[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]



                       `NOTICE' PROVISION IN THE 
                   PIGFORD V. GLICKMAN CONSENT DECREE

=======================================================================

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                           NOVEMBER 18, 2004

                               __________

                             Serial No. 117

                               __________

         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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                       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
                                 ------                                

                    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

                              ----------                              

                           NOVEMBER 18, 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 Robert C. Scott, a Representative in Congress from 
  the State of Virginia..........................................     2
The Honorable Spencer Bachus, a Representative in Congress from 
  the State of Alabama...........................................     4
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan.....................................     5

                               WITNESSES

Mr. J.L. Chestnut, Jr., Chestnut, Sanders, Sanders, Pettaway & 
  Campbell, L.L.C., Class Counsel, Pigford v. Glickman
  Oral Testimony.................................................     8
Ms. Jeanne C. Finegan, APR, Consultant to Poorman-Douglas 
  Corporation (Court-Appointed Facilitator, Pigford v. Glickman) 
  for Communications and Public Relations, and formerly Vice-
  President and Director of Huntington Legal Advertising, a 
  division of Poorman-Douglas Corporation
  Oral Testimony.................................................     9
  Prepared Statement.............................................    11
Mr. Thomas Burrell, Farmer
  Oral Testimony.................................................   175
  Prepared Statement.............................................   177
Ms. Bernice Atchison, Farmer
  Oral Testimony.................................................   205
  Prepared Statement.............................................   207

                                APPENDIX
               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.....................   275
Prepared Statement of the Honorable Robert C. Scott, a 
  Representative in Congress from the State of Virginia..........   276
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan..........   277
Prepared Statement of Gary Grant, President, Black Farmers & 
  Agriculturalists Association...................................   279
Prepared Statement of Obie L. Beal...............................   282
BFAA News Articles submitted by Chairman Chabot..................   288
Prepared Statement of Lawrence Lucas, U.S. Department of 
  Agriculture Coalition of Minority Employees....................   295

 
                       `NOTICE' PROVISION IN THE 
                   PIGFORD V. GLICKMAN CONSENT DECREE

                              ----------                              


                      THURSDAY, NOVEMBER 18, 2004

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 10:05 a.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 am Steve Chabot, 
the Chairman of the Subcommittee. Good morning. Thank you all 
for being here for this very important meeting.
    This is the second in a series of hearings the Constitution 
Subcommittee is holding on the 1999 settlement reached between 
the U.S. Department of Agriculture and a class of black farmers 
who have experienced discrimination by the USDA.
    From the time this Subcommittee began examining this issue, 
we have had more reasons than not to believe that the 
Government has failed to do the right thing. I strongly 
believe, however, that with all of the information we are 
gathering in our oversight investigation, including through 
these hearings, we will have the understanding from which to 
develop a full and just solution.
    I would like to thank our witnesses for coming. Your 
insights, expertise and institutional knowledge are critical to 
the Subcommittee in its efforts to find justice.
    During the last hearing, my colleagues and I used our 
oversight authority to get a better understanding of the 
Consent Decree. However, as we continue to examine more closely 
certain aspects of the settlement and its administration, it 
has become increasingly apparent that certain due process 
protections fundamental to the Constitution may be lacking in 
this case.
    Due process of law is the legal concept that the framers of 
our Constitution created to ensure that the Government respects 
all, not some or even most, of an individual's right to life, 
liberty, and property. The due process clause places limits on 
the Government's ability to deprive citizens of these rights, 
guaranteeing fundamental fairness to all individuals.
    One of the most important safeguards that has evolved from 
this clause is the right to notice, notice of a judicial 
proceeding in which an individual's right to life, liberty, and 
property may be affected or eliminated altogether. The form of 
notice must be reasonably designed to ensure that those 
individuals will, in fact, be notified of the proceedings. This 
fundamental right to notice applies to the 1999 Pigford Consent 
Decree and all those who had a viable claim of discrimination 
which impacted their lives, liberty, and property against the 
Department of Agriculture.
    Tragically, recent statistics released on the Consent 
Decree suggest to this Subcommittee that this constitutional 
right was not safeguarded in the construction and 
administration of the Consent Decree. Although the notice 
campaign designed was deemed to be effective by the court in a 
fairness hearing held on April 14, 1999, the determination was 
made using advertising industry tools designed to measure the 
likely effectiveness of a campaign, not the actual 
effectiveness of a campaign. Reports indicate that 
approximately 66,000 potential class members submitted their 
claims late, most because they did not know that they were 
required to submit a claim sooner, thus losing their right to 
sue the USDA for past wrongs.
    It is hard for many of us to accept that 66,000 farmers 
would consciously wait to file a claim that would impact their 
right to life, liberty, and property, knowing that they were 
required to do so earlier. Further investigation into the 
circumstances surrounding the late claims reveals that many 
farmers failed to get any notice whatsoever or failed to 
understand the contents of the notice if they did receive the 
notice. These facts lead this Subcommittee to conclude that the 
notice implemented in the Pigford case was either ineffective 
or defective as nearly two-thirds of the putative class failed 
to be effectively notified of the case requirements.
    The hearing this morning will focus on the actual 
effectiveness of the notice campaign. As we learn more about 
this aspect of the Consent Decree, we will consider the 
appropriate remedy to protect the safeguards afforded by the 
Constitution and uphold Abraham Lincoln's vision that every 
black American who wants to farm has the tools available to do 
so.
    I would like to close by putting a personal face on what 
Lincoln's vision means to people who have been impacted by the 
USDA's action. This promise is still valued today, as this 
quote explains, and I quote: ``I have worked all my life being 
a servant to God and his people in Chilton County, Alabama. My 
forefathers were brought here to farm and the gift of loving 
the land has passed down for more than 10 decades. I am proud 
of the heritage in spite of the adversity,'' unquote. This is 
the sentiment of Bernice Atchison, one of the witnesses at 
today's hearing.
    It is for Bernice and all of those who still have faith in 
the promises of this country that we are here today working 
toward finding a solution.
    Thanks to all of the witnesses for taking the time to tell 
their story and thank you all for attending this hearing. Many 
of you have come from far away at considerable expense and 
circumstances, and we appreciate your being here.
    And I would recognize the gentleman from Virginia, the 
Ranking Member, at least this morning, for the purpose of 
making an opening statement. Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Congressman Jerry Nadler of New York, the Ranking Member of 
the Subcommittee, asked me to express his regret that he is not 
able to be here and asked me to serve as Ranking Member today 
instead. As you know, the Clinton Library is opening today, and 
we had scheduled this not knowing that. And frankly many of us 
didn't want to upset the scheduling of this meeting and try for 
another date since we wanted to keep this date. But several of 
the Members for that reason are not here.
    Mr. Nadler strongly supports the efforts of this 
Subcommittee to examine the issues surrounding the Pigford 
settlement and is instrumental in helping to develop these 
hearings.
    I would like to take the opportunity, Mr. Chairman, to 
express my appreciation for the leadership that you have shown 
in seeking answers and solutions to the questions and problems 
that have come to light regarding the settlement, and for the 
time and attention you and your staff are devoting to pursuing 
these issues. And I express my appreciation for the open, 
bipartisan and productive manner in which you, Chairman 
Sensenbrenner, Agriculture Committee Chairman Goodlatte and 
your staffs have proceeded to work with us.
    Full Committee Ranking Member Mr. Conyers, Mr. Watt, Mr. 
Thompson, Mr. Towns, Mr. Butterfield, Sanford Bishop, Artur 
Davis and their staffs have also been an integral part in the 
development of these hearings and the issues that we're 
exploring, as well as working closely with black farmers and 
their advocates.
    This hearing is about the notice provision of the Pigford 
settlement. The information we have found reveals that some 
96,000 claims were filed, but only 22,000 of these were or are 
slated to be considered on the merits. The primary reason for 
not considering the remaining claims on the merits is they were 
not submitted during the initial period set by the court for 
the filing of claims, which ended October 12, 1999, 6 months 
after the settlement was entered into. By that time, 
approximately 22,000 claims had been filed.
    Upon realizing the claims were still pouring in beyond the 
initial deadline, the court set a deadline for accepting late 
claims. This was first set for January 30, 2000, but with 
claims still coming in, the court extended it to October 15, 
2000. Some 66,000 additional claims were filed by the October 
15 deadline and another 7,800 after that deadline. Of the 
66,000, only 2,100, approximately 3 percent, were accepted for 
determination on their merits.
    While the merits of all of the 2,100 late claims accepted 
have not been determined, some have; and according to the 
reports of the court-appointed Monitor of the settlement, a 
significant number of those considered were found to warrant 
payment under the settlement agreement.
    A large part of the problem of the settlement appears to 
have been that no one realized that there was the potential for 
so many claims to be filed. Early estimates said the potential 
ranged from a few hundred to eventually a few thousand. It does 
not seem reasonable to believe that the court would twice 
extend the filing deadline for filing claims simply to tell 
virtually all of the late filers that they had filed too late. 
Nor does it appear reasonable to the court that anyone would 
have knowingly designed a claims procedure that would leave 75 
percent of those who filed a claim without any way to get a 
determination on the merits.
    It certainly does not seem reasonable to conclude that 75 
percent of those who filed a claim knew before the deadline 
that they could but intentionally waited to file their claim 
late. With the vast majority of claims being filed after the 
deadline had passed, my inclination is to think that effective 
notice did not reach most claimants in a manner that allowed 
them to file their claims on a timely basis.
    The court in trying to accommodate the situation gave the 
Arbitrator carte blanche authority to determine whether or not 
late claims should be let in due to extraordinary 
circumstances. Unfortunately, the Arbitrator established a 
process that resulted in virtually no one being able to show 
that they did not file due to extraordinary circumstances. 
Rather than applying the standard so narrowly as to leave 97 
percent of the late filers out of the process, the Arbitrator 
might well have considered it to be an extraordinary 
circumstance that 75 percent of the claims filed in a class 
action settlement will not receive consideration on the merits.
    There are, no doubt, a number of explanations and 
speculations for how we ended up with such a large percentage 
of the claims being filed beyond the court's initial filing 
deadline, and we will likely hear some of them today. Yet 
whatever the reasoning, I find it unacceptable that 75 percent 
of those who filed claims will not receive a determination on 
the merits of their claim. However we got here, we have a 
finite number of approximately 72,000 claims in which long-
standing, atrocious misconduct by Federal Government officials 
is alleged; and I believe that these claims should receive a 
determination on their merits.
    Not all of the claims will be found to be meritorious, but 
it would be a travesty of justice on top of a travesty of 
justice to prevent those claims that do have merit not to be 
resolved in favor of those claimants.
    And so, Mr. Chairman, I would think--I want to thank you 
for scheduling the hearing. And I look forward to the testimony 
of the witnesses for any suggestions they may have, not to cast 
blame, but to ensure that justice is done to the victims of 
inexcusable Government action.
    Mr. Chabot. Do any Members of the panel wish to make 
opening statements. Mr. Bachus?
    Mr. Bachus. I thank the Chairman.
    I want to go back to 1984. This same Subcommittee had a 
hearing in 1984, and I think it is important when we consider 
whether these people that did not file on time, whether or not 
we allow them to have their claims heard on the merits; and 
that is what this Subcommittee found back then, and that was 20 
years ago.
    It examined the very issues that led to the Pigford 
settlement, and what it found was that there was pervasive 
racial discrimination in the USDA's operations of its loan 
programs. Not only did the court find that much later, but as 
far back as 1984 this Subcommittee came to that conclusion. In 
addition, it found that there was an ineffective and often 
nonexistent civil rights complaint process within the USDA. 
Moreover, the hearing found that there was a complete and 
irreparable harm experienced by many black farmers by the 
illegal, racially discriminatory practices used by USDA.
    I think that alone, the fact that this Congress took that 
testimony and came to those conclusions in 1984 makes it 
incumbent on us today to resolve any doubts in favor of these 
farmers who--and I think there is no real dispute about it 
today that they did receive--they were discriminated against, 
it was pervasive, and that in many cases, it is irreparable.
    The fact that they will get $50,000 is not really going to 
compensate them for their damages. Even if their claims are 
allowed to go forward, they are not going to recover. Their 
children are not going to recover. So I think it is incumbent 
on us. And if the court--and I attribute good motives to the 
people. I think there were good people involved in fashioning 
the notice process. I don't question that. But in hindsight--
and we have all done things that we thought at the time were 
sufficient, but later on because of the results, we found that 
they were insufficient, that they didn't work. And the very 
fact that three out of four of the claimants that have now 
filed claims didn't file on time, I mean that alone ought to 
tell all of us--that ought to be sufficient for us to know that 
it was insufficient notice.
    And the idea that the judge extends the notice but then 
denies all the claims and doesn't go to the merits, that is 
almost--you know, somebody lets you file late and then turns 
you down because you filed late, that is no--that is almost 
adding insult to injury. So I think it's incumbent on us to go 
forward with this, and I mean actually take some action that 
will--it won't compensate these farmers. We found that back in 
1984.
    Twenty years ago this Committee concluded no matter what we 
do, they are not going to be put back to where they were. And 
you can't uncrack eggs.
    Thank you, Mr. Chairman.
    Mr. Chabot. The very distinguished gentleman from Michigan, 
the Ranking Member of the full Judiciary Committee, Mr. 
Conyers, is recognized for making an opening statement.
    Mr. Conyers. Good morning, Chairman Chabot and Members of 
the Committee. And to the distinguished witnesses and all those 
who have taken their time to join us again in the Judiciary 
Committee, I am very proud to be with you again.
    And I would like to just, first of all, begin by saying 
that I believe that former President Clinton, if he knew what 
made us decide to continue these hearings and keep those of us 
here who would have liked to have been in Little Rock today for 
the dedication going on there, but he might have said, I am 
glad you decided to stay and continue this hearing.
    And so, Mr. Scott and I and others would have liked to have 
been there, but on balance, the historic significance of this 
referred to by the gentleman from Alabama, Mr. Bachus, is so 
profound that we have to consider the issues just for a moment 
on a little bit larger note.
    I would like to put my statement about the narrow issue 
that brings us here into the record. But let me point out that 
Chairman Steve Chabot and Mr. Scott, Mr. Nadler and Spencer 
Bachus have done something that I think should be recognized 
here. They have all made, from their particular points of 
analysis, incredibly significant and similar statements in the 
direction of where we are and how we got to this point.
    Chairman Chabot did not have to call this hearing. And as 
has been observed, had we not gone forward, it is very unlikely 
that there would have been any further action taken on this 
matter in the 108th Congress. And so it is in this spirit of 
mutual understanding that brings us here that I would like to 
make these observations over and above the process question of 
late filing of claims for just a minute here. And that is to 
say that the question of how African American agricultural 
leaders and their families and communities and as individuals 
have been treated historically is now coming to the first--
well, not the first, but one of the most candid discussions 
that I have ever been witness to.
    And I would like to take this time merely to describe--and 
I am open to meeting with my colleagues on the Committee, as 
well as the farmer leaders that are assembled here today about 
any refinements that are necessary. But it seems to me that we 
on the Committee, as Members of Congress, have to go to the 
Agriculture Committee of the House of Representatives to 
continue the much wider hearing on these historic issues. And I 
think with our Republican counterparts that we stand a fair 
chance of having that done.
    I am prepared, of course, as Steve is, to go to the 
Chairman of the Judiciary Committee with whom we have had 
cordial working relations for two terms. Now we need to get all 
of this--there are so many peripheral issues that probably 
won't be gone into today; we need to get this on the record, 
the historical record of the Congress, and it should come from 
the Agriculture Committee.
    The other item that we need to do is continue the 
examination of the plight of the black farmer in America, 
currently and historically, from the perspective of bringing in 
some of our think tanks and our institutions that deal in 
special, particular issues to begin to also complement what we 
expect will be the work of the Agriculture Committee in the 
109th session. That would also include the Congressional Black 
Caucus input and many other organizations that work here in the 
capacity of think tanks that do these kinds of things, because 
we are now at the point, it seems to me, Spencer, that we can 
now begin to build an historical base unlike any that has been 
assembled before, and I think it will set the framework for the 
resolution of many of these long-standing problems and move us 
out of a very unfortunate past, which only our heirs to the 
future are in a position to correct. And I thank the Chairman 
for his consideration.
    Mr. Chabot. Do any other Members wish to make opening 
statements?
    We will move to introduce the witnesses. Our first witness 
this morning will be J.L. Chestnut, Jr. Mr. Chestnut was born 
in Selma, Alabama in 1930. He graduated from the Howard 
University Law School in 1958.
    In 1959, Mr. Chestnut opened his law office in Selma, 
becoming the first African American to ever open a law office 
in that town and one of only nine black lawyers practicing in 
the State of Alabama. In his capacity as NAACP lead counsel, he 
facilitated the implementation of the Brown v. Board of 
Education school desegregation decision in Alabama.
    In 1963, he helped the first professional civil rights 
worker to visit Selma persuade local African Americans to 
attend the first mass meetings. That was the beginning of the 
Selma movement, which later led to the greater civil rights 
victory in the passage of the Voting Rights Act in 1965. When 
Martin Luther King set up shop in Selma in 1964, Mr. Chestnut 
represented Dr. King. Dr. King and Mr. Chestnut worked together 
to plan much of the historic Selma civil rights battle. He was 
lead counsel, at least lead class counsel in several class 
action cases, and is class counsel in the Pigford case.
    After a distinguished career handling many civil rights 
cases, he is the senior partner in the largest black law firm 
in Alabama, which is the oldest predominantly African American 
law firm in the Nation. He also sits as a trustee on the board 
of the University of South Alabama, is a founder of both the 
Alabama Democratic Conference and the Alabama New South 
Coalition and is chairman of the board of deacons at the First 
Baptist Church.
    Our second witness will be Jeanne Finegan, a representative 
of the Poorman-Douglas Corporation, which is the firm appointed 
by the court to serve as Facilitator in the Pigford settlement. 
Ms. Finegan is president of Capabiliti, L.L.C., and is a 
specialist in class action notification campaigns.
    She has provided expert testimony regarding notification 
campaigns and conducted media audits of proposed notice 
programs for their adequacy. She has lectured, published, and 
has been cited on various aspects of legal noticing. Ms. 
Finegan has implemented many of the Nation's largest legal 
notice communication and advertising programs and has designed 
legal notices for a wide range of class actions.
    Prior to establishing Capabiliti, Ms. Finegan co-founded 
Huntington Legal Advertising and spearheaded other companies. 
She has been a reporter, anchor, and public affairs director 
for several Oregon radio stations and worked for a television 
station. She is the author of many articles and is a speaker 
and panelist for public and private organizations.
    And we welcome you here.
    Our next witness is Thomas Burrell, a black farmer 
representative. Mr. Burrell was born May 7, 1949, in Covington, 
TN. Except for the time he has spent away at college, he has 
been a lifelong resident of Covington.
    As an adult, Mr. Burrell farmed his own land. He is a 
veteran of the Vietnam war and is graduate of the school of 
business at the University of Michigan. He is also the father 
of three and has two grandchildren.
    And we welcome you here.
    Our final witness today is Ms. Bernice Atchison. Ms. 
Atchison was born in Chilton County on May 1, 1938. She married 
Alan C. Atchison on May 14, 1953, and they supported their 
family by farming as they raised eight children together until 
her husband died in 1992. She and her son continue to farm in 
Chilton County to this day.
    And we welcome you here this morning, Ms. Atchison.
    If we could have all the witnesses stand for a moment, we 
have a policy to swear in witnesses.
    [Witnesses sworn.]
    Mr. Chabot. I would like to familiarize you with our rules 
here relative to testifying. We have a lighting system. Each 
witness is given 5 minutes and the green light will be on for 4 
of those minutes. A yellow light will come up that lets you 
know you have 1 minute to wrap up and the red light indicates 
that all 5 minutes have elapsed. We will give you a little 
flexibility on that, but we'll ask you to wrap up as close to 
the 5 minutes as possible because we are on relatively strict 
time limits around here, and we want to make sure everybody has 
an opportunity to ask questions and the hearing moves along.
    So we again want to thank all the witnesses for coming here 
this morning. And, Mr. Chestnut, we will begin with you.

 STATEMENT OF J.L. CHESTNUT, JR., CHESTNUT, SANDERS, SANDERS, 
PETTAWAY & CAMPBELL, L.L.C., CLASS COUNSEL, PIGFORD V. GLICKMAN 
                              \1\
---------------------------------------------------------------------------

    \1\ J.L. Chestnut did not submit a written prepared statement prior 
to the hearing.
---------------------------------------------------------------------------
    Mr. Chestnut. Mr. Chairman, Ranking Member and Committee 
Members, I thank you for the opportunity of appearing here.
    My involvement in the Pigford litigation is really an 
extension of my life. Pigford did not rise out of a vacuum. It 
is one of many disgraces of what we were going through in Selma 
in 1958 when I opened a law office there as the first and only 
black person dedicated or dumb enough to do so.
    Less than 70 blacks in the whole county were registered to 
vote, and each potential voter had to be vouched for by a white 
person. And there were black and white water fountains, black 
and white restrooms, graveyards. Not one black person in the 
whole State had served on a jury in 100 years. No blacks had 
jobs downtown anywhere in Alabama. And the all-white, all-male 
police department did whatever, whenever to whomever in black 
Alabama and nobody dared asked any questions. It is out of that 
that Pigford comes.
    I was representing Congressman John Lewis when he was 20 
years old in Selma and other places around Alabama when neither 
he nor I could know that we would live out the day. So it was 
natural that I would become a part of Pigford. And I had been 
in the front ranks of the black struggle, now for almost 50 
years.
    When I came into the litigation, the Government would not 
even discuss settlement in this doubtful case and it was 
doubtful. And the Government later changed its mind and said it 
would discuss possible settlement on a case-by-case basis. In 
the court's 65-page opinion, the judge quotes my argument 
against that assertion, saying it took us 15 years to get 
Pigford before a judge. They would always throw it out and 
dismiss it. And now if we do what the Government suggests, we 
will be here forever, case by case.
    And I insisted that the court set a trial date, because in 
my judgment the Government would never seriously consider 
settlement unless there were a trial date. And the court set a 
trial date. And that's when a settlement in this case really 
became possible.
    It was also at that point that I decided to educate, if you 
please, my class counsel, Phillip Fraas, about some black facts 
of life that he couldn't possibly know or understand. In fact, 
number one is that we face a cultural disconnect. I don't know 
of any other way to put it. Except for a core of dedicated and 
perennial-optimist black farmers, no one would believe--no 
black farmer would believe that a Government that for 150 years 
had ruined them would now help them. They would only believe 
that when there was something tangible and concrete what they 
could see or check. And by the time that happened, we would 
have serious problems because you can't keep a class action 
open in perpetuity. That is not the way the law is set up.
    Early on I said to my co-counsel that is a serious problem 
that we will have to face. And in the end, when there is nobody 
else to blame, they will blame us. I know that because for 50 
years I have been representing poor black folk, and I know what 
it is to be blamed when you can't get done what people are 
entitled to have done.
    The second problem was that we could, in my considered 
opinion, succeed in winning all the money in the world and all 
the injunctive relief in the world, and as Congressman Bachus 
pointed out, we would not come close to producing justice that 
these poor black folk deserve. It just couldn't be done in the 
context of a lawsuit. At best, it's a piecemeal approach to 
piecemeal justice. And once again, somebody will have to be 
blamed in the end, and it will be us. And by ``us,'' I mean the 
lawyers. I fully expected it and said it early on.
    Mr. Chabot. I am going to be blamed for letting you know 
that you are out of time, but we'll give you an additional 2 
minutes if you could wrap it up in that time. And we are going 
to ask you questions and so you will be able to get into this.
    Mr. Chestnut. Mr. Chairman, I believe if you sent your 
staff out tomorrow, within weeks they could find another 65,000 
African-Americans who didn't file, but who now want into this 
lawsuit.
    That is the cultural disconnect. That is a far deeper 
problem than legal notice.
    Mr. Chabot. Thank you very much.
    Ms. Finegan, you are recognized for 5 minutes.

  STATEMENT OF JEANNE C. FINEGAN, APR, CONSULTANT TO POORMAN-
 DOUGLAS CORPORATION FOR COMMUNICATIONS AND PUBLIC RELATIONS, 
 AND FORMERLY VICE-PRESIDENT AND DIRECTOR OF HUNTINGTON LEGAL 
     ADVERTISING, A DIVISION OF POORMAN-DOUGLAS CORPORATION

    Ms. Finegan. Mr. Chairman, thank you. My name is Jeanne 
Finegan, and I am pleased to appear before you on behalf of 
Poorman-Douglas Corporation, the court-appointed Facilitator in 
the Pigford case.
    Poorman and its division, Huntington Legal Advertising, 
participated in the development and implementation of the 
direct mail and the advertising components of the Consent 
Decree. I directed the advertising components and Nicole 
Hammond, my colleague, who is here today, was responsible for 
the direct mail component.
    As set forth more fully in Exhibit 1 to my written 
statement, I have over 13 years of experience in the 
development of legal notice plans and class action and 
bankruptcy, and over 20 years of experience in the field of 
communication.
    Mr. Chairman, I appreciate the opportunity to address our 
involvement in the notice and claims administration process in 
Pigford. We know that some have raised questions about that 
notice program. But in order to place our work in context, I 
thought that it might be helpful for me to address some of 
those questions up front to you and to the Members of the 
Committee.
    First, does the late--the number of late applicants show 
that the notice program was flawed or inadequate? We believe 
the answer is no.
    One purpose of the notice program was to provide awareness 
of the complaint process. The Pigford notice did raise 
awareness. This is shown by the over 96,000 phone calls that 
Poorman received during the claims period from January to 
October 1999. This was one of the largest, sustained call 
volumes in a single case in the company's history. Some 53,000 
requests were made for mail claim information.
    These requests greatly exceeded all expectations. By the 
claims filing deadline, we had mailed nearly 50,000 claim forms 
and received back almost 18,000 completed forms.
    As this Committee has heard from others, about 50 percent 
of the 67,000 individuals who applied to file a late claim were 
aware of the settlement in advance, but did not act in time. As 
this evidence confirms, a notice program may generate interest 
and awareness, but it cannot make someone file.
    The decision to act or file a claim is influenced by many 
factors. The notice program is only part of that overall 
decision. So why did so many class members file late claims or 
seek to file late claims?
    African American farmers have faced a long history of 
discrimination. Many class members may have believed that even 
with a legitimate claim, relief would not be forthcoming. This 
perception may have reduced, at least initially, the desire of 
many class members to act.
    The media also tended to reaffirm this perception. If the 
farmer did not trust the settlement was genuine, this certainly 
would have affected their behavior. But as word spread that the 
settlement relief was being granted, class members became 
increasingly confident that filing a claim would not, in fact, 
be a waste of time. At this point, the deadline was upon them 
and many were unable to file in time.
    The problem then is not that the class members' awareness 
was late, but class member activation was late. And I am not 
certain that any notification program, by itself, could have 
remedied that. However, this speculation begs the question, how 
did Poorman-Douglas develop the media strategy that was used?
    We used well-accepted scientific industry methodology to 
develop our recommendations. We used data from reliable media 
research bureaus such as Mediamark Research and Nielsen to 
identify model class members by both their demography and their 
media consumption habits. From this information, we developed 
our recommendations for a media strategy.
    The Consent Decree specified the following requirements: 
that a copy of the notice of class certification and the 
proposed class settlement was mailed to all then-known class 
members; a one-quarter-page newspaper ad was placed in over 27 
general circulation newspapers and over 115 local African 
American newspapers in an 18-State region. A full-page ad was 
placed in the 18-State regional edition of TV Guide and a half-
page ad was placed in the national edition of Jet Magazine.
    Mr. Chabot. Your time has expired. We would appreciate it 
if you could wrap up.
    Ms. Finegan. I would be happy, of course, to answer any 
questions that the Committee may have about any aspect of our 
work on the Pigford notice program as negotiated by the parties 
and approved by Judge Friedman. We believe that the plan did 
meet its goals.
    [The prepared statement of Ms. Finegan follows:]

    
    
    Mr. Chabot. Mr. Burrell, you're recognized for 5 minutes.

              STATEMENT OF THOMAS BURRELL, FARMER

    Mr. Burrell. Thank you very much, Mr. Chairman. My name is 
Thomas Burrell. I'm the President of the Black Farmers and 
Agriculturalists Association, Inc. I'm a past farmer and son of 
a lifelong farmer and a grandson of farmers as well.
    To the Honorable Members of the United States House of 
Representatives, Chairman James Sensenbrenner, Ranking Member 
John Conyers and Constitution Subcommittee Chairman Steve 
Chabot, Honorable Bobby Scott, Ranking Member on the House 
Judiciary Committee Constitution Subcommittee, on behalf of the 
Black Farmers and Agriculturalist Association board of 
directors, State presidents, members of BFAA, the thousands of 
black farmers denied relief under the flawed Pigford Consent 
Decree, track A and track B, 70,000 black farmers designated as 
late filers, the thousands of potential class members and their 
heirs and the new black farmers class action lawsuit, we thank 
you for giving us this opportunity to be heard this date.
    I would like to start my discussion relative to the 
invitation that I received, sir, and that was to talk about the 
notice provision of the Consent Decree; and in my opinion, by 
derivation, that would then lead us to paragraph 4 of the 
Consent Decree. And in paragraph 4, as Ms. Finegan made 
reference to, the Facilitator, it is our understanding as is 
expressed in this Consent Decree, was required to notify 
farmers.
    And I am sure you would appreciate the fact that in the 
last Committee hearings, you heard comments from individuals. 
You have heard comments this morning. But one of the things 
that we have not, and I'm waiting to hear is not why so much 
black farmers or the mystery that people seem to ascribe to the 
fact that black farmers did not react. The mystery is simple. 
They simply were not notified.
    One of the things that I think was missing as well is an 
understanding of the fact that black farmers are notified about 
opportunities basically the same way white farmers are 
notified. And that is if John Deere or Case International was 
going to sell a new tractor, Case is going to use the same 
advertisement to white farmers that they are going to use to 
black farmers. They call the magazines. They listen to the 
dealers in that area.
    Black farmers purchase equipment the same way and buy their 
seeds the same way. Therefore, if you're going to notify them 
about any other opportunity, you do it the same way you notify 
white farmers. You notify them through their local newspapers. 
You talk to them through their local radio stations.
    We are somewhat dismayed that in an attempt to notify black 
farmers in 18 States in the South, you use media who are not 
culturally and occupationally attuned to those farmers. When 
John Deere gets ready to sell a combine to a white farmer, they 
don't call the Wall Street Journal or Newsweek. Advertising is 
cultural and it is also, shall we say, occupational oriented.
    Black farmers, here again, most of them do not have access 
to cable television, as was referenced in the notice. To those 
elderly black farmers who do not read in the first place, 
advertising and notice in Jet Magazine or Ebony is not 
sufficient.
    More importantly, in my close, sir, I would like to state 
we are prepared to answer not only why black farmers were not 
notified, but to give some reason why we think they were not. 
And if I might, the sad thing about it, USDA admitted and 
recognized that there were over a million black farmers in 
1920. In 1982, they recognized that there were roughly 18,000. 
As my grandmother would say, you get rid of some in the wash 
and you get rid of the others in the rinse. In my opinion and 
the opinion of this organization, USDA has gotten ridden of 
982,000 black farmers in the wash and this lawsuit is designed 
to get rid of the remaining 18,000 in the rinse.
    This lawsuit, in my opinion, and the advertisement was 
never intended to notify black farmers. The advertisement was 
inadequate, it was arbitrary, and it really never had an issue 
of notifying black farmers. Thank you.
    [The prepared statement of Mr. Burrell follows:]

    
    
    
    Mr. Chabot. Ms. Atchison, you are recognized for 5 minutes.

             STATEMENT OF BERNICE ATCHISON, FARMER

    Ms. Atchison. Mr. Chairman, fellow congressmen and this 
assembly, I stand before you in humbleness representing more 
than 700 of my fellow kinsmen in my county alone. I have here--
been brought here today to speak on this notice.
    As I was secretary for the Alabama Democratic Conference 
for more than 30 years in our county, I never imagined 
segregation would still be existing in this day at this time. 
The question that we are asking in Chilton County is, did Judge 
Friedman mean to leave this county out by not posting or 
notifying the black farmers and farm helpers?
    While we help produce the products that was raised in this 
county and shipped to many other States to be sold, we had 
hoped to be treated fairly. We contacted the USDA of Chilton 
County and was told that they could not help us.
    We immediately wrote certified letters to class counsel and 
to the Monitor stating that there were no affidavits and that 
there was no claim packages at the USDA, and they informed us 
they could not help us. The USDA of Chilton County did not have 
a copy of the Consent Decree, nor did they have a copy of the 
stipulation for us to view. It was not published in the county 
newspaper or it was not a notice sent out in our U.S. 
agriculture for the extension service here in Chilton County.
    We were not notified by mail nor were we given a chance to 
apply even after we notified class counsel that there were no 
legal help for us in Chilton County. Many of us were sent 
denial letters and many were not answered or given a tracking 
number.
    We have been--we have sent packages to inform you and ask 
that the error be corrected. These packages contain the proof 
that you needed to know. We know you have received those eight 
copies because they were sent certified mail. We have called 
time after time to no avail, beginning in April of 2000 until 
now, asking and pleading. Many of us are farm helpers, 
sharecroppers, and some have FMNP numbers as I do, yet you have 
denied me and many more.
    I have lived on the same farm all of my life. I was born in 
this county in 1938. My mother and father worked hard to secure 
their own land for their children to inherit. You are now 
holding me accountable for a late claim affidavit when they 
were not sent to us as we requested in a timely manner. When we 
notified you that we had no claims, even your affidavits were 
not sent to any of our people until after August the 16th, 
which left only 20 working days, including a Labor Day weekend. 
Less than 20 days with no affidavit claims for our people or 
our families who all own farms and none have been notified of 
the process.
    The problem was a USDA and class counsel problem. They 
defied the judge's order in Chilton County. They did not post. 
The judge plainly stated it: ``t shall be posted or mailed.'' 
It was not.
    And the USDA did not have a copy of the Decree, of the 
stipulation on hand for us to view. Without the proper 
information or instruction, we had no way of knowing what was 
needed to apply.
    I am a farmer who owns 39 acres and a share in another 358 
acres of inherited family land. We have proof that we notified 
both class counsel and the Monitor by certified mail at least 
in time to bring our problem to their attention.
    When I received the response on August 16, 2000, dated 
August 10, 2000, we had less than 20 working days to respond 
and only one affidavit to represent all the peoples in our 
county. This was all that was sent to serve our county.
    We have presented the facts to the class counsel and the 
Monitor and now to you, our fellow Congressmen. We believe 
these facts to be extraordinary circumstances beyond our 
control. We now ask and plead that you will rectify the error 
lest it become a miscarriage of justice.
    [The prepared statement of Ms. Atchison follows:]

    
    
    Mr. Chabot. I want to thank all the panel members here. The 
Members of the Committee have 5 minutes each to ask questions, 
and I recognize myself for 5 minutes.
    Mr. Chestnut, I will begin with you. In your interview with 
the Selma Times Journal, you stated and I quote, ``This is not 
about notice. The notice was as complete as any I have ever 
seen.'' If that was the case, how do you explain Ms. Atchison's 
situation, which you just heard her testify to? What would you 
have to say about that? What could have been done different? 
And what would your comments be relative to her situation?
    Mr. Chestnut. I have been involved, Mr. Chairman, in 
probably more class actions than the average lawyer. And I 
don't know of any class action where the notice was more 
complete than in this case.
    There are always some problems when you are dealing with 
large numbers over large territories. But I went around, Mr. 
Chairman, from county to county--Wilcox County was one of them; 
it's only about 50 miles from me--and held meetings encouraging 
farmers to become involved.
    My little law firm, Mr. Chairman, borrowed $2.5 million in 
order to help get the word out and help these farmers fill out 
the applications. And lo and behold, the Government eventually 
paid $2 million back and would not pay the interest. I had to 
eat it.
    I was out there scuffling with these problems. I was in her 
county not once, many times.
    Now, no matter what kind of notice that you put out there, 
there are going to be people who will not get it. Michael Lewis 
reported in his supplemental, he went back and looked at the 
late filings and he found that of all of those 64--I think he 
looked at 64,000 instead of 65,000, only about 28,000 of these 
people said they did not have notice. Their reason for filing 
late were health reasons and things of that sort.
    So you really only have a third of that 64,000 people. Of 
that, I don't know how many of those will turn out to be really 
black farmers.
    Mr. Chabot. Ms. Finegan, if notice needed to be tangible 
and concrete, Mr. Chestnut's words, why would you advertise on 
CNN and Jet Magazine rather than credible sources to the black 
farmers, like the churches, or as Mr. Burrell mentioned, local 
newspapers or local African American radio stations and things 
of that nature?
    Ms. Finegan. As in the case with any class action, there 
are certain recommendations that are made to the parties, and 
this was no different. There were multiple recommendations made 
regarding notice. However, speaking to the point of local 
newspaper, we did, in fact, advertise as a one-quarter-page ad 
in local African American newspapers, 115 of them to be exact.
    With respect to television, advertising is a science. It is 
a science of human behavior. There is a tremendous amount of 
art and judgment in it. To the extent that science is used, 
nationally syndicated media research such as Mediamark go 
directly to survey individuals for their media consumption 
habits. So this data is a projection based on actual 
consumption.
    Based on Mediamark information, over 63 percent of the 
class had access to cable television and, in fact, had viewed 
some form of cable television in the previous 7 days.
    Regarding the art----
    Mr. Chabot. Before you go on, I only have 5 minutes, so let 
me ask a follow-up question. What sort of local media did you 
use in either of the States of Kentucky or Ohio?
    Ms. Finegan. Sir, I don't have the specific media 
information in front of me. I would be happy to supply you with 
that information. But more than likely, there was general 
circulation newspaper and local African-American newspapers.\2\
---------------------------------------------------------------------------
    \2\ The material referred to can be found in the prepared statement 
of this witness on pages 78-89 of this hearing.
---------------------------------------------------------------------------
    Mr. Chabot. You mentioned 115 local newspapers, if you 
could provide that information to the Committee. My time has 
expired.
    I recognize the gentleman from Virginia, Mr. Scott, for 5 
minutes.
    Mr. Scott. Did I understand you to say that you believe 
that almost half the people that filed late had, in fact, 
gotten notice on time?
    Ms. Finegan. I don't believe that I said that. I was citing 
a report from Mr. Lewis.
    Mr. Scott. What portion of the late filers in your 
judgment--Mr. Chestnut suggested two-thirds, suggested that, 
had some kind of notice before the deadline. Do you know?
    Ms. Finegan. I would have to defer to Mr. Lewis. He has 
probably had the ability to view that document specifically, 
and I have not.
    Mr. Scott. You said the notice was designed by traditional 
scientific methodology to get the notice to people. Do you 
consider there is a difference between showing that somebody 
looked at the paper, or a paper was presented to them so they 
could see it, that kind of notice, and notice that they 
understood that they actually might have a case and what to do? 
Is there a difference?
    Ms. Finegan. Of course, there is always a difference 
between a notice disseminated and a notice actually 
communicated.
    Mr. Scott. Now, apparently, the notice got communicated 
after the deadline and 60,000-some people acted after the 
deadline. What did they know after the deadline that they 
didn't know before?
    Ms. Finegan. That would be speculation, and I wouldn't care 
to go there.
    Mr. Scott. Do you object to people having their claims 
decided on the merits?
    Ms. Finegan. I am not a lawyer, sir.
    Mr. Scott. Mr. Chestnut, for a Member of Congress to listen 
to your resume, I just have to remark that without your courage 
back when it was dangerous to bring the kind of cases that you 
brought without--and I practiced law for a little while. People 
wouldn't be here but for your work, and I want to thank you for 
your lifetime of commitment.
    Obviously, a lot of people in class action cases won't get 
the notice. I mean, I get notices all the time for class 
actions, and I just look at it, and figure I might get $0.30, 
but it's going to cost me more to mail this thing in than to 
worry about it, and I don't do anything. At this point, I think 
a lot of people, after the deadline, figured out they might 
actually have a case worth applying.
    Do you object to them getting their cases considered on the 
merits if we can figure out a way to do it?
    Mr. Chestnut. No, I am for that 1,000 percent.
    Mr. Scott. Thank you very much.
    Mr. Chairman, I don't have any more questions now.
    Mr. Chabot. Thank you very much.
    The gentleman yields back his time.
    The gentleman from Tennessee, Mr. Jenkins, is recognized 
for 5 minutes.
    Mr. Jenkins. Thank you, Mr. Chairman.
    Mr. Chestnut, I'm sorry I missed your testimony, sir, but I 
take it from responses that you have given to questions that--
was yours the only law firm involved? Were there other law 
firms involved?
    Mr. Chestnut. I think there were eight law firms.
    Mr. Jenkins. Eight law firms involved. But I take it that 
you have testified here that it is your belief that the notice 
was adequate?
    Mr. Chestnut. I don't have--I don't have any reservations 
at all about the notice. I am a class action lawyer. I have 
dealt with notice for the last 20 years. I don't see anything 
significantly different.
    Mr. Jenkins. And your firm and the other firms hired Ms. 
Finegan to help to see that the notice was disseminated?
    Mr. Chestnut. My firm, plus the Government, who was paying, 
that's the big elephant in the room, and that is who said at 
one point, this is all we are going to pay for.
    Mr. Jenkins. Yes. But Ms. Finegan, you believe the--have 
you done lots of these in your work?
    Ms. Finegan. Yes, sir, I have.
    Mr. Jenkins. Do you share the belief with Mr. Chestnut that 
this notice was adequate?
    Ms. Finegan. Yes, sir, I do.
    Mr. Jenkins. All right. Mr. Burrell, I missed your 
testimony, and I'm sorry, sir, I understand you are a 
Tennessean.
    Mr. Burrell. Yes, sir, I am.
    Mr. Jenkins. From the western part of the State?
    Mr. Burrell. Yes, sir.
    Mr. Jenkins. I am from the eastern part of the State, and 
you know that we are closer to Washington, DC. In my hometown 
than we are to your part of the State. But we are coming there 
often now, because we have a son and daughter-in-law and three 
grandchildren near your home. It is in Covington, isn't it?
    Mr. Burrell. Yes, sir.
    Mr. Jenkins. Mr. Burrell, what was your testimony with 
respect to the adequacy of this notice?
    Mr. Burrell. My testimony, Congressman Jenkins, is that the 
notice was arbitrary. It was basically not an issue with USDA.
    If you, sir, would read some of the testimony that was 
given to Judge Friedman at the fairness hearing, both the 
counsels for the farmers and the counsel for the Government 
made reference to the fact that the emphasis was put on 
paragraph 7, paragraph 10, paragraph 9, paragraph 11, and 
paragraph 12 of the Consent Decree.
    Our position is, then, whatever does or does not happen in 
paragraphs 5, 7, 9, 10, 11, and 12 is a function of what 
happens in paragraph 4. Paragraph 4 is where class counsel and 
the Government did not put any emphasis on. And paragraph 4 
specifically states--if you don't mind, it says--it says that 
they are going to do the right thing, the USDA has shown its 
best efforts, obtained the assistance of community-based 
organizations, including those organizations that focus on 
African-Americans and agricultural issues. What is technical 
about that? What is technical about calling a local radio 
station or the local news?
    Sir, with all due respect, when USDA gets ready to 
foreclose on a farmer and take his land, they use the local 
newspaper. Why couldn't they use the local newspaper when it's 
time to pay him?
    They are making these gestures about the pie-in-the-sky 
effort. You have got an organization 3,000 miles away from the 
average black farmer--and that's no disrespect to the people 
who live in the west--using an organization 2,000 and 3,000 
miles away from farmers, and they are saying that they are 
advertising in the 18-State area. But the majority of the 
people they paid are heirs to the black farmers who live all 
over the country. So on its face, the advertisement was not 
adequate.
    And I would--and in our analysis, 92 percent of the people 
who they paid live outside of those 18 States. If you are going 
to pay an heir that's moved to Detroit or moved to Washington 
or moved to L.A. Or moved to Houston, as is the result of the 
discrimination, why wouldn't you then advertise?
    What has happened--in my closing, if you don't mind--is 
that people who were promised to be paid--they were advertised 
to the farmer but they paid the heir. But they did not 
advertise to the heir.
    So you have this cross-connect where the regents are 
concentrating on paying a group, that they are only actually 
advertising to a group that they only paid 8 percent of the 
time.
    Mr. Chabot. The gentleman's time has expired.
    Mr. Jenkins. Thank you, my time has expired.
    Mr. Chabot. Is the gentleman from Michigan here?
    Okay. The gentleman from Alabama, Mr. Bachus, is recognized 
for 5 minutes.
    Mr. Bachus. Thank you.
    Mr. Chestnut--and I will ask Ms. Finegan this, too. You 
know, we had 140 years of discrimination. I mean, well, illegal 
discrimination, and we had 100 years before that. But this 180 
days, that sort of bothers me. I mean, why all of a sudden, not 
to get in that much of a hurry, but that must have been a real 
hindrance to you, Ms. Finegan, to put together what may have 
been your largest notification charge you had ever been given, 
your company. As complex as it was, as Mr. Chestnut says, the 
black farmers, they have been short shifted. They have been 
scammed. They have been screwed, you know, for hundreds of 
years, so you have got to overcome that. They are going to be 
suspicious that somebody at the same organization that has 
discriminated against them, and for 40 years, suddenly, going 
to really give them something. I wouldn't fall for that.
    So I will ask you, was the 180 days in the budget that you 
had?
    Mr. Chestnut, actually, you said that you all had to borrow 
money, your firm. That indicates to me that you didn't have the 
financial resources to notify people? I mean, the Government 
may have said, the judge may have said this is what you are 
going to get.
    So I would ask you, did you have a sufficient budget? Would 
you have liked more? Was 180 days, was that a problem?
    Ms. Finegan. I will address the 180 days first, sir. The 
180 days is shorter than some, and it's longer than others in 
class action.
    Having said that, there are always constraints under which 
we have to work to provide notification programs.
    Typically, we try to do the best we can with the budget 
constraints that we have been provided.
    Mr. Bachus. Right.
    Ms. Finegan. So, in order to accommodate the widest scope 
program, we did try to run ads. We did run ads on cable network 
television.
    Mr. Bachus. What was your total network budget?
    Ms. Finegan. The exact dollars I don't have in front of me. 
I believe that it was somewhere around $385,000 just for the 
media.
    Mr. Bachus. Doesn't that just pretty much tell you that 
you--you know, I spent in my Congressional district, trying to 
get my message out, I spend $1 million, and I am in an urban 
area where I can really load up.
    Ms. Finegan. Again, sir, we were given a budget.
    Mr. Bachus. I can just tell you, $380,000, that ought to 
tell everybody in this room. You weren't working on a--you 
didn't have a tenth of the money you needed.
    And I know you are hired by the judge and the court, and 
it's hard, but, I mean--and the 180 days and $385,000? This 
thing was designed to fail from day 1.
    And I know, you know, that's what you had to work with.
    Mr. Chestnut, you said you borrowed $2 million.
    Mr. Chestnut. $2.5 million. But that had nothing to do with 
paying for the notice.
    Mr. Bachus. Well, you know, notice--I don't think notice--
maybe notice is not the word we ought to use here. What you got 
to--what ought to be done here, the affidavits have to be 
delivered. Folks have to be educated in how to file claims.
    Mr. Chestnut. That's what we borrowed the $2.5 million for.
    Mr. Bachus. Yes, and how much money was budgeted to get the 
affidavits out, sit down with people and help them with these 
claims?
    Mr. Chestnut. We hired lawyers all over the south.
    Mr. Bachus. Yes.
    Mr. Chestnut. I was all over the south, all out to 
California. Not only spreading the word, but giving direct 
assistance to farmers.
    Mr. Bachus. But you had 180 days to do all of that?
    Mr. Chestnut. That's right.
    Mr. Bachus. That's not enough time.
    Mr. Chestnut. Well, this was the Government.
    Mr. Bachus. I am not criticizing your----
    Mr. Chestnut. I understand.
    Mr. Bachus. I am just saying, it's obvious to me that you 
aren't under this--for whatever--and I think--Ms. Finegan, you 
said it greatly exceeded your expectations, you know, all the 
claims and all.
    So, I mean, that had to--I mean, that--"owe me"--isn't that 
what you--you used that phrase?
    Ms. Finegan. Yes, sir. It did greatly exceed the 
expectations of the parties.
    Mr. Bachus. Yes, so----
    Mr. Chestnut. But I think the record ought to reflect that 
this was an adversary proceeding. The Government was not in bed 
with us. The Government has never been in bed with J.L.----
    Mr. Bachus. I understand that. What we as the Congress have 
got to look and see whether the Government was reasonable in 
what they did. I am not criticizing what you did.
    Mr. Chestnut. No.
    Mr. Bachus. All I am saying is--and the Government gave you 
180 days and $385,000 to notify people. It's apparent to 
everybody up here, that's not enough time, not enough money.
    Mr. Chabot. The gentleman's time has expired.
    The gentlelady from Pennsylvania, Ms. Hart, is recognized 
for 5 minutes.
    Ms. Hart. Hope that buzzer is not for me.
    Thank you, Mr. Chairman.
    Following up, actually, a little bit on Mr. Bachus' 
questions. Stop it.
    Mr. Chabot. Those bells are just to annoy people, 
basically. That means the House is going out of session on 
floor. But there are no votes until, we believe, 8 this 
evening, because of President Clinton's library opening.
    Ms. Hart. Thank you, Mr. Chairman. I want to follow up with 
Mr. Chestnut a little bit more.
    I believe you said at one point that two-thirds of the 
people who made late claims didn't claim that they didn't 
receive notice. Am I stating that correctly?
    Mr. Chestnut. I said that the Facilitator, Mr. Michael 
Lewis, went back after he testified before this Committee and 
examined the 64,000 of the 65,000 people, and he filed, I 
think, a supplemental, with this Committee, in which he said 
only a third--about 28,000 of those persons, said they didn't 
have notice or were not aware. They filed, for health reasons 
and other reasons.
    Could I just, for 1 minute--Mr. Bachus, it wasn't 180 days. 
These people had from October 12th to file these claims from 
the date of the Consent Decree, and some of them began in 
January 1999, right after it was--there was a preliminary 
report. So that was 9 months out there that people had a window 
to file claims. I just want to put that in the record.
    Ms. Hart. Okay, that's all right. Thanks. I appreciate that 
clarification.
    I am still stuck on this notice thing. And, you know, if 
you are trying to get a hold of a certain group of people, then 
the best way to do that is to inquire what they used to get 
their information. And so I would like to jump over to Mr. 
Burrell and Ms. Atchison.
    Just, if you could for me, what would you suggest media--
what type of media should have been used to provide this kind 
of notice that was not?
    And I will start with Mr. Burrell.
    Mr. Burrell. Well, thank you, Congresswoman Hart.
    The organization that I am with, with the Black Farmers and 
Agriculturalists Association, we have been, with the assistance 
of our attorney, notifying farmers about the lawsuits as well. 
It's interesting to note also that Mr. Pires in his statements 
talked about--and as Mr. Chestnut corroborates--how they travel 
from State to State. You would read in some testimony where 
they maintained it was 5 and 6 and 8 and 10 of them in a room.
    Our question is--and Mr. Pires went on to say that he went 
to Alabama 42 times. Alabama, I think, has the largest number 
of claimants--and rightly so--in this lawsuit. That tells us 
then, that on average, 100 people heard them when they were 
visiting.
    When we had a meeting in Alabama--we had a meeting in 
Montgomery--3,000 folks showed up at one meeting. But the 
difference between the 3,000 that came up to our meeting and, 
we believe, the 100 that came to his is we spent thousands of 
dollars buying local radio advertisement. We subscribed to 
black--Adonis black radio that deals specifically with that 
area, and we believe that's why the people came out.
    Ms. Hart. And that was--that same avenue of notification.
    Mr. Burrell. That same avenue, because virtually every 
black radio station that we called maintained that they 
themselves did not even know about the lawsuit.
    Ms. Hart. Thank you.
    Ms. Atchison, could you enlighten us a little bit about 
your neighbors, and what kind of newspapers that you would 
read? And if there was any notice given in this?
    Mr. Burrell. We don't have black newspapers in Chilton 
County, period.
    Ms. Hart. Is there a local newspaper in Chilton County?
    Ms. Atchison. We have a local newspaper in Chilton County, 
but it is not a black newspaper.
    Ms. Hart. But do people read it?
    Ms. Atchison. Well, we are in a real rural area. You will 
find some people that do read it. You will find some people 
where it is not prevalent.
    Ms. Hart. Okay.
    Ms. Atchison. But what I did to prove to Mr. Lewis, I sent 
him letters from all four mayors of Chilton County, who all 
stated--and if you pick up one of these here.
    Ms. Hart. Yes.
    Ms. Atchison. You will find that each one of them stated 
that they did not receive any notice whatsoever to post.
    Ms. Hart. So there was no local government contact posted 
in the community bulletin board?
    Ms. Atchison. No.
    Ms. Hart. Nothing like that.
    Ms. Atchison. Wasn't posted at our county courthouse; 
wasn't posted at the local library. I wrote Mr. Lewis and also 
sent class counsel a letter, on January 9th of 2000, stating, 
``If we were to meet the deadline of September 15, 2000, it was 
the responsibility of the Facilitator to post all mail from the 
court house.''
    Notification, notifying the landowners, for less than $6, 
every black church could have been notified, touching literally 
every black family. There were only 17 black churches in 
Chilton County. As you noted in the Monitor Review, there has 
been problems in the claim process. It would be a miscarriage 
of justice to leave us out after we have brought it to your 
attention. USDA has failed to post. We didn't even have a 
Consent Decree to look at to know what we needed to do. We 
just--just kind of sent something in.
    Ms. Hart. I am out of time. Thank you for that.
    Mr. Chabot. Would the gentlelady like an additional minute?
    Ms. Hart. I would.
    Mr. Chabot. All right. The gentlelady is recognized for an 
additional minute.
    Ms. Hart. Thanks, I just want to give Ms. Atchison an 
opportunity to finish because one of the things that concerns 
me, you know, we talk about constructive notice. That is 
basically that people should have known, that there is a 
constructive notice that should have been given for people to 
find this out. Do you believe that whatever advertising was 
done, that people in your community should have been able to 
figure this out? Just a yes or no.
    Ms. Atchison. No.
    Ms. Hart. Thank you very much. That's good.
    I yield back.
    Mr. Chabot. The gentleman from Alabama is recognized.
    Mr. Bachus. Only because--I will say this, Mr. Chestnut. 
Mr. Chestnut, I would never question anything that you have 
ever done. I am aware that you have righted injustices for 
years under great threat of physical harm.
    I will say this, I am confused on this 180-day thing. 
Because it did say that October 12, 1999, which was 6 months 
following the entering of the Consent Decree, 180 days. Now, 
the judge did extend this over a year. But now bear in mind, he 
only extended it for two reasons, hospitalization and natural 
disasters. I mean, he actually said lack of notice is not an 
acceptable reason.
    Ms. Atchison. That's right.
    Mr. Chestnut. Mr. Bachus, you are----
    Mr. Chabot. Mr. Chestnut, could you turn on the mike?
    Mr. Chestnut. You are speaking to the choir. I argued.
    Mr. Bachus. Okay.
    Mr. Chestnut. I argued to the court that we ought to have 
more time.
    Mr. Bachus. Okay.
    Mr. Chestnut. I argued to the court that the Monitor ought 
not to be somebody in Minnesota. I also argued to the court, 
Mr. Bachus, that the Monitor ought not to be white and sent two 
black women around there, and the judge said no.
    Mr. Bachus. Okay. But I just want to clarify, you know, the 
180 days is really what we are talking about here. Because 
after that, it was natural disasters and hospitalizations. You 
know, that's not really an extension in my mind.
    Mr. Chestnut. Some people started filing claims right after 
the Consent Decree was preliminarily approved. That was in 
January. That's 9 months.
    Mr. Bachus. I agree. Some of them had lawyers. I am just 
saying that we are talking about all of them.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from Virginia, Mr. Forbes, is recognized for 
5 minutes.
    Mr. Forbes. Thank you, Mr. Chairman.
    Mr. Chairman, it's rare where we get a situation where we 
basically agree with all of our witnesses, and I think that's 
where we are today. Sometimes, we just make things a little 
more complicated than they need to be.
    But I don't really see that this is a case of placing blame 
on anybody. It may very well be that when everything shifts 
out, this notice was legally proper. But the notice should 
always be to help stop abuse of process. But it shouldn't be 
part of encouraging abuse of process.
    And, let me say, I start out with two prejudices, or maybe 
one big one. Both my grandfathers were farmers, and neither one 
of them made it, for a long period of time. One had to become a 
carpenter. One of them went as a bridge tender. And I don't 
care whether you are a black farmer or white farmer in America; 
we put our farmers up against the ropes. And I am really 
concerned there will come a time where we are as dependent on 
foreign food as we are on foreign oil in America.
    Let me just say one other thing about both my grandfathers. 
One of them only went to the third grade, and I don't care, he 
wouldn't have read the Wall Street Journal. He wouldn't have 
read The New York Times. But he wouldn't have read the local 
newspaper, but I would never have raised that issue to him that 
he wouldn't do that, because what he did is he got up in the 
morning, and he worked from the time the sun came up, and he 
worked until the sun went down, just to keep things going.
    And my suspicion is we have got farmers out there that are 
the same way. Wouldn't have the magazine we put it in.
    Mr. Burrell, in fairness, my grandfathers wouldn't have 
read the trade magazines, but what they would have read, the 
advertisements that came out in the catalogs, but they just 
didn't have time to do it.
    And one of my concerns is this. I think most of us up here, 
we don't want a single farmer up here who doesn't have a 
meritorious claim to recover anything. But at the same time, we 
don't want any farmers in here who have meritorious claims not 
to recover.
    And so my question might be oversimplified, but I don't 
think our issue is whether we should help these farmers. The 
question I pose to all four of you is, given the situation 
where we are now, what can we do now to help these farmers?
    Mr. Chestnut. I think, one, the res judicata of the United 
States could say, let all 65,000 in, and the Justice Department 
would ask class counsel to agree to that, and we surely would 
agree, and that would end the problem right there.
    Mr. Forbes. Mr. Chestnut, in all due respect, that's above 
my pay grade. But what can we do on this Committee and in 
Congress to help these farmers?
    Mr. Chestnut. I think Congress can fashion a law that deals 
with this problem. But I think it has to be very careful. 
Number one, the Consent Decree is now a contract, a binding 
contract between the parties and approved by the court. If you 
fashion legislation to undo that, you could raise all kinds of 
constitutional problems.
    There is also the question of res judicata out there that 
has to be dealt with. But I think that you could create a new 
cause of action independent of--and pay for it--that would 
cover these people, and if you did that, I think you would 
solve the problem.
    I don't think the problem could be solved in any other way. 
I could be wrong, but I don't think so. But I am also very 
apprehensive about, once again, falsely raising the 
expectations of poor black farmers who have suffered enough. 
They need to understand that there is a big difference between 
what is a legislative problem and what is a legal problem; what 
can and what cannot be done in the courts. And the Congress and 
the White House are the only two bodies that can resolve this 
problem in my opinion. I don't think it's going to be resolved 
in the courts.
    Mr. Forbes. And I want to get to Mr. Burrell.
    But Mr. Chestnut, we would appreciate your further input on 
that with thoughts of solutions, if you could.
    And Mr. Burrell?
    Mr. Burrell. Ladies and gentlemen of this Committee, the 
issue for all farmers in general, and black farmers in 
particular, with no disrespect, is not about legislation. 
Because if they had gotten--it's about discrimination.
    If they were not discriminated against by USDA, if they had 
received their loans--so any other remedy that is short of 
freeing them up from the gravitational pull of discrimination 
at USDA, we will be right back here again.
    One of the things in this Consent Decree that disturbed 
even the judge is that USDA admitted that it would pay the 
settlement, but it did not say that it will stop discriminating 
against black farmers.
    So whatever else we do. If the farmer is left with going 
right back to the scene of the crime the morning after, USDA 
right now has it in its power to undo because the fact that 
discrimination is being allowed to exist at that agency.
    And we just believe that this--first of all, this law 
sought should be reopened. But more importantly, we have bona 
fide borrowers, bona fide borrowers, who are being foreclosed 
on right now. We need some immediate resolution to at least get 
the Government to do what they did when they admitted to 
discrimination, and that is to get a moratorium on the 
foreclosure, stop the bleeding, at least in the short term.
    Mr. Forbes. Okay.
    Mr. Chabot. Okay, thank you. The gentleman's time has 
expired.
    That concludes the questioning of the panel.
    I want to thank the witnesses for being here this morning. 
I think they have very much helped this Committee in dealing 
with this very significant matter.
    I would also let the members of the panel here know that we 
may be submitting some questions in writing, additional things 
that may have been brought up here. Maybe we didn't have time 
to go into some things, so we will perhaps be sending some 
additional questions to you.
    I would also like to let everyone know that we are 
anticipating possibly having a field hearing, a hearing like 
this but outside of Washington, possibly in Ohio, possibly in 
Cincinnati, sometime--coincidentally, that happens to be my 
district. But it would probably be in late January. And we 
have, I think, a pretty good communication system going on here 
as far as getting information and people knowing when we are 
going to have these hearings. So we will--yes, we have good 
notice about getting that out. We probably won't be hiring your 
firm, Ms. Finegan, to get this notice out.
    But nonetheless, we will make sure that everyone knows 
about that hearing, and we will welcome anybody that would like 
to attend to do that.
    And if there's no further business to come before the 
Committee, we, again, thank the members for their testimony 
here this morning, and we are adjourned.
    [Whereupon, at 11:32 a.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 morning. Thank you all for being here for this very important 
hearing. This is the second in a series of hearings the Constitution 
Subcommittee is holding on the 1999 settlement reached between the U.S. 
Department of Agriculture and a class of Black farmers who have 
experienced discrimination by the USDA.
    From the time this Subcommittee began examining this issue, we have 
had more reasons than not to believe that the government has failed to 
``do the right thing.''
    I strongly believe, however, that with all of the information we 
are gathering in our oversight investigation, including through these 
hearings, we will have the understanding from which to develop a full 
and just solution.
    I would like to thank our witnesses for coming. Your insights, 
expertise, and institutional knowledge are critical to this 
Subcommittee in its efforts to find justice.
    During the last hearing, my colleagues and I used our oversight 
authority to gain a better understanding generally of the Consent 
Decree.
    However, as we continue to examine more closely certain aspects of 
the settlement and its administration, it has become increasingly 
apparent that certain Due Process protections, fundamental to the 
Constitution, are lacking in this case.
    Due Process of the law is the legal concept that the Framers of our 
Constitution created to ensure that the government respects all--not 
some, or even most--of an individual's right to life, liberty, and 
property.
    The Due Process Clause places limits on the government's ability to 
deprive citizens of these rights--guaranteeing fundamental fairness to 
all individuals. One of the most important safeguards that has evolved 
from this Clause is the right to notice--notice of a judicial 
proceeding in which an individual's right to life, liberty and property 
may be affected or eliminated altogether. The form of notice must be 
reasonably designed to ensure that those individuals will, in fact, be 
notified of the proceedings.
    This fundamental right to notice applies to the 1999 Pigford 
Consent Decree and all those who had a viable claim of discrimination, 
which impacted their lives, liberty and property, against the 
Department of Agriculture.
    Tragically, recent statistics released on the Consent Decree 
suggest to this Subcommittee that this Constitutional right was not 
safeguarded in the construction and administration of the Consent 
Decree.
    Although the notice campaign design was deemed to be effective by 
the court in a fairness hearing held on April 14, 1999, the 
determination was made using advertising industry tools designed to 
measure the likely effectiveness of a campaign, not the actual 
effectiveness of a campaign.
    Reports indicate that approximately 66,000 potential class members 
submitted their claim late--most because they did not know that they 
were required to submit a claim sooner--losing their right to sue the 
USDA for past wrongs.
    It is hard for many of us to accept that 66,000 farmers would 
consciously wait to have file a claim that would impact their right to 
life, liberty, and property--knowing that they were required to do so 
earlier.
    Further investigation into the circumstances surrounding the late 
claims reveals that many farmers failed to get any notice whatsoever--
or failed to understand the contents of the notice if they did. These 
facts lead this Subcommittee to conclude that the notice implemented in 
the Pigford case was either ineffective or defective--given the nearly 
two-thirds of the putative class failed to be effectively notified of 
the case requirements.
    The hearing this morning will focus on the actual effectiveness of 
the notice campaign. As we learn more about this aspect of the Consent 
Decree, we will consider the appropriate remedy in order to protect the 
safeguards afforded by the Constitution and uphold Lincoln's vision 
that every Black American who wants to farm was the tools available to 
do so.
    I would like to close by putting a personal face on what Lincoln's 
vision means to people who have been impacted by the USDA's actions. 
This promise is still valued today, as this quote explains: ``I have 
worked all my life being a servant to God and his people in Chilton 
County, Alabama. . . . My forefathers were brought here to farm and the 
gift of loving the land has passed down for more than 10 decades. I am 
proud of the heritage in spite of the adversity.'' This is the 
sentiment of Bernice Atchison, one of the witnesses at today's hearing. 
It is for Bernice and all of those who still have faith in the promises 
of this country that we are here today working toward finding a 
solution.
    Again, thanks to all of the witnesses for taking the time to tell 
their story today.

                               __________
 Prepared Statement of the Honorable Robert C. Scott, a Representative 
                 in Congress from the State of Virginia

    Thank you, Mr. Chairman. Congressman Jerrold Nadler of N.Y., the 
Ranking Member for this Subcommittee, asked me to express his regret 
that he was not able to be here and to serve as Ranking Member today, 
in his stead. Although he is not able to be with us today, he strongly 
supports the efforts of this Subcommittee to examine the issues 
surrounding the Pigford Settlement and was instrumental in helping to 
develop these hearings.
    I would also like to take this opportunity to note my appreciation 
for the leadership you have shown, Mr. Chairman, in seeking answers and 
solutions to the questions and problems that have come to light 
regarding the Pigford settlement, and for the time and attention you 
and your staff are devoting to pursuing these issues. And I, again, 
express my appreciation for the open, bi-partisan and productive manner 
in which you, Chairman Sensenbrenner, Agriculture Committee Chairman 
Goodlatte and your staffs have proceeded to work with us. Full 
Committee Ranking Member John Conyers, Rep. Watt, Rep. Bennie Thompson, 
Rep. Towns, Rep. Butterfield, Rep. Sanford Bishop, Rep. Baca and Rep. 
Autur Davis, and their staffs, have been an integral part of developing 
these hearings and the issues we are exploring as well, working closely 
with Black farmers and their advocates.
    This hearing is about the notice provisions for the Pigford 
Settlement. The information we have found reveals that some 96,000 
claims were filed, but only about 22,000 of these claims were, or are 
slated to be, considered on the merits. The primary reason given for 
not considering the remaining claims on their merits is that they were 
not submitted during the initial period set by the court for the filing 
of claims, which ended October 12, 1999, 6 months after the settlement 
was entered into. By this time, approximately 22,000 claims had been 
filed. Upon realizing that claims were still pouring in beyond the 
initial deadline, the court set a deadline for accepting late claims. 
It was first set for January 30, 2000, but with claims still coming in, 
the court extended it to October 15, 2000. Some 66,000 additional 
claims were filed by the October 15, 2000 deadline, and another 7,800 
after the deadline. Of the 66,000, only 2,100, approximately 3%, were 
accepted for a determination on their merits. While the merits of all 
of the 2,100 late claims accepted have not been determined, some have 
and, according to reports from the court appointed Monitor of the 
settlement, a significant number of those considered were found to 
warrant payment under the settlement agreement.
    A large part of the problem in the settlement appears to have been 
that no one realized that there was the potential for so many claims to 
be filed. Early estimates of the potential ranged from a few hundred 
to, eventually, a few thousand. It does not seem reasonable to believe 
that the court would twice extend the period for filing claims simply 
to tell virtually all of the late filers--97% of them--that they had 
filed too late. Nor does it appear reasonable to believe that the 
court, or anyone, would have knowingly designed a claims procedure that 
would leave 75% of those who filed a claim without a way to get a 
determination on the merits. And it certainly does not seem reasonable 
to conclude that 75% of those who filed a claim knew before the 
deadline that they could, but intentionally waited to file their claim 
late. With the vast majority of claims being filed after the deadline 
had passed, my inclination is to think that effective notice did not 
reach most claimants in a manner that allowed them to file their claims 
on a timely basis.
    The court, in trying to accommodate this situation, gave the 
Arbitrator carte blanc authority to determine whether late filed claims 
should be let in due to ``extraordinary circumstances.'' Unfortunately, 
the Arbitrator established a process that resulted in virtually no one 
being able to show that they did not file on time due to extraordinary 
circumstances. Rather than applying this standard so narrowly as to 
leave 97% of the late claims out of the process, the Arbitrator might 
well have considered it to be an ``extraordinary circumstance'' that 
75% of the claims filed in a class action settlement will not receive 
consideration on the merits.
    There are, no doubt, a number of explanations and speculations for 
how we ended up with such a large percentage of the claims being filed 
beyond the court's initial filing deadline, and we will likely hear 
some of them today. Yet, whatever the reasoning, I find it unacceptable 
that 75% of those who filed claims will not receive a determination on 
the merits of their claim. However we got here, we have a finite number 
of approximately 72,000 claims in which long-standing, atrocious 
misconduct by the federal government is alleged, and I believe these 
claims should receive a determination on their merits. Not all of the 
claims will be found meritorious, but it would be a travesty of justice 
on top of a travesty of justice to prevent those claims that do have 
merit to be resolved in favor of the claimants.
    So, Mr. Chairman, I want to thank you for scheduling this hearing. 
I look forward to the testimony of the witnesses for any suggestions 
they may have, not to cast blame, but to insure that justice is done 
for the victims of inexcusable government action. Thank you.

                               __________
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
                 in Congress from the State of Michigan

    On April 14, 1999, I stood in victory with Black farmers across 
this country. The United States Department of Agriculture (USDA) had 
agreed to a $1 billion settlement in the Pigford v. Glickman case. Each 
black farmer was to receive at least $50,000 to settle claims that they 
were denied government loans because of their race.
    I was disturbed to learn that USDA has denied payments to almost 
90% of black farmers. Of the 94,000 growers who sought restitution for 
discrimination, 81,000 were turned away. The most glaring denial of 
compensation is the settlement-funded arbitrator's rejection of 64,000 
farmers who came forward with claims during the late claims process 
established by the court. Since the Court in approving the settlement 
described the claims as almost ``automatic,'' we need to understand 
what has gone wrong and whether we have a continuing role.
    At our last hearing, we started to unravel the procedural aspects 
of the consent decree that led to the denial of more than 64,000 
claims. What became clear was that ``notice issues'' formed the 
threshold challenge for the claimants. Given the continuing nature of 
complaints against the USDA, this hearing is extremely well timed and I 
thank the Chairman for his spirit of cooperation in helping to shed 
light on these issues.
    Before the parties move forward with additional litigation, it is 
incumbent on Congress to ensure that the goals of the Pigford 
settlement have been met by the USDA. Unlike most litigation, where 
Congress watches from the outside, we have taken a more active role 
here by extending the Statute of litigation and allowing claims to move 
forward.
    The primary issue for this hearing is why did these 64,000 
individuals, plus another 7800 who filed a claim after the 2nd 
deadline, chose to file a claim, but only after the deadline(s) had 
passed?
    Clearly, this raises the question of whether they received 
effective notice of the right or opportunity to file a claim withing 
the time frame(s). Many farmers and their advocates contend that the 
notice campaign developed by the Poorman Douglas Corporation for the 
Pigford settlement was not adequately tailored to reach black family 
farmers.
    The most remarkable exclusion from the notice campaign was the lack 
of a direct mailing to these farmers. Although USDA conducts regular 
mailings to all farmers who receive loan or subsidy assistance, and has 
records of applications for these programs, notice of the settlement 
was not provided in regular USDA direct mail communications or in a 
mailing specifically aimed at putative class members.
    Most class action notice campaigns include a direct mailing 
component as a way to reach the broadest audience of potential class 
members. This is vital, of course, because if putative class members do 
not learn of the settlement in time to opt-out, they lose the right to 
pursue their claims in court if they do not agree with the terms of the 
consent decree. I trust that both class counsel and the representative 
from Poorman Douglas will address this issue, which may form the basis 
for additional inquiry.
    There are other obvious questions: the only television broadcasts 
of the notice were on cable TV channels: Black Entertainment Television 
and Cable News Network. Paid cable television may not available in many 
rural areas, and is generally considered costly for the average 
citizen. This is especially true for family farmers who must extend 
every resource to maintain the farm. Overall, despite the findings of 
the Court, the volume of late filings raises serious issue about 
whether the notice campaign was well crafted to reach potential 
claimants.
    The groundbreaking victory for civil rights at USDA has proved to 
be short lived. Black farmers face major obstacles in obtaining 
settlement payments in Pigford and continuing allegations of 
discrimination by the USDA have spawned additional litigation. 
Ultimately, the process seems to have failed the claimants.
    In 1910 Black farmers owned about 16 million acres of land. Today, 
Black farmers own fewer than 2 million acres. In 1920 there were nearly 
1 million Black farmers, but fewer than 30,000 exist today. Unless we 
can reverse this trend by upholding the principles of equality and 
fairness, black farmers--who once served at the backbone of our 
agricultural industry--may soon be nonexistent.

     Prepared Statement of Gary Grant, President, Black Farmers & 
                      Agriculturalists Association




                   Prepared Statement of Obie L. Beal



            BFAA News Articles submitted by Chairman Chabot




                Prepared Statement of Lawrence C. Lucas

    The U.S. Department of Agriculture (USDA) Coalition of Minority 
Employees, ``The Coalition'' is a multi-ethnic, multi-cultural, multi-
racial organization with 55 presidents in 34 states. The Coalition is 
committed to changing the discriminatory culture at USDA and holding 
proven discriminatory officials and others accountable for reprisal 
against employees and farmers. The Coalition has informed USDA 
leadership on numerous occasions regarding the Department's historical 
and lingering problems; resulting in demoralized employees, injured 
customers and the wasting of millions of taxpayer dollars on the 
Department's dysfunctional civil rights process.
    Currently, there have been thirty or more Class Action (employee) 
lawsuits that have been filed and a backlog of thousands of employee 
and farmer complaints requiring processing generated by discriminatory 
officials whose wrong doings go ignored. The US Equal Employment 
Opportunity Commission (EEOC), Office of Federal Operations, in a 
report dated February 26, 2003, confirmed ``The Coalition's'' 
allegations regarding the longstanding systemic problems in civil 
rights administration and processing. Despite the failures and 
shortcomings cited in the EEOC report, the Department is still in a 
state of denial, attempts to gloss over its systemic problems and fails 
to implement legal settlements regardless of the merits of these cases.
    The purpose of my testimony is to inform, apprise and sensitize 
members of this Committee and the American taxpayers of the terrible 
wrongs inflicted by USDA on this Nation's Black farmers and its 
employees.
    Officials responsible for protecting the rights of Black farmers 
have failed, by concocting a scheme to block settlements and obstruct 
justice . . . as reported by Black farmers and the recent report 
written by the Environment Working Group (EWG). Those responsible for 
this mess are said to include the U.S. Department of Agriculture 
(USDA), the U.S. Department of Justice (DOJ) and the Attorneys for the 
Black farmers. Poorman Douglass, court ordered contractor, with a 
budget of only $385,000, was responsible for the administration of an 
inadequate notice process, that resulted in their failure to deliver 
timely information to Black farmers.
    ``The . . . settlement is a complete failure,'' said Marianne 
Calendar, a lawyer for the Environmental Working Group (EWG.) ``In 
part, it was the plaintiffs' lawyers who failed them. They took 
advantage of every aspect of the court's rules and the settlement's 
shortcomings to avoid responsibility. Black farmers failed to benefit 
from a consent decree that was supposed to remedy years of a 
``sophisticated, race-based system of intentional discrimination'' that 
encouraged government officials to discriminate against them, by 
obstructing and denying the efforts of Black farmers to obtain loans 
and other programmatic assistance.
    At the last hearing of the House Judiciary Committee, Subcommittee 
on the Constitution, Tuesday, September 28, 2004, lawmakers said the 
1999 class action settlement did not help most of the farmers in the 
class. About 65,000 black farmers were excluded because they did not 
file claims in time, said subcommittee chairman Steve Chabot, R-Ohio. 
``We cannot in good conscience allow a settlement that leaves out more 
potential claimants than it allows in to go unexamined or remain 
unresolved,'' Chabot said.
    The Pigford Consent Decree, signed by Judge Paul Friedman in April 
of 1998, is the written settlement agreement in the federal court case, 
Pigford et al v. Ann Veneman, Secretary of Agriculture; was settled in 
1999 between the U.S. Department of Agriculture and Black farmers who 
sued the agency over race discrimination in loan practices and loss of 
millions of acres of land. Black farmers have complained since the 
settlement was entered into that the process was flawed. The 
Agriculture Department acknowledged a past history of discrimination 
and agreed to a two-tiered process of resolving claims. For both, 
claimants needed to prove that a similarly situated white farmer was 
treated better than they. Many had trouble acquiring evidence from USDA 
or local officials to establish unfair treatment. It appears that the 
wrong choices continue to be made by USDA officials, compounding the 
injustices emanating from USDA's failure to comply with the Consent 
Decree.
    The settlement contained two options, Track A and Track B, Track A 
was a more simplified process. Ninety-Nine percent (99%) of the 
claimants opted for track A. This Track included a $50,000 settlement, 
plus $12,500 for taxes, forgiveness of previous federal loans and class 
wide injunctive relief. Track B was more difficult because the burden 
of proof was higher than in Track A. By opting for Track B, one could 
receive actual damages, but again, the burden of proof had to be 
``beyond shadow of doubt''. The class action lawsuit should have paid 
more than 30, 000 eligible farmers several billion dollars and provided 
them forgiveness on loan debts for the USDA's discrimination.
    To date, the lawsuit has compensated only 13,000 Black farmers 
$50,000 each, leaving tens of thousands uncompensated and denying them 
at least 3 billion dollars or more as well as the land stolen from them 
by the government. Over twenty-two thousand one hundred fifty nine 
(22,159) ``Track A'' applications were accepted in the lawsuit. On 
March 15, 2004, only 61% of the claims were ruled in favor of the 
claimants and 39% were denied. Although some denials were reversed, no 
one else has gotten paid in 2 years. The funds money dispersed is about 
$818,450,387, below the $2.4 billion claimed by the government. It's 
true that some people did get paid in the lawsuit. However, many more 
farmers would have been paid had as required by the Consent Decree, had 
they been notified by USDA. On April 14, 2004, the statute of 
limitations ran out and more than 65,000 potential claimants were shut 
out of the process, denying Black farmers an opportunity to prove their 
claims.
    The Coalition is grateful to the Environmental Working Group (EWG) 
and John Boyd, Jr., President, The National Black Farmers' Association 
(NBFA) for the dramatic report entitled, ``A Century of USDA's 
Institutionalized Racism Subjects African American Farmers to Dramatic 
Land Loss,'' from which much of the data for this document was 
obtained. USDA has a long and checkered past when it comes to spending 
the American taxpayers dollars on lawyers and attorneys to protect 
themselves against the wrongdoings, discriminatory activities, 
retaliation and abuses against Black, minority farmers and employees.
    The USDA Office of General Counsel (OGC) has a long track record of 
using government funds to pay big expensive outside attorneys to 
protect them from customers and employees making claims against the 
Department. The reason for this waste is that USDA OGC attorneys lack 
the credentials, expertise and authority required to do it themselves. 
In addition, they frequently abuse the system and fail to apply laws 
appropriately. Many of them hide behind the government's dysfunctional 
abusive arcane civil rights process and successfully break the laws at 
the expense of the American taxpayer.
    Based on historical data and widespread reports, papers filed in 
court and recent Hearing ``Status of the Implementation of the Pigford 
v. Glickman Settlement,'' held on Tuesday, September 28, 2004, U.S. 
House of Representatives, Subcommittee on the Constitution, Black 
farmers are still suffering at the hands of a failed process which was 
supposedly designed to protect them . . . not abuse them. This Congress 
of the United States owes it to the American taxpayer and Black farmers 
to get to the bottom of this dysfunctional process inside and outside 
USDA to right this egregious wrong intentionally perpetrated upon Black 
farmers by those with their own personal agendas . . . racism, sexism, 
reprisal, intimidation and other abuses.
    The Department of Agriculture has denied payments to approximately 
90 percent of Black farmers, who sought compensation for discrimination 
under a landmark court settlement the agency reached with African 
American growers five years ago, according to a report released in July 
2004, by the Washington-based Environmental Working Group (EWG). A two-
year investigation found that USDA officials contracted with Justice 
Department lawyers who ran up a bill for 55,712 staff hours reviewing 
the claims . . . again wasting taxpayer money. to aggressively fight 
the farmers' claims after the settlement of the $3 billion class-action 
lawsuit. The Report states that of the 94,000 growers who sought 
restitution in a process set up by the court, 81,000 were turned away. 
The report, funded by the Ford Foundation, said the USDA's actions 
``willfully obstructed justice'' and ``deliberately undermined'' the 
spirit of the settlement. Employees suffer from the same abuses and 
reprisals.
    It has been proven that individuals including our own government 
have engaged in a hideous, collusive effort to deny Black farmers not 
just those in the Pigford class, but also the Black Farmers engaged in 
the administrative complaints process post Pigford efforts to derail 
the justice they deserve.
    Dan Glickman, Former, Secretary of Agriculture, Under the Clinton 
Administration, tried to fix the civil rights mess at USDA and briefed 
incoming Secretary, Ann Veneman on the issues and the pitfalls of 
trying to change USDA historic racist culture. Mr. Glickman's advice 
seemingly fell on deaf ears and the power stayed in the hands of 
discriminating officials who continue to cover up for each other and 
distort the facts. This generated many additional cases and resulted in 
new class actions, fueling a culture of non-compliance with laws, 
settlements and Congressional mandates. This continues to this very 
day. Secretary Glickman the creator of the Office of General Counsel, 
Civil Rights Division, for the purpose of solving the problem . . . 
instead they are part of the problem.
    We must continue to expose those responsible for the injustices 
against farmers, at the hands of USDA . . . the Justice Department, 
Court Ordered Monitors, Arbitrators and even their own Attorney. 
Hopefully, these Hearings will help eliminate the institutionalized 
abuses partly due to poor USDA leadership and little to no 
accountability. Lawmakers and others now recognize that the 1999 class 
action settlement did not help most of the farmers in the Class. About 
65,000 Black farmers were excluded because they didn't file claims in 
time due to a mostly flawed and inadequate notification process. We are 
``sick and tired of being sick and tired.''
    American taxpayer dollars are being used to fund abuses against 
Black and minority farmers as well as USDA employees. Hopefully, these 
Hearings will continue to surface this travesty of justice . . . 
masterfully designed and perpetrated by those seeking to thwart legal 
process. Upon corroboration of these allegations, I request that 
Congress pass legislation (attached) to assure that the approximately 
64,000 Black farmers who did not benefit from the Pigford vs. Veneman 
Lawsuit receive a just and fair haring, on the merits of their cases.
    The racial hatred and animus perpetrated by the USDA, dubbed, ``The 
Last Plantation,'' persists like a plague. USDA officials at the very 
top rung, through intention, deceit, passivity, inaction and neglect, 
have knowingly allowed and even encouraged top government 
administrators and lawyers as well as local federal Farm Service Agency 
officials across this land to trample on the civil rights of the Black 
farmers and to make a mockery of our precepts of freedom and justice.
    In closing, this is not a Republican problem or Democrat problem, 
but an American problem and America will have to deal with it.'' The 
Agriculture Department has steadfastly contended the agency's record on 
civil rights laws has been exemplary. It cited numerous initiatives it 
has undertaken to give Black farmers a greater voice in the agencies 
organizational structure and its efforts to funnel more business to 
minority farmers . . . at the same time causing their decline. These 
actions undermine the intent of our constitution . . . freedom of 
speech and the James S. Sensenbrenner, ``No Fear Bill,'' H.R. 169.
    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. USDA the ``People's Agency'' established in 1862 under 
President Abraham Lincoln, has sabotaged its reputation and credibility 
by creating conditions that make farm ownership impossible and a 
providing an unhealthy work environment for employees. I recommend for 
the above stated reasons that the Office of Civil Rights be put in 
``Receivership'' until such time that the Congress and the Bush 
Administrations can be guaranteed that this deplorable mess and 
dysfunctional system will be repaired once and for all and stop being a 
burden to American taxpayers.



                                 
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