    [House Hearing, 110 Congress]
    [From the U.S. Government Publishing Office]

     AFRICAN-AMERICAN FARMERS BENEFIT RELIEF ACT OF 2007, AND THE PIGFORD
                           CLAIMS REMEDY ACT OF 2007

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

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON THE CONSTITUTION,
                       CIVIL RIGHTS, AND CIVIL LIBERTIES

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED TENTH CONGRESS

                                 FIRST SESSION

                                       ON

                             H.R. 558 and H.R. 899

                                   __________

                                 JUNE 21, 2007

                                   __________

                               Serial No. 110-46

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

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                           COMMITTEE ON THE JUDICIARY

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. SCOTT, Virginia            HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    MAXINE WATERS, California            DANIEL E. LUNGREN, California
    MARTIN T. MEEHAN, Massachusetts      CHRIS CANNON, Utah
    WILLIAM D. DELAHUNT, Massachusetts   RIC KELLER, Florida
    ROBERT WEXLER, Florida               DARRELL ISSA, California
    LINDA T. SANCHEZ, California         MIKE PENCE, Indiana
    STEVE COHEN, Tennessee               J. RANDY FORBES, Virginia
    HANK JOHNSON, Georgia                STEVE KING, Iowa
    LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
    BRAD SHERMAN, California             TRENT FRANKS, Arizona
    TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
    ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
    ADAM B. SCHIFF, California
    ARTUR DAVIS, Alabama
    DEBBIE WASSERMAN SCHULTZ, Florida
    KEITH ELLISON, Minnesota

                Perry Apelbaum, Staff Director and Chief Counsel
                     Joseph Gibson, Minority Chief Counsel
                                     ------

      Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                       JERROLD NADLER, New York, Chairman

    ARTUR DAVIS, Alabama                 TRENT FRANKS, Arizona
    DEBBIE WASSERMAN SCHULTZ, Florida    MIKE PENCE, Indiana
    KEITH ELLISON, Minnesota             DARRELL ISSA, California
    JOHN CONYERS, Jr., Michigan          STEVE KING, Iowa
    ROBERT C. SCOTT, Virginia            JIM JORDAN, Ohio
    MELVIN L. WATT, North Carolina
    STEVE COHEN, Tennessee

                         David Lachmann, Chief of Staff

                        Paul B. Taylor, Minority Counsel
                                C O N T E N T S

                                  ----------

                                 JUNE 21, 2007

                                                                       Page

                                   THE BILLS

    H.R. 558, the ``African-American Farmers Benefits Relief Act of
      2007''.........................................................     2
    H.R. 899, the ``Pigford Claims Remedy Act of 2007''..............    12

                               OPENING STATEMENT

    The Honorable Jerrold Nadler, a Representative in Congress from
      the State of New York, and Chairman, Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties................    16
    The Honorable Trent Franks, a Representative in Congress from the
      State of Arizona, and Ranking Member, Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties................    16
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, Chairman, Committee on the
      Judiciary, and Member, Subcommittee on the Constitution, Civil
      Rights, and Civil Liberties....................................    18
    The Honorable Steve King, a Representative in Congress from the
      State of Iowa, and Member, Subcommittee on the Constitution,
      Civil Rights, and Civil Liberties..............................    19
    The Honorable Robert C. Scott, a Representative in Congress from
      the State of Virginia, and Member, Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties................    19
    The Honorable Steve Cohen, a Representative in Congress from the
      State of Tennessee, and Member, Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties................    21
    The Honorable Artur Davis, a Representative in Congress from the
      State of Alabama, and Member, Subcommittee on the Constitution,
      Civil Rights, and Civil Liberties..............................    21

                                   WITNESSES

    The Honorable Charles E. Grassley, a United States Senator from
      the State of Iowa
      Oral Testimony.................................................    14
    Mr. John Zippert, Director of Program Operations, The Federation
      of Southern Cooperatives Land Assistance Fund
      Oral Testimony.................................................    33
      Prepared Statement.............................................    34
    Ms. Cassandra Jones Havard, Associate Professor of Law,
      University of Baltimore School of Law
      Oral Testimony.................................................    35
      Prepared Statement.............................................    37
    Mr. Phillip L. Fraas, Attorney-at-Law
      Oral Testimony.................................................    82
      Prepared Statement.............................................    83
    The Honorable A. Donald McEachin (D-74th District), Virginia
      House of Delegates
      Oral Testimony.................................................    84
      Prepared Statement.............................................    86
    Dr. John W. Boyd, Jr., President, National Black Farmers
      Association
      Oral Testimony.................................................    86
      Prepared Statement.............................................    88

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared Statement of the Honorable Steve Chabot, a
      Representative in Congress from the State of Ohio, and Member,
      Committee on the Constitution, Civil Rights, and Civil
      Liberties......................................................    24

                                    APPENDIX

    Material Submitted for the Hearing Record........................   101

     AFRICAN-AMERICAN FARMERS BENEFIT RELIEF ACT OF 2007, AND THE PIGFORD
                           CLAIMS REMEDY ACT OF 2007

                                  ----------

                            THURSDAY, JUNE 21, 2007

                      House of Representatives,
                     Subcommittee on the Constitution,
                     Civil Rights, and Civil Liberties,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 9:05 a.m., in
    Room 2141, Rayburn House Office Building, the Honorable Jerrold
    Nadler (Chairman of the Subcommittee) presiding.
        Present: Representatives Nadler, Davis, Ellison, Conyers,
    Scott, Cohen, Franks, and King.
        Staff Present: David Lachmann, Majority Staff Director;
    Keenan Keller, Majority Counsel; Susana Gutierrez, Professional
    Staff Member; and Paul Taylor, Minority Counsel.
        Mr. Nadler. Good morning. This hearing of the Subcommittee
    on the Constitution, Civil Rights, and Civil Liberties will
    come to order.
        Today's hearing will examine legislation introduced by two
    of our colleagues on the Subcommittee that will deal with the
    persistent injustice perpetrated against African-American
    farmers by the United States Department of Agriculture.
        [The bill, H.R. 558, follows:]

        [The bill, H.R. 899, follows:]

        Mr. Nadler. Normally at this point we would go to opening
    statements but since our first witness, the distinguished
    Senator from Iowa, has a hearing to attend, we will come back
    to the opening statements after Senator Grassley testifies.
        Our first witness is the distinguished Senator from Iowa,
    Charles Grassley. He needs no introduction. Suffice it to say
    that the Senator is himself is a family farmer. He served in
    the House from 1974 to 1980, when he was elected to the Senate.
    He was, among other achievements, the author of chapter 12 of
    the Bankruptcy Code, which provides special relief for
    distressed family farmers. While we have long disagreed on many
    other issues having to do with the Bankruptcy Code, I am proud
    to have worked with Senator Grassley to make chapter 12 a
    permanent part of the Code.
        I would add that our purpose today is not to talk about
    bankruptcy but to do all we can to protect family farmers who
    have been treated unjustly by our Government and keep them away
    from bankruptcy.
        I want to welcome our colleague from the other body to the
    Subcommittee today. Senator, your written statement will be
    made a part of the record in its entirety. I would ask that you
    now summarize your testimony in 5 minutes or less. To help you
    stay within that time limited, there is a timing light at your
    table. When 1 minute remains the light will switch from green
    to yellow and red when the 5 minutes are up. Thank you, and we
    await your testimony.

            TESTIMONY OF THE HONORABLE CHARLES E. GRASSLEY,
             A UNITED STATES SENATOR FROM THE STATE OF IOWA

        Mr. Grassley. Well, thank you very much, Mr. Chairman, and
    I would also thank Chairman Scott, Chairman Conyers and
    Congressman Davis for their support of this very important
    issue, and I would also thank Congressman Chabot and his staff
    for the hard work that they have put into this legislation.
        I know only one Black farmer in Iowa, but justice knows
    little about State lines and my State has a long history of
    supporting fairness and support for farmers. My efforts for
    this bill is in that tradition.
        Ironically, the Department of Agriculture has expanded in
    size and influence in the last several decades. The number of
    Black farmers in this country has declined dramatically. In the
    1920's there were more than 900,000 Black farmers owning or
    operating more than 16 million acres of land. Today statistics
    reveal that fewer than 18,000 Black farmers own or operate less
    than 3 million acres.
        In 1997, aggrieved Black farmers came together to hold the
    Department of Agriculture accountable for systemic
    discriminatory treatment in the administration of loans and
    other credit opportunities under the Equal Credit Opportunity
    Act and the Administrative Procedures Act. Unlike previous
    unsuccessful lawsuits, the U.S. District Court certified and
    consolidated the Pigford and Brewington cases as one class
    action lawsuit, giving aggrieved plaintiffs hope for the first
    time in many decades.
        This decision prompted the U.S. Department of Agriculture
    to agree to resolve these claims expeditiously, the result of
    which is the Pigford consent decree.
        At the time the consent decree was the largest racial
    discrimination settlement in our Nation's history and
    expectations were very high once again that a turning point in
    the documented plight of the Black farmer had occurred. The
    consent decree was intended to provide a swift resolution for
    the claims of discrimination that had gone unaddressed for far
    too long.
        Despite these good intentions, the expeditious resolution
    of tens of thousands of claims has not occurred. Testimony
    before the House Constitution Subcommittee revealed many
    unanticipated problems with the consent decree, some of which
    have impacted the ability of many farmers to file timely
    claims. In particular, the Committee was made aware that more
    than 65,000 potential claimants who requested entry into
    consent decrees by the court ordered September 15, 2000
    deadline, that more than half did not have actual notice of the
    settlement and were denied the opportunity to have
    determinations made on the merits of their claim.
        Thus, more than 75,000 farmers once again have been shut
    out of the process that was created to address their
    discrimination complaints and are left without any recourse or
    opportunity to pursue those claims. H.R. 899 provides those
    aggrieved claimants who filed late claim petitions with the
    court appointed arbiter before December 31st, 2005 with a new
    and needed opportunity. This bill is intended to provide some
    measure of justice to remedy past injustices.
        With this bill, it is my hope that the U.S. District Court
    would embrace this opportunity and construe it in a remedial
    spirit in which it was intended. In his latest opinion District
    Court Judge Friedman stated, quote, that legislators can take
    steps that judges cannot. If Congress believes that burdens are
    unfair or that a significant number of African-American
    farmers, despite extraordinary efforts to reach them, never
    received notice, then it surely has the means--meaning the
    Congress--has the means at its disposal to correct these
    wrongs. Legislative solutions are not unprecedented. The court
    is confident Congress could devise a means to provide relief
    for these farmers, end of quote.
        With this opinion in mind, it is my hope that the court
    would liberally construe the cause of action, apply the same
    substantial evidence standard that was utilized in the consent
    decree and affording those farmers who meet the criteria with
    an opportunity to expeditiously resolve their complaints
    through a process similar to and within that process
    established by that consent decree.
        In 1998, Congress waived the applicable statute of
    limitations that would have barred eligible claimants from
    filing a complaint under the original consent decree. The bill,
    H.R. 899, provides similar assistance enabling those with
    meritorious claims to have their day of justice.
        I offer a Senate companion to H.R. 899 along with Senators
    Obama, Kennedy and Biden.
        Thank you, Mr. Chairman, for allowing me to testify this
    morning and one final note: I want to recognize the hard work
    of Dr. John Boyd, President of the National Farmers
    Association, in this effort as well. Thank you very much.
        Mr. Nadler. Thank you, Senator. Now mindful of the press of
    legislative business, it is usually not the practice to
    question our colleagues and their witnesses here. Unless there
    is objection, the Senator is excused with thanks.
        Mr. Conyers. Much thanks.
        Mr. Grassley. Thank you, Mr. Chairman.
        Mr. Nadler. Thank you, Senator. We will now return to our
    normal order of business and the Chair will recognize himself
    for 5 minutes for an opening statement.
        The injustices perpetrated against African-American farmers
    by officials of the United States and its agents have resulted
    in the dispossession of countless family farmers and the near
    ruination of thousands of others. The settlement of the Pigford
    case was intended to have provided a remedy for these terrible
    injustices. Unfortunately, for a variety of reasons, including
    mismanagement and apparent continuing resistance by the
    Department of Agriculture and the Department of Justice, that
    remedy remains elusive for many.
        This injustice has gone on for far too many years and quite
    frankly I find deeply disturbing that this matter could have
    been solved years ago had the agencies responsible for
    protecting the rights of family farmers not done their best to
    undermine those rights. The longer this drags on the more
    farmers will be pushed into bankruptcy and off the land their
    families have farmed for generations. That is unacceptable.
        Our colleagues, the gentleman from Virginia, Mr. Scott, and
    the gentleman from Alabama, Mr. Davis, have each introduced
    legislation to deal with their unacceptable situation. I want
    to commend them for their hard work and dedication. This is
    truly a just cause.
        I want to welcome all of our witnesses and thank them for
    participating today. I look forward to your testimony. I yield
    back the balance of my time.
        I now recognize our distinguished Ranking Member the
    gentleman from Arizona, Mr. Franks for his opening statement.
        Mr. Franks. Well, thank you, Mr. Chairman. And thank you
    for holding this hearing on this very important issue.
        Mr. Chairman, the United States Department of Agriculture
    is responsible for the farming programs that provide loans,
    credit, and other benefits to farmers. A Federal court has
    found that the USDA's loan program was plagued by
    discrimination by the elected county committee and supervisors
    who administered the program who systematically denied certain
    farmers loans and other credit opportunities based on the race
    of the applicants. The collective effect of these actions
    contributed to the dramatic decline in the number of Black
    farmers in the United States.
        The U.S. District Court for the District of Columbia noted
    in its opinion approving the consent decree resulting in the
    litigation Pigford v. Glickman, that the number of minority
    farmers and farm ownership has declined from nearly a million
    strong and 16 million acres of farmland in the 1900's to fewer
    than 18,000 minority farmers owning less than 3 million acres
    of land today.
        While it is true that the number of American farmers of all
    races have declined by large percentages the court's findings
    suggested that racial discrimination was at least in part the
    cause for the numbers that declined within the minority
    community.
        Since the consent decree's opinion, however, criticism has
    ensued over the fairness of the process to adequately resolve
    past complaints of discrimination. On September 28 of 2004,
    this Committee under Chairman Steve Chabot held an oversight
    hearing on the status of the implementation of the Pigford
    settlement. The hearing closely examined the consent decree,
    particularly focusing upon whether the intent of the parties
    has been fulfilled, whether procedure requirements prescribed
    for the settlement were adequate and whether the civil rights
    issues that led to the settlement had been properly addressed
    and what actions may be further necessary to address the
    outstanding issues.
        On November 18, 2004, the Subcommittee held an additional
    oversight hearing on the notice provision of the consent decree
    to better determine whether the intent of the parties to the
    settlement has been fulfilled in light of the substantial
    numbers of late filing claimants and what may be done to
    address the more than 75,000 late filers.
        Chairman Chabot and Congressman Scott introduced H.R. 899,
    the Pigford Claims Remedy Act of 2007. Section 2(a) of the bill
    grants a new Federal cause of action to those Pigford claims
    who submitted late filing requests with the arbitrator of the
    Pigford consent decree but who were denied entry in the
    settlement. The new cause of action would provide those late
    filers who meet the class criteria and who have meritorious
    complaints of discrimination in the administration of USDA farm
    loans with the opportunity to have those complaints resolved
    before a neutral party. Without H.R. 899, late claim
    petitioners will be time barred from pursuing their claims.
        A second bill H.R. 558, the African-American Farmers
    Benefits Relief Act of 2007 has also been introduced by
    Chairman Conyers and Representative Davis of Alabama. H.R. 558
    addresses the same general problem addressed by H.R. 899. I
    have, however, constitutional concerns with the way that H.R.
    558 is structured as it may unduly micromanage subsequent
    judicial proceedings.
        Testimony taken by the Subcommittee on the Constitution
    during its hearings confirmed that Congress lacks the
    constitutional authority to intervene in a judicially approved
    settlement, and this is precisely what H.R. 558 is structured
    to do. The testimony from the November 18, 2005 hearing,
    however, supports Congress' authority to create a new cause of
    action for those Pigford claims who never had a substantive
    determination made on the merits of their claims, and this is
    done by Representative Chabot's bill, H.R. 899.
        It is worth noting that this is not the first time Congress
    has assisted Black farmers subject to the Pigford consent
    decree. In 1998, Congress waived the applicable statute of
    limitations that would have barred putative class members from
    even participating in the consent decree and the Pigford court
    itself has noted potential need for official congressional
    action. In the last opinion the District Court found that
    judicial power reaches only so far. Legislatures, however, can
    take steps that judges cannot. If Congress believes that
    burdens imposed by the administration of the consent decree are
    unfair or that a significant number of African-American farmers
    never received notice, then it surely has means at its disposal
    to correct these wrongs. The Court is confident that the
    Congress could devise the means to provide relief for these
    farmers, and I believe that too, Mr. Chairman. And I look
    forward to exploring those means today and hearing from all of
    our witnesses. Thank you.
        Mr. Nadler. Thank you. Normally in the interest of
    proceeding to our witnesses and mindful of our busy schedules I
    would ask that other Members submit their statements for the
    record. In this instance since two Members of the Subcommittee
    have introduced the bills that we are considering today, I
    think it appropriate that Members of the Subcommittee who wish
    to make a statement be recognized for that purpose. And so I
    will ask the Members of the Subcommittee in order if they wish
    to make opening statements, starting with the distinguished
    Chairman of the full Committee.
        Mr. Conyers. I think that I would like to make a very brief
    statement.
        Mr. Nadler. The gentleman is recognized for 5 minutes.
        Mr. Conyers. Thank you very much. This is a great deal and
    I just want to take the time and compliment the tremendous
    interest that has been generated around this subject that is
    bipartisan in nature. And the reason that this becomes
    important, because after a number of years in Congress very few
    things get out of here that are not bipartisan. I mean that is
    the only way we can make laws. This comes as a shock to some
    people who would rather go down in a partisan way rather than
    achieve victory by working together.
        And so in addition to all my colleagues on this side of the
    aisle of whom I am so proud, the Chairman himself, Bobby Scott,
    and many others, I lift up for some special thanks, not only
    the Republican Senator that was just here, but also Congressman
    Chabot and the Ranking Member of this Committee, Mr. Franks, I
    am very grateful to you, and others that are joining us.
        This is a cause that, because of my seniority, I can claim
    to have been here first and been in here longer than anybody
    else, but that does not get me any points unless we are
    bringing people with us. And now, thanks to the Judiciary
    Committee of the House, that is happening. And it is so
    important that we examine carefully how we are going to
    proceed.
        The front page of yesterday's Washington Post tells it all,
    doesn't it? There are very few people in this room right now
    that did not notice that with great detail. In the Mississippi
    Delta 95 percent of the agricultural subsidies went to large
    commercial farms primarily, if not exclusively, owned by White
    farmers despite the fact that the majority of residents in the
    region are African-Americans. And what is so impressive to me
    is that in the Senate and in the House all the Members have
    recognized that the question of race has played the determining
    factor in this. Exactly what we are trying to eliminate in our
    society has been compounded in the history and the experience
    of Black farmers in America.
        It is a huge American tragedy that begs to be corrected. We
    have two ways suggested to do it. And what I want to pledge is
    that we are going to work this out between the legislative
    proposals. But the more important thing is that in this 110th
    Congress we achieve the success that we thought we had
    accomplished in 1999 when we thought that we had really done
    something. The intransigence inside the Federal Government in
    the USDA and to the agencies that have control over agriculture
    is astounding. They are really not ready for the 21st century
    of a color-free, color-blind way of farming, which is one of
    the largest businesses still in the country, after all that had
    been done to them. And I lift up a special plea in the case of
    the family farmer, the small farmer. Black and White. They are
    all disappearing, but the African-American farmer has been
    mistreated by its own Government. Even when we thought we had
    victory in our hands, it was snatched out at the last minute.
        And this is why Chairman Nadler, the work that you and the
    Ranking Member are doing in this Committee is so far important
    to see that that is corrected. And I am so proud that we have
    all of the great leaders here with us today. And I thank you
    very much for this time.
        Mr. Nadler. I thank you. Does the gentleman from Iowa seek
    recognition?
        Mr. King. Briefly, Mr. Chairman.
        Mr. Nadler. The gentleman is recognized for 5 minutes.
        Mr. King. Thank you, Mr. Chairman. I am going to keep this
    brief, but I do want to express that I am not yet convinced and
    I am going to want to hear on both sides of this argument. I am
    concerned about some statistics that I see, just going through
    right now 96,000 total filers compared to 20,000 African-
    American farmers. That is hard for me to equate that and not
    wanting to have some response and answers as to what would
    bring about such a statistic like that.
        I think this Committee knows that I am actively and
    aggressively against prejudice and bias on either side, and I
    appreciate the Chairman of the overall Committee's remarks
    regarding that. And so I am going to listen to this with open
    ears and open mind and I am going to ask perhaps some skeptical
    questions and I ask the witnesses to be prepared to answer
    that. And hopefully we can come to a consensus conclusion here.
        And I would thank the Chairman and yield back the balance
    of my time.
        Mr. Nadler. Thank you. The gentleman from Minnesota. Do you
    seek recognition?
        Mr. Ellison. No, I don't, Mr. Chairman, thank you.
        Mr. Nadler. Thank you. The gentleman from Virginia.
        Mr. Scott. Thank you, Mr. Chairman.
        Mr. Nadler. The gentleman is recognized for 5 minutes.
        Mr. Scott. Thank you, Mr. Chairman. I want to thank you for
    holding this hearing and for your steadfast support in
    supporting efforts to obtain justice for Black farmers
    generally and particularly those who are seeking redress for
    being denied a determination of the merits of their claims of
    discrimination through the Pigford litigation. You have done
    what you could do to assist the efforts both as Ranking Member
    of the Subcommittee in the last Congress and now as Chairman.
        I want to recognize also the efforts of the full Committee
    Chairman, Mr. Conyers, and the efforts of the gentleman from
    Alabama, Mr. Davis, in also seeking justice. I want to further
    recognize the former Chairman of the Subcommittee, Mr. Chabot
    from Ohio, for his efforts to seek justice for Black farmers in
    holding hearings and sponsoring legislation he sought to get
    passed in the last Congress and in cosponsoring legislation
    this year which was filed simultaneously with the bill in the
    Senate by Senators Grassley and Obama.
        Both bills before us today seek a measure of justice for
    Black farmers. One, H.R. 899, which I am the lead sponsor, is a
    rifle shot effort to provide late filers in the Pigford case an
    opportunity to have their claims heard on the merits. The other
    bill before us, H.R. 558, is a more comprehensive bill which I
    also support, yet it requires consideration by another
    Committee, the Committee on Agriculture, and has provisions
    directing actions by courts which raise problematic issues of
    separation of powers between the legislative and judicial
    branches.
        While we are working toward a more comprehensive approach,
    I would hope that we can still proceed with the part that is
    exclusively within the Judiciary Committee's jurisdiction,
    giving late filers a simple chance to have their claims heard
    on the merit.
        As indicated already, some 94,000 claims were filed but
    only 22,000 of those were or are slated to be considered on the
    merits. Of the remaining claims only 2,100, less than 3
    percent, were accepted for determination on the merits. While
    the merits of all 2,100 late filers accepted have not been
    determined, some have been and, according to reports of the
    court appointed monitor of the settlement, some of those
    considered were found to warrant payment under the settlement
    agreement, which indicates that there may well be many others
    among the late filers also entitled to awards.
        The large part of the problem in the settlement appears to
    be that nobody realized there would be a potential for so many
    claims to be filed. Early estimates ranged from a few hundred
    to a few thousand. But it does not seem reasonable to believe
    that the court would twice extend the period for late filers
    simply to tell all of the late filers, and almost 97 percent of
    them, that they too filed late. Nor does it appear reasonable
    to believe the court or anyone would have knowingly designed a
    process that would leave 75 percent of those who filed a claim
    without any way do get their cases heard 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 file but intentionally waited after the
    deadline to file their claim. With the vast majority of claims
    being filed after the deadline had passed, it is not
    unreasonable to conclude that effective notice did not reach
    most of the claimants in a manner that allowed them to file
    their claims on a timely basis. We do not have to determine
    whose fault it was, but we should recognize the fact that 75
    percent in fact filed late.
        The court in trying to accommodate the situation gave the
    arbiter carte blanche authority to determine whether late
    filers' claims should be considered due to extraordinary
    circumstances. Unfortunately, the arbiter established a process
    that resulted in most claims not being able to show
    extraordinary circumstances and it prevented them from being
    able to file on time. Rather than apply a standard so narrowly
    that 97 percent of those claims were left out, the arbiter
    should have considered it to be an extraordinary circumstance
    that 75 percent of the claims in the class action were not
    considered on the merits and he should have allowed all of them
    to be considered.
        Now, obviously not all of the claims will be found
    meritorious. But it would be a travesty of justice on top of a
    travesty of justice not to allow those claims to have been
    resolved on their merits.
        So, Mr. Chairman, while I filed H.R. 899 simply to allow
    the farmers to have an opportunity to have their cases heard on
    the merits, I would hope that we would see this swiftly passed
    into law. I would like to thank you for scheduling this
    hearing.
        As you know, Mr. Chairman, farmers are losing their farms
    every day while this legislation is pending. So I look forward
    to the testimony of witnesses and hope that we can move this
    bill as expeditiously as possible.
        Thank you.
        Mr. Nadler. I thank the gentleman. I now recognize the
    gentleman from Tennessee for 5 minutes for an opening
    statement.
        Mr. Cohen. Thank you, Mr. Chairman. I just want to thank
    Mr. Davis and others who brought H.R. 558 originally, of which
    I am an original cosponsor. I became aware of this issue from
    then representative, now county commissioner Henry Brooks, who
    brought a resolution to the Tennessee legislature concerning
    the plight of the African-American farmers and the Pigford
    claims and all. Before that I wasn't aware of it and opened my
    eyes and during the campaign I had several people talk to me
    about these issues. And my district is about 100 percent urban,
    but there are folks in Fayette County, right outside of Shelby,
    that are affected and other people throughout the Delta. And of
    course as those people prosper, people in my area prosper. But
    it is a justice issue, regardless of the economic issue that it
    brings upon the city.
        The articles in the paper the last few days about how so
    many subsidies have gone to the large White farm owners, the
    big folks, just indicated to me again the disparity that we
    have had in this country with people. And it is a thing that
    has been over the years and what we have done with justice with
    Emmett Till, what we need to do in so many areas, is to try to
    bring this country together and it is not just social justice,
    it is economic justice. And economic justice isn't just an
    urban thing. It is a rural thing too.
        So I am pleased to be a sponsor, and I hope we can have
    some success. And I thank the Chairman and particularly
    Representative Davis for bringing this initial legislation. I
    yield the balance of my time.
        Mr. Nadler. I thank the gentleman, and the Chair the now
    recognizes the gentleman from Alabama for 5 minutes for an
    opening statement.
        Mr. Davis. Thank you, Mr. Chairman. And Mr. Cohen, thank
    you for your comments and thank you for your cosponsorship of
    the bill. I know that our Committee Chair, John Conyers, has to
    leave because he has a hundred other things that he needs to
    do, but Mr. Conyers, while you are here I do want to
    acknowledge you at the outset.
        This hearing has been a long time coming, ladies and
    gentlemen. We have been talking, as we tend to do in this
    institution, for a long time about relief for African-American
    farmers. We have been talking, as we tend to do in this
    institution, for a very long time about dealing with the
    practical inequities in the Pigford case. We have been talking
    for a very long time about fixing Pigford.
        Well, today we move from talking to having a hearing on a
    bill to a markup to enacting legislation. And I am convinced, I
    know, Mr. Chairman, you prefer us to be as nonpartisan as we
    can be in these settings but let me say the obvious. Elections
    have consequences. We would not be conducting this hearing but
    for the results of November 6th and John Conyers becoming the
    Chair of this Committee. Mr. Chairman, if you will indulge me
    that comment.
        Now if I can, turning to the substance, let me thank my
    very good friend, one of my best friends in the Congress, Bobby
    Scott, for the good work that he has done on this issue. Let me
    thank Steve Chabot from Ohio for the work that he has done. For
    that matter, let me thank George Allen for the work that he
    did. The Scott-Chabot bill was introduced in the Senate last
    term by Senator Allen. And I thank him for his interest in this
    issue.
        Let me talk about the bills that I have introduced, a
    number of people have cosponsored, which is H.R. 558. It is
    very simple. It revives the Pigford administrative process. It
    says to farmers who did not get notice that this time the
    Government will have to provide the notice and pay for it. It
    says to the many Pigford litigants who were thrown out because
    their claims were untimely filed, and Mr. Scott mentioned all
    the issues with the notice process. He mentioned all the issues
    with the timing.
        This bill says to them that they will now have their
    opportunity to come back in and have their claims heard. This
    bill says to farmers who were facing foreclosure or default
    that if you can show that your foreclosure or default is
    proximately connected to discrimination, that it stops, and I
    think it is a good comprehensive approach.
        Some say that we should simply let African-American farmers
    file a civil claim and simply go into court. I want to point
    out two problems with that. The first one is anyone in this
    room who has practiced employment law knows, and I see at least
    one good friend of mine, Byron Perkins of Birmingham, Alabama,
    who runs the Johnny Cochran firm, there are other lawyers in
    the room, one of whom, Mr. Fraas, will testify. As these
    gentlemen know very well when you file a civil rights case in
    this country you get your day in court. It is the day you file
    the complaint, and that is it.
        For the overwhelming majority of cases, 90-some percent of
    civil rights cases filed in this country never make their way
    to a jury trial. The overwhelming majority of them go out on
    summary judgment or dismissal. The ones that settle don't
    settle at a very high value. Frankly, in this litigation
    climate most cases don't have a very high settlement value. As
    I am sure Mr. Fraas will tell you cases on behalf of poor
    farmers who don't have resources, who often don't have the
    resources to stay the course in civil litigation, those cases I
    guarantee you don't have a high settlement value. So a new
    cause of action for African-American farmers in my opinion does
    not do enough to protect their rights.
        The final point I will make, let's put all of this in
    perspective. Ninety percent of the claims filed under Pigford
    were denied on their merits or dismissed as untimely. Nine out
    of ten. Ladies and gentlemen, as everyone in this room knows as
    a matter of common sense, the Federal Government would not have
    settled a case if 90 percent of the claims had no merit. The
    Government wouldn't have given money away. The Government
    wouldn't have settled the case on the theory that nine out of
    10 claims had no value.
        There is proof positive that Pigford has not worked. The
    fact that 90 percent of those who tried to go through the
    process has been denied. Yes, Mr. Cohen, Mr. Scott, this is
    about justice. It is not about special treatment for anybody.
    It is about the Government keeping its promise. The Government
    promised through the Pigford process that these individuals
    would have their shot at a hearing. All we simply want to do is
    make the Government keep its promise.
        And Mr. Chairman and the Chair of the Subcommittee, I thank
    you for convening this hearing.
        Mr. Nadler. I thank you, sir. And I now recognize the
    gentleman from Arizona.
        Mr. Franks. Mr. Chairman, I would just like to submit for
    the record the statement of Steve Chabot by unanimous consent.
        [The prepared statement of Mr. Chabot follows:]
     Prepared Statement of the Honorable Steve Chabot, a Representative in
         Congress from the State of Ohio, and Member, Committee on the
                Constitution, Civil Rights, and Civil Liberties

        Mr. Nadler. Without objection, the statement will be
    admitted into the record.
        Without objection, all Members will have 5 legislative days
    to submit opening statements for inclusion in the record,
    anyone who did not read their statement already.
        Without objection, the Chair will be authorized to declare
    recess of the hearing. As we ask questions of our witnesses the
    Chair will recognize Members in the order of their seniority on
    the Subcommittee alternating between the majority and the
    minority, providing that the Member is present when his or her
    turn arrives. Members who are not present when their turn
    begins will be recognized after the other Members have had the
    opportunity to ask their questions.
        The Chair reserves the right to accommodate a Member who is
    unvoidably late or only able to be with us for a short time.
        I will now ask the witnesses to come forward and sit at the
    witness table.
        I would now like to introduce our second panel. Our first
    witness is John Zippert, Director of Program Operations of the
    Federation of Southern Cooperatives Land Assistance Fund. He
    has headed the Federation's team to assist member farmers with
    claims, late claim petitions, and appeals in the Pigford case.
    Mr. Zippert is a graduate of the City College of New York. He
    and his wife Carol are copublishers of the Greene County
    Democrat, a weekly newspaper in their home rural community.
        Our second witness is Cassandra Jones Havard, Associate
    Professor of Law at the University of Baltimore Law School. In
    addition to her many publications and accomplishments, she is
    the author of African-American Farmers and Fair Lending:
    Racializing Rural Economic Space, which appeared in the
    Stanford Law Policy Review. Professor Jones Havard is a
    graduate of Pennsylvania School of Law. She clerked for Judge
    A. Leon Higginbotham of the U.S. Court of Appeals for the Third
    Circuit.
        Our next witness is Philip Fraas. Mr. Fraas is an attorney
    here in town who has worked on the Pigford case since 1997. He
    is a graduate of the University of Missouri Kansas City School
    of Law.
        The next witness is the Honorable A. Donald McEachin----
        Mr. Scott. Mr. Chairman, Mr. McEachin is in the building.
    He will be here presently.
        Mr. Nadler. I figured he will arrive, so I will introduce
    him. He represents the 74th District in the Virginia House of
    Delegates. He is a graduate of the University of Virginia
    School of Law and currently is a candidate for a Master's of
    Divinity at Virginia Union University.
        Our final witness is Dr. John Boyd, the President and
    founder of the National Black Farmers Association. Dr. Boyd
    nearly lost his poultry farm in Virginia as a result of
    discriminatory practices by the USDA and has been an outspoken
    advocate for African-American farmers.
        I am pleased to welcome all of you. As a reminder, each of
    your written statements will be made part of the record in its
    entirety. I ask that you summarize your testimony in 5 minutes
    or less. To help you stay within that time there is a timing
    light at the table. When 1 minute remains the light will switch
    from green to yellow and then red when the 5 minutes are up.
        The first witness is Mr. Zippert.

    TESTIMONY OF JOHN ZIPPERT, DIRECTOR OF PROGRAM OPERATIONS, THE
        FEDERATION OF SOUTHERN COOPERATIVES LAND ASSISTANCE FUND

        Mr. Zippert. Good morning. I want to thank the Members of
    this Committee and also especially my home Congressman,
    Congressman Artur Davis, for inviting me to this hearing to
    speak on this very important issue.
        The Federation works with 20,000 African-American rural
    families throughout the Southeast, about half of them engaged
    in farming, the others members of credit unions, housing co-
    ops, fishing co-ops, et cetera.
        We assisted over 5,000 of our members across the South to
    file claims in the Pigford lawsuit by the original deadline
    date. We also assisted thousands more in the process of filing
    late claims. We have heard a lot here this morning about the
    statistics. One of the most interesting statistics is that
    20,000 or more of the 65,000 late filers filed a second
    petition explaining in detail their reasons for being late. And
    Michael Lewis, the chief arbitrator in the case, only accepted
    141 of those petitions.
        So the overwhelming number of people who really expressed
    interest in having their case heard were not able to have their
    case heard. And so we are appreciative of this hearing, of
    considering these proposals. We strongly support H.R. 558, the
    proposal by Congressman Davis and Conyers and other Members of
    the Committee.
        We do this because we feel it incorporates most of the
    concerns we have about the Pigford process and it provides a
    comprehensive way of addressing the problems in this case. And
    we are a little concerned about going back to Federal court
    without real clarity of what procedures and how these Pigford
    late filers and people who did not get notice in the Pigford
    case will get their problems redressed. And so we feel the 558
    is a more comprehensive approach that includes many of the
    concerns of the injustice that was in the case.
        We are sitting here today 8 years after the original
    consent decree, and I feel that unless we address this in a
    comprehensive way we will be back here numerous times again
    trying to address the efforts you made to correct the case. So
    I think we ought to go for the most comprehensive review and
    consideration.
        In my statement, we also indicated some things that maybe
    should be added to 558 to make it stronger and something to be
    included in terms of some kind of attorneys fees or some kind
    of ways to pay the attorneys for handling these claims on
    behalf of late claim filers, because many of the lawyers who
    were involved in this case the first time around have become
    discouraged by all that has happened in the Pigford case.
        Also there are some groups of people who through no fault
    of their own did not get to file appeals with the monitor and
    other steps along the way in this case, and we feel those
    people should be entitled to a second chance for justice in
    their situation.
        We want to see a time limit of 6 months placed once we get
    into this, that the Government would respond to these cases
    within a time limit.
        I think lastly to express some sense of Congress that the
    Administration and USDA should settle the other discrimination
    cases that are out there by Native Americans, Hispanics and
    women farmers.
        Thank you very much.
        [The prepared statement of Mr. Zippert follows:]
                       Prepared Statement of John Zippert
        On behalf of the more than 20,000 rural member families of the
    Federation of Southern Cooperatives/Land Assistance Fund, many of whom
    are African-American farmers and landowners, we are pleased to present
    testimony at this hearing on corrections in the Pigford Class Action
    Lawsuit.
        The Federation staff assisted over 5,000 of our members across the
    rural South to file claims in the Pigford lawsuit by the deadline of
    October 12, 1999. We further assisted a similar number to file ``late
    claims'' in the case by the second deadline of September 15, 2000. We
    helped many of the late filers to submit affidavits explaining their
    reasons for filing late. We have also assisted our members in filing
    appeals for issues in the case with the Monitor, especially issues
    dealing with the identification of ``similarly situated white farmers''
    which was a required element of a successful claim.
        Of the 65,989 claimants who filed a late claim petitions by the
    September 15, 2000 deadline, only 2,119 petitions have been approved to
    allow claimants to file actual claims in the case. Another
    approximately 7,000 people filed their late claim within thirty (30)
    days of the late claim deadline. These 71,000 people received Tracking
    Numbers in the case, from the Facilitator in Portland, Oregon. Their
    names and addresses, at the time of their claim, are known and
    available in the case.
        20,688 of the 65,989 late claim petitioners filed additional
    documentation with Michael K. Lewis, Arbitrator, in the form of a
    reconsideration of their petition to file a late claim and give
    additional information on their reasons for filing late, e. g.,
    illness, family member's illness, lack of notice, lack of information,
    failure to sign their original petition, etc. Lewis approved only 141
    of these petitions, turning down the overwhelming majority of 20,544
    petitions.
        Many farmers say that they did not receive adequate notice of the
    case in 1999 during the initial six months public notification period.
    This Subcommittee has held previous hearings that established that the
    notice given Black farmers in this historic case was inadequate. Many
    farmers say they did not know of the case until the official claims
    period had ended.
        The Federation because of our work with our constituent members in
    the case and work with the Chestnut, Sanders, Sanders law firm in
    Selma, Alabama, have been involved in every step of the case. We
    developed suggested legislation in 2005, which we entitled
        ``The Black Farmers Judicial Equity Act of 2005'', which we
    submitted to members of this Committee and other interested members of
    Congress, including our Congressman, Artur Davis from the Alabama 7th
    District. In our suggestions, we submitted a comprehensive set of
        recommendations to improve the situation and provide more equity
    for Black farmers involved in the case.
        We are here today to support H. R. 558, the ``African American
    Farmers Benefit Act of 2007'' because it incorporates most of the
    elements and recommendations proposed by the Federation to remedy the
    problems in the Pigford Class Action Lawsuit.
        We support this legislation because it would provide a second
    chance for persons who filed claims in the Pigford Black Farmers Class
    Action Lawsuit but whose claims were never heard and adjudicated on
    their merits. The 71,000+ people who have been denied a hearing on
    their merits and potentially thousands of others who never received
    adequate notice of the case would be able to get their petitions and
    claims heard.
        H. R. 558 preserves many of the advantages and benefits of the
    original Pigford Class Action Lawsuit by using it as the contextual
    framework for continuing reviews in the case. Farmers who apply for a
    Track A case would still get the benefits of the more lenient standards
    of proof of discriminatory treatment and documentation in Pigford. The
    provisions of H. R. 899 require farmers to go back to Federal court for
    redress with no certainty of the procedures, which will apply. This
    requirement also potentially will limit the number of claimants who can
    get their cases heard.
        H. R. 558 provides a new notice requirement and procedures to
    inform perspective claimants of the case and the new opportunities to
        petition. The legislation provides for providing information on
    similarly situated white farmers needed to file successful complaints.
    The legislation provides for naming a new Monitor to provide
    independent oversight for the process in the case.
        H. R. 558 also provides some remedies for ongoing discrimination by
    USDA since the filing of the Pigford v. Glickman lawsuit. The USDA is
    required to report information on loans from January 1, 1992 until the
    enactment of the legislation by race of the borrower to help determine
    patterns of discriminatory lending. The bill also prevents USDA from
    foreclosing on loans if the borrower makes a prima facie case to an
    adjudicator that the foreclosure is proximately related to
    discrimination by the U. S. Department of Agriculture. H. R. 899 does
    not have similar protective provisions for the claimants.
        H. R. 588 could be strengthen by adding some of the provisions
    included in the Federation's suggested legislation, among them are:

              Provisions for providing attorney's fees and ways
            that attorneys can be paid for handling claims for late claim
            filers in this case; many of the original attorneys in the case
            have become discouraged by the payment system under Pigford;

              Provisions to allow persons whose petitions for
            Monitor review, under Pigford, that were filed late through no
            fault of their own, to get their petitions heard;

              Allow seven ( 7) Track B claimants, whose lawyer
            missed deadlines to have their claims heard;

              To suspend offsets during the claims process;

              To require that re-adjudications in the case be
            completed in six (6) months;

              To express the sense of Congress that the
            Administration should settle other USDA discrimination cases
            filed by Native American, Hispanic and women farmers.

        More information on the positions of the Federation of Southern
    Cooperatives/Land Assistance Fund can be found on our website at:
    www.federation.coop. This includes The Black Farmers Judicial Equity
    Act of 2005 and our Position Paper on Pigford Legislation, dated March
    2, 2007.

        Mr. Nadler. Thank you. Professor Havard.

      TESTIMONY OF CASSANDRA JONES HAVARD, ASSOCIATE PROFESSOR OF
               LAW, UNIVERSITY OF BALTIMORE SCHOOL OF LAW

        Ms. Havard. Thank you, Chairman Nadler, Ranking Member
    Franks, Members of the Subcommittee, thank you for inviting me.
    Let me first tell you about my interest in the Pigford
    litigation.
        In my academic work I often study Federal Government
    programs and evaluate them for fair access to credit. My
    particular interest in Pigford has a familial background. My
    father started his career at the USDA as a negro county agent.
    When I first heard about the litigation, though my father was
    by then deceased, I was quite interested in looking at the USDA
    programs to try to understand how the system of Federal farm
    credit loans and credit and benefit works.
        Today's hearing is very important to reviving the claims of
    the Black farmers who have alleged discrimination in connection
    with the USDA programs. Without a doubt, Congressman Davis and
    Congressman Scott should be applauded for tenaciously fighting
    for Black farmers who have not had their claims resolved. The
    only question is now how to best resolve those claims.
        Certainly everyone thought that the Pigford consent decree
    would be an efficient process but it has been anything but
    that. Any legislation redressing the failed claim process of
    Pigford should have certain key features. And let me make it
    clear that I think both bills have very good features. I think
    the remedy should be comprehensive. I think it is important to
    avoid the types of proof that are required--that are too
    stringent for farmers to prove their claims and be successful.
        I think it is important to think about the economic
    consequences of whatever remedy is put in place, whatever
    redress is put in place. And I think it is also important to
    think about the risk of whatever reliefs are put in place.
        I want to very briefly address three key features of any
    legislation that I think should go forward. They are the
    presumption of discrimination, the appointment of multiple
    monitors should it be the administrative process, access to
    comparable data, the statute of limitations, appeal rights, and
    notice.
        Starting with the presumption of discrimination, the issue
    of proof in the original consent decree provides a presumption
    of discrimination is a less stringent standard than usually in
    a trial proceeding. I think that is very important in this
    particular case because of the date of many of the claims.
    Because of the date, it will be very difficult for plaintiffs
    to prove their cases to a higher standard of proof. And it is
    important to remember that the reason a consent decree was
    entered into originally was to hasten the resolution of claims
    and to have both parties receive what they expected.
        Assuming that an administrative consent decree goes back to
    the administrative process, I agree with Mr. Zippert that it
    ought to be a swift process. The resolution ought to put in
    place, I think, multiple monitors and multiple administrators.
    Optimally there would be monitors and administrators put in for
    each State. If not, if cost is too prohibitive for that, I
    think certainly they ought to be put in regionally.
        Additionally, when the Pigford claim was filed, it was
    unclear how many claimants there were. That is no longer the
    case. And so in order to again hasten the process and to have
    their claims examined and resolved quickly, Mr. Zippert has
    suggested 6 months. I won't suggest a time but certainly to
    have them resolved quickly would mean that the staff ought to
    be increased.
        A key provision in H.R. 558 speaks to the access to
    comparable data. This is very important. Unfortunately, the way
    the FSA is set up, the county committee structure, it appears
    to dictate or control access to information that is described
    as having privacy concerns. It is very important in limited
    discrimination cases that comparable data be made available for
    comparison. And so in this regard if there is any concern about
    privacy I think that those materials ought to be redacted so
    they don't identify the person, but in no way should the FSA
    county committee structure, because it is local and because the
    comparable data is coming from neighbors and friends, in no way
    should that limit the access to critical information.
        Because my time is moving swiftly ahead let me say that I
    think it is important to have a statute of limitations.
    Certainly one of the features of H.R. 899 is that it preserves
    the appeal rights. One of the things that Pigford has shown the
    importance of the claims is that perhaps the appeal rights
    ought to be preserved. And so certainly if that bill were
    passed, that would give claimants who have decisions that are
    adverse to them the right to go into Federal courts of appeal
    to have them reviewed again.
        Finally, I think the notice requirement in H.R. 558 is very
    specific. It is very comprehensive. It would go out to all the
    known class members. And this has been something that was
    bitterly contested and seems to be the source of why so many
    claims were filed late. And so I think that the fact that the
    bill provides such a specific notification requirement as well
    as funds, it certainly would address a very intense point of
    contention.
        Let me again commend the sponsors of the legislation and
    thank the Committee for this is leadership in holding the
    hearing today. I look forward to working with the Committee if
    the opportunity were to arise on this important piece of
    legislation, and I welcome questions at the appropriate time.
        [The prepared statement of Ms. Havard follows:]
                  Prepared Statement of Cassandra Jones Havard
        Chairmen Nadler and Conyers, Ranking Member Franks and Members of
    the Subcommittee:
        I am very pleased to be here today to discuss the proposed
    legislation that would provide relief to African-Americans Farmers
    covered by the Pigford Consent Decree. Today's hearing on H.R. 558, the
    African-American Farmers Benefits Relief Act of 2007 and H.R. 899,
    Pigford Claims Remedy Act of 2007 discusses ways to revive the claims
    of black farmers who alleged discrimination in connection with the Farm
    Service Administration's (FSA) farm credit and benefit programs at the
    United State Department of Agriculture's (USDA). The expectation of the
    Pigford consent decree was that there would be a good and fair claims
    process. Yet the settlement provided relief to only a minuscule of
    black farmers. Early in the settlement process, Congressional action
    was necessary because the vast majority of black farmers were denied
    relief due to the statute of limitations. Congressional action is
    needed once again because the vast majority of black farmers have been
    denied hearings on the merits of their claims due to untimely filings.
        Introduction
        In my academic research and writing, I often study federal programs
    and evaluate whether the underlying structure of the programs provide
    fair access to credit. I have studied Pigford \1\ and concluded that
    USDA's farm credit system is structurally flawed and fails repeatedly
    and immeasurably to provide access to credit for minority farmers. My
    work on Pigford was published in the Stanford Law and Policy Review in
    2001. The article is published in the Appendix to my testimony.\2\ I
    urge both Congress and USDA to redouble their efforts to eliminate the
    substantial and widespread abuses that the farm credit and benefit
    programs of USDA have visited upon African American farmers for
    decades. Essentially, this requires significant structural changes in
    the delivery of credit service programs to minority farmers.
    ---------------------------------------------------------------------------
        \1\ Pigford v. Veneman Consent Decree, 185 F.R.D. 82 (D.D.C. 1999).
        \2\ African-American Farmers and Fair Lending: Racializing Rural
    Economic Space,12 Stanford Law and Policy Review 333 (2001).
    ---------------------------------------------------------------------------
        My testimony today will give my conclusions on the best process for
    resolving complaints based on the Pigford Consent decree and will
    address what I think should be in any legislation of redress.
        The Litigation
        The Pigford Consent Decree has failed in actuality to provide the
    redress that either the Department of Justice as USDA's lawyer or,
    indubitably, the black farmers expected. The Consent Decree became
    final in February, 1999. Due to the unexpectedly large number of
    claims, the court extended that initial deadline twice. Of the
    approximately 73,000 filed, less than 3%, or about 2,100, were accepted
    for determination on the merits. The Monitor determined that 66,000
    class members' claims were untimely. Class members contend that this
    inordinately high percentage, 75%, of late filers was due to a severely
    flawed notification process. The Monitor, acting within its discretion,
    did not agree and established a process that resulted in no relief for
    late filers.
        Re-evaluation of the Merits of the Claims of African-American
    Farmers
        Any legislation redressing the failed claims process of Pigford
    should re-examine several key features.\3\ These include:
    ---------------------------------------------------------------------------
        \3\ Equally important, but not addressed are debt relief, tax
    relief and injunctive relief.
    ---------------------------------------------------------------------------
        Presumption of Discrimination--A prima facie case of discrimination
    should be relatively easy for the class members to prove, thus allowing
    the defendants who should have access to records and documents to rebut
    the prima facie case, if they can. It would be similar to what
    plaintiffs have to prove in their prima facie case in a Title VII suit.
        Access to Comparable Data--In order to prove a claim of lending
    discrimination, class members need access to comparable data by
    identifiable characteristics, such as race, sex and marital status.
    Concern about records identifying particular individuals can be
    answered by redacting information that ostensibly identifies the
    person. The structure of the FSA system, e.g., the county committees,
    requires that this comparison be made among neighbors and friends. The
    legal requirements of proving the claim based on the comparison cannot
    be accommodated to that structure.
        Statute of Limitations--There must be an identifiable time period
    in which class members may exercise their rights. Otherwise, there may
    be confusion about the viability of a claim and in the end deny a
    claimant the ability to recover. Any legislation must provide for a
    statute of limitations that fits the circumstances of the class members
    whose claims go back a number of years.
        Appeal Rights to Federal Appellate Court--Federal trial court and
    administrative proceedings usually provide a disappointed litigant or
    claimant with the right to appeal a decision that is adverse to their
    interests to a federal appellate court. The Pigford consent decree
    precludes appeals of individual claim determinations. Yet, the
    importance of the claims in Pigford suggest that appeal rights should
    be preserved and not cut-off. H.R. 889 would provide appeal rights to
    class members.
        Appointment of Multiple Monitors--Factors that attend the
    timeliness of a claim are based on regional conditions and culture that
    often cannot be easily explained nor understood. At this juncture,
    assuming the administrative process is left in place, it would seem
    wise to appoint facilitators, adjudicators or arbitrators for each
    state in which the class members reside.\4\ Likewise, a single monitor
    should be appointed in each state to supervise the claims procedure in
    that state. Admittedly, decisions of multiple monitors might not be
    uniform. Of course the desire for uniformity in determining the merits
    of claims as well as other procedural matters might argue against
    having multiple monitors. However, if the parties can exercise appeal
    rights, uniformity is enhanced as these cases go up the appellate
    ladders.
    ---------------------------------------------------------------------------
        \4\ The states are: Alabama, Arkansas, California, Georgia,
    Kentucky, Louisiana, Maryland, Mississippi, North Carolina,. Oklahoma,
    South Carolina, Tennessee, Texas, Virginia, West Virginia and the
    District of Columbia.
    ---------------------------------------------------------------------------
        Notice Requirement--The class members complained most bitterly
    about the failure to receive notice of the claims procedure. Local
    media outlets, including radio, television and newspapers, apparently
    were not used to notify class members of the class action. While there
    seems to be a difference of opinion as to whether the notice
    requirement was adequate or arbitrary and poorly-funded, H.R. 558
    outlines six specific media outlets in which notice shall be given to
    all known class members. This is a good provision.
        Conclusion
        What happened to class members in Pigford should never happen
    again. It is a mockery of our judicial system's settlement process to
    have a negotiated agreement that yielded such poor results when the
    expectation of the consent decree was that the claimants would actually
    and swiftly receive the relief envisioned.
        Systemic Racism and FSA
        Congress must intervene and require the USDA to become accountable
    by monitoring and enforcing civil rights standards throughout the
    agency. USDA has failed to institute effective procedures that will
    ensure compliance with all applicable statutes and regulations
    prohibiting discrimination. This failure is especially apparent and
    bizarre in the very FSA programs subject to the Pigford consent decree:
    The inherently flawed county committee system remains in place.
        The Pigford consent decree never meant to address all of the needs
    of African-American farmers regarding the discriminatory practices at
    FSA. The need for accountability and transparency in administering farm
    credit and non-credit farm benefit programs remains and the inherently
    biased system of delivery of federally funded programs cannot be
    ignored. The decentralization of the federal program unavoidably means
    that local discriminatory attitudes may effect the determination of who
    receives the massive amounts of federal tax dollars designated for
    these programs. Congress, at some point in the near future, must
    provide forward-looking relief and mandate a different operational
    structure at FSA. All farmers, regardless of race, deserve the
    meaningful access to FSA loans and benefit programs as the law
    requires.
                                   __________
        Let me conclude by again commending the sponsors of both bills,
    Congressmen Davis and Scott, for re-examining this issue and the
    Committee and its leadership for holding today's hearing. I would
    gladly accept an opportunity to work with the Committee as it moves
    forward in this area, and welcome any questions that members of the
    Committee have.

                                   ATTACHMENT

        Mr. Nadler. Thank you. Mr. Fraas.

             TESTIMONY OF PHILLIP L. FRAAS, ATTORNEY-AT-LAW

        Mr. Fraas. Thank you, Mr. Chairman. It is an honor and
    privilege for me to testify before the Subcommittee on
    Constitution, Civil Rights, and Civil Liberties on the
    important legislative proposals. I would like to talk about
    H.R. 899, the Pigford Claims Remedy Act of 2007.
        As a preliminary matter let me say I support any
    legislation that will ensure that every person that meets a
    Pigford class definition gets a fair opportunity to have their
    complaint against the Department of Agriculture heard and
    resolved. As I read H.R. 899, it would accomplish that end and
    would do so by giving the remaining Pigford claimants a right
    to have the merits of their claims determined by a Federal
    court in a civil cause of action.
        The bill specifies that the remaining Pigford claimants who
    would be given this right are those that I referred to as late
    filers. That is, they are persons who sought permission to
    participate in the settlement but did so after the deadline for
    the submission of the completed claims packages. That is
    October 12, 1999.
        Under the bill, the late filer would be given the right to
    have adjudicated the claim that he or she made in filing a
    complaint of discrimination as described in the definition of
    the Pigford class, and that is discrimination complaints filed
    on our before July 1, 1997, regarding USDA's treatment of his
    or her farm credit or benefit application.
        In that regard, I believe the bill should be amended to
    cover cases where the complaint was made orally at a listening
    session or the complaint does not cover all of the instances of
    discrimination that the person has suffered at the hand of
    USDA. In such cases the claimant should have the right to spell
    out the nature of the claim in detail using the Pigford claim
    form.
        H.R. 899 is very short, just establishing a cause of
    action. But by doing so it creates for itself three significant
    advantages. Number one, it would not impel an action by the
    Department of Agriculture that could be scored by the
    Congressional Budget Office as incurring new budget outlays,
    making the bill subject to the PAYGO strictures.
        Number two, it does not invade the jurisdiction of any
    other Committee of the House and as a result could be moved
    more expeditiously to the floor for passage.
        Number three, it avoids a constitutional separation of
    powers problem that might arise should it attempt to modify the
    terms of the Pigford consent decree.
        That being said, I believe additional language should be
    added to the bill that would not negate these three advantages,
    but that are necessary to make it a better fit for the needs of
    the late filers.
        The bill should clarify that claims heard by the Federal
    court would be subject at the request of the claimant to the
    substantial evidence burden of proof applicable to claims
    prosecuted under the Pigford settlement in return for the
    claimant accepting the standard Track A relief provided for
    that that settlement. This would put late filers on an equal
    footing with the original Pigford claimants and it is important
    to do so, not only the matter of fairness, but in recognition
    of the fact that many of the Pigford claims involve events that
    occurred as far back as 1981. With claims so old, documentation
    gets lost and witnesses disappear, making the standard
    preponderance of the evidence burden of proof an almost
    insurmountable obstacle to many injured farmers seeking Pigford
    type relief.
        In a similar vein, it would be appropriate for the bill to
    clarify that the claims of those who elect the tracking type
    process would be handled by the courts as the original Pigford
    claims were handled as a paper-only review under the
    substantial evidence standard of the filled out claim form, in
    light of any relevant documentation submitted by the Department
    of Agriculture.
        I would like to make one last point that is not in my
    written statement and hearing some of the discussions so far, I
    think it is important to clarify that the late filers have not
    actually filed claims yet like the original 22,000 Pigford
    claimants. Essentially, all they have done is they put their
    name on a list to ask to file that claim. So we are not looking
    at a universe of people that have actually filed documented
    claims of discrimination. That remains to be seen. And a
    process should be devised to go through the claim process with
    these people to see if they actually qualify to participate.
        And that is my testimony, thank you.
        [The prepared statement of Mr. Fraas follows:]
                     Prepared Statement of Phillip L. Fraas
        Mr. Chairman and members of the Subcommittee, my name is Phillip L.
    Fraas, and I practice law in Washington, D.C. I have worked on the
    Pigford case since late April 1997 when Tim Pigford called asking me to
    assist him in his discrimination case against the U.S. Department of
    Agriculture.
        It is an honor and privilege to testify before the Subcommittee on
    the Constitution, Civil Rights, and Civil Liberties of the Committee on
    the Judiciary on these important legislative proposals. I would like to
    talk about H.R. 899, the Pigford Claims Remedy Act of 2007.
        As a preliminary matter, let me say that I support any legislation
    that will ensure that every person that meets the Pigford class
    definition gets a fair opportunity to have their complaint against the
    Department of Agriculture heard and resolved.
        As I read H.R. 899, it would accomplish that end, and do so by
    giving to certain Pigford claimants the right to have the merits of
    their claims determined by a Federal court in a civil cause of action.
        The bill specifies that the Pigford claimants who would be given
    this right are those that I refer to as ``late filers.'' That is, they
    are persons who sought permission to participate in the Pigford
    settlement, but did so after the deadline for the submission of
    completed claim packages that was set out in the consent decree
    memorializing the settlement of the case: 180 days after the April 14,
    1999, issuance of the consent decree, or October 12, 1999.
        Under the bill, the late filer would be given the right to have
    adjudicated the claim that he or she made in filing a complaint of
    discrimination as described in the definition of the Pigford class: a
    discrimination complaint filed on or before July 1, 1997, regarding
    USDA's treatment of his or her farm credit or benefit application.
        In that regard, I believe the bill should be amended to cover cases
    where the complaint was made orally at a listening session or the
    complaint does not cover all instances of discrimination the person has
    suffered at the hands of USDA. In such cases, the claimant should have
    the right to spell out the nature of the claim in detail using the
    Pigford claim form.
        H.R. 899 does not set any deadlines of its own for filing of the
    civil action, so I believe the generally applicable six-year statute of
    limitations for suits against the Federal Government would apply.
        The bill is very short, just establishing the cause of action, and
    by doing so creates for itself three significant advantages:

              (1) it would not impel an action by the Department of
            Agriculture that could be scored by the Congressional Budget
            Office as incurring new budget outlays, making the bill subject
            to ``pay go'' strictures;
              (2) it does not invade the jurisdiction of any other
            committee of the House, and as a result could be moved more
            expeditiously to the floor for passage; and
              (3) it avoids a constitutional Separation of Powers problem
            that might arise should it attempt to modify the terms of the
            Pigford consent decree.

        That being said, I believe additional language should be added to
    the bill that would not negate those three advantages but that are
    necessary to make it a better fit to the needs of the late filers.
        The bill should clarify that claims heard by the Federal courts
    would be subject, at the request of the claimant, to the ``substantial
    evidence'' burden of proof applicable to claims prosecuted under the
    Pigford settlement in return for the claimant accepting the standard
    Track A relief provided for in the Pigford settlement. This would put
    late filers on an equal footing with the original Pigford claimants;
    and it is important to do so, not only as a matter of fairness, but in
    recognition of the fact that many of the Pigford claims involve events
    that occurred as far back as 1981. With claims so old, documentation
    gets lost and witnesses disappear, making the standard ``preponderance
    of the evidence'' burden of proof an almost insurmountable obstacle to
    many injured farmers seeking Pigford-type relief.
        The last thing that hard-pressed African-American farmers need is
    to be given hope that they will have their complaints resolved in the
    manner of Pigford, but then find out that, unlike the original Pigford
    claimants, they will have to spend thousands on legal fees and wait
    years for adjudication under a standard that is inappropriate for their
    claim. And, why should this sub-group within the Pigford class be
    forced to re-litigate the Pigford case? An equitable variation of res
    judicata--recognizing what the Pigford settlement has already settled--
    should be made to apply here.
        Also, in a similar vein, it would be appropriate for the bill to
    clarify that the claims of those who elect the Track A-type process
    would be handled by the courts as original Pigford claims were
    handled--as a paper-only review (under the ``substantial evidence''
    standard) of the filled-out claim form in light of any relevant
    documentation submitted by the Department of Agriculture.
        Both of these changes would be consonant with the provision already
    in the bill now expressing the intent of Congress that the bill ``be
    liberally construed so as to effectuate its remedial purpose of giving
    a full determination on the merits for each Pigford claim denied that
    determination.''
        There are other ways to improve the bill--such as by facilitating
    claimants' access to information on similarly situated white farmers or
    by imposing a moratorium on foreclosures against claimants while their
    cases are pending. However, I would not encourage the adoption of those
    improvements if they would subject the bill to ``pay-go'' problems.
        Mr. Chairman, the Committee on the Judiciary has before it a
    wonderful opportunity to ensure equal justice to all farmers who meet
    the Pigford class definition and, in doing so, to send the strong
    message that Congress will not tolerate any discrimination against
    minority farmers in the administration of the Department of Agriculture
    programs. I urge the Committee to seize that opportunity and report out
    H.R. 899 with appropriate revisions as I have described.
        Thank you for your time and attention.

        Mr. Nadler. Thank you. Mr. McEachin.

             TESTIMONY OF THE HONORABLE A. DONALD McEACHIN
             (D-74TH DISTRICT), VIRGINIA HOUSE OF DELEGATES

        Mr. McEachin. Thank you, Mr. Chairman, and Members of the
    House Judiciary Committee. I want to thank you for this
    invitation to appear before your Committee today. I also want
    to thank Congressmen Scott and Davis for sponsoring these
    bills, which is an attempt to address the discrimination that
    African-American farmers have suffered because of
    discriminatory practices on the part of the United States
    Department of Agriculture.
        I also want to thank John Boyd, who is here today. I thank
    him for his persistence in keeping this matter in front of the
    Congress as well as keeping the African-American farmers of
    this country informed, organized and energized on this issue.
        As this Committee is aware from the testimony it heard on
    September 28, 2004, U.S. Farm Services programs date back to
    the 1860's. History has shown that these programs have been
    riddled with discriminatory practices. While the Federal
    Government has stepped up these programs for farmers in
    recognition of the growing capital needs of farmers, African-
    American farmers have largely been left out due to
    discrimination and neglect.
        In the turn of the 20th century there were a million
    African-American home farms, comprising some 16 million acres.
    Today there are less than 18,000 such farms, comprising 3
    million acres.
        At its September 28, 2004 hearing, this Committee learned
    that there are approximately 17,000 late filers to the original
    Pigford settlement process. Last summer my law partner traveled
    to a number of States with John Boyd. He saw firsthand the
    plight of these farmers. We saw the desperation in their eyes
    on a daily basis. Even today, we receive calls from these
    farmers asking about the status of the bills before you.
        Many of these farmers are fighting to keep their farms out
    of foreclosure. And I might add, during the course of the last
    several months some 26,000 purportedly late filers have come
    forward and asked for representation contingent on the fact
    that one of these bills might pass.
        I am going to--because my time is moving on, I am going to
    try to wrap up and add something that is not in my written
    statement. Although the original litigation attempted to mete
    out some measure of justice for the plight of the African-
    American farmer, in the end it failed to do so. To quote my
    Congressman, Congressman Scott: ``I am concerned about the
    adequacy of a process that leaves 70 percent of its claimants
    without a determination on the merits of their claim. I am not
    willing to accept that nearly 66,000 individuals who believe
    they have legitimate claims of racial discrimination knowingly
    ignored notice of the initial filing deadline and chose to
    submit their claims after the deadline for no good reason.
        I don't know what percentage of the claimants can show
    entitlement to relief, but it is certain some can.''
        In addition to that, Mr. Chairman, what I would like to add
    is, I am a member of the Virginia legislature and a trial
    lawyer in the Richmond area. I think 899 is what is needed to
    give these farmers full redress.
        The concern I have about the other bill, bill 558, is that
    it places, in my judgment, at least as I read it, it places the
    late filers in an evidentiary predicament.
        As you all are aware from your last set of hearings, for
    whatever reason discovery was waived as part of the consent
    decree. That makes it awfully hard to find a similarly situated
    White farmer which was part of what had to be shown in the
    Pigford process.
        If you can imagine, without the tools of discovery, you
    literally have to hire legal assistance to go to every county
    courthouse in the Nation to look at the land records to try to
    see who got what loan and who didn't get what loan. That, to
    me, seems to be an impossible task to meet.
        I am going to conclude now, and I am happy to answer any
    questions that the Committee might have. And thank you for your
    time.
        [The prepared statement of Mr. McEachin follows:]
                    Prepared Statement of A. Donald McEachin
        Chairman Conyers and members of the House Judiciary Committee, I
    want to thank you for your invitation to appear before the Committee
    today. I also want to thank Congressman Scott and Congressman Davis for
    sponsoring these bills which attempt to redress the discrimination that
    African American Farmers have suffered because of discriminatory
    practices on the part of the United States Department of Agriculture. I
    also want to thank John Boyd who is here today. I thank him for his
    persistence in keeping this matter in front of the Congress as well as
    keeping the African American farmers of this country informed,
    organized and energized on this issue.
        As this Committee is aware, from the testimony it heard on
    September 28, 2004, U.S. farm services programs date back to the 1860s.
    History has shown these programs to be riddled with discriminatory
    practices. While the Federal Government has stepped up its programs to
    farmers in recognition of the growing capital needs of farmers, African
    American farmers have been largely left out due to discrimination and
    neglect.
        At the turn of the 20th Century there were a million African
    American owned farms comprising some 16 million acres. Today there are
    less than 18,000 such farms comprising some 3 million acres.
        At its September 28, 2004 hearing this Committee learned there are
    approximately 73,000 late filers to the original Pickford settlement
    process. Last summer my law partner traveled to a number of States with
    John Boyd. We saw first hand the plight of these farmers. We saw the
    desperation in their eyes. On a daily basis we get calls from these
    farmers asking about the status of these bills. Many of these farmers
    are fighting to keep their farms out of foreclosure. We learned, as you
    did in 2004, that many of these farmers simply did not get the message
    concerning the Pickford settlement in a timely manner. Although the
    original litigation attempted to mete out some measure of justice for
    the plight of the African American farmer, in the end, it failed to do
    so. To quote my Congressman, Congressman Scott: ``I am concerned about
    the adequacy of [a] . . . process that leaves 70 percent of its
    claimants without a determination on the merits of their claim. I am
    not willing to accept that nearly 66,000 individuals who believe they
    have legitimate claims of racial discrimination knowingly ignored
    notice of the initial filing deadline and chose to submit their claims
    after the deadline for no good reason. I don't know what percentage of
    the claimants can show entitlement to relief, but it is certain some
    can.''
        Mr. Chairman, I thank you for your time and I am happy to try to
    answer any questions that you or the members may have.

        Mr. Nadler. Thank you.
        Dr. Boyd is recognized for 5 minutes.

     TESTIMONY OF DR. JOHN W. BOYD, JR., PRESIDENT, NATIONAL BLACK
                          FARMERS ASSOCIATION

        Mr. Boyd. Thank you very much. It is a privilege and honor
    today to be here before this prestigious Committee, and I have
    heard very moving testimony from all of my colleagues on this
    issue.
        I would like to thank Chairman Nadler, Congressman Bobby
    Scott, who has had his door open to Black farmers for a number
    of years on this issue. What a lot of people don't understand
    is this is not a new issue.
        Chairman Conyers, I came to see you in 1986, and you gave
    us a visit on this issue, and you said that you would continue
    to work on this issue. You may not know that you would continue
    to work on it till 2007, but here we are today in front of this
    Committee having a choice, and I want to tell this Committee
    today, Black farmers have never had a choice, not on one bill
    but two bills.
        So I would like to thank Congressman Davis for introducing
    his bill as well.
        This is a trying time in America for Black farmers. We have
    lost land. If you look in this Washington Post article
    yesterday, we aren't even receiving any subsidies that we have
    been reporting year after year after year after year. And it is
    time for Congress to take a deaf ear and open it up and listen
    to the cries of the empty fields of Black farmers across this
    country. We need the assistance, the help of this Committee to
    move our issue to the next step.
        So this is a beautiful step in the right direction. It is a
    good day for Black farmers in America, but it is also a very
    sad day in America for Black farmers. We are dying, and I am
    tired of going to funerals and hearing, ``Well, Dr. Boyd, when
    are we going to get justice? When will we get our cases heard
    based on its merits?''
        And I am telling you today, Black farmers are not asking
    too much today by asking for their cases to be heard on its
    merits, on its own merits. They are not asking for a handout.
    By God, the Government treated us worse than dogs. Somebody
    knows what I am talking about in this hearing room today. The
    Government treated Black farmer people worse than the dirt on
    the ground.
        When I went to see my county supervisor in Mecklenburg
    County, Virginia, he tore my application up and threw it in the
    trash can while I was sitting there in front of him.
        When they came out to investigate Mr. Garnett, they said,
    ``Did you throw Mr. Boyd's application in the trash can?'' You
    want to know what he said? With arrogance, ``Yes. I wasn't
    going to process it. We didn't have any funds available. But
    that didn't prevent me from doing my job.''
        When you treat an individual differently than you treat
    another individual by color and race, people, that is what
    discrimination is. And that is the kind of discrimination that
    Black farmers have existed around the country, and that is what
    they have been fighting for year after year after year in a
    humble way.
        Black farmers are bashful to a certain aspect where they
    say, ``Yes, sir,'' and ``No, sir,'' and they are not going to
    have the vocal that I have to come here and say, ``I have been
    treated wrongly.''
        This case needs to move forward swiftly, so I am here today
    to ask Congress to move to the next step. Yes, we have a
    choice, it is a great choice. I support bill 899. People, we
    worked hard on that. We worked hard on that bill with
    Congressman Scott, Congressman Chabot, the great senator who
    was here this morning and gave testimony and, yes, George Allen
    too, even George Allen.
        So we are grateful to have a choice of bills, but what we
    are asking this Committee to do is move swiftly and get us a
    bill, mark it up so that Black farmers can move from the issue
    of when we are going to have our cases heard based on its
    merits so finally I have my day of justice.
        So with that, I will close, and I will happily take any
    questions from the Committee that you have for me today.
        [The prepared statement of Mr. Boyd follows:]
                    Prepared Statement of John W. Boyd, Jr.
        Honorable Chairman Conyers, Mr. Nadler, Mr. Scott, the rest of the
    committee and others who have worked with the National Black Farmers
    Association (NBFA) on this very important issue over the years.
        My Name is John Boyd and I am the President of the National Black
    Farmers Association. I founded this organization in 1995 to help
    eradicate discrimination faced by black farmers throughout the United
    States Department of Agriculture (USDA) system.
        It is truly an honor and a privilege to testify before your
    Committee today. During the past 15 years I have testified before
    Congress on numerous occasions about black farmers and their hardships.
        I am a fourth generation farmer. But more important, with all the
    hardship and years of struggle it has entailed, I am still proud to say
    I am an American Black farmer from Baskerville, Virginia. A most
    remarkable fact is that just about every Black person in this country
    is two to three generations away from some family farm as farmers,
    sharecroppers and slaves.
        The NBFA lobbied Congress to lift the statue of limitations for
    black farmers who faced discrimination from USDA. We lobbied to
    establish the office of the Assistant Secretary for Civil Rights. We
    led rallies and protests around the country to help bring much need
    attention to the plight of the Black farmer. The NBFA has petitioned
    the United Nations for relief and to raise awareness of the loss of
    land for Black Farmers. And, I even rode my mules, Struggle and Forty
    Acres, 280 miles here to Washington to protest the failure to pay Black
    farmers; payments that should have become a reality following the
    consent decree.
        For far too long the Black farmer has gone without payment and
    without justice.
        At the turn of the 19th century there were nearly one million Black
    farm families. Today there are fewer than 29,000 per the U.S. Census.
        The oldest occupation for Blacks in America has become the first
    occupation facing extinction. Time does not favor the survival of black
    farming unless discrimination ends and new opportunities are created
    for black farmers to participate in the farm and food service
    industries.
        Years ago the USDA acknowledged the discrimination against black
    farmers and agreed to settle the largest civil rights lawsuit in
    American history. Yet today I return to report that many black farmers
    who may have been eligible to have their claims processed were never
    heard. More black farm families have lost their farms and their
    livelihoods because their government has not acted fast enough.
        Time is not on our side. We are now less than 1% of the nation's
    farmers. USDA has not become a stimulant for agricultural development
    for black farmers. ``No comment'' is often the best we can get out of
    USDA officials.
        In 1983 the USDA's Office of Civil Rights was abolished, leaving
    Black farmers and other minority farmers with little hope for
    processing civil rights complaints.
        The Government Accounting Office reported piles of boxes of
    complaints with years of dust. Documents went unprocessed and very few,
    if any, were investigated. There were two employees assigned to work on
    employment complaints and no one working on Black farmer program
    complaints.
        I recall very vividly calling the USDA years ago to request a
    status of my complaints 88 times. I desperately searched for answers as
    I was on the verge of losing my farm and livelihood that had been
    passed down through generations.
        Finally, after I founded the NBFA and was able, I finally did have
    someone call me back from the Office of Civil Rights.
        Decades have gone by since our struggle began in the early 1980s.
        The Black Farmers have become faces of time. Here we are after
    years of work to restore the Office of Civil Rights and the inspector
    general still cites years in processing complaints. Please see the May
    2007 report, Appendix A.
        The Pigford v. Glickman Consent Decree resulted from a class action
    lawsuit initiated by African American farmers who had for decades been
    discriminated against by USDA officials in the loan program. This
    settlement was reached after Congress intervened in 1998 to waive the
    applicable statute of limitations. Class counsel, without the approval
    of the class of plaintiff farmers, waived farmers rights to discovery
    with the expectation that there would be a low evidentiary standard
    applied to Track A and that USDA would turn over relevant documentation
    that would assist farmers in presenting their claims. Monetary awards
    issued under the Consent Decree would come from the Department of
    Treasury's Judgment Fund.
        Approximately 23,000 farmers submitted claims under the Consent
    Decree by the October 12, 1999 deadline. 900 farmers failed to meet the
    class criteria. Of the remaining 22,00 farmers who met the class
    criteria, 14,000 were successful in proving discrimination under Track
    A. 8,000 were denied. 18 Track B Claimants have received an average of
    $551,000 per claim.
        Approximately 77,000 African American farmers were denied
    participation in the Consent Decree because these farmers failed to
    file petitions by a Court-appointed late claim deadline. More than half
    stated they didn't know about the Consent Decree. Thus, these black
    farmers were denied entry and their discrimination complaints are not
    resolved unless Congress again acts to bring about justice and equality
    for these farmers.
                             why i support h.r. 899
        I would like to thank Congressman Davis and others for introducing
    H. R. 558 the African American Farmers Benefit Relief Act of 2007.
    After careful consideration the NBFA is supporting H.R. 899 the Pigford
    Claims Remedy Act of 2007. We urge the committee to undertake a swift
    mark up and send 899 on a speedy trip to the House floor for a vote.
        H.R. 899 is the result of careful examination by members of the
    Judiciary Committees in both chambers of Congress. This bill, H.R. 899,
    and S. 515 were introduced simultaneously. Senators Grassley, Obama and
    Kennedy have provided remarkable leadership in the Senate. It is my
    opinion that H.R 899 and S. 515 have the best possibility of passing
    with bipartisan support. The bill has been introduced in both the House
    and the Senate, a rare bipartisan bill. I am encouraged that Congress
    is working together,
        Several hearings have been held during the past two Congresses,
    including a field hearing in Cincinnati Ohio Feb 28th 2005. These
    hearings support the remedy set forth in H.R. 899. H.R. 899 is a narrow
    bill which serves the purpose of providing late-claim petitioners a
    forum to have their claims heard. The bill was tailored narrowly to
    stay in the Jurisdiction of the Judiciary Committee, where I personally
    and strongly believe the bill has a chance of passage.
        H. R. 899 creates a new cause of action that is available to those
    African-American farmers who: (1) have filed a late claim petition with
    the Court-appointed arbitrator prior to December 31, 2005, which was
    denied by the arbitrator; (2) meet the class criteria set forth in the
    Pigford v. Glickman Consent Decree; (3) establish a discrimination
    complaint in one of the four ways set forth in the Pigford v. Glickman
    Consent Decree.
        The NBFA states that its recommendation to replace the attorneys,
    facilitators, monitor and adjudicator who processed phase one of
    Pigford Consent Decree is consistent with its support of H.R. 899. No
    new responsibilities or requirements are placed on the bill if the
    farmers are allowed to choose their own attorneys.
        How many more black farmers have to die before there is a since of
    urgency for assistance. This is one time congress can put aside
    partisan politics and do what is right for a group of people who helped
    establish agriculture as the basis for this America's wealth
        We as Black farmers helped make agriculture what it is today with
    free labor. Many minorities today argue to become citizens, even
    complain of low wages, but no one has slaved without pay as the Black
    farmers did here in America.
        We have the opportunity to right some wrongs with H.R. 899. I urge
    this committee to swiftly pass H.R. 899.
        The Black farmer issue is not a new one to Congress.
        In 1998 the NBFA lobbied Congress to waive the statue of
    limitations. The Congressional Black Caucus, under the leadership of
    Congresswoman Waters, led the way to relief for the Black farmers.
    Congressional action enabled those aggrieved farmers to file
    meritorious claims under the Consent Decree.
        H.R. 899 is an extension of that Congressional action in 1998 and
    it will ensure all late claim petitioners have the opportunity to have
    their claims of discrimination heard on the merits.
                             obstruction of justice
        In 2004 The National Black Farmers Association (NBFA) teamed up
    with the Environmental Working Group (EWG) to address the problems with
    the Black Farmers settlement, many of our finding were echoed by Black
    farmers around the country. Many complained about being denied
    payments. We worked for years to conduct the study which was well worth
    the wait.
            the ewg and nbfa research produced four major findings:

      Nine in ten Black family farmers who came forward with
    complaints of discrimination were denied access to the settlement
    funds.

      The settlement was estimated to be worth 2.3 billion dollars
    in compensation to black farmers before the size of the class was
    determined. The actual size of the class was larger than expected, but
    black farmers received only 25% of the settlement's estimated value.

      USDA withheld vital information that was required of Black
    farmers in order to prove their settlement claims. And the Lead
    Attorney waived discovery.

      USDA spent $12 million dollars to pay for 56,000 staff hours
    of legal work by the Department of Justice to challenge Black farmers
    settlement claims one-by-one. At least one supposed staff attorney,
    Margaret O'Shea, reviewed Black farmers' cases under false pretense as
    she was never a licensed attorney.
       together the ewg and nbfa provided the following recommendations:

      Congress should order USDA to provide full compensation to
    the nearly 9,000 farmers who were denied relief after being accepted
    into the settlement class.

      Congress should order USDA to re-evaluate the merits of the
    nearly 74,000 farmers claims that were shut out due to lack of notice
    of the settlement. All black farmers who meet the preliminary
    requirements to qualify as a member of the class should receive the
    $50,000 payments and debt relief provided by the settlement.

      Congress should direct the USDA to institute accountability
    measure to monitor and enforce civil rights standards throughout the
    agency, requiring that in the future the USDA shall exert best efforts
    to ensure compliance with all applicable statutes and regulations
    prohibiting discrimination.

      Congress should ensure the full implementation of outreach
    and financial assistance programs to include grants that support black
    and other minority farmers.
       statistics revealed that 81,000 aggrieved black farmers received
                                    nothing
                              from the settlement:
        Turning to statistical breakdown of the outcome, the overall result
    was 94,000 black farmers came forward with complaints of discrimination
    and 81,000 received nothing from the settlement. Denials came in two
    forms: late claim denials and class member denials.
        The total of 63,816 farmers who filed timely late claims
    applications were rejected for failure to prove that extraordinary
    circumstances caused their tardiness, a standard that was not defined
    in the consent decree. All farmers who sought late entry because they
    were not notified of the settlement or deadline were rejected because
    they did not file timely late claims applications.
        congressional action is the only way to ensure just restitution
                               for black farmers:
        Mr. Chairman, in closing I want to tell you that the more I think
    of what has happened to my people, the Black farmers of America, the
    more disgusted I have become.
        Civil rights laws were violated in the case of the Black farmers.
    And the USDA helped ensure the Justice Department was used to obstruct
    justice.
        The lack of accountability exists as if all my work has for naught.
    We have lost land--millions of acres--and many have died waiting for
    justice. These are good people, who worked hard to feed the nation
        America we can do better than this.
        I am calling on the members of this Committee to do what is right
    for the black farmer. Pass this legislation to give much due relief to
    America's struggling black farmers.
        Many of you have seen us on Capitol Hill day after day, week after
    week, month after month, year after year, decade after decade.
        I made a commitment to the NBFA members that I will never give up
    their fight until justice is served.
        Ladies and gentlemen, I pray you will make that same commitment.

        Mr. Nadler. Thank you.
        I will begin the questions by recognizing myself for 5
    minutes.
        I have two questions. The first question I suppose I will
    ask Dr. Boyd.
        Has the USDA, to your knowledge, taken any action against
    the agents whose discriminatory conduct harmed these farmers,
    such as the one you mentioned, and exposed the taxpayers to
    enormous liabilities? How many of these people are still in
    place and continue to make lending decisions?
        Mr. Boyd. Almost all of them are in place. There has been
    little to no accountability at the United States Department of
    Agriculture, and we are hearing even in this OIG audit report
    that I would like to submit as an exhibit today that they are
    still taking over 2\1/2\ years to process our program
    complaints.
        Mr. Nadler. All these people who have exhibited prejudice
    and discrimination in administering the programs of the United
    States Government are basically still in place.
        Mr. Boyd. They are basically still in place.
        And really, Mr. Chairman, after Secretary Glickman left the
    department, I think things have gone from bad to worse. I think
    Glickman did try to put some things in place. He had the CRAT
    report, the CRD report, he had a team of officials, Lloyd
    Wright, Pearlie Reed, Rosalind Gray, all these people who had
    an unbiased but a good-hearted looking at trying to help Black
    farmers.
        And I think with the position that we lobbied for, the
    assistant secretary of civil rights, that we all thought would
    be a great thing, really hasn't provided the services that it
    needs.
        Mr. Nadler. Thank you. I am glad to hear your somewhat kind
    comments about Secretary Glickman since he served with many of
    us on this Committee years ago.
        My other question is of Professor Havard and Mr. Fraas.
    Mention was made of the problem of--and Mr. Fraas mentioned
    this as one problem with, I think it was, 558 in particular--
    the inability to get the comparable data without which you
    can't make discrimination cases and the necessity of getting
    the Department of Agriculture and the Agriculture Committee
    involved.
        My question, Professor and Mr. Fraas, if we were to amend
    the bill, is there any objection or any reason you think it
    wouldn't be a satisfactory solution to that problem if we were
    to amend the bill simply to give the normal discovery powers to
    the court and say that at the request of a plaintiff the court
    has the jurisdiction and the mandate to demand production of
    all this information with the appropriate privacy redactions
    without our placing any mandate in law on the Department of
    Agriculture, simply do this judicially through the court and
    that would not necessitate our doing anything to the
    Agriculture Department or cross-reference necessity to the
    Agriculture Committee?
        Ms. Havard. I don't see a problem with that.
        Mr. Nadler. Do you think it would solve the problem?
        Ms. Havard. I think it would solve the problem.
        Mr. Nadler. Mr. Fraas?
        Mr. Fraas. I think it would be an excellent idea. As you
    know, these cases have to follow the standard civil rights
    proof. You have to show disparate treatment, and, clearly, USDA
    is a repository----
        Mr. Nadler. But the problem, as I understand it, or one of
    the major problems has been that without this information, you
    could not show disparate treatment----
        Mr. Fraas. That is exactly right.
        Mr. Nadler [continuing]. And so I don't see why we simply
    don't empower the court and mandate the court to order the
    production of this information as you do in a normal discovery
    procedure.
        Mr. Fraas. That would be a good idea.
        Mr. Boyd. Mr. Chairman?
        Mr. Nadler. Yes, sir.
        Mr. Boyd. I would like to weigh in on that. I think you
    make a very valid point, because our attorneys in the first
    part of the Pigford waived discovery, and that was a major,
    major problem for Black farmers around the country, because
    they were not able to go into the county offices and get their
    files and records, and----
        Mr. Nadler. It is obviously the major problem, but if we
    solve this substantively through discovery and we did it
    through the courts so that it didn't involve another Committee
    of the House that could delay the legislation or asserting
    jurisdiction over a department that this Committee doesn't have
    jurisdiction over, it would seem to me that that would go
    through all those questions pretty simply.
        Anybody else want to comment on that?
        Thank you. I will yield back the balance of my time.
        I will recognize the distinguished Ranking Member of the
    Subcommittee, the gentleman from Arizona.
        Mr. Franks. Well, thank you, Mr. Chairman. Again, I
    appreciate you having this hearing.
        Let me just preface my comments by saying, I have to
    apologize both to the Committee and to the panel here for
    having to leave here in just a few moments to a situation that
    I have tried to avoid and cannot.
        But I wanted to, before I go, tell you that I think it is
    never redundant to remind ourselves that in America we hold
    these truths to be self-evident that all men are created equal,
    and I think that that is the central premise of the discussion
    here today.
        And I have been very touched by the testimony, especially
    Dr. Boyd's testimony moved me greatly, and I am glad that this
    day has come and that this injustice has been addressed. And I
    leave here assuring you of my support for 899 and also along
    the lines that Mr. Fraas and Professor Havard have mentioned as
    far as doing some things to improve the bill.
        Again, I congratulate all of you. I know sometimes these
    things are a long time coming, but I congratulate you for your
    perseverance and pray for ultimate justice here.
        So thank you very much, Mr. Chairman.
        Mr. Nadler. Thank you.
        I will now recognize the distinguished Chairman of the full
    Committee, the gentleman from Michigan, Mr. Conyers, for 5
    minutes.
        Mr. Conyers. Chairman Nadler, this Committee, this
    Subcommittee is following in a great historic pattern in the
    110th Congress that is so important, because we just had Medgar
    Evers' widow here, we had the Emmitt Till case being picked up,
    we had a signing of the extension of the Voter Rights Act, all
    coming out of this Subcommittee.
        And it is very clear to me that this measure that we are
    discussing here for Black farmers extends this necessary
    backward-looking review of what has been going wrong in America
    that we are trying to repair in an amazingly bipartisan way.
        I was at the White House, and all of you were too, when
    President Bush signed the extension of the voter rights
    extension bill.
        Now, I call upon the president, Steve King, to join us in
    helping move this forward. I mean, this is not just the
    Subcommittee of Judiciary's job. He knows how important this
    is, and we want to weigh in everything that we can because
    these farmers are dying every day, their families are being
    driven off the land.
        And I was so moved when we had our conference in Detroit,
    that Black farmers were testifying how they love farming, they
    want to stay in this job, they love the land, and young ones as
    well, and they were being forced off the land.
        And so, Dr. Boyd, you come here following the long line of
    civil rights leaders that has sat in this Committee hearing
    with the same courage, with the same pain of the violation of
    our basic fundamental civil rights. It is absolutely critical
    that we join in this.
        And I am recommending that this Subcommittee and meet and
    make this tour and see for ourselves and hear for ourselves
    what is going on. I think that is absolutely critical.
        Now, when we had the Black farmers in Detroit, I was
    shocked by the number of Black farmers that there were in
    greater Detroit and in Wayne County. I was asking these folks,
    ``Where are you from?'' They said, ``I am from right here,
    Congressman.'' There were Black farmers all around me that I
    had never imagined what they were doing. They were doing their
    job.
        And so this is so important. I think we are going to hear
    about section 2(d) to try to address the legislator, Attorney
    McEachin's problem.
        There is just one other little point that I want to make.
    The corporatization of farming in America is wiping out Black
    farmers, but, guess what? They are wiping out small White
    family farmers as well, and many of them have suffered this
    without the stain of racism involved. They are getting wiped
    out not because they are Black but because people want to
    corporatize this business. And this, to me, is a shame.
        I would ask Dr. Boyd if there is anything that I should
    have added to my comments. And I am sorry I didn't question you
    all. You are going to get questions from me, and we are going
    to all be working in this anyway, and they will go into the
    record.
        Mr. Boyd. I think you have done great, and we appreciate
    the meeting that we had with you several weeks ago. And you
    promised that this hearing would happen and take place, and you
    are moving forward swiftly. And on behalf of the Black farmers
    around the country, we would like to thank you for taking
    action on this issue.
        Mr. Conyers. Thank you very much.
        And I return my time, Mr. Chairman.
        Mr. Nadler. Thank you.
        I will now recognize the gentleman from Iowa for 5 minutes.
        Mr. King. Thank you, Mr. Chairman.
        I expressed some reservations at the opening of this
    hearing.
        And, again, I want to thank all of the witnesses that are
    here.
        I want to reflect off of Mr. Conyers' remarks with regard
    to what is happening with small farmers across America.
        First, I should, for the purposes of full disclosure, let
    you know that my view is that I believe there should be no
    discrimination in America. I solidly support title VII of the
    Civil Rights Act and the specific language that is in there.
        And I will often be trying to drag this thing back to the
    middle. I think sometimes it goes to the wrong side too often,
    and that can be on either side of that argument. So, hopefully,
    my remarks here will focus on that.
        I would say also that I would love to see a lot more,
    millions more, African-American farmers in this country. And I
    have watched farmers leave the land all my life. Where I live I
    can't see a neighbor. There is only one practicing farmer in
    the section that I live in, and we have buried a lot of my
    neighbors too. So as time moves on, technology makes farms
    larger. That is part of this equation.
        But I would express to you also a debate that I happen to
    recall, as I listened to testimony here, with State
    representative, Wayne Ford, in Iowa. He is an African-American
    representative, and he argued that we should close down some of
    our rural schools and use that money to expand the urban
    schools in his district. And I argued that if you are going to
    put those kids on a bus and take them anywhere, let's send them
    out there to the rural areas and put them in our schools where
    we have empty desks, and we can do a lot of good things there
    together for all of us.
        So that is my public sentiment previously expressed; it is
    my public sentiment today.
        Also, I think there is a lot of opportunity for people that
    are willing to go out and work on the land. I happened to run
    into a family a few years ago that had on a single acre--and I
    noticed the average farm was 16 acres back at the turn of the
    century, Mr. McEachin's testimony, I believe it was--on a
    single acre produced and sold $27,000 worth of crop, legal
    crop--I don't want any misconceptions here. And maybe it was
    $40,000 worth of child labor that went into that, but those
    young people in that family learned how to work and they
    learned how to work together as a family.
        There is a richness to that, and I know Dr. Boyd knows
    that. It has extraordinary value in this country, how it ties
    us together, the people that work the land and feed the Nation
    and feed the world. So this is a profound thing for me.
        Also, I want to express, though, that some of the data that
    I would like some clarification on, and I would go first to Mr.
    McEachin's testimony, and I noticed that you testified that at
    the turn of the previous century, which would be 1900, there
    were about 1 million African-American owned farms on 16 million
    acres. So that equates to the 16 acres per farm that I noted a
    little bit earlier. But, today, 18,000 African-American owned
    farms on 3 million acres. So I did the math on that, and that
    comes down to 167 acres of farm.
        So I would submit and ask you to comment on that, that the
    African-American farms have grown by a factor of more than 10
    over the century. And I don't know what non-African-American
    farms have done. But isn't that also a significant part of this
    equation, that farms have gotten larger and farmers have gotten
    dramatically fewer regardless of their race?
        Mr. McEachin. Well, that may be true, Congressman King.
    However, the issue still remains that discrimination has been
    shown by the United States Department of Agriculture. The
    question then becomes, what are we going to do about the late
    filers? As I understand it, that is the question that is really
    being presented through this legislation.
        The fact that African-American farmers, those farmers who
    have been able to survive, may have grown over the past 100
    years I think goes to the notion that farmers have had to grow
    over the years to keep up with, as Congressman Conyers said,
    the corporate takeovers and the large corporate entities that
    have grown.
        Mr. King. I thank you, Mr. McEachin, and I agree with you
    on that. I just wanted to put that out there for clarification.
        My time seems to be moving fairly quickly, so if I could, I
    would direct to Mr. Fraas, then, a couple of questions, if I
    can.
        And one of them is that initial estimates by class counsel
    were that approximately 2,500 to 5,000 Black farmers would have
    claims. That number has gone up dramatically. I am going to ask
    one part of the question is, how do you explain that?
        And then the second question is the one that I mentioned in
    my earlier opening remarks: We are looking at a number of
    perhaps 20,000 African-American farmers and 96,000 either
    claims or potential claims. How do you explain that? And we are
    going to have to get to the bottom of that before we can move
    forward with anything, I believe.
        And so how do you explain that, Mr. Fraas?
        Mr. Fraas. On your first question----
        Mr. Nadler. The gentleman is granted 1 additional minute.
        Mr. Fraas. On your first question, our initial estimates
    were frankly based on what information we had gotten from USDA
    about pending complaints. So we were really relying on what
    USDA was telling us when we were trying to figure out the scope
    of the case originally.
        On your second question, you know, it is very difficult at
    this point, I think, to determine who among these late filers
    will actually qualify to participate should this legislation go
    forward.
        Mr. King. But five to one? How do you explain a five to
    one?
        Mr. Fraas. Just briefly, one response to that, well, two
    responses. First of all, I think until we actually go through
    each person's case and have them fill out a form, we don't know
    how many of those 70,000 do fit the class definition. It could
    be a much smaller number.
        Secondly, we are not looking at a snapshot in time, today
    or 1997, we are looking at 20 years, going back to 1981, so
    there may be a huge number of people who have retired and left
    farming over that 20-year period in addition to the 16,000 or
    whatever the number that exists now. And I think that number
    may be understated. I think USDA recently has recalculated the
    numbers, and they realize they have underestimated the number.
        Mr. King. If the Chairman will allow Dr. Boyd to answer.
        Mr. Nadler. Yes.
        Mr. Boyd. Chairman Nadler, to answer that question, the
    96,000 that you use, these are, for example, on my farm, there
    is my father, my brother and myself. We have all applied for
    loans but there is only one farm there. The U.S. Census counts
    us as one family farm. You have heirs to these people who have
    died now that has to be looked at. For example, Mississippi, a
    lot in Alabama, these farmers have passed away, and now their
    children are looking at the rights to these discrimination
    cases that they have filed as well.
        And I believe that if you look at the U.S. Census figures
    during the time span of the consent decree, I believe it is
    1981 and 1997, what the exact dates are, go back to the census
    and look at those numbers of how many Black farmers there were
    then versus what there are now, and the numbers do jive.
        Mr. King. I am going to explore that question down that
    path.
        I thank the Chairman, and I yield back.
        Mr. Nadler. I thank the gentleman.
        I recognize the gentleman from Alabama for 5 minutes.
        Mr. Davis. Thank you, Mr. Chairman.
        Delegate McEachin, I have placed in front of you a copy of
    the bill I have introduced, section 558, and I neglected to
    thank Mr. Conyers for being a cosponsor of that bill, so let me
    do that now.
        Look at section 588, if you will, turn to page five, which
    will note for the record is section 2(d) of the bill, it is
    page five in the actual text. You made a very good and very
    telling point about the original consent decree that was
    reached in the case and the waiver of discovery that was
    effected in the consent decree, and you correctly mentioned
    that that was a major problem with the case. A lot of these
    farmers couldn't get discovery.
        If you look at section 5(d), labeled, ``Loan Data,'' it
    states that, ``No later than 60 days after the secretary of
    agriculture receives notice of a claim filed pursuant to this
    bill, the secretary shall provide to that claimant a report on
    farm credit loans made within a timeframe of between January 1,
    1992, ending on the date of the enactment of this act. That
    report shall contain information on all comparators: race of
    the comparator, date of application, date of the loan decision,
    location of the office, all data relevant to the process of
    deciding on the loan.''
        This is a provision that, in effect, compels discovery
    which was left out of the original consent decree.
        Does this provision of 558 substantially address your
    concern?
        Mr. McEachin. I think this provision, Congressman, takes a
    good stab at it. But, again, forgive me for being the beast
    that I am, but I am a trial lawyer and I like to find things
    out for myself. And I am not so sure that I would necessarily
    trust the information from USDA to be complete and accurate as
    to all the claimants, given USDA's history.
        Mr. Davis. I recognize that, but, obviously, the discovery,
    however you look at it, is not going to come from the air, it
    is going to come from the USDA.
        But moving on to another point, just for the record, you
    will note that the next provision contains the confidentiality
    section that Professor Havard talked about and makes clear that
    there are some legitimate confidentiality concerns the
    comparators might have and in effect these documents will be
    scrubbed of any identifying information.
        I want to make sure that the record is also clear to
    Chairman Nadler that the provision, section 2(d), addresses the
    concern of discovery, it compels discovery on the part of the
    Department of Agriculture and compels discovery regarding
    comparators. And, of course, section 899 does not have any
    discovery provisions at all.
        Let me turn to another point of concern, and I want to ask
    unanimous consent, Mr. Chairman, to place two documents in the
    record. The first document is labeled, Table C-4. It is a list
    of all civil cases terminated and described by nature of the
    suit during the 12-month period ending March 31, 2006 in all
    district courts in the country. I would ask that that document
    be placed in the official record.
        Second of all, I would ask that a summary that my staff
    prepared also be placed in the record.
        I ask unanimous consent for both of those, Mr. Nadler.
        Mr. Nadler. Excuse me?
        Mr. Davis. I ask unanimous consent that both of these
    documents be placed in the record.
        Mr. Nadler. Oh, without objection.
        Mr. Davis. And, again, all who want to review the record
    and free to look at these documents, but I want to single out
    for the panel the following statistics: Analyzing all civil
    rights claims based on a Federal question that were filed
    between April 1, 2005, and March 31, 2006, the last period for
    which we have data, 3.4 percent of those cases reach trial.
        Another analysis: Cases where the United States was a
    defendant, 1 percent of civil rights cases where the United
    States was a defendant reached trial. One percent and 3.4
    percent.
        So, Mr. Boyd, one of the things that I want to make sure
    everyone takes who is interested in this issue from this
    hearing, getting a right to file a civil claim in United States
    district court means that there is a 97 percent likelihood you
    will never see your day in court.
        And, Mr. Fraas, Mr. McEachin, I think you would both agree
    with me, these aren't high value settlement cases either. Most
    civil rights cases aren't high value settlement cases. Do you
    both agree with that?
        Mr. McEachin. I do. Yes, sir.
        Mr. Davis. Mr. Fraas, do you agree with that?
        Mr. Fraas. They are very difficult cases.
        Mr. Davis. Very difficult to settle.
        So the best way of getting a recovery would be to have your
    claims heard on the merit. While I applaud the effort, the
    substantial concern I have with 899 is it simply says, ``Go to
    court, take your shot, file a claim in U.S. district court,
    join the ranks of the 97 percent who never get their day in
    court.''
        Yes, Professor Havard is right that we need to sharpen the
    administrative process and make it better, 558 would do that,
    but the administrative process--there is a reason we got here
    in the first place. It is because there was a substantial
    distrust that U.S. district court claims would work. There was
    a belief that we needed a process other than United States
    district court.
        Mr. McEachin, you and Mr. Fraas, as litigators, know very
    well how hard it is to litigate in U.S. district court. You
    know how aggressive the Government was in denying these claims
    and defending them even during the administrative process. They
    presumably would be as aggressive during the civil litigation
    process.
        Both of you would acknowledge the cost of bringing cases.
    There is a cost of bringing cases for plaintiffs. It is
    difficult to find attorneys as experienced as Mr. McEachin.
        So for all of those reasons, the remedy of saying, ``Go
    into court, take your shot,'' I am concerned it would be
    another illusory promise to a lot of these farmers.
        Dr. Zippert, would you like to comment on that?
        Mr. Zippert. I think that was the main reason that we are
    really strongly supporting 558 because those concerns are
    there. I think Mr. Fraas mentioned the problem of the
    substantial evidence issue that if we just go back into court
    without the framework of Pigford, you might not get for people
    the same consideration they received in Pigford, and,
    therefore, people who have claims that go back 15 or 20 years
    would have difficulty producing the required evidence, and they
    were not asked to do that originally in Pigford, and they
    shouldn't, as late claim filers, be asked to do it.
        So I think the real advantage is to a comprehensive
    approach that is outlined in 558, and I hope it can be done in
    a way that avoids some of these constitutional questions. I am
    not a lawyer, but most of you are, and maybe you can figure out
    a way around some of this to make sure that the farmers in this
    case get justice.
        Mr. Nadler. The gentleman's time has expired.
        I now recognize the gentleman from Virginia for 5 minutes.
        Mr. Scott. Thank you, Mr. Chairman.
        And thank all of the witnesses for your testimony.
        I just want to get some things on the record.
        We have two bills before us, 899 and 558. With either bill,
    have we covered everybody that needs to be covered? Has
    anybody, by definition, in either bill been left out or do both
    bills or either bill cover pretty much what needs to be
    covered?
        Mr. Zippert. There are some people who, through no fault of
    their own, who had appeals in this case that didn't get their
    appeal heard through no fault of their own, that if there is
    some way in this bill to correct that as well, we would like to
    see that too.
        Mr. Scott. They had a case heard on the merits and lost on
    the merits and then appealed?
        Mr. Zippert. Yes. But their appeal was never heard because
    their lawyers didn't submit in time or there were other
    problems that were beyond their control.
        Mr. Scott. Okay. Are there problems with either bill in
    terms of who is covered, Dr. Boyd?
        Mr. Boyd. I don't think there is a big problem with either
    bill on who it covers.
        Mr. Scott. Okay.
        Mr. Boyd. I think that what the issue is, is there were so
    many people involved, the original followers that brought this
    case forward, the 9,000 people who were denied----
        Mr. Scott. Okay. Let me go to the next question. With
    either bill, is there a problem or advantage in taking
    advantage of track A or track B? Does either bill hurt your
    chances that you would have, as an original plaintiff would,
    from going to track A and track B?
        So either bill would be covered. Okay.
        In terms of the evidence available that we are trying to
    get discovery to, is all of this evidence in the control of the
    Department of Agriculture? Is there other evidence that they
    may not have access to?
        The reason I ask that, Mr. Chairman, is that if the
    Department of Agriculture isn't providing information in these
    cases, that may be something we ought to consider a separate
    hearing, why they are not providing the information that they
    are to be providing so that people can have a fair case heard
    on the merit.
        Is the information within the control of the Department of
    Agriculture?
        Mr. McEachin. I will start off with that, Congressman
    Scott.
        I would think that a lot of that information is within the
    control of the United States Department of Agriculture.
        But, again, I stress to the Committee and those of you who
    at one time or another actually practiced law and tried cases,
    it is difficult at this juncture to say that all the
    information is there and that we won't need the discovery tools
    that are already granted to us through the Federal rules to go
    and discover in other areas besides the USDA. And so I am a
    little bit hesitant to say that it is all there, because my 20
    years of experience suggest that it is not all there.
        Mr. Scott. Well, I guess, the way we know how to encourage
    Federal agencies to do things for them to cooperate, and that
    would solve, I think, a lot of your problems.
        Mr. Fraas, you indicated there are several advantages in
    899, one of which was PAYGO. Could you kind of expand on that a
    little bit, what the problem is there?
        Mr. Fraas. Yes, Mr. Scott, and it is really a problem that
    you all would have to wrestle with. As I understand it, the
    House of Representatives, one of the first things it did this
    year is pass a new rule that to the extent that any piece of
    legislation increases mandatory Federal spending, it either has
    to be offset either by increased revenue or taking money from
    another program, and I know the Committee would not want to be
    in a position of having to do either of those things.
        What we are really----
        Mr. Scott. And 558 would trigger PAYGO and 899 would not?
        Mr. Fraas. I haven't looked at 558 that closely, but to the
    extent that you require a Federal agency to do anything, I
    assume their budget people would say that costs money.
        Mr. Scott. And 899 would not trigger PAYGO?
        Mr. Fraas. Not as I read it.
        Mr. Scott. What about the separation of powers issue?
        Mr. Fraas. That is something that I know the Committee has
    been wrestling with, but, essentially, the consent decree is
    the property of the judicial branch, not the legislative
    branch, and it is also a contract between the parties that
    settle the case. But the separation of powers simply addresses
    the idea of Congress amending or modifying something that the
    judicial branch had concluded.
        But I would really defer to your experts here on that
    issue. I am not a constitutional scholar.
        Mr. Nadler. I thank the gentleman.
        Without objection, all Members will have 5 legislative days
    to submit to the Chair additional written questions for the
    witnesses, which we will forward, and ask the witnesses to
    respond as promptly as you can so that their answers may be
    made part of the record.
        Without objection, all Members will have 5 legislative days
    to submit any additional materials for inclusion in the record.
        On behalf of everyone here, I thank the witnesses.
        And with that, the hearing is adjourned.
        [Whereupon, at 10:42 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 John Conyers, Jr., a Representative
      in Congress from the State of Michigan, Chairman, Committee on the
    Judiciary, and Member, Committee on the Constitution, Civil Rights, and
                                Civil Liberties
        On April 14, 1999, I stood in victory with Black farmers across
    this country. The United States Department of Agriculture (USDA) 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. However, this
    groundbreaking victory for civil rights proved be short lived. Black
    farmers would soon face major obstacles in obtaining settlement
    payments and more allegations of discrimination by the USDA would
    surface. These allegation have included shocking claims of retaliation
    by USDA through its office of Inspector General.
        Now, eight years and multiple lawsuits later, the nation's black
    farmers have not yet complete the Pigford claims process. In 2003,
    black farmer groups filed another lawsuit against the USDA alleging
    that the agency conspired to take their land through racial
    discrimination in government farm loans and programs. A report by the
    Environmental Working Group, issued in July 2004, gives strong
    credibility to the black farmers' recent claims that the USDA
    purposefully makes insufficient and late operating loans to Black
    farmers in order to later foreclose on their land.
        Given the continuing nature of complaints against the USDA, this
    hearing is extremely well timed. 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
    limitations and allowing claims to move forward.
        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
    process as almost ``automatic,'' we need to understand what has gone
    wrong and the nature of our role in putting the process back on track.
        Also of concern to me in the Pigford settlement, is that black
    farmers were limited in their ability to bring sufficient claims
    because they were denied discovery rights. While the Track B
    arbitration process called for the disclosure of witnesses, the
    settlement's consent decree included no other provisions for
    information exchange between the parties.
        As a result, the farmers had to prove discrimination without the
    benefit of access to information held in USDA files. This lack of
    access to information prevented black farmers from identifying
    similarly situated white farmers, a requisite to prove discrimination.
        I do not believe that such issues were the intended results of
    Pigford.
        Today, I hope to not only gain a better understanding of where we
    are in the Pigford process, but the overall plight of our nation's
    Black farmers as well. 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 20,000
    exist today.
        Yesterday, in The Washington Post, a front page article pointed out
    that in the Mississippi Delta--where a large section of this nation's
    farms are located--95 percent of the agricultural subsidies went to
    large, commercial farms primarily owned by whites despite the fact that
    the majority of residents in that region are black. This is a situation
    that demands attention.
        Today I stand alongside these farmers in demanding that their
    livelihood and civil rights be protected. Time is of the essence, as
    records will diminish and black farmers will be gradually forced out of
    their chosen profession. We must act now to provide an opportunity for
    the Pigford claimants to have their opportunity to be heard and receive
    appropriate monetary relief. We will not only fail our Black farmers if
    we do not address their plight, but all of society, because the
    principles of equality and fairness should be afforded to everyone in
    this country.