[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

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               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.

                                


                                










                                










                                 
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