[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
STATUS OF THE IMPLEMENTATION OF THE PIGFORD V. GLICKMAN SETTLEMENT
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HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 28, 2004
__________
Serial No. 108
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
________
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96-110 WASHINGTON : 2004
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
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Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Mindy Barry, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
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SEPTEMBER 28, 2004
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress from the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 3
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia.......................................... 3
The Honorable Spencer Bachus, a Representative in Congress from
the State of Alabama........................................... 5
The Honorable Melvin L. Watt, a Representative in Congress from
the State of North Carolina.................................... 6
WITNESSES
Mr. Phillip J. Haynie, II, Haynie Farms, LLC
Oral Testimony................................................. 8
Prepared Statement............................................. 10
Ms. Randi Ilyse Roth, Monitor, Pigford v. Glickman
Oral Testimony................................................. 16
Prepared Statement............................................. 18
Mr. Michael K. Lewis, Adjudicator, Pigford v. Glickman
Oral Testimony................................................. 195
Prepared Statement............................................. 198
Mr. Alexander Pires, Class Counsel, Pigford v. Glickman
Oral Testimony................................................. 199
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of Chairman Chabot............................ 223
Prepared Statement of the Honorable Robert C. Scott.............. 224
Prepared Statement of Sanford Bishop............................. 225
Attachments to hearing testimony submitted by witness Randi Ilyse
Roth........................................................... 226
Prepared statement with attachments from Arianne Callender....... 407
Prepared statement of Thomas Burrell............................. 1574
Letter from the Federation of Southern Cooperatives submitted by
Chairman Chabot................................................ 1589
Supplemental statement of witness Michael K. Lewis............... 1594
Prepared statement of Lawrence Lucas............................. 1656
Supplemental testimony from witness Alexander Pires.............. 1662
STATUS OF THE IMPLEMENTATION OF THE PIGFORD V. GLICKMAN SETTLEMENT
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TUESDAY, SEPTEMBER 28, 2004
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 4:05 p.m., in
Room 2141, Rayburn House Office Building, Hon. Steve Chabot
(Chair of the Subcommittee) presiding.
Mr. Chabot. The Committee will come to order. This is the
Judiciary Subcommittee on the Constitution. I'm Steve Chabot,
the Chairman of the Committee. I welcome everyone here this
afternoon and I'd like to thank everyone for being here today
for this very important hearing.
However, I feel that it's necessary to qualify that
statement by saying that it's unfortunate that we even have to
be here because time after time it appears that the wrong
choices have been made by those in positions of authority. I
trust that today's hearing will enable this Subcommittee to
examine those issues that are of utmost importance and will
enable us to make a substantive and series of substantive
recommendations to remedy the injustices that have occurred.
I would like to take this opportunity to recognize a few
people: Arianne Callender of the Environmental Working Group;
Mr. John Boyd, with the National Black Farmers Association; Mr.
Thomas Burrell, with the National Black Farmers and
Agriculturists Association; and Shirley Sherrod, with the
Federation of Southern Cooperatives, for taking the time to
provide this Committee with information. Through these
individuals and others, it has come to this Subcommittee's
attention that a second hearing is necessary in order to take
additional testimony from additional witnesses, and some of the
people that I just mentioned may very well be witnesses at the
next hearing. I've directed my staff to investigate the
scheduling of a second hearing and we will work with folks to
make sure that that's at as convenient a time as possible.
When slavery was ended in the United States, our Government
made a promise, a restitution of sorts, to the former slaves
that they would be given 40 acres and a mule. While we can
debate whether this allotment was intended to compensate the
freed slaves for their involuntary service, what is clear is
that this promise was intended to help freed slaves be
independent economically and psychologically as holders of
private property.
What also is clear is that the very Government that made
this promise through the People's Agency established back in
1862 under President Abraham Lincoln, the Government has
sabotaged it by creating conditions that make sovereign and
economically viable farm ownership extremely difficult.
This is the backdrop against which we will be examining the
issues before us today. We are here to consider the
administration of the 1999 Consent Decree, which resulted from
the civil rights case of Pigford v. Glickman.
The Consent Decree was developed to provide some monetary
restitution to black farmers who were victims of racial
discrimination carried out by the United States Department of
Agriculture, the very institution designated to assist them,
supposed to be done in a swift and timely manner.
Rather than help black farmers, this agency has been
instrumental in causing their decline. Since the early 1900's
the number of black farmers has decreased from nearly one
million to fewer than 18,000. During this time, when black
farmers tried to seek justice by filing discrimination
complaints with the USDA, the United States Department of
Agriculture, their claims were either ignored or dismissed,
most without an investigation.
Ultimately, several of these black farmers, all whose
claims of racial discrimination had been disregarded by the
USDA, filed a class action suit against that agency. After
extensive negotiations a settlement was reached that
established a process to have all the discrimination claims
heard in a timely manner. Yet, in an ironic twist the process
that was created to provide a forum for those whose claims had
been shut out has itself shut out nearly two-thirds of all who
wanted to have their discrimination claims heard.
Whether or not each of these claimants would have prevailed
on the merits is not the issue before us today. The process
should have at least allowed them the opportunity to be heard.
We cannot in good conscience allow a settlement that leaves out
more potential claimants than it allows in to go unexamined or
remain unsolved.
All the parties involved are responsible for developing a
solution, whether it be modifying the current Consent Decree,
creating a subsequent Consent Decree, or some other process, to
stop the destructive cycle from reoccurring. The first step in
this process should be to provide the nearly 65,000 people who
were denied entry into the process the opportunity to at least
be heard. We will never be able to put the racially
discriminatory practices that have occurred and continue to
occur within the USDA behind us until every one of these
individuals has at least had the opportunity to be heard.
This is just one of the many problems with the Consent
Decree that my colleagues and I hear about nearly every day. It
is my sincerest hope that this hearing will help us all get a
better understanding of what precisely the problems are, what
potential solutions there may be, and what we can do to ensure
that the Government never finds itself in a similar situation
again. Too much has been lost and too much is at stake for
black farmers to just accept the solution in 1999 that has
failed more people than it has helped.
And that is my opening statement. And I would now yield to
the gentleman from Michigan, the distinguished Member of this
Committee, Mr. Conyers, for an opening statement.
Mr. Conyers. Thank you, Chairman Steve Chabot. We
appreciate your remarks, and I thank my colleague Bobby Scott,
the Ranking Subcommittee Member, for allowing me to just make a
brief statement because I am asking to be excused to go to the
floor. I have to manage a bill.
But John Boyd of Virginia came to me a number of years ago
now about this problem that we have been in, and since April
14, 1999, where we declared victory with black farmers,
something incredible has happened. And by the way, I thank you
for your opening statement, Chairman Chabot, because you are
probably ready now to go on the reparations bill that's been
languishing before this Committee for many years. Your analysis
of the plight of African American farmers is right on. But here
is the problem. We have 90 percent of the claims being denied
and 65,000 people, farmers, turned away.
Now, look, folks. That isn't justice. Something is wrong. I
want to thank Sister Roth for all that she's done in her
capacity over the years as the monitor. But I really want to
tell you that the plight of the black farmer is just as bad as
it was in 1910 when black farmers owned almost 16 million acres
of land, when today it is only a couple of million at best. The
farmers are disappearing and so I want to make a direct appeal
to Randi Roth--to Michael Lewis, the adjudicator. Brother
Lewis, please open up this process so these 65,000 farmers can
have their day of justice occur. There's a lot that you could
do in the interpretation of this court order. I know that and
you know that. Please, Al Pires, the class counsel, please join
with us and try to get this Consent Decree amended or we are
going--this will go down in history as one of the greatest
governmental injustices that has ever occurred.
And I am here--I have been in this thing from the
beginning. And I am going to stay with this Committee, the
Chairman and Bobby Scott and Mel Watt, until the end. And I
thank you so very much.
Mr. Chabot. I thank the distinguished gentleman for his
statement. I would now yield 5 minutes to Mr. Scott from
Virginia.
Mr. Scott. I thank you, Mr. Chairman. I would like to take
this opportunity to thank you, the Judiciary Committee
Chairman, Mr. Sensenbrenner, the Agriculture Committee
Chairman, Mr. Goodlatte, for your agreement to develop this
hearing for the open bipartisan and productive manner in which
you and your staffs have proceeded to do so. I must also
acknowledge the work and dedication in developing this hearing
by Judiciary Committee Ranking Member Conyers and Subcommittee
Ranking Member, Mr. Nadler, and their staffs working on this as
well.
There are several other Members and their staffs who have
contributed to this effort, including the gentleman from North
Carolina, Mel Watt, Bennie Thompson from Mississippi, Ed Towns
from New York, G.K. Butterfield from North Carolina, Sanford
Bishop from Georgia, and Joe Baca from California. Of course
this hearing would not have been possible without the hard work
and determination of all of the representatives and advocates
of black farmers too numerous to list who have worked with us
in developing the hearing over the last year. This has truly
been a collaborative effort of all of those that I have
mentioned and more.
Now, this hearing is just about the Pigford settlement.
There are many other issues and problems with USDA, and there
are a number of efforts under way to address those problems.
Among those are lawsuits and complaints by Hispanic women and
Native American farmers. There is also a new lawsuit pending by
black farmers alleging continuing discrimination since the
period covered by the Pigford case as well as continuing
allegations and complaints of discrimination by USDA employees.
I believe that all of these civil rights issues warrant
oversight by the Judiciary Committee, and I appreciate you
mentioning that they will be the focus of subsequent hearings.
Everyone who needs to testify today obviously could not be
accommodated in one hearing, and so I thank you for committing
to the subsequent hearings. We have had a lot of people, like
Tom Burrell and attorney James Myart, John Boyd from Virginia,
Representative Henry Brooks from Tennessee, who have worked on
this, and we obviously couldn't get everybody in this one
hearing.
The U.S. farm services programs date back to 1862. Through
their history the programs have been laden with the pall of
racial discrimination in blatant as well as subtle ways. The
Federal Government has stepped up its loan and technical
assistance programs to farmers in recognition of the growing
capital and other needs of farmers to stay viable, but black
farmers have been largely left out due to discrimination and
neglect.
In the early 1900's there were as many as a million black
owned farms with about 16 million acres. Now there are an
estimated 18,000 such farms, less than 3 million acres. Black
farmers complained but no systemic action was taken to remedy
the situation. And to add insult to injury, in 1983 the Civil
Rights Office in USDA was closed down. Many complained about
rampant discriminatory practices but others did not even
bother, understandably, expecting that nothing would be done to
address their complaints.
The Judiciary Committee looked into this issue in 1984
through a hearing held in this subject Committee which exposed
racially discriminatory practices then in existence in USDA's
loan and assistance programs and its nonexistent civil rights
complaints process. Unfortunately, no substantial remedial
effort was undertaken by either the Administration or by
Congress until Secretary Glickman, in response to the growing
and persistent complaints of black farmers and the disarray in
complaint processing, ordered a moratorium on farm foreclosures
and a series of reforms while pending complaint investigations.
Yet it took a lawsuit by the black farmers in 1997 to bring
about meaningful attention to the problem.
The original estimates of the backlog of pending complaints
was a few hundred. Over a thousand were discovered. Then there
were estimates of about 2,000 farmers who may have suffered
discrimination by USDA. By the time the Consent Decree was
entered, the estimates had risen to 4-5,000. Over 22,000 filed
claims within the initial deadline.
However, as the deadline expired, the court found the
claims were still coming in. In fact, they were coming in so
fast that the court extended the deadline and directed the
adjudicator to determine those entitled to be included due to
extraordinary circumstances out of their control. To everyone's
astonishment, almost 66,000 claimants filed for consideration
during the extension.
Most of them have been considered by the adjudicator and,
curiously, only about 3 percent have been allowed in. Moreover,
another 7,800 filed beyond the extended deadline. That adds up
to almost 96,000 claimants.
Now, Mr. Chairman, I am concerned about the adequacy of the
settlement process that leaves 70 percent of its claimants
without a determination on the merits of their claim. I don't
know whether the problem is the sufficiency of the original
notice process or in the criteria applied to filers during the
extended period, but I am not willing to accept that nearly
66,000 individuals who believe they have legitimate claims of
racial discrimination knowingly ignored notice of the initial
filing deadline and chose to submit their claims after the
deadline for no good reason. I don't know what percentage of
the claimants can show entitlement to relief, but it is certain
that some can. As long as 70 percent of those who believe that
they are entitled to recover under the settlement are prevented
from having a determination on the merits of their claim, I
don't see how we can move forward with transforming the image
and effectiveness of USDA in serving minority customers fully.
If this situation is allowed to stand, black farmers will not
only have been victimized by the original discriminatory
practices at USDA, but by the remedy process as well.
So, Mr. Chairman, I look forward to the testimony of the
witnesses for any insights that they may provide regarding my
questions and concerns about the unfortunate state of affairs
of the Pigford settlement, and I thank you and look forward to
working with you as we solve these problems.
Mr. Chabot. I thank you very much for your opening
statement. Are there any other panel Members that wish to make
an opening statement?
Mr. Bachus, you're recognized for 5 minutes.
Mr. Bachus. I thank the Chairman. Mr. Chairman, I want to
read really a part of what the court said in the Pigford case
because I think it is at least what the court thought is the
situation. I think it is a pretty good summary.
The court, and I am quoting from the case itself, quote,
the department itself, talking about the Department of
Agriculture, has recognized that there has always been a
disconnect between what President Lincoln envisioned as the
people's department serving all the people and the widespread
belief that the department is, I quote, the last plantation,
end quote, A department perceived as playing a key role in what
some see as a conspiracy to force minority and disadvantaged
farmers off their land through discriminatory loan practices.
In explaining this point, and noting the failure, what they
say, of the USDA to address the problem of discrimination
through its Civil Rights Complaint Project, the court goes on
to say this: For decades, despite its promise that no person in
the United States shall on the grounds of race, color or
national origin be excluded from participation and be denied
the benefits of or be otherwise subjected to discrimination
under any program or activity, receiving Federal financial
assistance from the Department of Agriculture, the department
and the county commissioners discriminated against African
American farmers when they denied, delayed or otherwise
frustrated their applications for farm loans and other credit
and benefit programs. Further compounding the problem, in 1983
the department disbanded its Office of Civil Rights and stopped
responding to claims of discrimination. These events were the
culmination of a string of broken promises that has been made
to African American farmers for well over a century.
And I will just close by saying there is evidence, and I
think one reason for this hearing today is that the Consent
Decree may not be serving its intended purpose. And that's I
think a very--it's obviously a very serious charge that the
court leveled against the department. And it's certainly
something that merits this hearing today to see where we are
since the court said that.
So I yield back the balance of my time, but I thank the
panel for being here on this most important occasion.
Mr. Chabot. Thank you very much. The gentleman from North
Carolina, Mr. Watt, is recognized for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman. I don't intend to take 5
minutes, although sometimes I don't know how much time I'm
going to take. But I certainly don't start this statement with
the intention of taking 5 minutes because I don't want the
folks in the audience to get the impression that we have these
hearings to listen to ourselves rather than to listen to the
people who came to testify at the hearing. But I did want to
take the opportunity to thank Mr. Scott for his leadership in
pulling together the concept of and making the case for the
necessity of a hearing such as this, and I want to thank the
Chairman for agreeing to have the hearing because we know the
power of the Chair in this body. You can't get a hearing
without having a Chair who's willing to afford you a hearing
unless you go out and do your own renegade hearing, which we
have had to do on occasion and have done on this issue on a
couple of occasions. So it's great to have a hearing inside the
formal process that has a court reporter that produces a record
and documents what is being said.
I actually have the most urban congressional district that
North Carolina has ever had throughout its history and
consequently don't have many farmers in my congressional
district. Most of the farmers in North Carolina happen to be in
eastern North Carolina out in G.K. Butterfield's district,
Walter Jones' district, and out in eastern North Carolina. But
there is not a single issue that I hear more about and more
complaints about secondhand, firsthand, directly with people
than the plight of black farmers. And I know, because my uncles
when I was growing up were farmers, how difficult it is to be a
farmer. Even when you don't have the odds stacked against you,
even when you don't have the Department of Agriculture and the
local officials discriminating against you, it is extremely
difficult to be a farmer, even more difficult to be an African
American farmer. And so I think we need to do whatever is
necessary and I hope that this hearing can give us a basis for
trying to figure out what can be done to address the concerns,
the complaints that I am hearing even in my more urban
congressional district, and that Members of the Congressional
Black Caucus are hearing over and over and over again
throughout America about exclusion of people who should be in
the class, who should have been in the class--maybe that's a
better way to put it--and whether there is some effective way
to provide compensation that acknowledges the discrimination
that they have endured over a number of years and gets us to a
point where we can start a new day and move forward and work on
issues that are confronting farmers outside the process of
discrimination and mistreatment.
So I appreciate the fact that this hearing is being held,
and since I am the last person here that might make an opening
statement before the witnesses, I will yield back quickly
before somebody else comes in and delays us further. With that,
I will yield back to the Chairman.
Mr. Chabot. Thank you very much, Mr. Watt. Appreciate your
opening statement.
I'd first like to introduce the witness panel here if there
is no other opening statements to be made, and we want to thank
all the witnesses for being here this afternoon and
participating in this very important hearing.
The first witness I would like to introduce is Phillip
Haynie, II. Mr. Haynie is a farmer in the Commonwealth of
Virginia who has been involved in farming his entire life. Mr.
Haynie has experienced discrimination in his dealings with the
USDA. He was instrumental in bringing about the class action
that led to the Pigford settlement. We welcome you here this
afternoon, Mr. Haynie.
The next witness is Randi Ilyse Roth, the court appointed
monitor in the Pigford case since March 2000. Prior to serving
as the monitor, she worked as a legal aid lawyer for 16 years,
and since 1986 she worked for the Farmers Legal Action Group,
where she represented African American farmers and
organizations, and we welcome you here this afternoon, Ms.
Roth.
The third witness is Michael K. Lewis, the court appointed
arbitrator. Mr. Lewis was involved in the negotiations that led
to the Consent Decree, based on his many years of experience in
civil rights dispute mediation, and we thank you for being
here, Mr. Lewis.
And our final witness is Alexander Pires. He was the lead
class counsel representing the black farmer plaintiffs in the
Pigford suit. Mr. Pires has made a career of practicing
agriculture law and has been involved in the Pigford suit from
its inception.
We want to thank all four of the witnesses for being here
this afternoon, and it is the practice of the Subcommittee to
swear in all the witnesses, to administer the oath to the
witnesses before us. So if you all would please stand and raise
your right hand.
[witnesses sworn.]
Mr. Chabot. We have a lighting system here which you might
have noticed, the two boxes on the desk here, and the way it
works is each of you will have 5 minutes to testify. And it
starts out green. When it goes to yellow that will let you know
that you have 1 minute to wrap up. And when the red light comes
on your 5 minutes are up, and if you could conclude close to
that we would appreciate it. And we always give a little
leeway, if you need to wrap up. But to the extent you are able
to stay within the 5 minutes we would appreciate. Then each of
the panel Members will have 5 minutes to ask questions of any
of the witnesses. So are the lights all ready to go here?
Okay, Mr. Haynie, you're recognized for 5 minutes.
STATEMENT OF PHILLIP J. HAYNIE, II, HAYNIE FARMS, LLC
Mr. Haynie. Good afternoon. My name is Phillip J. Haynie,
II. First of all, on behalf of all the black farmers in the
United States of America, I would like to take this opportunity
to thank this Committee for holding this hearing.
Mr. Chabot. Could you pull the mike just a little closer?
We've got a lot of folks, want to make sure everybody can hear
you. You can even grab the whole box there and pull it a little
closer, and we'll add a few seconds at the end for you.
Mr. Haynie. Okay, thank you.
I'm a fourth generation farmer from Heathsville, Virginia.
On September the 14 in 1867 my great grandfather, the Reverend
Robert Haynie, purchased 60 acres of land in Heathsville,
Virginia. This was the first purchase of land by a former slave
in Northumberland County. I'm about to lose a part of this land
that I inherited due to the discriminatory practices of the
USDA. For me and my family, spanning five generations, farming
is not a job. It is a way of life.
The Pigford v. Glickman settlement was supposed to put an
end to discrimination to black farmers and compensate black
farmers for years of discrimination. This settlement has failed
black farmers in the following ways:
Financial compensation. According to a recent Environmental
Working Group report, that approximately 65,000 farmers did not
get a fair hearing in their cases. Black farmers were required
to go out and find similarly situated white farmers in order to
determine discrimination in their cases.
I have with me today Reverend Nathaniel Jones from
Gloucester, Virginia. He's the oldest black farmer in the
United States. On October the 12 he will be 99 years old. How
is a 99-year-old man going to go out and find similarly
situated farmers when everybody that farmed with him is already
dead? And he does not have access to USDA records.
The second, the settlement failed to end discrimination
against black farmers by USDA employees.
The settlement failed to prevent the loss of black land.
The settlement has failed to provide educational and
financial opportunities to help young African Americans to
engage in farming.
The settlement has failed to end foreclosures on black
farmers and their land.
The settlement has failed to provide the injunctive relief
that is outlined in the settlement.
The settlement has failed to provide black farmers with
equal and fair access to land in USDA inventory.
The Government has systematically and purposefully low-
balled damage estimates in Track B. They have used a model
based on averages, even when the individual Track B farmer's
operation was larger and more efficient than average. The USDA
collects and analyzes a lot of good data at taxpayers' expense,
but then conveniently ignores that information when estimating
Track B farmers' damage. In short, to the extent that any
farmer in Track B has an operation that was larger than average
for that region and county, the USDA underestimated the damage
and did so purposely, and this is statistically indefensible.
Then to add in injury to insult, the USDA's damage model took a
downward adjustment in the damage estimate if a farmer's crop
productivity level was higher than the average for the county,
again driving the estimates back to the average even when the
farmer showed better than average yields and practice.
Just another example of how the Justice Department and the
USDA together have twisted what was supposed to be a good faith
settlement for the class into an opportunity to fight
individual farmers one by one. Those farmers now have to fight
the Government without the benefit of shared expense for the
class for things like counsel and experts. They have to fight
the Government without the benefit of shared learning for the
class. They have to fight the Government without benefit of the
normal discovery procedures. And they have to fight the
Government without the benefit of an open and transparent
process.
One of the trade-offs was supposed to be a fast process.
Instead the process is taking years for Track A farmers. The
monitor has until 2007 to complete the reviews of the petition.
Of course because the Government does not have to pay interest
on damage, the Government wins again if it understaffs the
settlement process and drags it out.
To sum it up, I don't know how anyone can look at the
reality of the settlement and call it a good faith settlement.
It is clear that the Government is spending huge sums in
fighting these cases. It is clear that the damage models the
USDA used in Track B cases is not designed to produce accurate
estimates for farmers damage. It is designed to underestimate
them. It is clear that the Track A process is moving at a
snail's pace. This is not a settlement. This is just a
continuation of the USDA's war against black farmers, having
disarmed them by false promises of a good faith settlement.
USDA has used the Office of Inspector General to intimidate and
reprise against farmers, especially large black farmers who
have filed civil rights complaints against USDA.
Systemic discrimination at the United States Department of
Agriculture goes far beyond black farmers. They include
Hispanics, Native American farmers, Asian farmers, women
farmers, disabled and other socially disadvantaged farmers.
USDA even discriminates against its own employees.
The Conference of Black Farmers organization is in support
of legislation to correct the shortfalls of the Pigford v.
Glickman settlement in ending discrimination at USDA.
In closing, I pray that while the sons, daughters and the
grandchildren of black farmers spill their blood and lose their
lives in Iraq for the cause of democracy that we cannot, and we
must not allow democracy to fail their parents and
grandparents.
Thank you for this opportunity.
[The prepared statement of Mr. Haynie follows:]
Prepared Statement of Phillip J. Haynie, II
Mr. Chabot. Thank you very much, Mr. Haynie. Ms. Roth,
you're recognized for 5 minutes.
STATEMENT OF RANDI ILYSE ROTH, MONITOR,
PIGFORD V. GLICKMAN
Ms. Roth. Thank you very much, Mr. Chairman, Members of the
Committee. Again, I am the independent court appointed monitor
in Pigford and I have served in that capacity for 4\1/2\ years
since----
Mr. Chabot. Could you pull the mike up. They can't--it's
hard to hear.
Ms. Roth. Okay. How's that?
Mr. Chabot. That's great. If I could ask all the witnesses
when they testify--it's very--you think they'd pick them up,
we'd have better mikes around this place. But your tax dollars
at work. Go ahead.
Ms. Roth. Thank you very much. Is this working now?
Mr. Chabot. Yes, you sound very good now. We'll start the
clock over here for you.
Ms. Roth. Thanks a lot.
Mr. Chabot. Mr. Scott has just reminded me it was probably
a low bid, so----
Ms. Roth. I have served as the independent court appointed
monitor in Pigford since March of 2000. Pigford represents an
important chapter in civil rights history, and it's important
that Congress, the press and the public come to an accurate
understanding of what Pigford did and did not accomplish. Some
of the recent press is confusing.
Some criticisms assert that the parties are failing to live
up to the Consent Decree. Others assert that the parties are
living up to the Consent Decree, but the Consent Decree just
wasn't good enough to meet African American farmers needs. It's
critical to arrive at a realistic assessment of the situation.
My testimony will provide some background about the case,
and then will primarily address the question of whether the
terms of the Consent Decree itself are being honored. I would
like to explain my role in the case.
The court's order of reference in Pigford makes the monitor
an agent and officer of the court. Because my role is quasi-
judicial, topics about which I can testify are limited. In
particular, I cannot testify regarding any matter that's
pending before the court.
Paragraph 12 of the Consent Decree gives the Pigford
monitor four jobs. The first is reporting. I have to report to
the court about the good faith implementation of the decree. I
included my most recent report as Appendix V to this testimony.
My second job is to attempt to resolve problems that class
members are having about the Consent Decree. There are more
than 22,000 claimants in the class and they raise many
concerns. The most significant of these concerns are described
in my reports. Historically, they have focused on debt relief,
injunctive relief, tax relief and payment status.
My third job is to issue petition decisions. In
approximately 5,400 cases claimants and/or the Government have
petitioned to the monitor for review of decisions issued by the
adjudicator, arbitrator or facilitator. I issue monitor
decisions in response to these petitions.
My fourth job is to staff a toll free line for class
members and the public.
Next I will highlight some key aspects of implementation
and explain what resources I have provided to the Committee to
help explain them, following the outline of the written
testimony.
First, how does the Consent Decree process work? The
Consent Decree sets up a process through which each of the
approximately 22,000 claimants is given a chance to prove to a
neutral third party that he or she experienced discrimination.
Both sides, the claimant and the Government, are allowed to
submit information about the claim. Claimants are given the
choice of proving discrimination through Track A or Track B.
And I have put a table in the written testimony that highlights
the differences between the tracks.
Second is the late claims process. But I am going to skip
that in my own testimony because I'm aware that Michael Lewis
is going to be explaining that in his.
Third, what is the success rate? About 61 percent of all
claimants, people who are eligible to file claims, prevailed in
their initial adjudications. So far, the unsuccessful claimants
who filed petitions are prevailing in the petition process at a
rate of about 50 percent. If one projected solely based on
historical percentages, one would conclude that once the
petitions process and reexamination process are over, close to
70 percent of the claimants will have prevailed on their
claims.
Fourth, how much has been paid out? To date, about $831
million worth of relief has been distributed to more than
13,500 class members in this case, and in the written testimony
I provided a table that shows the categories of the relief.
Fifth, what have been the results in the various processes?
As Appendices I through III to my testimony, I have provided
charts that detail the results in each of the processes. Chart
1 is about the claims process. Chart 2 is about the late claims
process. And Chart 3 shows the results for the 2,000 or so
people who have been allowed into the case through the late
claims process.
Next, I would like to address the key question of whether
the terms of the Consent Decree have been honored. This
question simply asks whether the parties and the neutrals have
done and are doing the things that they agreed to do under the
Consent Decree. The answer is yes. Claims are being processed,
prevailing claimants are being paid. Debt relief is being
awarded and injunctive relief rights are being honored. As I
have detailed in my court reports, where problems or
administrative snags have arisen in individual claimants'
situations the parties have worked in good faith to get the
problem solved.
Finally, I understand that this Committee intends to turn
its attention to next steps. The results of lawsuits are
limited by the nature of the claims listed in the complaint,
the parties' desires about how to resolve those claims, and by
the court's ability to fashion relief. Congress is not bound by
these limitations. I understand that several congressional
Committees are now interested in figuring out the right next
steps for legislation to benefit African American farmers.
Perhaps the lessons learned in this case and our testimony here
today can contribute to a successful outcome in those new
efforts.
[The prepared statement of Ms. Roth follows:]
Mr. Chabot. Thank you for your testimony this afternoon,
Ms. Roth.
Mr. Lewis, you're recognized for 5 minutes.
STATEMENT OF MICHAEL K. LEWIS, ADJUDICATOR,
PIGFORD V. GLICKMAN
Mr. Lewis. Thank you, Mr. Chairman Members of the
Committee. My name is Michael Lewis. I am the Pigford
arbitrator. It is a pleasure to be here today. I appreciate the
opportunity to testify.
I have had various roles in the progress of the Pigford v.
Veneman case from its inception to its current implementation
stage. I wanted to identify those to the Committee. And based
on the opening comments by, I think, all of the Committee
Members, I would focus my attention and my remarks on the late
claim process, although I have provided written testimony to
cover some aspects of my other roles.
I have served as the parties' mediator from late December
or early January 1988--1998, I'm sorry, through the entry of
the Consent Decree in April 1999, and continued to help them
resolve implementation issues as they arose before the
appointment of Ms. Roth as the monitor in 2000. In the Consent
Decree itself I am identified as the arbitrator responsible for
managing the Track B arbitration process that Ms. Roth spoke
about. Subsequent to the entry of the Consent Decree, Judge
Friedman delegated to me the responsibility for deciding late
claim petitions, what is known as paragraph 5(g) of the Consent
Decree, and I will focus on those. And my final role is as an
aide, as a court appointed referee to help resolve fee disputes
between the Government and counsel.
Let me focus on my role in the late claim petition process.
And I am going to read to the Committee what paragraph 5(g) of
the Consent Decree--how it reads: A claimant who satisfies the
definition of the class in paragraph 2(a), above, but who fails
to submit a completed claim package within 180 days of entry of
this Consent Decree may petition the court to permit him to
nonetheless participate in the claims resolution procedures
provided in paragraphs 9 and 10 below. The court shall grant
such a petition only where the claimant demonstrates that his
failure to submit a timely claim was due to extraordinary
circumstances beyond his control.
On December 20, 1999, Judge Friedman delegated to me the
responsibility for reviewing petitions filed pursuant to
paragraph 5(g); that is, those who sought to file a claim after
the October 12, 1999 deadline. On July 14, 2000, the court
issued an order providing among other things that no late claim
petition would be accepted for consideration if filed after
September 15, 2000. As the monitor's Chart 2 illustrates,
65,950 late claim petitions were filed by the September 15,
2000 deadline. An additional 7,742 were filed after the
September 15 deadline. Each of the petitioners in the latter
category were sent a letter by me informing them that he or she
had missed the court imposed deadline. Those, and there were a
few, who subsequently showed that there was a misreading of the
postmark became part of the 65,950 petitions considered.
I have completed my initial review of all 65,000 petitions.
Of that number, I have found 2,268 petitions to have met the
``extraordinary circumstances beyond his control'' standard
contained in paragraph 5(g). All of those whose petitions were
approved showed that it was more likely than not that
extraordinary circumstances beyond the petitioner's control
caused the petitioner to miss the October 12, 1999 deadline.
Hurricane Floyd, which resulted among other things in 60
counties in North Carolina being declared disaster areas by
FEMA after it struck in mid-September 1999 and medical
conditions that rendered an individual or his or her caretaker
unable to attend to daily matters, provided the predominant
reasons upon which petitions were approved. Any petitioner
approved was sent a claim form, with a 60-day filing window. In
other words, they started the claims process at that point,
once they were declared to be eligible members of the class.
The overwhelming reason provided by those whose petitions
were denied was some form of lack of knowledge: unawareness of
the existence of a settlement, disbelief in the settlement's
legitimacy, unawareness of deadlines and filing procedures, or
disbelief in the petitioner's eligibility under the settlement.
This, despite the notice provided under the settlement approved
by the court as sufficient under rule 23.
The 5(g) process requires that a farmer provide a written
statement, signed under penalty of perjury, indicating why the
farmer missed the original filing deadline and the
extraordinary circumstances leading to the missed deadline.
Because the population of people for whom the late claim
process applied might be at a disadvantage by a reliance solely
on writing, I employed a cadre of law students and recently
minted lawyers, totaling 38 at the high point, as researchers
to contact petitioners, to question them about their petitions
and to obtain additional information and documentation.
Approximately 75 percent of the petitions could be decided on
the basis of the petitions themselves. There was some ambiguity
in the other approximately 25 percent of the petitions filed.
Those petitions were referred to one of the researchers for
investigation. Each researcher used as a guide a questionnaire
based upon the reason articulated by the farmer provided in
each individual petition. Researchers were instructed, however,
to deviate from the questionnaire if new information came to
light during the interview so that I would have the fullest
understanding about why the farmer had missed the October 1999
filing deadline. If the petitioner could not be reached by
telephone, a written questionnaire was mailed to him or her.
Although not provided for in the Consent Decree, I created
a process permitting late claim petitioners to request
reconsideration of my decision to deny their participation in
the settlement. The reconsideration process provided
petitioners with a 60-day window in which to request
reconsideration of the initial decision to deny their late
claim petitions. I specifically encouraged petitioners to
provide additional information and documentation if available.
Approximately 21,000 farmers, constituting about 33 percent of
the total number of denied petitions, have timely requested
that I reconsider my initial denial of their late claim
petition. If upon reconsideration it became clear that my
initial decision was incorrect, or that relevant information
was not considered, those petitions have been approved. Any
request that cast doubt on my initial decision has been
referred to a researcher for investigation. All petitions
denied upon reconsideration are being sent letters describing
in detail how a petitioner has failed to demonstrate, despite
all efforts, that his or her situation meets the 5(g) standard.
Greater detail on the late claim process can be found in
the six reports I have filed with the court regarding the
process since November 2001, copies of which have been provided
to the Committee. The reports also are posted on the monitor's
website for review by anyone with Internet access.
I think I will stop there, and I am happy to answer any
questions the Committee might have.
[The prepared statement of Mr. Lewis follows:]
Prepared Statement of Michael K. Lewis
I have had various roles in the progress of the Pigford v. Veneman
case from its inception to its current implementation stage and would
like to describe briefly those roles to you. I have served as the
parties' mediator, the Consent Decree Arbitrator, both for the Track B
arbitration process and for the 5(g) late claim process, and as a
court-appointed referee for fee disputes.
A) Mediator: My first contact with the parties in the Pigford case
came in late December 1997 when the parties contacted me regarding my
willingness to serve as a mediator in an effort to help them resolve
the lawsuit. Beginning in January 1998 through the entry of the Consent
Decree in April 1999, I served as the parties' mediator. After the
entry of the Decree, especially before the appointment of the Monitor,
on a few occasions I attempted to help the parties resolve issues
arising in the implementation of the decree.
B) Arbitrator: The parties chose me as the arbitrator identified in
the consent decree to resolve all claims in which farmers chose Track
B--the process that provides for an 8 hour in-person hearing to resolve
their claims. Statistics for that process are provided in Randi Roth's
Chart 1. There is one additional piece of information I wanted to alert
you to in the Track B process, that is that the total number of Track B
claims filed totals 237, rather than the 174 identified in Chart 1. The
difference between the 174 number mentioned in Chart 1 and the 237 I
have just mentioned is that because, even though the consent decree's
language in Paragraph 5(d) states that a choice of tracks is
irrevocable, USDA generally has been willing to permit farmers to
switch from Track B to Track A. Sixty farmers have chosen to switch
tracks. In such instances, the Facilitator sends to that farmer a claim
form for use in the Track A process, and that claim is processed under
the decree's terms for Track A claims. The remainder of the difference
is attributable to farmers who withdrew their claims.
C) Paragraph 5(g), Late Claim Petitions: Paragraph 5(g) of the consent
decree provides that:
A claimant who satisfies the definition of the class in 2(a),
above, but who fails to submit a completed claim package within
180 days of entry of this Consent Decree may petition the Court
to permit him to nonetheless participate in the claims
resolution procedures provided in 9 & 10, below. The Court
shall grant such a petition only where the claimant
demonstrates that his failure to submit a timely claim was due
to extraordinary circumstances beyond his control.
On December 20, 1999, Judge Friedman delegated to me the
responsibility for reviewing petitions filed pursuant to 5(g), that
is, those who sought to file a claim after the October 12, 1999
deadline. On July 14, 2000, the Court issued an order providing, among
other things, that no late claim petition would be accepted for
consideration if filed after September 15, 2000. As the Monitor's Chart
2 illustrates, 65,950 late claim petitions were filed by the September
15, 2000 deadline. An additional, 7,742 were filed after the September
15, 2000 deadline. Each of the petitioners in the latter category was
sent a letter by me informing them that he or she had missed the court
imposed deadline; those who subsequently showed that there was a
misreading of the postmark became part of the 65,950 petitions
considered.
I have completed my initial review of all 65,950 petitions. Of the
65,950, I have found 2,268 petitions to have met the ``extraordinary
circumstances beyond his control'' standard contained in 5(g). All of
those whose petitions were approved showed that it was more likely than
not that extraordinary circumstances beyond the petitioner's control
caused the petitioner to miss the October 12, 1999 deadline. Hurricane
Floyd, which resulted, among other things, in 60 counties in North
Carolina being declared disaster areas by FEMA after it struck in mid-
September 1999, and medical conditions that rendered an individual or
his/her caretaker unable to attend to daily matters, provided the
predominant reasons upon which petitions were approved. Any petitioner
approved was sent a Claim Form, with a sixty-day filing window.
The overwhelming reason provided by those whose petitions were
denied was some form of lack of knowledge: unawareness of the existence
of the settlement, disbelief in the settlement's legitimacy,
unawareness of deadlines and filing procedures, or disbelief in the
petitioner's eligibility under the settlement. This, despite the notice
provided under the settlement, approved by the Court as ``sufficient
under Rule 23.''
The 5(g) process requires that a farmer provide a written
statement, signed under the penalty of perjury, indicating why the
farmer missed the original filing deadline of October 12, 1999 and the
``extraordinary circumstances'' leading to the missed deadline. Because
the population of people for whom the late claim process applied might
be disadvantaged by a reliance solely on writings, I employed a cadre
of law students and recently-minted lawyers (totaling 38 at the high
point) as researchers to contact petitioners to question them about
their petitions, and to obtain additional information and
documentation. Approximately 75% of the petitions could be decided on
the basis of the petitions themselves. There was ambiguity in the other
approximately 25% of the petitions filed. Those petitions were referred
to one of the researchers for investigation. Each researcher used as a
guide a questionnaire based upon the reason provided in each individual
petition. Researchers were instructed, however, to deviate from the
questionnaire if new information came to light during the interview so
that I would have the fullest understanding about why the farmer had
missed the October 1999 filing deadline. If the petitioner could not be
reached by telephone, a written questionnaire was mailed to him or her.
Although not provided for in the consent decree, I created a
process permitting late claim petitioners to request reconsideration of
my decision to deny their participation in the Pigford settlement. The
reconsideration process provided petitioners with a 60 day window in
which to request reconsideration of the initial decision to deny their
late claim petitions. I specifically encouraged petitioners to provided
additional information and documentation, if available. Approximately
21,011 farmers, constituting approximately 33% of the total number of
denied petitions, have timely requested that I reconsider my initial
denial of their late claim petition. If upon reconsideration, it became
clear that my initial decision was incorrect, or that relevant
information was not considered, those petitions have been approved. Any
request that casts doubt on my initial decision has been referred to a
researcher for investigation. All petitions denied upon reconsideration
are being sent letters describing in detail how a petitioner has failed
to demonstrate, despite all efforts, that his or her situation meets
the 5(g) standard.
Greater detail on the late claim process can be found in the six
reports I have filed with the Court regarding the process since
November 2001, copies of which have been provided to the Committee. The
reports also are posted on the Monitor's website for review by anyone
with internet access. On more than one occasion, late claim petitioners
have attempted to address the fact of their denial to the Court. On
each such occasion of which I am aware, and most recently on September
13, 2004, the Court has upheld the late claim petition process I have
described.
D) Fee Disputes: On December 30, 2002, the Court referred to me fee
disputes arising between class counsel and the government. Under the
terms of the Court's order, quarterly fee petitions are to be filed by
class counsel, the government responds to those petitions in writing,
and my task is then to engage the parties in discussions designed to
resolve any outstanding issues. If the parties are successful in
resolving their dispute, they so indicate to the Court by filing a
stipulation. If the parties are unsuccessful in their efforts, I am
required to submit findings and recommendations to the Court on the
fees in dispute.
I am happy to answer any questions members of the Committee might
have.
Mr. Chabot. Okay. Thank you very much. And our last witness
this afternoon will be Mr. Pires. You're recognized for 5
minutes.
STATEMENT OF ALEXANDER PIRES, CLASS COUNSEL, PIGFORD V.
GLICKMAN
Mr. Pires. Thank you. Can you hear me?
Mr. Chabot. Yes.
Mr. Pires. My name is Alexander Pires. I'm the lead
attorney and co-lead counsel in the Pigford case. I want to
thank you all for inviting me.
Other than 8 years at the Department of Justice I have
spent my entire career representing farmers and that's what I
do. I sue the Government and I sue companies on behalf of
farmers and that's all I do. Discrimination cases are very,
very difficult, and Pigford was a difficult case.
There was a case prior to Pigford called Williams. It was a
much bigger black farmers case, and it failed. It was in the
District of Columbia here. It was filed in 1995 and it was over
in 1997. That case was handled by Mr. Myart, who I believe is
here, and other lawyers. We studied that case and tried to
figure out a way to help black farmers at least in some limited
way. And the Pigford case grew from the failures of the
Williams case and our idea was to try to file a black farmers
case that would get some relief and would get money.
Since that time I also filed a case for Hispanic farmers,
for women farmers, for Native American farmers, and for tobacco
farmers. The tobacco farmers case we just settled, and we got a
little over a billion dollars in that case. The other cases are
tied up in the court still. They are all being handled by very
large law firms, very famous law firms with hundreds of
lawyers. It's very hard to win these cases.
Point number 2 is the Pigford case is a very, very limited
case. The idea was to try to take care of the people who had
complained about discrimination. When we started we were hoping
to represent a thousand farmers. That was our goal. We ended up
with 22,000.
Point number three is, when we talked about settling this
case, we had four black firms, law firms, and we had four white
law firms. And in the Committee discussing it we had Charles
Ogletree from Harvard University. And the number one demand of
the black lawyers was that black people get money. You need to
understand that. It was not about injunctive relief. It was not
about getting all kinds of requirements from USDA. Congress
does that all the time. You can do that better than a court can
do that. You can require them through legislation to do what
you want. It was about money.
We studied all of the class action cases and Pigford
demanded the largest recovery per person in the history of the
United States. There was no case in this country where the
individual person in a class action case has gotten more money.
There are some where there's a thousand people, but I'm talking
about a large class action case. So far about 13,500 people
have gotten $50,000 tax free. That's about $75,000 in real
dollars. We predict it's going to end up being around 16-
17,000. It is a very limited case.
The other cases that we studied, the Denny's case that you
all know of, the Avis case, even the Japanese internment case,
the Coca-Cola case, all those cases got far less than the
individual black farmers got in this case. So to that extent it
was somewhat successful. But it's had problems because there
are so many black farmers that Pigford could only take care of
a small percentage of them.
I've often said this, that there's about 280 million people
in this country and about 13 percent of them are black. You can
figure out the math. There are literally millions and millions
of black people, particularly in the South, and they all came
from the farm in one way or another. This was a rural country.
So they associate with farming and they associate with USDA. We
went on the road to find them and we--I gave, I think, over 200
talks with J.L. Chestnut and other black leaders in the South.
We went to Alabama 42 times to find black farmers. And most
people, I've found, love the life of farming. Most black
farmers in the South love that life more than any other life.
So when you're looking at why there were so many people who
filed late, I don't think it's all that surprising. We only got
22,000 in this case. There are literally thousands of black
farmers out there, part time, full-time, who would like to have
participated.
Point number 5, who's complaining? The 13,000 who got paid
are not complaining. But those who lost and are on appeal,
they're complaining, and I understand that. The late filers are
complaining. There are 65,000 of them. I understand. In
fairness to Michael Lewis, he had his hands somewhat tied. He's
limited to what the Consent Decree states. I remember
discussions about the late filers and we predicted about 3,000
people would file late.
Pigford is not a reparations case. It is not a black
reparations case. But, people associated it with that effort.
And that is why I think many, many black farmers are mad, and
justifiably so.
What can Congress do? I think there are only three choices
for you. There is very little that the monitor can do. There is
very little that Michael Lewis can do to help these people.
There is very little that I can do in the Pigford case.
There are three choices. One is, the Government could
consent to let in the 65,000. That is the easiest route. If you
happen to know somebody at the White House who could help us,
that would be great. We could sign the stipulation and all
65,000 would be in tomorrow. That would be lovely. I would like
that.
I don't happen to know Mr. Bush. I don't know the President
at all. But that is the fastest way, the Administration agrees
and everybody gets in. Option number 2 is, Congress can pass
legislation that extends the statute of limitations, waives the
statute of limitations for these 65,000, waives the issue of
res judicata, and allows them all in; it would be a bill not
much different than the original bill we got. Rather difficult
for you, I understand, but that is an option.
And the third choice is, that Congress would pass
legislation that allows the claims to go administratively to
USDA. You would waive statute of limitations, you would waive
res judicata, and they could file with the agency. Of course,
the third the one I can hear already the chorus at the back
saying, we don't want to go to USDA and have them decide our
claims, that is where we were before. But, it is an option.
The Pigford case is controversial, and always will be. I
met Tim Pigford so, so long ago, 8 years ago, 9 years ago. He
is a very unique man, and has long since dropped out of this
process to go back to his life.
But, at the beginning, he was just trying to get some money
for a limited group of black farmers that had seen what had
happened in Williams, and were just trying to get their
complaints resolved. It has evolved into obviously something
else much bigger than all of us.
I thank you all very much for inviting me, and I hope this
was helpful.
[Alexander Pires did not submit written testimony prior to
the hearing.]
Mr. Chabot. Thank you very much. I want to thank all of the
witnesses for their testimony here this afternoon.
At this time the Members of the panel that are here will
have 5 minutes to question the witnesses. Mr. Bachus has
indicated that he is handling a bill over on the floor of the
House of Representatives right now and hopes to make it back
here, because he has been very concerned about this matter as
well. But he is not sure if he is going to be able to make it
or not.
I recognize myself for 5 minutes. I will begin with you, if
I can, Mr. Haynie. Would you again describe your involvement in
the formation of the consent decree and were your views
represented? And what were your expectations, especially in
terms of discovery, the discovery process, and, do you--what is
your view about whether or not black farmers have been
adequately notified?
I know that is a lot of questions. You can take them in any
order that you like.
Mr. Haynie. Okay. In my opinion, the process was chaotic
and confusing. And the average black farmer didn't understand
it. They were called in to meetings. And what happened, in my
opinion, Mr. Pires was understaffed to handle the number of
farmers that were involved in this lawsuit. And as a result,
they would hold a meeting, and it would be about 200 farmers.
And it would be volunteers or students who--people who
weren't--didn't understand the law, weren't competent for
filling out applications. And, as a result of this, a lot of
farmers were denied, because the people who were filling out
the applications didn't understand the process, or weren't
attorneys. And so the information was not translated onto the
documents correctly, or they were told that they didn't need
documents that later on, after they got denied, that they found
out that they needed.
We were involved, John Boyd and I were involved in this
process, and tried to work this thing out, and hopefully that
it would be a settlement, and that there was some things that
we would do to protect black farmers. They are an endangered
species.
And nothing in this settlement has gone on for the
education of black farmers to create opportunities for young
people to get in. There has been nothing in the settlement to
really put an end to discrimination in the USDA.
I have been the victim of having an official, USDA official
have a loaded gun in his office for me. My son has been the
victim of discrimination. After they investigated his
discrimination, the district director filed an IG report, thus
causing a whole other investigation of his complaint.
My wife, who has applied for rural development loans, was
the victim of discrimination, and as well as when she was
farming, she was the victim of discrimination. So the
settlement has done nothing to end the systemic discrimination
in USDA. And that is my biggest concern, is that the process
has not been fixed and the settlement hasn't corrected any of
the problem.
Mr. Chabot. Thank you very much.
Ms. Roth, let me move to you if I can. When you review
petitions for a review of Track A claims that have been denied,
what are the types of additional information that you allow to
be included in reconsideration? And, do you direct the
adjudicator or arbitrator to consider such additional
information?
Ms. Roth. Thank you, Mr. Chairman. Whether I let
information in in the petition process is governed by a court
order. The order of reference issued April 4th, 2000, states
that I am allowed to let information in if the person--if the
party submitting it can show that there was a flaw or mistake
in the claims process, and that the failure to let the
information in would result in a fundamental miscarriage of
justice.
So I apply those two tests to each piece of additional
information that is submitted. Typically the kinds of
information that are submitted and do get in when the test is
met are the names of additional similarly situated white
farmers, and just all different kinds of documents about the
case.
Mr. Chabot. Thank you very much.
Mr. Lewis, let me turn to you, if I can now. I have only
got about another minute, so I am going to have to be quick,
and I would ask if you could be as well.
Mr. Lewis. I will try.
Mr. Chabot. Thank you. Based on your experience in handling
the late-filed claims, what reasons do you think caused nearly
65,000 potential claimants to file their claims after the
filing deadline, and do you believe these farmers knew of the
settlement but failed to timely file?
Mr. Lewis. I know that roughly 50 percent of them did know
of the settlement. I mean, because of the reasons that they put
forward in their petition. About 50 percent said that they did
not know of the settlement.
It is--continues to be a mystery to me as to why there were
so many late filers, because the notice that accompanied or
that followed Judge Friedman's July 14th, 2000 order which set
the deadline of September 15th, 2000, was distributed less
broadly than the notice announcing the lawsuit.
And the only thing I have concluded is that the fact that
there were real live people who had received real live checks
helped to spread knowledge about the lawsuit in a way that
simply someone reading a notice announcing the settlement did
not. But, that is, Mr. Chairman, just a guess.
Mr. Chabot. Okay. Thank you. My time has expired. The
gentleman from Virginia, Mr. Scott, is recognized for 5
minutes.
Mr. Scott. Thank you. Mr. Lewis, if someone put on their
form in the extended--and those that missed the deadline, the
original deadline, if they put in their form that they didn't
hear about it, would that be--would that disqualify them right
off the bat?
Mr. Lewis. That would disqualify them right off the bat.
If--they also were told that they could ask for reconsideration
if they wanted to.
Mr. Scott. If they put they didn't know, so if, in fact,
they didn't know, if they had competent counsel, they wouldn't
put that down, would they?
Mr. Lewis. Probably not, Congressman Scott. But, very few
of the petitions, the late-claim petitions--there appeared to
be not very much lawyer involvement in the late claim petition
process, let me put it that way.
Mr. Scott. Well, of all of the people that filed, 75
percent approximately filed late. Is that right?
Mr. Lewis. I think that is right. Yes.
Mr. Scott. 76.
Mr. Lewis. Somewhere on that order.
Mr. Scott. Doesn't that just tell you that there is
something wrong with the process?
Mr. Lewis. Well, there were also 7,700 people who missed
the second deadline. So I don't know what the answer is.
Mr. Scott. Now, how many of those people have bona fide
claims, if you would ever get to the merits?
Mr. Lewis. I have no idea. The late claim--what was
submitted was a late claim petition, that was a two-sided form.
It was one page, two sides. So I----
Mr. Scott. Is it fair to say that certainly some have valid
claims, and, in fact, some don't?
Mr. Lewis. Oh, that certainly is true. We know that from
both--from the folks who have been admitted into the process.
Mr. Scott. And, I mean, when all is said and done, wouldn't
the fair thing to do to get to--would be to get to the merits,
one way or the other. Now, your hands may be tied because of
what your orders were from the consent decree; is that right?
Mr. Lewis. Yes.
Mr. Scott. Would you object if we opened it up so that
people could actually have their cases heard?
Mr. Lewis. That is not my decision. Congress can do
whatever it wants to do here. But----
Mr. Scott. You certainly wouldn't object?
Mr. Lewis. Certainly not.
Mr. Scott. Mr. Pires, did--was there any motion made to
open--when the--when people filed late, did you file any
motions to have them--to help them get in, or keep them out?
Mr. Pires. Well, prior to--the first time we found there
were people late we had 1,100 of them. And we spent a lot of
time trying to get them in. And we actually did get the first
1,100 in, as part of our settlement, as part of a process for
which I took--we took quite a beating. We did get the first
1,100 in, for which I was chastised. It is complicated what
happened. After that----
Mr. Scott. Do you have any conflict of interest? I mean, if
others come in, that doesn't hurt the ones that are already in;
is that right?
Mr. Pires. Well, I would like as many as possible. I mean,
if you are asking me his question, I would love you to pass a
piece of legislation to let everybody in over the next 2 years.
That would be----
Mr. Scott. Does anybody object to having cases heard on the
merits, getting through all of this procedural deadlines, you
have got 65,000 people who filed, plus the 20,000. Does anybody
object to having cases heard on the merits?
Mr. Pires. No, sir, not at all. Not that I know of.
Mr. Scott. Anybody doubt that that would be a good thing?
Mr. Pires. It would be a great thing.
Mr. Scott. What do we need to do to bring that about?
Mr. Pires. Can I answer that?
Mr. Scott. Sure.
Mr. Pires. I believe it requires legislation from the House
and the Senate, not much more complicated than the original
legislation you passed in 1999. A sentence or two that would
allow them in. Yes, sir. I think that would be fantastic.
Mr. Scott. That would fix it, Mr. Lewis?
Mr. Lewis. It would--I think it would fix it. I don't
know--I don't know what the legal problems would be given that
there is--has been or would be--would have been a determination
on whether they were eligible----
Mr. Scott. We are talking about claims--we are not talking
about claims of one individual against another. We are talking
about claims against the Government. So we have a little bit
more flexibility then we would if we were trying to balance
individual against individual.
Mr. Lewis. My answer was just--I don't know what legal
problems there might be in trying to change a consent decree in
this manner after the fact. I am not saying it is a bad idea, I
just--I don't know the answer to your question, Mr. Scott.
Mr. Pires. It would have to be very carefully drafted,
because both the statute of limitations and the res judicata
defenses would be there, and the Justice Department would fight
that. You would have to be very careful. But you have got great
counsel. You have got legislative counsel. You have the best
there is.
So I am sure you can get around that in some way.
Mr. Scott. Ms. Roth, if I can ask one additional question.
Mr. Chabot. The gentleman's time has expired, but the
gentleman is, by unanimous consent, granted another minute?
Mr. Scott. Thank you.
Ms. Roth, when people appeal to you, having lost the
original, what kinds of things do you find that you can have
the original decision of denial reversed? What have you done
for people? I understand that you have a fairly substantial
rate of overturning the original denials so that people
actually get money.
What have you done for them that wasn't done originally?
Ms. Roth. Yes, Congressman Scott. For the most part--I
don't have the exact statistics, but I would say in most of the
cases, where a farmer prevails at the monitor level, it is
because some additional pieces of evidence that were allowed in
through our process.
Mr. Scott. Is that the similarly situated white farmer
issue?
Ms. Roth. Of those cases, in very many of the cases, yes it
is the similarly situated--if I had to say one piece of
evidence that most often turns it around in the petition
process, it is probably the similarly situated white farmer.
Mr. Scott. Have you developed a data bank so that each
farmer wouldn't have to reinvent the wheel every time they want
to have a case heard, that you have people in each county that
might be similarly situated that people look to?
Because, it has been pointed out that some farmers just
don't have access to that information.
Ms. Roth. I understand the question, Congressman Scott.
But, I am not allowed to do that, the way my reference order is
set up. I am restricted to very particular things from my
record, and I can't go outside of the record of one farmer's
case to pick a white farmer and put it in that farmer's case.
So I am restricted to five specific categories of
information. I am not allowed to do that.
Mr. Chabot. The gentleman's time has once again expired.
The gentleman from North Carolina is recognized for 5 minutes.
Mr. Watt. Ms. Roth, on that same issue. Is that part of the
consent--the settlement agreement, or is that part of a
judicial order that you--that restricts you?
Ms. Roth. Yes. Congressman Watt, the rules about what I may
and may not do in the petitions process come from a separate
order. It is not from the consent decree.
Mr. Watt. So it is not part of the consent decree?
Ms. Roth. Correct.
Mr. Watt. That order was issued by Judge Friedman?
Ms. Roth. Yes. By Judge Friedman on April 4th of 2000.
Mr. Watt. Mr. Pires, you represent the class members only
after they are determined to be a part of the class. Do you
technically represent--do you represent the farmer who have--
who filed late? Are they part of your class that you represent,
or are they outside of the class technically?
Mr. Pires. I have always been--taken the assumption that if
they are a black farmer, and they meet the definition of the
class they are our clients, yes. Now, you are asking me a
difficult question, because having filed late, and not having
any determination of whether they are eligible, I don't know
whether they will ever be able to participate----
Mr. Watt. I guess the question I am asking is, do they have
access to your advice in the preparation and filing of their
petitions to be waived from being late?
Mr. Pires. We had a lot of farmers who asked us how to file
a late filing, yes. But, like I said earlier, we expected 3,000
to actually file. And----
Mr. Watt. Well, you got 1,100 in?
Mr. Pires. I got 1,100 in.
Mr. Watt. Are those the people who asked you to represent
them?
Mr. Pires. That was the first group of late filers. We got
them in and then there another group, but we were unsuccessful,
the Government after that point didn't want to negotiate
anymore. And then, of course, it started piling up, and we
ended up with I believe 65,000.
Mr. Watt. Okay. I take it that the settlement agreement did
not provide for a notice to the class, there was a direct mail
notice to potential claimants?
Mr. Pires. We didn't--we didn't know who they were.
Mr. Watt. Now----
Mr. Pires. I don't understand how--is there such a list of
every black farmer in America? I wish there was.
Mr. Watt. Well, my understanding is that the USDA conducts
regular mailings to every farmer. Is that not the case?
Mr. Pires. I don't think most of the participants in the
case ever wanted to trust the USDA's list and USDA's system on
a major class action.
Mr. Watt. I am not saying that necessarily would have been
the exclusive way to give notice. But wouldn't--wouldn't that
have been a reasonable way to give notice to potential class
members, to do a mailing by the USDA to all farmers?
Mr. Pires. I don't think it would have----
Mr. Watt. Does the USDA regularly communicate with farmers
about various issues?
Mr. Haynie. Yes. And I thank you for asking those
questions. The problem was, Mr. Pires waived discovery.
Therefore, the black farmers didn't have adequate access to
USDA information. And it was one of the requirements why they
couldn't fill out these similarly-situated white farmers,
because the class counsel waived discovery. And that was a big
problem for black farmers in prevailing in this lawsuit.
Mr. Watt. So are you saying discovery might have yielded a
list of potential class members?
Mr. Haynie. That is correct?
Mr. Watt. As well as information about white farmers who
were similarly situated?
Mr. Haynie. That is correct. That is why that is a big
problem for black farmers.
Mr. Watt. Mr. Pires, have you filed a request to the court
or a motion of any kind with USDA or the Department of Justice
to seek to change the consent decree?
Mr. Pires. Many times. But with respect to the late filers,
is that what you are referring to?
Mr. Watt. Yes.
Mr. Pires. No, sir.
Mr. Chabot. The gentleman's time has expired. Would you
like an additional minute?
Mr. Watt. Yes.
Mr. Chabot. The gentleman is recognized for an additional
minute. We are going to go to a second round also. So----
Mr. Watt. Well, if you are going to a second round, I will
just wait. Well, but since I am here, let me just pursue this
one thing.
Because, one of the things I was struck by was you said
that it would be a fairly complicated order to revise the
consent decree?
And it seems to me that the appropriate person, the best
person, best situated to word that, would be the class counsel.
And one place that that would be--could be worded would be in a
motion to revise the consent decree which might then be picked
up Congressionally, the same language.
Mr. Pires. No, sir, that is not correct. In a nutshell, I
cannot change the consent decree by myself. Without the
Government's consent, no matter what I want, I can't do it
without the Government, sir.
Mr. Watt. I understand that. But you could file a motion,
could you not? You have asked the court to change various
aspects of the consent decree, haven't you?
Mr. Chabot. The gentleman's time has expired. But you can
answer the question.
Mr. Pires. Yes, I have.
Mr. Watt. Okay. All right. I am not trying to cross-examine
you about this. I am just trying to figure out how best to get
some language that would be used as a vehicle by Congress to
revise the consent decree.
Mr. Pires. We have submitted language to you.
Mr. Watt. All right. I yield back.
Mr. Chabot. Thank you. The gentleman yields back. We are
going to go to a second round of questions now, because of the
importance of this hearing.
And, Mr. Pires, I hadn't asked you any questions last time,
so I will start with you, if I can.
How many black farmers were your clients when the consent
decree was negotiated?
Mr. Pires. I would have to guess. I don't know.
Mr. Chabot. Roughly.
Mr. Pires. Gosh, I honestly wouldn't know because----
Mr. Chabot. Well, let me ask you this then.
Mr. Pires. Please. I don't want to guess.
Mr. Chabot. I understand. I appreciate that. How did you
acquire the viewpoints of those farmers that you did not
represent? And were there objections to the proposed
settlement, either by your clients or those that you didn't
represent? And how was it that you ultimately decided to accept
the settlement.
Mr. Pires. Yes, sir. That is fair. Mr. Chairman, we had
eight law firms involved. We invited any law firm in the
country that wanted to join, as long as they didn't charge
anything to the clients. That was the rule. So we had eight.
None of the major law firms in the United States wanted to work
on Pigford. We asked them all. Pigford was an orphan case, if
you know what that means. It is a case that nobody wants.
And we ended up with eight, four black, four white firms.
We had some religious leaders who helped us, like Reverend
Lowry. We had some legal leaders like J.L. Chestnut. We had
Charles Ogletree from Harvard, who was at the final two
negotiations, and actually was at the Justice Department table
for the final negotiations.
The feeling was that most major class action cases result
in meaningless language, injunctive relief, paragraph after
paragraph as to what the defendant shall do. And Charles
Ogletree, J.L. Chestnut and others felt strongly that that
would never fly in the Black community, that they wanted
payment, something that was meaningful, and they wanted the
largest single recovery in the history of the country.
So when we were at the table, in the Justice Department,
the top floor of the building, where the assistant attorney
generals and so forth, it was all about a recovery that was
significant and that was tax free. The other issues, what was
wrong with USDA, I mean everybody knew what was wrong with
USDA.
I had already sued USDA by that time probably two dozen
times. So it wasn't that I didn't know, and the other lawyers
didn't know what was wrong with USDA. But, it was really about
quickly getting money and having a system to get to people, not
that this would change their lives, but that it was a symbol of
what white USDA had done wrong to both Blacks and Hispanics,
and of course Hispanics were not included. So it was a
consensus.
Mr. Chabot. Thank you very much. I know you want to answer
a question, Mr. Haynie, or comment. Let me ask you in addition
to that, could you comment on the notice? That is obviously a
very big issue here, and whether or not that you think the
notice was adequate? Not what you think, but I would like you
to express----
Mr. Haynie. The notice was not adequate. I would like to
comment on that. I was there at that hearing. And all of the
farmers objected to consent decree. And even the farmers that
Mr. Pires were representing, they were not allowed to go into
this negotiation. So it was mind boggling how everybody there
was objecting to the settlement, yet the attorney that was
representing everybody moved forward with the settlement.
This settlement, what it does, it takes farmers out of the
class and puts them on an individual fight with the Government
in trying to prove their discrimination, when the attorney that
has represented you has waived discovery in denying you to all
of the access, which are the tools you use to defend yourself.
So it is mind boggling how the attorney, who is supposed to
be representing black farmers, does not listen to the
objections, and moves forward with the settlement when
everybody is not in agreement with it. And he didn't have the
staff to serve the notice to the number of people, and as a
result, everybody was filling out forms for farmers and they
came up short.
Mr. Chabot. Thank you. Let me--my time is almost up here,
so let me go back to you, if I can, Mr. Pires. Why was 180 days
chosen as the filing deadline?
Mr. Pires. Which filing deadline, Mr. Chairman? I am sorry.
Mr. Chabot. The initial----
Mr. Pires. I believe that was directly in the consent
decree, I believe. Yes. I believe it was negotiated in the
original consent decree, the 180 days, I believe.
Mr. Chabot. Do you know why that was, though? I mean, Mr.
Lewis, or could you shed any light on that?
Mr. Lewis. Unfortunately, Mr. Chairman, I cannot. It has
been 5 years.
Mr. Chabot. The witnesses are always able to supplement
their testimony. And so, if any of these things, any of the
witnesses would like to supplement, you will have the
opportunity to do that. And my time has expired. So I will now
yield to the gentlemen for Virginia for 5 additional minutes to
question.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Pires, did you file a motion last month in court
opposing farmers' request to open up the deadline?
Mr. Pires. There were various motions filed by various
people. I mean, there has been hundreds of motions filed. But,
there were motions filed by people who were not representing
the class that we opposed, yes.
Mr. Scott. The answer is yes, you did?
Mr. Pires. I oppose anything that is not in the interests
of the class. That is what I do for a living. So, yes, there
were motions, and I did oppose them.
Mr. Scott. Ms. Roth, on Track A, when people--when--Mr.
Lewis, first. What portion of the Track A claimants actually
got some money?
Mr. Lewis. I am sorry, Mr. Scott. I don't have anything to
do with Track A and can't answer that question.
Mr. Scott. Okay.
Ms Roth.
Ms. Roth. Congressman Scott, about 61 percent of the people
who went through Track A won on their first time through. Of
the 8,000 or so people who lost, about 4,900 or so petitioned
for monitor review. The remaining petitions were Government
petitions. Of the farmers who have gone through the petition
process, about 50 percent are prevailing in that process.
But, I don't have the authority, in the petitions process,
to say they won or lost. I only have the authority to remand to
the adjudicator in Track A. But the adjudicator in Track A is
following my recommendations about 90 percent of the time. So
about 13,500 claimants have won.
Mr. Scott. Now, to win, you have to find the similarly
situated white farmer; is that right?
Ms. Roth. That is correct.
Mr. Scott. How, without the discovery that Mr. Haynie has
pointed out, where do they get this information?
Ms. Roth. Congressman Scott, of course, I don't really know
where they get the information. I just know what shows up in
the file. But the one thing I can tell you from reading files,
is that some people get it by going to the county courthouse
and looking for whose names are on, you know, documents that
show that a loan happened, a mortgage, or a chattel, a chattel
security agreement, and then they submit those names.
Mr. Scott. Has that been a problem in people getting
compensated, because they cannot get the information--do they
have subpoena power to get that information?
Ms. Roth. Not that I know of. No. You mean, if someone is
in the Track A claim process, can they subpoena--in the Track A
process? No.
Mr. Scott. So that would be a barrier to getting, for a
person with a bona fide claim, getting--actually getting paid?
Ms. Roth. Many of the cases in which people lose, it is
because they did not have--they were not able to specifically
identify a similarly situated white farmer. That is correct.
Mr. Scott. Does that need to be corrected?
Ms. Roth. That is not something I can comment on.
Mr. Scott. Okay. Are you involved in Track B claims?
Ms. Roth. I review petitions in the Track B process as
well.
Mr. Scott. Mr. Haynie suggested some problems with the
calculations for damages under Track B. Have you seen the same
kinds of problems?
Ms. Roth. I really couldn't say whether I have seen the
exact kinds of problems Mr. Haynie described. But, we do
carefully review the evidence on both sides of damages
questions in Track B and make our decisions. That is really all
I can say about that.
Mr. Scott. As I understand the consent decree, there was no
technical admission of discrimination. Is there any question in
anybody's mind that there was, in fact, discrimination in just
about every--each and every one of these cases?
Mr. Pires. I can answer. There were about 3,800 farmers who
lost and did not appeal, even though they had access to
lawyers. There were some cases where there--they should not
have been in the case. But for those, the vast majority of them
I felt had legitimate claims. Yes, sir.
Mr. Scott. When you look at Track A, I thought the idea was
that these are going to be pretty well, straightforward cases.
If you are in the class, you ought to get the money without a
lot of hassle. And I get the sense that the consent decree did
not anticipate some of these procedural and burden of proof
problems.
Mr. Pires. You are bringing up what is, for many people,
the most important issue. These are claims against the
Treasury. This is--and when we were negotiating what the
standard had to be, the issue was, how does an adjudicator, a
ruler, a neutral know when there is discrimination against
Black folks, Hispanics, women, how do you know? It has to be
weighed against something.
So the negotiations were about the elements. You have to be
a black farmer. You have to have farmed during that period of
time. You had to have applied for a loan or tried to get a
loan. You had to be discriminated against. How did you know?
How did you know you were discriminated against?
Somebody under similar circumstances got a loan and you
didn't. The standard was, which is what the law is, you had to
show a white person got better treatment than you did. What was
interesting, Congressman Scott, was that for the 13,500 who
won, and some of those who lost, they had no trouble naming a
white person in their community that had better treatment.
I will admit to you there were people who put down the name
of a white person whom they thought had better treatment. They
put names of two or three. And they were wrong. And on appeal,
we spent an enormous amount of time, months and months trying
to get a correct white name. We had two shots at those.
I would admit to you that that was the most difficult part
of the case for some people, how to find someone in their
community who was treated better than they were, who was white.
That was difficult. But, that is also a requirement of the law,
this is after all a lawsuit. No one is going to waive that part
of it.
Mr. Chabot. The gentleman's time has expired. The gentleman
from North Carolina is recognized for 5 minutes.
Mr. Watt. Ms. Roth, in Appendix 1, and we are trying to
locate the place, you say that the claims process was flawed.
Can you explain what you meant when you said that?
Ms. Roth. Congressman, what I think you might be referring
to, when I explained how we get additional evidence in the
petitions or appeals process. And the test for that is that new
evidence can come in if the moving party shows a flaw or
mistake in the claims process that would result in the
fundamental miscarriage of justice if the evidence were not let
in. I don't think it actually says it on the chart.
Mr. Watt. Okay. Mr. Pires, you negotiated a consent decree,
the settlement that led to the consent decree. Right?
Mr. Pires. With many others. Yes, sir.
Mr. Watt. With others. Okay. So you represent the class of
people who were eligible to be covered by that consent decree?
Mr. Pires. Yes, sir.
Mr. Watt. What role, then, do you play in processing of the
individuals claims and the--and marshalling and presenting
evidence on behalf of class members that there was a similarly
situated individual, white individual, that they--their
treatment didn't measure up to?
Mr. Pires. Throughout 1999 and into 2000, but mostly 1999,
we went out to where the farmers live. I mean, we were gone the
whole year. And we went to their local high schools, their
local community centers. And we actually met with the black
farmers. And most people signed up and filled out the forms in
the presence of a lawyer, as Mr. Haynie said, sometimes there
weren't enough lawyers. And we helped them fill them out. It
had to be signed by a lawyer. Each application had to be signed
by a lawyer.
Most, talking about the similarly situated white farmers,
most black farmers knew one, two, three names of white people
in their community who they thought got preferential treatment.
That didn't require----
Mr. Scott. That is the people who actually got in the
class.
Mr. Pires. That was all 22,000, sir. That was everybody.
Nobody, of the 22,000----
Mr. Watt. I guess the question I am asking is, do you
have--does anybody have a responsibility to the people who
didn't get in the class? Who has a responsibility to them to
either try to get them in the class, or--didn't I hear--did I
understand that you opposed a motion to get them into the
class?
Mr. Pires. It is not that simple. I wish it was.
Mr. Watt. Well, I am not trying to simplify it. Either you
opposed it or you didn't. I am trying to figure out, obviously,
you had a settlement, you negotiated a settlement. Some people
you--that settlement then said, each individual then must go
and prove something beyond just the settlement. For some of
those people, you performed the role of actually marshalling
and presenting the evidence.
Mr. Pires. And we still are. Congressman, what--here is the
problem. Because I want to help you help us. We have a lot of
responsibilities for the class members. And we are nowhere near
done. We are still working for the 22,000. There are a lot of
people who haven't been paid. Lots of appeals. Lots of
petitions. Lots of problems. We work on them every day.
That is what Judge Friedman wants me to do. He wants me to
look out for class members, and take care of them. That is what
we do every day.
Mr. Watt. So are you defining the class members as those
22,000 people, and I guess the question I am asking is, is
there somebody out there who is advocating and representing the
people who didn't get into that 22,000 people, the 65,000
people or so, who didn't meet the deadline?
Mr. Pires. No, Congressman, that is not what I meant. What
I meant is, if tomorrow another 50,000 people came along and
said, I also want to file with the court and I would like to
get into Pigford, I know from 30 years of experience that I
cannot by myself reopen Pigford and let not only the other
65,000, this 50,000, I can't do that without the Government's
consent. And they will not consent.
I have been working with them for 8 years, and I can tell
you they won't. So what do I do? We seek to help them. That is
why we are here. You have to help them. We are not going to be
able to get them through the Pigford case. Judge Friedman is
not going to reopen it, because the Government would never
consent to it.
Could you get us legislation that would reopen a similar
case like this? Yes. But, the Government is never, ever going
to consent to reopening Pigford. I know that. So I don't want
to abuse the system by trying to spend a lot of my energy on
something that I know from 31 years will not work. What I do
want to do is take care of the people who are in the----
Mr. Watt. The question I am asking is, is there somebody
out there who is doing that? I am not suggesting that it should
appropriately be you. I am just asking: Is there somebody out
there who is representing a large number of those people?
Mr. Chabot. The gentleman's time has expired. But you may
answer.
Mr. Pires. Those people who have filed, Congressman Watt,
they are before Michael Lewis. In other words, they are in the
system. I don't----
Mr. Watt. Maybe I should be asking Mr. Lewis that question
then. Who represents the most of those people who--the
dispossessed class members, I will characterize them in that
way, although, I don't mean it.
Mr. Lewis. Congressman Watt, I am not aware that anyone is
representing them in the late claim process.
Mr. Watt. All right.
Mr. Chabot. The gentleman's time has expired. The gentleman
from Alabama is back from the hearing on the floor and is
recognized for 5 minutes for questions.
Mr. Bachus. Thank you. Mr. Pires, you are aware of a lot of
wild rumors that have been going around that the attorneys have
made more money off this case than the farmers?
Mr. Pires. Yes.
Mr. Bachus. Let's address that a minute.
Mr. Pires. Please.
Mr. Bachus. You know, clarifying the fee would put an end
to those rumors.
Mr. Pires. Please.
Mr. Bachus. And I don't know. I am not--are your fees based
on a set amount, or upon the number of claimants you represent?
Mr. Pires. No, sir. It is very simple. It has all been
public. We came forward and agreed to represent the class with
an agreement that said, we will take none of your money. We
were the only ones. Every other firm in the country had an
agreement, with the exception of myself and Mr. Fraas, that
wanted a percentage.
So when it started, the rule I established was, if you want
to help the Black farmers, you can't take any of their money.
You can't base it on anything other than the judge will
eventually----
Mr. Bachus. What are they based on?
Mr. Pires. Let me finish, if I can. Your compensation will
depend upon what the judge rules and grants you, period. You
are going to have to take your chances and work for free.
So, of the original eight firms, six of them had agreements
that said they would get a percentage. They dropped and used
ours. And everybody worked. And what happened is, we
eventually, in the first round, after working 1997, 1998, 1999,
2000, and I don't know, somewhere around----
Mr. Bachus. My problem is, I have only got 5 minutes. I am
just saying, are you--is your fee based on a set amount per
hour, or is it based on the number of claimants? Or what----
Mr. Pires. I am trying to answer.
Mr. Bachus. Well, just can you?
Mr. Pires. The eight law firms, after 4\1/2\ years, had $34
million worth of bills, hours and time and fees.
Mr. Bachus. So 34 million is what you all----
Mr. Pires. We submitted it. The judge ruled. And to make a
long story short, we received $14 million of that amount. When
the case started, there was $1 million given to start the case,
which was divided up. And after that period of time, the bills
have been paid, you know, sporadically.
Mr. Bachus. What about this, would it make more----
Mr. Pires. There has never been more in the entire history
of the case than I know of than about $15 million, to pay all
of the firms for 7 years of work. We averaged about $100 an
hour. That is what we got.
Mr. Bachus. Let me ask you this. Would it make sense for
the class counsel to make a public accounting?
Mr. Pires. It is all public.
Mr. Bachus. Of the attorney fees received in the case?
Mr. Pires. It is all public.
Mr. Bachus. I mean, to do a public accounting and release
it?
Mr. Pires. It is in the docket.
Mr. Chabot. Would the gentleman yield for just a moment? I
want to make sure that I understand. You are saying that there
were--there have been over $800 million at this point--that
were paid out, is that right, and that the attorneys have made
15 million of the over 800 million. That is accurate?
Mr. Pires. Yes, sir.
Mr. Chabot. I just wanted to make sure that I understood.
Mr. Bachus. Would you object--do you object to a public
accounting on the attorney fees?
Mr. Pires. It is public.
Mr. Bachus. But is it a public accounting, I mean, to make
a public accounting?
Mr. Pires. It is all in court orders and it is all public,
yes.
Mr. Chabot. I would request that the staff get with the
court so that we can verify those.
Mr. Bachus. Let me shift over. That is sort of a--let me
tell you what really--one of the things that bothers me about
this whole case, is that for every farmer that filed, there
were probably two-thirds more that didn't file.
Now, that indicates to me, if you got, you know, if--
somebody is eligible, and they can receive money, and they
don't file, I have kind of got to believe that that is because
they didn't get notice.
If you tell somebody there is money for you if you file,
and you don't file until late, that indicates to me that you
didn't know about it. Because, if somebody says there is money
out there, you go up and you file. Yet, the judge in this case
he said that a natural disaster was a reason for a late filing,
or being hospitalized, but he actually, and I think if counsel
agreed to this, consented to saying that if you didn't receive
notice, that wasn't a reason for a late filing.
Mr. Pires. That is not true.
Mr. Bachus. That is not right?
Mr. Pires. No.
Mr. Bachus. I have been looking at this. I am just reading
from what--it says, lack of notice is not deemed an acceptable
reason by the arbitrator because the court made a legal finding
that notice was sufficient.
Did all argue against that and oppose that finding?
Mr. Pires. I don't know which finding you are reading from.
Mr. Bachus. A finding in the Pigford case.
Mr. Pires. You mean from the claim form?
Mr. Bachus. Well, it says here--is that true? Did the court
make a legal finding that notice was sufficient?
Mr. Pires. Yes. Notice was done by a professional company
that does nothing but give notice.
Mr. Bachus. But, did you all oppose that? I mean, obviously
for every person that filed, there were two-thirds more that
didn't.
Mr. Pires. There was a public hearing about notice, and the
judge accepted notice as being adequate.
Mr. Bachus. Did you vigorously oppose that?
Mr. Pires. No, I thought notice was adequate.
Mr. Bachus. So you thought it was adequate too.
Mr. Pires. I thought it was excellent.
Mr. Bachus. Doesn't the fact that now, after that thing was
set, that two-thirds of the people have missed the filing
deadline, does that cause you to maybe believe that in
hindsight notice wasn't sufficient?
Mr. Pires. No. Because I have been doing class actions a
long time. And even my tobacco case which just settled, we had
thousands of people who were getting checks and they did not
file on time.
Mr. Bachus. Well, but, you know. It----
Mr. Pires. It is very common.
Mr. Chabot. The gentleman's time has expired. Would you
wish an additional minute to ask----
Mr. Bachus. I would like an additional minute.
Mr. Chabot. Without objection.
Mr. Bachus. You take, in Alabama, for 294 cases that were
granted, 14,268 were rejected. And most all of those were
because they filed too late. Does that bother you? I mean, does
that----
Mr. Pires. Alabama, there were 42 meetings of farmers in
Alabama. And J.L. Chestnut is from Alabama. Alabama was
probably the best serviced of all 50 States. I don't think
there is a Black farmer in Alabama who didn't know about the
case.
Mr. Bachus. So 14,268 out of 14,600, or----
Mr. Pires. There were some Black farmers in Alabama who
filed late. But I think there is a different reason for that.
Mr. Bachus. Well, two-thirds of the applicants were denied
entry into the claims process. Is that right?
Mr. Pires. Sixty-five thousand people who filed late.
Mr. Bachus. But their claims were never considered on the
merits, though?
Mr. Pires. That is true.
Mr. Bachus. That is a tremendous number that never got
their cases heard on the merits.
Mr. Pires. That is true. If you gave notice today, you
would get another hundred thousand.
Mr. Bachus. Yeah, but I mean, that is a tremendous
percentage.
Mr. Pires. Yes, it is.
Mr. Bachus. That doesn't cause you to question that maybe
they didn't get notice?
Mr. Pires. Fifty percent of the people who--Mr. Lewis
testified that 50 percent of them that he reviewed admitted
they knew about the case. So----
Mr. Bachus. I guess, I will close with this. I am a lawyer.
I finished near the top of my law school class. But I get these
notices in these class action cases all of the time. I can't
figure out what they are talking about.
Mr. Pires. I think that is true.
Mr. Chabot. The gentleman's time has expired. They agree on
something.
The distinguished gentleman from Michigan, Mr. Conyers, is
recognized for 5 minutes.
Mr. Conyers. Thank you, Chairman Chabot.
Mr. Pires, Attorney Pires, why did you oppose the motion to
modify the Pigford suit filed by the Black farmers?
Mr. Pires. Filed by the Black farmers? Mr. Myart motions? I
think Mr. Myart's motions are irresponsible. He does not
represent the Black farmers in this case. And his motions are
irresponsible. That is why I opposed them.
Mr. Conyers. Okay. Why did you file a motion to enjoin
Black farmers from speaking on the Pigford v. Glickman
settlement last week?
Mr. Pires. In that motion, it is public, Mr. Myart and
others ridiculed the court, ridiculed the judicial system, made
fun of Judge Friedman and the monitor and others. And I am
sworn, as a member of the court, to defend that.
I don't think you get anywhere making fun of the judicial
system. And anybody who comes forward and makes fun of Judge
Friedman or anyone else, I am going to oppose that. That is my
job.
Mr. Conyers. Well, Counsel, do you still oppose--would you
oppose a modification of the time limits for the filing in this
case at this point in time?
Mr. Pires. I don't think the Pigford consent decree can be
modified, Congressman Conyers. The Government has told us for
years that they will not consent. So I don't see how it can be
accomplished.
And I am trying, through legislation, to get what I got 8
years ago, which has helped. I don't think it is worth repeated
filings before Judge Friedman that are denied. I think it is a
waste of time. I think the most important thing is to get to
the heart of the problem and get relief from Congress.
Mr. Conyers. Well, that is not quite the question that I
asked which was, would you object to the court deciding or
reconsidering that 65,000 claimants should be allowed to enter?
Mr. Pires. Would I oppose----
Mr. Conyers. Would you object? Yes. Would you object if the
court determined that this was such a serious miscarriage of
the goals of the farmers across all of the years, and that
they--that he decided that he would reconsider and create a new
way for them to apply?
Mr. Pires. Judge Friedman does not have that authority.
Mr. Conyers. Well, I am glad to hear you tell--this is the
first time I had a lawyer explain the jurisdiction of a judge.
I mean why couldn't he? You are telling me that he could not
extend this even if he wanted to?
Mr. Pires. I do not believe that Judge Friedman, on his
own, without the Government's consent, can change a consent
decree and change the terms such that there is an extension of
time to allow people in. I do not believe that is the law. That
would be reversed, and it would be wasting years of time.
Mr. Conyers. Wait a minute. That, sir, is your hypothetical
back to me. I didn't tell you that Federal court would--that
the Government wouldn't join in with him.
You know, Al, look, let's face it. You seem to be resisting
the 65,000 people getting some relief. That is what it sounds
to me.
Mr. Pires. It is the exact opposite, Congressman Conyers. I
want to help them, but I want to help them in a meaningful way.
Mr. Conyers. Well, if it is the exact opposite, it doesn't
come across like that in this hearing. I hate to tell you that.
Mr. Pires. I understand.
Mr. Conyers. But, you know, something is amiss here. We
have got Mr. Lewis sitting at your left, who could make plenty
of sounds about what we could do for those 65,000. And I know
we have a legislative remedy that I haven't mentioned, but do
you know how many more days are left in this Congress? It is--I
think they said about a little more than a week, maybe less
than 2 weeks.
So on the for-real side, if the judge heard about this
hearing, and heard you explain why he can't do it by himself,
that the Government wouldn't join in, that it is too late and
that you are working on other issues, to me these are people
who would be claimants and would be part of the class action
that you are bringing, sir.
Mr. Pires. Yes.
Mr. Conyers. I mean, it would seem to me that you would
want them in.
Mr. Pires. I do.
Mr. Conyers. Well, you have explained to me all of the
reasons that they can't come in. I am trying to----
Mr. Pires. I said to file a motion before Judge Friedman,
without the Government's consent is just paper, and it is not
going anywhere.
Mr. Conyers. Well, I am glad you know this. Maybe----
Mr. Pires. Because I have been doing it for 7 years. I
think I have a pretty good idea of how to make the litigation
move in a way that provides meaningful relief.
Mr. Conyers. Well, look, I don't want to tell you what you
should be saying before the Committee. I presume you know what
to say in front of the court. But, if I leave this hearing, and
they ask me how does Pires and Lewis feel about the 65,000
black farmers, I am going to be strapped to explain this based
on the answers and the comments that you have given me.
I would like to yield to Mr. Lewis to see what he--what his
feelings are on this subject.
Mr. Lewis. I don't disagree with Mr. Pires, that if there
were some way, outside of the context of the consent decree to
provide relief to--we have been talking about 65,000, why not
include the other 7,700 who missed the final deadline? So we
are talking about 72-73,000 people.
All I would say to you, Congressman Conyers, is that there
is--what I have before me now is not the 65,000, but are the
21,000 petitions for whom reconsideration requests have been
filed.
And I will, you know, I am marching through those as
quickly as I can. Because one of the issues here is those folks
are starting the claims process once I find that they are
eligible to participate.
So we are talking about, you know, a year or two of
processing to--before they get some money.
Mr. Lewis. But what I have for you now----
Mr. Conyers. You would like to see the decree modified to
allow them to come in.
Mr. Lewis. Frankly I agree with Mr. Pires.
Mr. Conyers. No, I'm asking you. Forget about the class
action lawyer. I can question him. What does Mr. Michael Lewis
think?
Mr. Lewis. I think it would be wonderful if 72,000 people
got a shot, as Congressman Scott said, to have their cases
heard on the merits. I don't believe that can happen within the
context of the Pigford consent decree. That's all I'm saying.
Mr. Chabot. The gentleman's time has expired. All Members
shall have 5 legislative days to provide any additional
materials for the record.
Mr. Bachus. Could I have one additional question?
Mr. Chabot. Make it after this gentleman then. I was going
to ask unanimous consent to allow Mr. Scott to ask a question
relative to taxes, and then I'll follow up here. But then we're
going to wrap it up.
Mr. Scott. Thank you. And first, Mr. Chairman, I want to
thank you again for calling the hearing.
We've heard uncontested evidence that about 75 percent of
the people who've had potential cases are not able to have
their cases heard on the merits. And we--certainly I think the
fair thing to do is to try to ascertain what can be done so
that they can hear their cases on the merits.
I had one kind of technical question. I'm not sure who can
best answer it. We've heard questions that some of these
payments constitute taxable income, and payments are made to
IRS for those taxes. Is the payment to IRS taxable income, too,
that might generate an additional tax check? Or is the check
large enough to cover both the tax and the additional tax
that's generated?
Ms. Roth. Here's the way it works, Congressman Scott. In a
simple Track A case where someone gets $50,000, the IRS--the
$50,000 is paid in cash. And then $12,500, which is 25 percent
of that amount, is wired to the claimant's IRS account as
partial payment toward the taxes on the $50,000. However, our
understanding is that the IRS has taken the position that that
$12,500 is itself taxable income. And from my perspective, I
think that's going to create lots of problems down the line.
Mr. Scott. Well, Mr. Chairman, we need to look into that to
see if that needs to be worked on, too.
Mr. Chabot. I agree. Thank you for bringing that up, Mr.
Scott.
And, Mr. Bachus, if you could make this brief.
Mr. Bachus. Thank you. I'm going to ask counsel, or anybody
else that wants to answer this, and I have to say that, you
know, I'm not--my understanding of civil rights law is probably
not what it should be, but this similarly situated white farmer
requirement that the claimant, in order to get a settlement,
has got to find a similarly situated white farmer, that's not
normally the case, is it? Normally don't you just prove that
you're discriminated against in a civil rights case? I mean,
that's not kind of the spirit of remedying discrimination, is
it, in our civil rights law? Don't you just prove you were
discriminated against because of your color, and then you get
recovered? Do you have to--in other cases do you have to go out
and find somebody that was--the same thing happened to them and
they were treated different? Mr. Haynie.
Mr. Haynie. Yes. You know, the Government admitted to
discrimination. And I think this boils down to black farmers
having bad counsel, because how can your counsel agree to you
having to go out and find similar-situated white farmers when
he waives the discovery process? So basically your counsel is
why you're failing, because he has shut the door on you getting
necessary information for you to prove your discrimination.
Mr. Bachus. You can't subpoena that information?
Mr. Haynie. No.
Mr. Bachus. Well--and did the USDA have the information--
that's who might have some of the information, right?
Mr. Haynie. They have all of the information.
Mr. Bachus. Did they have an absolute obligation to help
find a similarly situated white----
Mr. Haynie. Once discovery was waived, they did not have to
give black farmers this information.
Mr. Bachus. They could if they wanted to, but they didn't
have to?
Mr. Haynie. That's correct.
Mr. Bachus. Yeah. Well, I have--at least our counsel, the
Republican counsel, has said that there could be maybe a
legislative fix to this, and that's whereby--and I just want,
Counsel, maybe to see what you think. We could pass something
saying that a special master could be appointed to whom the
USDA could be mandated to turn over all evidence relative to
the Pigford settlement consent decree, and this special master,
you know, he could protect the privacy of the white farmers,
but still provide affidavits to individual black farmers
required to identify similarly situated white farmers. And any
farmer that was denied recovery on the basis that--you know,
that he couldn't find a similarly situated white farmer could
resubmit their claims. What would you think about a legislative
fix like that?
Mr. Pires. I think only the monitor knows how many of those
cases there are that----
Mr. Bachus. Well, that's why we'd have a legislative fix.
Then we'd find out.
Mr. Pires. But I think the idea is excellent. I think
anything that Congress can do to allow more people to recover
would be great.
I did want to answer one of your earlier comments. My
understanding of the law is that the only way a black farmer, a
black person, in any case in any part of our workforce can
prove discrimination is in comparison to a white or another
person in the majority. So it is the law. In all of my cases,
all five of my class action cases, the comparison to the white
is the standard because the white is the majority.
Mr. Bachus. I guess I just don't see how, you know, a black
farmer is able to find--I mean, I just--particularly if the
information--the USDA has that information, and this is sort of
an adversarial relationship----
Mr. Pires. Yes, it is.
Mr. Watt. If the gentleman would yield.
Mr. Bachus. If you go to your adversary to get this
information, and they don't have to give it to you, that
doesn't sound like a game that you----
Mr. Watt. Would the gentleman yield?
Mr. Bachus. I would yield.
Mr. Watt. I think the gentleman is finally finding out how
difficult it is to prove a race discrimination claim in this
country. On that point Mr. Pires is absolutely right.
Discrimination is relative to white people in this country. And
if you can't prove that you were discriminated against, the
definition of discrimination is that you were treated worse
than.
Mr. Bachus. Oh, I understand that. Maybe I was--what I
meant was in the normal case you can subpoena information as to
what happened to everybody else similarly situated. This case
they didn't have the right to discover that.
Mr. Scott. Well, they waived discovery.
Mr. Bachus. Well, their attorney waived it.
Mr. Pires. Let me answer, because I teach discovery at
Georgetown Law School. I know a lot about discovery, and I have
learned the hard way that the best way for the defendant, the
United States, which is the richest machine in the world, has
the most lawyers, I worked there for 8 years, the best way to
bring down the case is to get involved with discovery. And if
the black farmers' case had gotten involved with years and
years of discovery, we never ever would have gotten out of it
because that's what's wrong with a lot of the other cases. And
I chose, just like I did in the AT&T case--I chose to have
very, very limited discovery.
Mr. Bachus. Well, I would put that they were under absolute
obligation to supply that information, and that wasn't in
there.
Mr. Pires. To some extent, sir, they had it. To some extent
they didn't.
Mr. Bachus. Well, but to some extent they did, and that's a
lot of ground.
Mr. Chabot. Okay. Well, the gentleman's time has expired.
Mr. Pires. You're right.
Mr. Chabot. I want to thank all the witnesses for coming
this afternoon. I want to also thank the other folks that took
their time out to come here and listen to Congress in action.
We are, I think on both sides, both the Democratic side and the
Republican side, I think we're very interested in trying to see
if we could do anything to remedy this situation.
Some suggestions have been made this afternoon. I had
stated in my opening statement that it has also come to our
attention that there were a number of other people that would
have liked to have testified this afternoon. We allow four
people. That's been our policy in the Judiciary Committee to
only have four people testify. So we were limited, and that's
the reason we weren't able to add others. But I also indicated
that our staff would work with the parties to pick a date to
have another hearing and allow additional witnesses to testify.
So that will be accomplished, we hope, in the near future. I
can't give an exact date because we just don't know.
But I want to once again thank everyone for coming, and if
there's no further business to come before the Committee, the
Committee's adjourned. Thank you.
[Whereupon, at 6:11 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve Chabot, a Representative in
Congress From the State of Ohio, and Chairman, Subcommittee on the
Constitution
Good afternoon. I would like to thank everyone for being here today
for this very important hearing. However, I feel that it is necessary
to qualify that statement by saying it is unfortunate that we are here.
We are here because, time after time, it appears that the wrong choices
continue to be made by those in positions of authority.
I trust that today's hearing will enable this Subcommittee to
examine those issues that are of the utmost importance and will enable
us to make substantive recommendations to remedy the injustices that
have occurred.
I would like to take this opportunity to recognize Arianne
Callender, of the Environmental Working Group; Mr. John Boyd, with the
National Black Farmers Association; Mr. Thomas Burrell; and Shirley
Sherrod, with the Federation of Southern Cooperatives, for taking the
time to provide us with information.
Through these individuals, and others, it has come to this
Subcommittee's attention that a second hearing may be necessary. I've
directed my staff to investigate the scheduling of a second hearing in
the event one is needed in the near future.
When slavery was ended in the United States, our government made a
promise--a restitution of sorts--to the former slaves that they would
be given 40 acres and a mule. While we can debate whether this
allotment was intended to compensate the freed slaves for their
involuntary service, what is clear is that this promise was intended to
help freed slaves be independent economically and psychologically, as
holders of private property rights.
What also is clear is that the very government that made this
promise, the ``People's Agency'' established in 1862 under President
Abraham Lincoln, has sabotaged it by creating conditions that make
sovereign and economically-viable farm ownership extremely difficult.
This is the backdrop against which we will examine the issues
before us today. We are here to consider the administration of the 1999
Consent Decree, which resulted from the civil rights case of Pigford v.
Glickman.
The Consent Decree was developed to provide some monetary
restitution to Black farmers who were victims of racial discrimination
carried out by the United States Department of Agriculture, the very
institution designated to assist them, in a swift and timely manner.
Rather than help Black farmers, this Agency has been instrumental
in causing their decline. Since the early 1900s, the number of Black
farmers has decreased from nearly one million to fewer than 18,000.
During this time, when Black farmers tried to seek justice by
filing discrimination complaints with the USDA, their claims were
either ignored or dismissed--most without an investigation.
Ultimately, several of these Black farmers--all whose claims of
racial discrimination had been disregarded by the USDA, filed a class
action suit against the Agency.
After extensive negotiations, a settlement was reached that
established a ``just'' process to have all the discrimination claims
heard in a timely manner.
Yet, in an ironic twist, the process that was created to provide a
forum for those whose claims had been shut out, has itself shut out
nearly two-thirds of all who wanted to have their discrimination claims
heard. Whether or not each of these claimants would have prevailed on
the merits is not the issue before us. The process should have at least
allowed them the opportunity to be heard.
We cannot in good conscious allow a settlement that leaves out more
potential claimants than it allows in to go unexamined or remain
unresolved.
All of the parties involved are responsible for developing a
solution--whether it be modifying the Consent Decree, creating a
subsequent Consent Decree, or some other process--to stop this
destructive cycle from reoccurring.
The first step in this process should be to provide the nearly
65,000 people who were denied entry into the process the opportunity to
be heard. We will never be able to put the racially discriminatory
practices that have and continue to occur within the USDA behind us
until every one of these individuals has at least had the opportunity
to be heard.
This is just one of the many problems with the Consent Decree that
my colleagues and I hear about nearly every day.
It is my sincerest hope that this hearing will help us all get a
better understanding of what precisely the problems are, what potential
solutions there may be, and what we can do to ensure that the
government never finds itself in a similar situation again. Too much
has been lost and too much is at stake for Black farmers to just accept
that the solution in 1999 has failed more people than it has helped.
__________
Prepared Statement of the Honorable Robert C. Scott, a Representative
in Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security
Thank you, Mr. Chairman. And I would like to take this opportunity
to thank you, Judiciary Committee Chairman Sensenbrenner and Ag
Committee Chairman Goodlatte for your agreement to develop this hearing
and for the open, bi-partisan and productive manner in which you and
your staffs have proceeded to do so. I must also acknowledge the work
and dedication to developing this hearing by Judiciary Committee
Ranking Members Conyers, and Subcommittee Ranking Member Nadler, and
your staffs for your hard work and dedication to this effort, as well.
And there are several other members and their staffs who have
contributed to this effort, as well, including, Rep. Watt, Rep.
Thompson, Rep. Towns, Rep. Butterfield, Rep. Bishop and Rep Baca.
Of course, the hearing would not have been possible without the
hard work and determination of all the representatives and advocates of
Black farmers, too numerous to list, who have worked with us in
developing this hearing over the last year. This has truly been a
collaborative effort of all I have mentioned, and more.
Ths hearing is about the Pigford Settlement. There remain many
issues and problems at USDA and there are a number of efforts underway
to address those problems. Among them are lawsuits and complaints by
Hispanic, women and Native American farmers. There is also a new
lawsuit pending by Black farmers alleging continuing discrimination
since the period covered by Pigford, as well as continuing allegations
and complaints of discrimination by Black USDA employees. I believe all
of these civil rights issues warrant oversight by the Judiciary
Committee and should be the focus of subsequent hearings.
U.S. farm services programs date back to1862. Throughout their
history, the programs have been laden with the pall of racial
discrimination, in blatant as well as subtle ways. As the federal
government has stepped up its loan and technical assistance programs to
farmers in recognition of the growing capital and other needs of
farmers to stay viable, Black farmer have been largely been left out
due to discrimination and neglect. In the early 1900's there were as
many as 1 million Black-owned farms with about 16 million acres. Now
there are an estimated 18,000 such farms with less than 3 million
acres. Black farmers complained, but no systemic action was taken to
remedy the situation. And to add insult to injury, in 1983, the civil
rights office at USDA was closed down. Many complained about the
rampant discriminatory practices, but others did not even bother,
understandably expecting that nothing would be done to redress their
complaints.
The Judiciary Committee looked at the issue in 1984 through a
hearing held in this Subcommittee which exposed the racially-
discriminatory practices then in existence in USDA's loan and
assistance programs and its non-existent, civil rights complaints
process. Unfortunately, no substantial remedial effort was undertaken
by either the Administration or the Congress until Secretary Glickman,
in response to the growing and persistent complaints of Black farmers
and the disarray in complaint processing, ordered a moratorium on farm
foreclosures and a series of reforms while pending complaint
investigations. Yet, it took a lawsuit by Black farmers in 1997 to
bring about meaningful attention to the problem.
Original estimates of the backlog of pending complaints was a few
hundred. Over 1,000 were discovered. Then there were estimated to be
about over 2,000 farmers who had suffered discrimination by USDA. By
the time the consent decree was entered into the estimates had risen to
4,000 to 5,000. Over 22,000 filed claims withing the initial deadline.
However, as the deadline expired, the court found that claims were
still streaming in. In fact, they were coming in so fast that the court
extended the deadline and directed the Adjudicator to determine those
entitled to be included due to extraordinary circumstances out of their
control. To everyone's astonishment, almost 66,000 claimants filed for
consideration during the extension. Most of them have been considered
by the Adjudicator, and curiously, only about 3% have been allowed in.
Moreover, another 7800 filed beyond the extended deadline. That adds up
to almost 96,000 claimants.
Mr. Chairman, frankly, I am concerned about the adequacy of a
settlement process that leaves 70% of its claimants without a
determination on the merits of their claim. I don't know whether the
problem is in the sufficiency of the original notice process or in the
criteria applied to filers during the extended period, but I am not
willing to accept that nearly 66,000 individuals who believe they have
legitimate claims of racial discrimination knowingly ignored notice of
the initial filing deadline and chose to submit their claims after that
deadline for no good reason.
I don't know what percentage of the claimants can show entitlement
to relief, but it is likely that some can. As long as 70% of those who
believe they are entitled to recover under the settlement are prevented
from having a determination on the merit of their claim, I don't see
how we can move forward with transforming the image and effectiveness
of USDA in serving its minority customers fully. If this situation is
allowed to stand, Black farmers will not only have been victimized by
the discriminatory practices at USDA, but by the remedy process, as
well.
So, Mr. Chairman, I look forward to the testimony of our witnesses
for any insights they may provide regarding my questions and concerns
about the unfortunate state of affairs of the Pigford Settlement. Thank
you.
__________
Prepared Statement of Sanford Bishop
Good afternoon ladies and gentlemen. First I would like to thank
the Chairman and Ranking member as well as the Subcommittee on the
Constitution for taking the time this afternoon to hold this oversight
hearing. I would also like to express my appreciation to the panel for
taking time to be with us today. I believe that this hearing and your
testimony is an important step in resolving these important issues.
Pigford v. Glickman is a historic case and a historic decision. It
is historic not only for the African American farmers who found
themselves victims of an unjust system, it is historic for the
thousands of African Americans today who are looking for equal
treatment from the government that represents them. Racial bias is
wrong and unconstitutional and it is sad to know that such practices
were in place in our very government. But our court system ruled on the
side of justice. USDA was wrong and the victims or their
representatives should be paid.
But the wheels of justice are slow. Yes, the Pigford case
represents a moral victory for the black farmer. The burden of proof
was high, yet the actions of Mr. Pigford led to the largest class
action ever awarded by the USDA and the important admission of years of
abuse was vindication for so many. We must not corrupt this victory by
failing to do what is right, by failing to recognize the claims of so
many based on what amounts to a technicality.
In Georgia alone, the arbitrator under the court-mandated extension
denied over 3,000 black farmers. The extension was justly granted since
many farmers' attorneys failed to notify their clients of the original
deadline for application. Out of the original 69,162 claims filed, over
55,000 were rejected only because they were filed late. This is not
justice, this is an outrage. I am here to see that every legitimate
claim receives full consideration. These are not people looking to
abuse the system and make a quick dollar. These are hard working
Americans who have earned our consideration
In Georgia, farming is a proud tradition and I am honored to
represent farmers of ever color and background. Today we should be
focusing on agriculture, on ways to improve the less than perfect
system and provide more opportunities in a field that Thomas Jefferson
once called a ``pillar'' of American prosperity. But we are instead
arguing over technicalities and an issue of justice that has not been
properly resolved.
The United States needs to close the door on this process and
provide the relief to those who rightfully deserve compensation. I want
to thank my colleagues here today for their interest in this settlement
and look forward to action settling this issue.