[00:00:01] Speaker 00: Case number 19-5023 at L. Timothy C. Pigford at L versus Sonny Perdue, Secretary, United States Department of Agriculture, Maurice McGinnis, by his conservator, Terry Jones, appellate. [00:00:15] Speaker 00: Mr. Shortman for the appellate, Mr. Ross for the appellate. [00:00:46] Speaker 02: Good morning, Your Honors. [00:00:48] Speaker 02: My name is John Shorman. [00:00:50] Speaker 02: I am appearing on behalf of the conservative, Derek Jones, conservative for the estate of Maurice McGuinness. [00:01:02] Speaker 02: This court has some history in this case, going back to the very beginnings. [00:01:08] Speaker 02: And this is probably the last of the African American discrimination, farmers' discrimination cases left. [00:01:14] Speaker 02: from the Track B process, but it started back in the 1990s when my client was involved in a situation where he filed for Track B, but it was mistakenly accepted as... We're well aware of that. [00:01:27] Speaker 02: You're well aware. [00:01:27] Speaker 02: Yes, you are. [00:01:29] Speaker 02: So when the case was returned, we're now talking about 15 years later, there'd been a great deal of fatigue on Mr. McGinnis. [00:01:37] Speaker 02: Mr. McGuinness is a very independent gentleman, lives alone, farms property, has done so for many, many years. [00:01:44] Speaker 02: His closest family lives some way away, but they were intimately involved in this case, pushing this case and dealing with this case. [00:01:53] Speaker 02: As the case went back to Track B arbitration, there was immediately – it was set aside to discuss a settlement with the government, given the years and years of [00:02:07] Speaker 02: of litigation and the parties met and there was good faith, I think on both sides initially, to reach a settlement before the case was sent to even the court. [00:02:17] Speaker 04: I think in the limited time you have you need to get to where the district court erred and why. [00:02:23] Speaker 02: Your Honor, the district court at the, at the, over the course of these proceedings [00:02:28] Speaker 02: there was a, Mr. McGinnis was unable to make rational decisions in terms of helping. [00:02:35] Speaker 02: Why didn't you say that to anyone then? [00:02:37] Speaker 02: Well, we did do that, Your Honor. [00:02:39] Speaker 02: It was discussed many, it was discussed in the course of the arbitration many, many times. [00:02:44] Speaker 02: In fact, the arbitrator asked if he could speak to Mr. McGinnis directly without the presence of counsel. [00:02:51] Speaker 04: You didn't seek a stay. [00:02:53] Speaker 04: or putting off of any of the deadlines. [00:02:59] Speaker 02: Because of the nature of the consent decree, a stay was not tenable, Your Honor, because the only way we were going to get to whether proceeding... The arbitrator had no ability to adjudicate a guardian ad litem in this case. [00:03:18] Speaker 02: That was discussed. [00:03:20] Speaker 02: It was not an ability that he had. [00:03:22] Speaker 02: The stay [00:03:24] Speaker 02: was not capable of entering a stay that would take it past the 150-day... So what was the error by the district court? [00:03:34] Speaker 02: The district court should have allowed this case to go to monitor review. [00:03:38] Speaker 02: At that time, the monitor of the case had been a conservatorship entered by a state court in Mississippi. [00:03:46] Speaker 02: The monitor has the power under the consent decree to [00:03:51] Speaker 02: cure a miscarriage of justice and that should have been allowed to go back to an arbitration with the conservator and the conservator could have directed counsel to make the proper filings in this case that would have allowed us to show by proponents of evidence that in fact he was entitled to damages over and above the on the track piece. [00:04:12] Speaker 04: What prevented you from taking any discovery and presenting any evidence [00:04:17] Speaker 04: prior to the deadline's passing. [00:04:20] Speaker 02: We did take discovery, Your Honor. [00:04:21] Speaker 02: Discovery was taken in the case, deposition was taken. [00:04:24] Speaker 04: What prevented you from presenting any evidence before the deadline? [00:04:27] Speaker 02: My client would not permit it, Your Honor. [00:04:30] Speaker 02: My client would not permit it. [00:04:31] Speaker 02: I had to, in the record of your case, you'll see that on several occasions I had mentioned... What's in the record is that your client would not permit the expert report. [00:04:41] Speaker 02: Right. [00:04:42] Speaker 02: And he would not permit... And what's also in the record, in terms of direct case, [00:04:46] Speaker 02: All he would permit me to file was the monitor's report previously under the assumption that he was entitled to a $22 million award. [00:04:56] Speaker 02: He would not permit me to submit the direct evidence, which we could have taken out of his deposition, which we could have filed. [00:05:02] Speaker 02: He would not permit me to file the direct case. [00:05:04] Speaker 02: Where is that in the record? [00:05:05] Speaker 02: It's – that I would not be permitted to file it? [00:05:08] Speaker 02: Yeah. [00:05:08] Speaker 02: Well, what was filed – I mean, obviously, my communications with the client [00:05:13] Speaker 02: are protected by – it's his privilege, and I don't – I couldn't waive that, but what's in the record is what we did file as a direct case. [00:05:20] Speaker 02: It's his monitor's report, and that's what I was instructed to do, was to file the monitor's report. [00:05:25] Speaker 02: That's all I could do, other than withdraw. [00:05:28] Speaker 02: And I felt, at the end of the day, withdrawing would have been unfair to this gentleman, who I've been representing all through that Track A, Track B litigation. [00:05:36] Speaker 02: Withdrawing was not the answer. [00:05:37] Speaker 02: The last chance we had [00:05:39] Speaker 02: really was to get the conservatorship in place, which is a state court proceeding, which Mr. Jones, who was also Mr. McGuinness's nephew and was involved in the discovery of the case, he's an attorney, but he had to ramp that up. [00:05:56] Speaker 02: The family had a great deal of difficulty in convincing Mr. McGuinness [00:06:00] Speaker 02: to get to the proper psychological evaluation that would allow a court in Mississippi to enter the conservatorship. [00:06:07] Speaker 04: The conservatorship proceeding wasn't open until 2017. [00:06:10] Speaker 02: That's correct, Your Honor. [00:06:12] Speaker 04: That's after all these deadlines had gone past. [00:06:15] Speaker 02: That's when Mr. McGinnis consented to the psychological evaluation which led to the entry of the conservatorship. [00:06:24] Speaker 02: Up until that point, he refused to do that adamantly. [00:06:27] Speaker 02: This gentleman [00:06:28] Speaker 02: His stubbornness is admirable, but he could not be moved on this. [00:06:32] Speaker 02: He simply could not be moved. [00:06:34] Speaker 02: And I had no choice. [00:06:35] Speaker 02: I could not seek a guardian ad litem. [00:06:37] Speaker 02: I couldn't go to the trial court because of the limited jurisdiction under this consent decree. [00:06:43] Speaker 03: If conservatorship was actually in order, that presumes an incompetence on the part of the client. [00:06:50] Speaker 03: If you're making that presumption, then again, why was this not initiated [00:06:57] Speaker 03: before these deadlines ran out? [00:06:59] Speaker 02: Because the conservatorship was ended by a state court in Mississippi, Your Honor. [00:07:04] Speaker 02: And the client had to be convinced to get to it. [00:07:08] Speaker 02: It wasn't an involuntary conservatorship. [00:07:11] Speaker 03: Is there an involuntary procedure in Mississippi? [00:07:16] Speaker 02: Well, the family did not choose to do that, Your Honor. [00:07:18] Speaker 02: I didn't have that apparent. [00:07:19] Speaker 02: I was working through the family. [00:07:21] Speaker 02: The family did not choose to do that. [00:07:22] Speaker 02: The family, this gentleman, Mr. McGinnis, is more or less the patriarch of this family. [00:07:27] Speaker 02: He's a respected member of this family. [00:07:30] Speaker 02: I think there are emotional issues here. [00:07:32] Speaker 02: They could not, because I would, there was, Mr. McGinnis didn't appear to me to be entirely out of his mind for an extended period of time. [00:07:41] Speaker 02: I would get articulate instructions from Mr. McGinnis instructing me to, [00:07:47] Speaker 02: and stating that without invading privilege, but stating that this information had discussions with Congress and everything else. [00:07:55] Speaker 02: I could not clearly state to myself that this man was incompetent, other than the way he was not giving me any assistance. [00:08:02] Speaker 02: So I believed at the end of the day, rather than withdraw, the best we could do, recognizing that the arbitrators' hands were tied by the fact he could not adjudicate a guardian idolized him, [00:08:14] Speaker 02: by the fact he was restricted by the terms of the consent decree, in terms of the timing he had to complete a hearing and issue an award, that the best shot we had was to get the conservatorship as soon as we could and move to the monitor who had a broader range from a miscarriage of justice. [00:08:35] Speaker 04: That's the reason I... So the monitor, you believe, is not restricted to the record as it was before the arbitrator? [00:08:43] Speaker 02: I think the monitor would have – the monitor – well, the monitor's restricted to the record, but the record indicates that we could not – I think the record would indicate, given the fact that we had discussions with the arbitrator and with the party on the other side, given the fact that the arbitrator proposed that he himself personally would speak to try and break this impasse, I think there was a possibility the monitor could have reviewed this and found that [00:09:12] Speaker 02: The fact that we now had a conservatorship, the fact that it was clearly irrational judgments were made by Mr. McGinnis that the case should have gone back to track B arbitration and finally be dealt with. [00:09:25] Speaker 02: Thank you, Your Honor. [00:09:39] Speaker 01: Thank you, Your Honors. [00:09:40] Speaker 01: May it please the Court, Case and Ross, for the Department of Agriculture. [00:09:43] Speaker 01: As you are well aware, after this Court ordered Mr. McGinnis's claim be processed and retract the arbitration, he and his counsel failed to submit any timely evidence in support of that claim. [00:09:53] Speaker 01: And though that failure is now attributed to Mr. McGinnis's mental incapacity, [00:09:58] Speaker 01: At no point did his counsel raise that incapacity to the arbitrator. [00:10:03] Speaker 01: Because the arbitrator had no evidence in support of the claim, the claim was denied. [00:10:07] Speaker 01: And on a petition for monitor review, because the monitors would be limited to reviewing the record before the arbitrator, there was nothing for the monitor review. [00:10:16] Speaker 01: So the district court correctly dismissed that petition. [00:10:19] Speaker 01: And unfortunately, that's the end of the road for this claim. [00:10:22] Speaker 04: What about Appellant's argument that the monitor would have [00:10:28] Speaker 04: discretion or authority to reopen the record to prevent a miscarriage of justice? [00:10:35] Speaker 01: Even if the record were reopened in this case, there was nothing in the record, Your Honor. [00:10:39] Speaker 01: So the monitor would have to effectively allow the arbitrator to review new evidence, which is not allowed by the order of reference or the consent decree. [00:10:49] Speaker 01: And so it would [00:10:52] Speaker 01: I'm not sure if that's the case, but I think that's the case. [00:11:12] Speaker 01: But even in that event, there's no indication that the consent decree should be reformed at this point. [00:11:18] Speaker 01: This is, as appellant himself conceded, this is effectively the last of the Pickford claimants. [00:11:23] Speaker 01: And so, under Track B, thus he asked to be treated differently from roughly 20,000 other claimants whose claims were successfully processed and relief given of over $1 billion of relief. [00:11:36] Speaker 04: So just so that we're clear here, your argument is that even if he was not competent, and that's the reason why no evidence was presented too bad. [00:11:54] Speaker 04: Is that basically your argument? [00:11:55] Speaker 01: Not necessarily, Your Honor. [00:11:56] Speaker 01: If his counsel had demonstrated to the arbitrator or raised that concern, the arbitrator was in – had full authority to stay the deadlines, as was done in this case, to be able to permit settlement or extend the deadlines. [00:12:09] Speaker 01: The district court expressly delegated authority for the government at the party's consent to extend those deadlines. [00:12:15] Speaker 01: And the government consented at every turn in this case. [00:12:18] Speaker 01: There was an expert to communication that the government consented to between the arbitrator and Mr. McInnis. [00:12:23] Speaker 01: It's not clear that communication ever took place, but at every turn, the government consented to extending deadlines and permitting Mr. McInnes to submit evidence at a later date, and that was simply never done. [00:12:37] Speaker 01: At some point, a claim must be dismissed for failure to prosecution, as is true in the federal courts as well. [00:12:44] Speaker 01: Unfortunately, that's where this claim lies. [00:12:48] Speaker 01: If there are no other questions, the government rests on this brief. [00:12:53] Speaker 04: All right, thank you. [00:12:57] Speaker 04: We'll give you two minutes for rebuttal, Mr. Sean. [00:12:59] Speaker 03: Thank you, Your Honor. [00:13:02] Speaker 02: Well, as pointed out in the appellant's brief, there were 20,000 claimants in this case. [00:13:08] Speaker 02: This consent decree covered an enormous number of people. [00:13:11] Speaker 02: And as pointed out, there should have been some sort of provision in there for the incompetence. [00:13:17] Speaker 04: Well, there was a provision in there [00:13:19] Speaker 04: And you could have asked to extend the deadlines, right? [00:13:24] Speaker 02: But we couldn't ask the judge. [00:13:26] Speaker 02: We couldn't ask the arbitrator for Goddiam ad litem. [00:13:30] Speaker 04: You're not answering my question, sir. [00:13:32] Speaker 02: Well, we did ask for a stay, Your Honor. [00:13:34] Speaker 02: We asked for a stay to get the settlement proposal through. [00:13:36] Speaker 04: You could ask for a stay to extend the deadlines while you resolve the conservatorship, right? [00:13:44] Speaker 02: Yes, Your Honor. [00:13:45] Speaker 02: And you did. [00:13:46] Speaker 02: Well, not formally, Your Honor, but we had several conversations where all discussions were made. [00:13:55] Speaker 02: It did not appear to the parties, to me, or to anybody else that Mr. McGinnis was going to change his position on this evidence. [00:14:01] Speaker 02: And there was no... I didn't have the... I didn't have authority at that time to say Mr. McGinnis was going to seek a conservatorship. [00:14:08] Speaker 02: I didn't have authority for Mr. McGinnis to say that to the arbitrator or anybody else. [00:14:12] Speaker 02: I couldn't simply say, [00:14:14] Speaker 02: I'm going to try and convince this gentleman to seek a conservatorship so we can get a stay. [00:14:19] Speaker 02: I couldn't give the arbitrator any period of time that that stay would be good for him. [00:14:23] Speaker 02: Why couldn't you do that, sir? [00:14:25] Speaker 02: Because I didn't have authority from my client to do that. [00:14:28] Speaker 02: I simply did not have authority from my client to say to the arbitrator that Mr. McGinnis will seek a conservatorship. [00:14:38] Speaker 02: I didn't have that before. [00:14:38] Speaker 04: Sir, I represented lots of difficult clients in ten years as a public defender. [00:14:43] Speaker 04: Many of them with lots of mental illness and all sorts of incapacity. [00:14:50] Speaker 04: I didn't need their permission to tell the court that I think that there needs to be an evaluation here or I'm not comfortable going forward until [00:15:03] Speaker 04: my client and I can get on the same page, or I feel like he can properly instruct and advise me. [00:15:09] Speaker 04: You don't need permission or clearance for that. [00:15:11] Speaker 02: You don't violate privilege by saying that. [00:15:14] Speaker 02: That was done. [00:15:15] Speaker 02: No, absolutely, I agree with you, Your Honor. [00:15:16] Speaker 02: And that was done with the arbitrator. [00:15:18] Speaker 02: But the difference in that situation is... Show me in the record, show me in the record. [00:15:22] Speaker 02: Your Honor, this was done in the course of several [00:15:28] Speaker 02: pre-hearing conversations with the arbitrator and the other parties. [00:15:31] Speaker 02: This was no mystery to anybody. [00:15:33] Speaker 02: Each side knew completely that we'd reached an impasse and settlement, that I was not getting any cooperation from this client. [00:15:39] Speaker 04: And in a situation... You never put any of this on the record? [00:15:44] Speaker 04: You never filed anything? [00:15:45] Speaker 04: You never... You can't cite to me anything in the joint appendix? [00:15:51] Speaker 02: We can cite to the arbitrator's ruling itself. [00:15:54] Speaker 02: where he discusses the difficulties that we're facing with Mr. McGinnis. [00:15:59] Speaker 02: He discusses, the arbitrator himself discusses that, first of all, the impasse grew so great that he proposed speaking to Mr. McGinnis himself. [00:16:07] Speaker 02: He says repeatedly, Mr. McGinnis did not understand the proceedings. [00:16:11] Speaker 02: Mr. McGinnis had this [00:16:14] Speaker 02: idea that he was entitled to an enormous award. [00:16:18] Speaker 02: Mr. McGinnis could not be shaken in any way, shape, or form from that belief. [00:16:23] Speaker 02: Now, in your situation, Your Honor, when you went to a judge and said, I have concerns with my client's competency, and I've done that myself in the past, I had a judge who had the power to adjudicate a guardian model item. [00:16:35] Speaker 02: This arbitrator did not. [00:16:37] Speaker 02: So the best thing to do, in my opinion, was to move on and try and get that conservatorship [00:16:44] Speaker 02: And let all the deadlines pass? [00:16:47] Speaker 02: Well, Your Honor, the deadlines were passing because my client would not give me authority to file anything. [00:16:52] Speaker 02: And I couldn't file for a guardian ad litenship. [00:16:55] Speaker 02: I couldn't seek any information. [00:16:57] Speaker 02: My hands were completely tied until a conservatorship was entered. [00:17:02] Speaker 04: All right. [00:17:03] Speaker 02: Thank you. [00:17:03] Speaker 04: I think we have the argument.