stayed pending the appeal court’s decision. “The remedy for Kitchen,” says the government’s brief, “… is to sue counsel for malpractice.” Kitchen’s former attorney, Jesse Kearney of Pine Bluff, Ark.’s Cross, Kearney & McKissic, says he had already been relieved of the case when the June deadline elapsed. The lead plaintiffs’ lawyer, Alexander Pires Jr. of D.C.’s Conlon, Franz, Phelan & Pires, could not be reached for comment. DOWN ON THE FARM The current dispute is the latest twist in a bizarre legal saga. The underlying suit — now known as Pigford v. Veneman — was brought in 1997 after an internal USDA report revealed widespread racial discrimination in several of its programs. When the case settled two years later, more than 25,000 black farmers stepped forward seeking compensation. As of February, the government has paid more than $600 million in claims, plus $15 million to plaintiffs’ lawyers. But following their remarkable victory, plaintiffs’ attorneys were overwhelmed by the number of claimants and consistently failed to meet court deadlines. Friedman imposed a series of fines on class counsel and, in an extraordinary move, independently contacted Robert Weiner, chairman of the American Bar Association’s Committee on Pro Bono and Public Services to round up a team of pro bono attorneys to salvage the case. Several firms in D.C. answered the call. Among them: Arnold & Porter; Covington & Burling; Crowell & Moring; Hogan & Hartson; Wiley Rein & Fielding; Wilmer, Cutler & Pickering and Swidler Berlin. But for a small group of plaintiffs seeking millions from the government, the reinforcements may have come too late. The 1999 consent decree lays out a two-tiered framework for resolving individual claims. Under the expedited “Track A” process, class members presenting minimal evidence are awarded a $50,000 lump payment. Under the more rigorous “Track B” process, plaintiffs must prove their claims by a far stricter standard of evidence but face no cap on the amount of their potential recovery. Track B awards have averaged approximately $400,000, with the highest being $1.4 million. Fewer than 200 class members elected to pursue their claims on Track B; 53 cases are awaiting a hearing, says Lewis. Last week’s appeal involves Track B cases in which the original lawyers missed critical deadlines before pro bono lawyers took over. Government attorneys argue that they should not be penalized for errors made by plaintiffs counsel and that the original deadlines established in the consent decree should stand. Covington & Burling — where lawyers are working on approximately 20 cases — has handled the litigation over the arbitrators’ discretion to extend the deadlines. Before pro bono counsel got involved, the government had no objection to such extensions, says Covington’s Levine. But now the government is balking at the efforts by pro bono counsel to set new timetables in cases where deadlines have passed, and claims the arbitrators have no authority to extend any deadlines without the consent of both parties. In court last week, Levine argued that rigid enforcement of deadlines would violate the decree’s overarching purpose — to compensate wronged individuals for racial discrimination by the government. He noted that the agreement calls for its provisions to be “liberally construed.” Friedman’s decision to give arbitrators the flexibility to unilaterally extend deadlines relies on the District Court’s authority to interpret the consent decree. But the appeals judges were clearly troubled by the notion of interpreting unambiguous language. “How can you liberally construe something that says something is due in 30 days? Thirty days is 30 days,” Judge Tatel interjected at last week’s hearing. If the case is sent back to the trial court, Friedman might instead modify the consent decree based on the emergency involvement of pro bono counsel. Lewis says the presence of pro bono counsel has changed the dynamics in the case considerably. “The general level of representation on Track B claims has risen. In my view, that’s good for everyone,” Lewis says. “But if you are the government defending these claims, your job just got harder.”

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