Pigford Settlement: The Role of the Court-Appointed Monitor	 
(17-MAR-06, GAO-06-469R).					 
                                                                 
In 1997, three African-American farmers filed a class action	 
civil rights lawsuit against the United States Department of	 
Agriculture (USDA). These farmers alleged that USDA had willfully
discriminated against them and other African-American farmers by 
denying their applications for farm loans and benefit programs,  
or by delaying the processing of their applications, and had	 
failed to properly investigate and resolve their complaints of	 
discrimination. This lawsuit, Pigford v. Glickman, was certified 
by the United States District Court for the District of Columbia 
as a class action suit on October 9, 1998. On April 14, 1999,	 
District Court Judge Paul L. Friedman approved and entered a	 
consent decree settling this lawsuit. In doing so, the court	 
noted USDA's long-standing discriminatory practices. The court	 
stated that for decades USDA discriminated against		 
African-American farmers by denying, delaying, or otherwise	 
frustrating African-American farmers' applications for farm loans
and other credit and benefit programs. The court also noted that 
USDA disbanded its Office of Civil Rights in 1983, and stopped	 
responding to claims of discrimination. Finally, the court	 
observed that the consent decree would not undo all that had been
done to African-American farmers, but nevertheless concluded that
it would be a fair, adequate, and reasonable settlement of the	 
claims brought in this case. Based on the specific interests of  
our requesters, for this report we (1) determined the extent of  
the monitor's participation in outreach and outreach oversight	 
for the Pigford case, and (2) identified the number of claims	 
that the monitor in the Pigford case directed to be reexamined	 
and the associated results.					 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-06-469R					        
    ACCNO:   A49417						        
  TITLE:     Pigford Settlement: The Role of the Court-Appointed      
Monitor 							 
     DATE:   03/17/2006 
  SUBJECT:   Agricultural workers				 
	     Blacks						 
	     Civil rights law					 
	     Civil rights law enforcement			 
	     Claims processing					 
	     Claims settlement					 
	     Courts (law)					 
	     Decision making					 
	     Discrimination					 
	     Minorities 					 
	     Loans						 
	     Agricultural assistance				 

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GAO-06-469R

     

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                                 March 17, 2006

Congressional Requesters

Subject: Pigford Settlement: The Role of the Court-Appointed Monitor

In 1997, three African-American farmers filed a class action civil rights
lawsuit against the United States Department of Agriculture (USDA). These
farmers alleged that USDA had willfully discriminated against them and
other African-American farmers by denying their applications for farm
loans and benefit programs, or by delaying the processing of their
applications, and had failed to properly investigate and resolve their
complaints of discrimination. This lawsuit, Pigford v. Glickman, was
certified by the United States District Court for the District of Columbia
as a class action suit on October 9, 1998.1 On April 14, 1999, District
Court Judge Paul L. Friedman approved and entered a consent decree
settling this lawsuit. In doing so, the court noted USDA's long-standing
discriminatory practices. The court stated that for decades USDA
discriminated against African-American farmers by denying, delaying, or
otherwise frustrating African-American farmers' applications for farm
loans and other credit and benefit programs. The court also noted that
USDA disbanded its Office of Civil Rights in 1983, and stopped responding
to claims of discrimination. Finally, the court observed that the consent
decree would not undo all that had been done to African-American farmers,
but nevertheless concluded that it would be a fair, adequate, and
reasonable settlement of the claims brought in this case.

Attorneys for the African-American farmers expected the value of the
settlement to be substantial-estimating it to be worth at least $2.25
billion. However, the court stated that it was impossible to know exactly
how much the settlement would cost the government, in part, because the
size of the class of African-American farmers had not been determined. The
court noted that 15,000 to 20,000 African-American farmers were estimated
to be members of the class.2 To notify potential class members, a
court-appointed facilitator conducted an advertising campaign between
January and March

United States Government Accountability Office

Washington, DC 20548

1This case was filed in 1997 when the Honorable Daniel Glickman was
Secretary of Agriculture. The case is also now referred to as Pigford v.
Johanns, because the Honorable Mike Johanns has become the Secretary of
Agriculture. The three farmers who filed the suit were representing a
presumed class of 641 African-American farmers.

2As used in this report, the phrase "African-American farmers" refers to
the class as defined by the court and not a more general definition. The
certified class was defined as all African-American farmers who (1) farmed
or attempted to farm between January 1, 1981, and December 31, 1996; (2)
applied to USDA during that period for loans or benefits and believe they
were discriminated against in USDA's response to that application; and (3)
filed a discrimination complaint on or before July 1, 1997, regarding
USDA's treatment of their applications.

1999 to notify potential class members about the preliminary approval of
the consent decree, and that a hearing on the fairness of the settlement
was to be conducted in March 1999.3 Following that hearing and the court's
approval of the settlement, African-American farmers then had about six
months to file claims and to be eligible for relief under the decree, with
a filing deadline of October 12, 1999.4 To assist farmers in preparing
claims packages, attorneys representing African-American farmers held over
200 meetings in 21 states.5 Since the filing deadline, officials appointed
by the court have been responsible for considering the claims made by
African-American farmers.

As of February 2006, over 97,000 people had filed claims under the consent
decree or requests to file late claims---about five to six times more
claims than anticipated. Of the 97,000, the court had received 23,314
claims seeking compensation by the filing deadline of October 12, 1999.
About 900 of the on-time claims were determined to be not eligible. The
court received an additional 73,816 requests for permission to file a
claim after the October 12, 1999 filing deadline. Except in relatively few
extraordinary cases, the claims received after the filing deadline were
denied as not timely. Because so many farmers' attempts to file a claim
were denied due to late filing, some claimants argued in court that the
notice of the settlement was insufficient to reach the majority of
potential class members.6 Nevertheless, after review, the court ruled that
the notice was more than adequate. Overall, by January 2006, about 22,400
claims had been reviewed, decided, and in some cases reexamined: about
14,300 claims-64 percent-were approved for payments and benefits totaling
over $900 million. The remaining 8,100 claims-36 percent-have been denied.
More than half of the claims that were initially denied have been or will
be reviewed by the court-appointed monitor.

The court appointed four officials as directed under the consent decree:

           o  A facilitator to conduct an advertising campaign between
           January and March 1999 to notify known and potential members of
           the class that a settlement had been reached, to receive and
           screen potential class members' claims to determine whether they
           met the class definition, and to assign the claims to the
           adjudicator and arbitrator for action.

           o  An adjudicator to decide whether certain farmers' claims are
           supported by substantial evidence based on a review of their
           supporting documentation.7 The adjudicator has reviewed almost all
           of the claims.

           o  An arbitrator to determine, after holding evidentiary hearings,
           whether certain farmers' claims are supported by a "preponderance
           of evidence." There have been 166 claims under this criterion. The
           arbitrator was also assigned responsibility for reviewing
           petitions to file late claims from potential class members.

           o  A monitor to review claimants requests to have a claim decision
           reexamined and to direct the other officials to reexamine a claim
           when an error occurred that resulted or is likely to result in a
           fundamental miscarriage of justice. The monitor began her duties
           in March 2000, about six months after the October 12, 1999
           deadline for potential class members' to submit claims. The
           monitor is also responsible for attempting to resolve problems
           that class members have with the consent decree, and for
           periodically reporting to the court and the Secretary of
           Agriculture on the good faith implementation of the decree, but
           was not assigned specific outreach responsibilities under the
           consent decree. As of early 2006, the monitor's office had a staff
           of 26, including 12 attorneys, to assist in performing her
           assigned tasks.

3The parties to the case had agreed to an advertising campaign which
included 62 commercials, advertisements in 142 newspapers, as well as
advertisements in TV Guide and Jet Magazine. The campaign was carried out
by the Poorman-Douglas Corporation, which had experience with class action
litigation.

4For those individuals who could not file a claim by October 12, 1999 due
to extraordinary circumstances beyond their control, the consent decree
established a process by which they could petition the court to
participate in the claims resolution procedures. Initially, the court set
a deadline of January 30, 2000 for such petitions to be postmarked, but
later extended this deadline to September 15, 2000.

5In addition, one meeting occurred in Washington, D.C. and one in the U.S.
Virgin Islands. These meetings occurred over the nine months leading up to
the filing deadline.

6This issue was also addressed in a November 2004 congressional hearing.
`Notice' Provision in the Pigford v. Glickman Consent Decree, Hearing
before the House Committee on Judiciary, Subcommittee on Constitution,
November 18, 2004.

A detailed description of our scope and methodology is provided in
enclosure I. Based on the specific interests of our requesters, for this
report we (1) determined the extent of the monitor's participation in
outreach and outreach oversight for the Pigford case, and (2) identified
the number of claims that the monitor in the Pigford case directed to be
reexamined and the associated results. In addressing these objectives, we
reviewed reports, testimonies, and summary data prepared by
court-appointed officials associated with the Pigford case, including the
court-appointed monitor. We interviewed the monitor, and obtained
statistical information about the status of claims made under the consent
decree. We did not review specific cases nor assess case decisions made
under the consent decree. In addition to those efforts, based upon
congressional interest, we developed information about the possible use of
an ombudsman at USDA to address civil rights issues (see encl. II); and we
searched legal databases and identified cases where the work of other
court-appointed monitors was found by courts or Congress to be ineffective
or problematic and what court or legislative remedies were provided (see
encl. III). We conducted our work between August 2005 and March 2006 in
accordance with generally accepted government auditing standards. A more
detailed description of our methodology is provided in enclosure I.

7Claimants could request that their claims be considered on one of two
tracks. Claimants selecting Track A have to provide substantial evidence
for the adjudicator to approve a claim. Most successful Track A claimants
are eligible for $50,000 payments and other relief. Claimants selecting
Track B have to demonstrate the merits of their case in an evidentiary
hearing conducted by the arbitrator-and can receive amounts equal to their
actual damages, a discharge of certain existing debt and other relief.

Results in Brief

The monitor or attorneys from her office participated in 60 public
meetings from February 2000 through December 2005 to reach out to class
members, at the request of interested organizations. These meetings
occurred in states where the majority of African-American farmers live,
including Alabama, Arkansas, Georgia, Louisiana, Maryland, Mississippi,
North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and Virginia.
The monitor estimated that 9,400 individuals, including claimants,
potential claimants, and government officials attended these meetings.
However, the number and extent of participation at these meeting was
uneven among the states-for example, a total of about 2,090 individuals
attended 12 such meetings in Alabama, but only about 60 individuals
attended the one outreach meeting in Texas. At these meetings, the monitor
explained the role of her office and the process through which class
members could petition to have their cases reexamined. In addition,
through the monitor's toll-free number, the monitor's office has received
over 131,000 phone calls about the Pigford case. These calls have involved
questions about status of payments, debt relief, tax concerns, and other
issues. The monitor also established a Web site (
http://pigfordmonitor.org ) that makes information about the case readily
available to the public. Furthermore, in the monitor's reports to the
Secretary of USDA, the court, class counsel and defendant's counsel she
noted that many claimants expressed concern to her office that the
advertising campaign did not reach many individuals who met the class
definition but had not submitted a timely claim.

As of February 6, 2006, the monitor had ordered the reexamination of 2,059
initial claims decisions, and most reexaminations reversed or changed the
initial decision. More specifically, African-American farmers had
petitioned the monitor to direct the reexamination of 4,939 claims, and
the government had requested that 730 claims decisions be reexamined. Of
the 4,939 petitions from African-American farmers, as of February 6, 2006,
the monitor had completed reviewing 3,631 of them and directed the
arbitrator or adjudicator to reexamine 1,979 claims decisions; in 1,232 of
these cases a previously denied claim was approved or the benefits awarded
to the farmer were increased. The monitor observed that in most cases
where she directed a reexamination, the farmer had provided her office
with additional information supporting the farmer's claim of
discrimination that had not been presented when the claim was initially
denied. In addition, the government has petitioned the monitor to review
claim decisions when it thought there were mistakes or flaws in the
information provided by the claimants. As of February 6, 2006, the monitor
had reviewed 605 of the 730 petitions submitted by the government for the
reexamination of claims decisions and directed that 80 of them be
reexamined. Of these 80, sixty-seven have been reexamined by the
adjudicator or arbitrator, and in 59 of these cases a previously approved
claim was denied or the benefits awarded to the claimant were reduced.
Finally, as of February 6, 2006, the monitor was still reviewing petitions
to reexamine initial claims decisions and the adjudicator and arbitrator
were continuing to reexamine claims decisions as directed by the monitor.

Background

The Pigford case was initiated in 1997, when African-American farmers
filed a class action lawsuit against the USDA alleging that it willfully
discriminated against them and other African-American farmers by denying
their applications for farm loans and benefit programs, or delaying the
processing of their applications, and failing to properly investigate and
resolve their complaints of discrimination. This lawsuit was certified by
the United States District Court for the District of Columbia as a class
action suit on October 9, 1998. On January 5, 1999, District Court Judge
Paul L. Friedman preliminarily approved a consent decree proposed by the
federal government and class counsel to settle this lawsuit. After a
fairness hearing was held on March 2, 1999, to address potential issues
with the proposed consent decree, the parties made some revisions and
filed a modified proposed consent decree. On April 14, 1999, District
Court Judge Paul L. Friedman approved the modified consent decree as a
fair, adequate, and reasonable settlement.

The consent decree defined the roles and responsibilities of the following
officials who were appointed by the court to implement the settlement:

           o  The Facilitator (Poorman-Douglas Corporation) The facilitator
           was responsible for notifying known and potential members of the
           class that a settlement had been reached by conducting an
           advertising campaign composed of television commercials and print
           advertisements early in 1999. The facilitator was also responsible
           for receiving potential class members' claims, screening claims to
           determine whether they met the class definition, and assigning
           claims to the adjudicator and arbitrator for action.

           o  The Adjudicator (JAMS-Endispute Inc.) The adjudicator is
           responsible for deciding whether farmers' Track A claims have met
           the required burden of proof. Over 22,000 claims have been
           processed under Track A.

           o  The Arbitrator (Mr. Michael K. Lewis of ADR Associates) The
           arbitrator is responsible for determining, after holding
           evidentiary hearings, whether farmers' Track B claims have met the
           required burden of proof. A total of 166 claims have been
           processed under Track B. The arbitrator was also assigned
           responsibility for reviewing petitions from potential class
           members who filed late claims.

           o  The Monitor (Ms. Randi Ilyse Roth, formerly of the Farmers
           Legal Action Group)8 The monitor began her duties in March 2000,
           about six months after the October 12, 1999 deadline for potential
           class members' to submit claims, and was not involved in the
           advertising campaign to reach out to potential class members. The
           monitor is responsible for directing the facilitator, adjudicator,
           or arbitrator to reexamine a claim if she determines that a clear
           and manifest error occurred in the screening, adjudication, or
           arbitration of a claim that has resulted or is likely to result in
           a fundamental miscarriage of justice. To initiate a reexamination
           of a claim, class members or the federal government were required
           to file a petition requesting a reexamination and explaining why
           they believed the decision of the facilitator, adjudicator, or
           arbitrator was in error.9 The monitor reviews such petitions and
           directs the facilitator, adjudicator, or arbitrator to reexamine a
           claim if she determines that a clear and manifest error occurred
           in the screening, adjudication, or arbitration of a claim that
           resulted or is likely to result in a fundamental miscarriage of
           justice. In addition, the monitor is responsible for attempting to
           resolve problems that class members have with the consent decree,
           staffing a toll-free telephone line, and periodically reporting to
           the court and the Secretary of Agriculture on the good faith
           implementation of the decree. As of early 2006, the monitor's
           office had a staff of 26, including 12 attorneys, to assist in
           performing her assigned tasks.

8Under the terms of the consent decree, counsel for both parties to the
lawsuit each submitted two names for the court to consider appointing as
monitor. On January 4, 2000, the court entered an order appointing Randi
Ilyse Roth as monitor.

The efforts to reach potential class members were started in January 1999.
Under the terms of the consent decree, the court-appointed facilitator,
Poorman-Douglas Corporation, was assigned the duty of publishing the
Notice of Class Settlement as directed in the decree. This included
mailing a copy of the Notice of Class Certification and Proposed Class
Settlement to all known members of the class within 10 days of the court's
preliminary approval of the consent decree. In addition, the consent
decree directed the facilitator, as soon as possible after the preliminary
approval of the consent decree, to take the following actions to announce
the preliminary settlement and the time and place of the fairness hearing:
(1) arrange to have 44 commercials aired on the Black Entertainment
Television (BET) network and 18 similar commercials on the Cable News
Network (CNN) during a two-week period; (2) arrange to have one-quarter
page advertisements in 27 general circulation newspapers and 115 African
American newspapers in an 18-state region during a two-week period; and
(3) arrange to have a full page advertisement in the editions of TV Guide
that are distributed in an 18-state region and a half page advertisement
in the national edition of Jet Magazine.10 In his April 1999 order
approving and entering the consent decree, Judge Friedman concluded that
the potential class members had received more than adequate notice,
stating that the parties had exercised extraordinary efforts to reach
class members through the massive advertising campaign that had been
conducted. Furthermore, he observed that by March 26, 1999, 16,559 farmers
had requested claims packages from the facilitator.

The consent decree provided about six months for potential class members
to file claims, with a deadline of October 12, 1999. To be eligible to
obtain relief pursuant to the consent decree, a claimant was required to
complete a claim sheet and return it with any supporting documentation to
the facilitator. As part of the claim, the claimant had to provide the
facilitator with evidence that he or she had filed a discrimination
complaint between January 1, 1981, and July 1, 1997. Under the consent
decree terms, the claimant could provide this evidence by submitting one
of the following:

9Under certain circumstances, class members and the federal government are
allowed to provide additional information to the monitor that was not
included with the original claim if their claim was processed under Track
A.

10In addition, USDA was to use its best efforts to obtain the assistance
of community based organizations to communicate to class members and
potential class members that the court had preliminarily approved the
consent decree and the time and place of the March 1999 fairness hearing.

           o  a copy of the discrimination complaint filed with USDA or a
           copy of a USDA document referencing the discrimination complaint;

           o  a declaration by a person who was not a member of the
           claimant's family, stating that the declarant had first-hand
           knowledge that the claimant had filed a discrimination complaint
           with USDA and describing the manner in which the discrimination
           complaint was filed;

           o  a copy of correspondence from the claimant to a member of
           Congress; the White House; or a state, local or federal official
           averring that the claimant had been discriminated against (except
           that, in the event that USDA did not possess a copy of the
           correspondence, the claimant also was required to submit a
           declaration stating that he or she sent the correspondence to the
           person to whom it was addressed);

           o  a declaration by a non-familial witness stating that the
           witness had first-hand knowledge that, while attending a USDA
           listening session or other meeting with a USDA official (or
           officials), the claimant was explicitly told by a USDA official
           that the official would investigate that specific claimant's oral
           complaint of discrimination.11

An individual who satisfied the criteria for membership in the class, but
who did not file a discrimination complaint until after July 1, 1997,
could be entitled to relief under the consent decree by demonstrating that
he or she: (1) actively pursued judicial remedies by filing a defective
pleading during the applicable statute of limitations period; (2) was
induced or tricked by USDA's misconduct into allowing the filing deadline
for the applicable statute of limitations period to pass; or (3) was
prevented by other extraordinary circumstances beyond his or her control
from filing a complaint in a timely manner, though neglect did not qualify
as an extraordinary circumstance. In these cases, the facilitator
forwarded the claim package to the adjudicator who reviewed the package to
determine if the claimant met one of the three standards. Once the
adjudicator made a determination, the claim package was returned to the
facilitator with a written determination and the facilitator was to
process the claim, if found to be timely, or to notify the claimant of the
adjudicator's decision that the claim was untimely.

Under the consent decree, claimants who satisfied the definition of the
class, including the filing of a discrimination complaint, but who had not
submitted a completed claim package by the filing deadline of October 12,
1999 could petition the court to permit them to participate in the
settlement. However, the consent decree provided that the

11Any declarations were required to be made pursuant to 28 U.S.C. S: 1746,
which prescribes the form in which such declarations, as true under
penalty or perjury, must be provided.

court would grant such a petition only where the claimant demonstrated
that his or her failure to submit a timely claim was due to extraordinary
circumstances beyond his or her control. The court delegated the authority
to the arbitrator to examine these claims on a case-by-case basis. The
deadline the court established for filing a petition to file a late claim
was initially January 30, 2000, and later the court extended this deadline
to September 15, 2000. According to the arbitrator's report of November
2005, about 66,000 petitions to file a late claim were received by
September 15, 2000, and an additional 7,800 were received after the late
claim deadline. Of these, the arbitrator denied all but 2,229. An example
of extraordinary circumstances beyond an individual's control that the
arbitrator approved involved farmers who resided or farmed in one of the
North Carolina counties declared to be a federally designated disaster
area as a result of Hurricane Floyd and who asserted that the disaster
prevented them from submitting a claim before the October 12, 1999,
deadline. Potential class members' claims that they did not hear of the
opportunity to submit a claim until it was too late were not considered by
the arbitrator to have represented an extraordinary circumstance. When
reviewing late claims, the arbitrator collaborated with the facilitator's
staff to develop a series of categories into which late claim affidavits
were sorted. Those affidavits in the "Unaware of Lawsuit" category,
without any mitigating factors, were rejected.

The terms of the consent decree required the facilitator to determine
whether the claimant satisfied the criteria for membership in the class
within 20 days of receiving a completed claim. If the claimant was
determined to be a class member, the facilitator was to forward the claim
package to the adjudicator or the arbitrator and send a copy of the claim
package to the class counsel and government counsel.

To address the claims of class members, the consent decree established two
tracks-Track A and Track B. These tracks differ in three basic ways: the
level of evidence required, the manner in which claims are decided, and
the potential amounts of the awards. Class members could generally elect
to proceed under either track.12

Track A claimants' cases are decided by the adjudicator based on the
evidence that claimants can provide, and without a hearing. To prove a
Track A claim, the claimant's written materials must provide substantial
evidence that he or she was the victim of race discrimination by USDA when
he or she applied to participate in a farm program.13 When a Track A
credit-related claim is proven the claimant is eligible to receive a cash
payment of $50,000, a discharge of certain outstanding debt, and other
relief. When a Track A claim of discrimination in a non-credit benefits
program is proven the claimant is eligible for a single payment from USDA
of $3,000.

In contrast, Track B claimants are required to meet a higher standard of
proof by demonstrating in an evidentiary hearing by a "preponderance of
the evidence" that they

12Class members whose claims arose exclusively under non-credit benefit
programs, however, had to file under Track A.

13Substantial evidence is defined as relevant evidence appearing in the
record that a reasonable person might accept as adequate to support a
conclusion after taking into account other evidence that fairly detracts
from that conclusion.

were the victims of racial discrimination and suffered damages as a result
of that discrimination. A preponderance of the evidence is defined as such
relevant evidence as is necessary to prove that something is more likely
true than not true. Also, at the hearing, the government may cross examine
opposing witnesses and present legal arguments. When a Track B claim is
proven, the claimant is provided an amount equal to his or her actual
damages, receives a discharge of outstanding debt to the USDA's Farm
Service Agency, and other relief. Track B awards have ranged from $52,000
to approximately $1,500,000.

In cases where the class member or the federal government disagreed with
the adjudication or arbitration of a claim, either party could file a
petition with the monitor to request that these decisions be reexamined.14
The consent decree provides that the monitor is to direct a reexamination
when she determines that a clear and manifest error has occurred in the
screening, adjudication, or arbitration of the claim and that this error
has resulted or is likely to result in a fundamental miscarriage of
justice. The monitor does not have the power to reverse any of the
facilitator's, adjudicator's, or arbitrator's decisions. The monitor
reviews the petition for reexamination, any response to that petition, the
record before the facilitator, adjudicator, or arbitrator, and the
decision that is the subject of the petition. For Track A claims only,
under certain circumstances, the class member or the government may
include with the petition for monitor review any documents that help them
explain or establish that an error occurred. However, the monitor is not
permitted to consider additional materials when reviewing Track B
petitions or to supplement the record with such materials.

The Monitor's Participation in Outreach Activities

The monitor and her staff have participated in outreach activities,
although the consent decree did not specifically assign outreach duties to
the monitor. Outreach responsibilities under the consent decree-the
initial notification of the known and potential class members--were
assigned to the facilitator. Between February 2000 and December 2005, the
monitor and lawyers from the monitor's office participated in 60 public
meetings at the request of agriculture associations, universities, state
and federal government agencies, and other interested sponsoring
organizations. The monitor and her staff served as speakers at these
meetings, where they explained the role of the monitor as directed by the
consent decree and met with individuals to discuss their specific
concerns. Approximately 9,400 individuals, including claimants and
government officials, attended these meetings that were held in 12 states
and the District of Columbia.15 Table 1 shows that the numbers of meetings
and attendance varied by state. The monitor told us that some of these
meetings were the sponsoring organization's annual meetings with attendees
from a number of states.

14In addition, claimants could petition the monitor to request the
reexamination of some of the facilitator's screening decisions.

15According to the 2002 Agriculture Census, about 87 percent of the
African-American farm operators live in these states.

Table 1: Meetings Attended by the Monitor and/or Her Staff, February 2000
through December 2005.

                                                                  Approximate 
                  Number of                                         number of 
State           meetings Sponsoring organizations                attendees 
                               o  Federation of Southern                      
                               Cooperatives/Land Assistance Fund  
                               o  Professional Agricultural       
                               Workers Conference                 
                               o  Tuskegee University             
Alabama           12        o  United Farmers USA                    2,090
                               o  Arkansas Chapter of the Black               
                               Farmers and Agriculturalists       
                               Association, Inc.                  
                               o  Arkansas Land and Farm          
                               Development Corporation            
                               o  Arkansas Pine Bluff University  
                               o  Black Farmers and               
Arkansas          13        Agriculturalists Association, Inc.       1,700
                               o  African American Family                     
                               Farmers, Inc.                      
                               o  Coordinating Council of Black   
                               Farm Groups                        
                               o  Federation of Southern          
                               Cooperatives/Land Assistance Fund  
                               o  Fort Valley State University    
Georgia           11        o  USDA Outreach                         1,355
                               o  Northeast Louisiana Farmers                 
                               o  Southern University and A&M     
                               College Family Farm Technical      
Louisiana          2        Assistance Project                         190
Maryland           1        o  USDA                                     50 
                               o  Alcorn State University                     
Mississippi        3        o  Mississippi Family Farmers              200
North Carolina     1        o  Congressman Mike McIntyre               250 
                               o  FSA State Directors                         
                               o  Oklahoma Chapter of the Black   
                               Farmers and Agriculturalists       
                               Association, Inc.                  
                               o  Oklahoma Department of          
                               Agriculture                        
                               o  USDA Oklahoma Department of     
Oklahoma           7        Food and Forestry                  2,400-2,500
                               o  United Farmers of South                     
South Carolina     1        Carolina                                   205
                               o  Tennessee Chapter of the Black              
                               Farmers and Agriculturalists       
                               Association, Inc.                  
Tennessee          3        o  USDA Risk Management                    290
                               o  Landowners' Association of                  
Texas              1        Texas                                       60
                               o  Federation of Southern                      
Washington,                 Cooperatives/Land Assistance Fund  
D.C.               3        o  Congressional Black Caucus              175
                               o  National Black Farmers                      
Virginia           2        Association                                400

Source: Randi Roth, Court-appointed Monitor, Pigford v. Glickman.

Note: Ms. Roth stated that she attended the meetings held over the first
year and some others, and also, that Mr. Stephen Carpenter, Senior Counsel
for the monitor's office, attended almost all of the meetings.

These meetings provided opportunities for the monitor and her staff to
hear and respond to the concerns of individuals. For example, claimants
with approved claims expressed concerns about the timing of payments, the
amount of debt relief and injunctive relief they would receive, and other
issues, such as taxes. Claimants whose claims were denied sought
information about filing a petition with the monitor to have their claim
reexamined and the timing of reexamination decisions, among other issues.
In the monitor's reports and our interviews with her, she reported that in
many cases several of her staff attended these meetings, which made it
possible for one or two attorneys from the monitor's office to address the
large group while the other attorneys worked with individuals to address
their concerns. The monitor has addressed these topics and others by
publishing 15 Monitor Updates, which the monitor's staff distributed
before and after the public meetings, and also during one-on-one sessions
with individuals who expressed concerns about specific topics. The Monitor
Updates are also available on the monitor's official Website.

In addition, the court required the monitor to be available to class
members and the public through a toll-free telephone number in order to
facilitate the lodging of any consent decree complaints and to expedite
their resolution. The monitor established a toll-free number that has been
available to the public since May 29, 2000. The monitor said her office
has received over 131,000 calls on this toll-free number. Callers who use
the toll-free number reach phone operators who have been trained regarding
the basics of the consent decree and who have access to a database
containing certain factual information about each claimant, such as the
claimant's name, the names of any other individual who is authorized to
request information on behalf of a claimant, filing dates for claims and
petitions filed by the claimant, and the status of any payments to the
claimant. As a result, the operators are able to respond to some questions
during a call. For example, the operators can respond to questions as to
when a payment was approved or sent to the individual, as well as
questions about filing deadlines associated with the case. These operators
also have access to documents that can be sent to individuals upon
request, including court orders, farm loan program notices, monitor
reports, and monitor updates. For questions about debt relief, injunctive
relief, and other complex issues, the operators make appointments for the
caller to speak with a lawyer from the monitor's office.

The consent decree requires the monitor to periodically report to the
court, class counsel, defendant's counsel and the Secretary of USDA on the
good-faith implementation of the consent decree. The monitor has completed
four implementation reports which, along with other monitor reports on
particular topics, are available on the monitor's Web site. The reports
provide details about the activities of her office, statistical
information on the status of claims processing, and her observations about
the implementation of the Pigford case. For example, in 2004 and 2005, the
monitor's reports on the consent decree implementation noted that
claimants had expressed concerns that many people who met the class
definition had failed to sign up for the lawsuit on time because the
advertising campaign did not reach them.16 Because a vast majority of
farmers attempted to file claims after the settlement deadline, some
groups, such as the National Black Farmer's Association, have argued that
the notice of the settlement was insufficient to reach the majority of
potential class members. Others have suggested additional explanations. In
particular, one of the attorneys for the plaintiffs explained that many
African-American farmers did not apply by the October filing deadline
either because they initially had no faith that the government would ever
make such payments, or because they did not realize that the children of
farmers could make claims on behalf of their parents.17 The arbitrator
contacted a quarter of those who applied late and found several
explanations--that they had been unaware of the settlement, the deadlines
and procedures for the consent decree, or were aware but disbelieved in
its legitimacy or their eligibility under the consent decree. On January
3, 2005, Judge Paul L. Friedman of the United States District Court for
the District of Columbia issued an opinion expressing concern for
African-American farmers, who, because they had not filed on time, were
barred from participating in the consent decree claims-resolution process.
Nevertheless, the court found that the notice of the settlement and claims
process was more than adequate and met the standards for class action
settlements.

16See Randi IIyse Roth, Monitor's Report and Recommendations Regarding
Implementation of the Consent Decree for the Period of January 1, 2002,
through December 31, 2003, (St. Paul Minnesota: Aug. 19, 2004); and
Monitor's Report Regarding Implementation of the Consent Decree for the
Period of January 1, 2004, through December 31, 2004, (St. Paul Minnesota:
Dec. 16, 2005).

The Monitor Directed the Reexamination of 2,059 Claims and Most
Reexaminations Reversed or Altered the Initial Decision

The monitor's office has played an active role in implementing the consent
decree by reviewing about one quarter of the claims decisions that have
been made in the Pigford case. Overall, as of February 6, 2006, the
monitor's office has received 5,669 petitions requesting the reexamination
of an initial claim decision-4,939 from African-American farmers and 730
from the federal government. Most petitions from African-American farmers
concerned claims that they believed were denied inappropriately, but 162
farmers filed petitions for review claiming they were due additional
benefits. Of the 4,939 claims that African-American farmers petitioned to
be reexamined, the monitor had completed reviewing 3,631 of them and
directed that 1,979 claims be reexamined as of February 6, 2006. 18 The
following figure indicates that, of the claims that had been reexamined,
the adjudicator found in favor of African-American farmers and awarded
payments in over 90 percent of the cases. As a result, previously denied
claims were approved or the benefits awarded to the farmer were increased.

17Speech of Mr. J.L. Chestnut of Chestnut, Sanders, Sanders, Pettaway, &
Campbell, L.L.C. at the Federation of Southern Cooperatives/Land
Assistance Fund's 2005 22nd Annual Farmer's Conference in Albany, Georgia,
February 19, 2005.

18As of February 6, 2006, the monitor had reviewed 4,236 petitions for
reexamination (3,631 from African-American farmers and 605 from the
government). Of these, the monitor directed the further reexamination of
2,057 (1,979 from African-American farmers and 80 from the government).

Figure 1: Status of African-American Farmers Petitions for Reexamination
of Claims Decisions as of February 6, 2006.19

According to the monitor, some of the flaws that were noted in petitions
from claimants included (1) the limited time these individuals had to
present claim information during meetings where class counsel provided
assistance in completing claim packages, and (2) difficulties providing
information about similarly situated white farmers as required under Track
A. In many of these cases, the class member's petition for review provided
the monitor with more complete information that had not been presented
when the claim was initially denied, including information about their
treatment by USDA staff, information about similarly situated white
farmers, or additional information that responded to specific statements
in the adjudicator's initial decision. The monitor observed that in most
cases where she directed a reexamination, the farmer had provided her
office with additional information supporting the farmers' claim of
discrimination.

In addition, the government petitioned the monitor for a reexamination of
730 claim decisions that were found in favor of a claimant and awarded
them benefits. When the government filed petitions with the monitor to
have claims decisions reexamined, the types of flaws or mistakes that they
noted included flaws in information provided by claimants, such as when
and to whom in USDA the claimant had complained to about discriminatory
treatment or constraints on the time the government was allowed when
responding to the claims initially. For example, some of the historical
records for these USDA programs were stored on microfiche records that are
maintained in St. Louis and not readily available. As of February 6, 2006,
the monitor had reviewed 605 of these petitions, as shown in figure 2. Of
the 605 petitions, the monitor has denied the government request for a
reexamination in about 87 percent of these cases. However, in the 80 cases
where the monitor directed the reexamination of an initial claim at the
request of the government, the government prevailed in 59 of those cases.
As a result, previously approved claims were denied or the benefits
awarded to a claimant were modified.

19Ninety-four petitions were from potential class members who had been
rejected by the facilitator in the initial screening process. The monitor
has reviewed all of these petitions and directed the facilitator to
reexamine 22 of them. As of February 6, 2006, the facilitator had
reexamined all 22 cases and has found all 22 of the claimants to be
eligible to participate in the claims process.

Figure2: Status of Federal Government Petitions for Review of Claims
Decisions as of February 6, 2006.

                                   - - - - -

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If you or your staff have any questions about this report or need
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Key contributors to this report were Charles M. Adams, Assistant Director;
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Robert A. Robinson

Managing Director, Natural Resources

and Environment

List of Congressional Requesters

The Honorable Edolphus "Ed" Towns

Member of Congress

The Honorable Bennie Thompson

Member of Congress

The Honorable John Conyers

Member of Congress

The Honorable Robert C. Scott

Member of Congress

The Honorable F. James Sensenbrenner, Jr.

Chairman

Committee on the Judiciary

House of Representatives

The Honorable Steve Chabot

Chairman

Subcommittee on the Constitution

Committee on the Judiciary

House of Representatives

                             Scope and Methodology

To determine what outreach or outreach oversight the monitor provided in
the Pigford case, we reviewed the consent decree that described the
monitor's role in implementing the settlement and the standards that she
was to follow in carrying out her responsibilities; the January 4, 2000,
court order appointing the monitor; and the April 4, 2000, order of
reference that further described the monitor's responsibilities and
powers. We also interviewed the monitor and staff from her office about
the outreach and outreach oversight activities that she performed, and the
information that she and her staff provided during these activities. In
addition, we reviewed the monitor's four reports on the good-faith
implementation of the consent decree and her congressional testimony at a
hearing on the status of the implementation of the Pigford consent decree.
In addition, we reviewed the congressional testimony of the facilitator
and arbitrator about the notice to the class and requests to file late
claims. Further, we reviewed the 15 published monitor updates on topics,
such as filing deadlines and parties to the Pigford consent decree, which
the monitor and her staff shared with the public as part of her outreach
activities.

To identify the number of cases where the court-appointed monitor's work
in the Pigford case resulted in reexaminations of claims, and to identify
the results of the reexaminations, we reviewed the consent decree, court
orders, and the monitor's reports to determine the process established for
requesting a reexamination of a claim decision and the standards the
monitor was to use when reviewing and approving these requests. We also
reviewed the statistics included in the monitor's September 2004
congressional testimony and her reports for 2000 through 2004 to identify
the number of petitions that were filed with the monitor's office
requesting a reexamination of a claims decision, the number of petitions
for reexaminations of a claims decision that were approved, and the
results of any reexaminations. We did not review specific cases nor assess
case decisions made under the settlement agreement. We further reviewed
the data provided by the monitor's office for the period ending February
6, 2006. We did not assess the data published in the monitor's testimony
and reports or the data the monitor provided to us. Because of the public
nature of these data, we deemed them reliable for the purposes of this
report.

To describe the role of an agency ombudsman in resolving disputes, we
reviewed the ombudsman standards developed by the American Bar Association
(ABA); the Coalition of Federal Ombudsman; the United States Ombudsman
Association; and the University and College Ombudsman Association. We also
reviewed a draft copy of the guide for federal employee ombudsmen
developed by the Coalition of Federal Ombudsman in conjunction with the
Federal Interagency Alternative Dispute Resolution Working Group Steering
Committee. In addition, we reviewed our previous reports on the role of
ombudsmen in dispute resolution, and on the Environmental Protection
Agency's ombudsman. Further, we interviewed the Department of Labor's
Office of Inspector General Ombudsman, who is currently the Chair of the
Coalition of Federal Ombudsman; the Transportation Security
Administration's Ombudsman, who is currently the Vice-Chair of the
Coalition of Federal Ombudsman; the City of Dayton and Montgomery County,
Ohio Ombudsman, who is currently a Director of the United States Ombudsman
Association, and the Stony Brook University Ombudsman, who is currently
the President of the International Ombudsman Association, to discuss the
role of an ombudsman in dispute resolution and the potential of ombudsmen
to address civil rights.20 We did not identify any comprehensive reports
on evaluations of the federal ombudsmen who address issues raised by the
public.

To identify cases where the work of other monitors was found to be
ineffective or problematic, and what court or legislative remedies were
provided, we searched a number of legal databases for relevant examples.
To find examples where Congress had found the work of a monitor to be
ineffective or problematic, and any corresponding legislative remedies, we
conducted a variety of searches in legislative, legislative history, and
legal journal databases. Because courts have appointed monitors as
"special masters" under Rule 53 of the Federal Rules of Civil Procedure,
to find examples where the courts had found the work of a monitor to be
ineffective or problematic, and corresponding remedies, we reviewed over
1,600 federal cases citing Rule 53. We also reviewed over 600 federal
cases in which the terms "court," "monitor," and some form of the word
"appoint" occur in the same sentence.

We conducted our work between August 2005 and March 2006 in accordance
with generally accepted government auditing standards.

20The Ombudsman Association and the University and College Ombuds
Association recently merged to form the International Ombudsman
Association.

               Role of an Agency Ombudsman in Resolving Disputes

Based on congressional interest, we developed information on ombudsmen
that might be useful in considering the potential use of an ombudsman at
USDA to address civil rights issues. USDA does not now have such an
ombudsman. Our past work on the use of ombudsman offices,21 American Bar
Association (ABA) guidance on and information about ombudsmen, and our
interviews with those familiar with the use of ombudsmen in the United
States shows that ombudsmen (1) are increasingly being used by federal,
state and local governments and (2) address a wide variety of workplace
problems, including program access and civil rights issues. Moreover, the
international use of ombudsmen is flourishing, with ombudsmen being used
at national levels of government in about 120 countries as of 2004,
according to the International Ombudsman Institute. In several countries,
the protection of human rights is one of the major purposes of ombudsman
offices, indicating the potentially significant depth of the ombudsman
role.

An ombudsman, as a protector of individual rights, is a dispute-resolution
practitioner. An ombudsman is a neutral party who uses a variety of
procedures, including alternative dispute resolution techniques, to deal
with complaints, concerns, and questions. An ombudsman (1) receives
complaints, concerns, and questions from individuals; (2) works to resolve
these issues; and (3) makes recommendations for improving the general
administration of the department, agency, or entity for which they have
responsibility. Ombudsmen can address a very wide range of issues, for
example, from the concerns of individuals about access to programs, to
systemic management problems, to policy shortcomings. Ombudsmen can
thereby help correct organization-wide problems and also help develop
strategies for preventing and managing conflict. A key feature that
distinguishes ombudsmen from other dispute-resolution practitioners is the
ombudsman's focus on addressing systemic issues and developing
conflict-prevention strategies.

Growth in the Use of Ombudsmen

Over the past three decades, there has been an extraordinary growth in the
number and types of ombudsmen. Ombudsman offices have been established in
federal, state, and local governments, academic institutions, and the
private sector. The Chair of the Coalition of Federal Ombudsmen told us
that the Coalition includes ombudsmen members that represent 37 federal
agencies. Moreover, the Administrative Dispute Resolution Act (ADRA)
authorizes federal agencies to use ombudsmen, and Congress has established
several ombudsman positions in various programs. For example, the U.S.
Environmental Protection Agency has ombudsmen who serve as points of
contact for members of the public who have concerns about Superfund
activities.22 Also, the ombudsman for the National Institutes of Health
(NIH) addresses issues for employees of the NIH, such as staff and
management interaction, performance appraisals, difficult management
situations, discrimination, harassment, interpersonal misunderstandings,
mentoring, authorship, and scientific collaboration. In addition, the
ombudsman for the Federal Deposit Insurance Corporation (FDIC) handles
inquiries from FDIC-regulated banks, the public and FDIC employees. The
FDIC ombudsman can answer questions about corporation policies and
procedures and concerns regarding open or closed bank matters, and assist
with complaints regarding FDIC operations, employees, and contractors.

21GAO, Human Capital: The Role of Ombudsmen in Dispute Resolution,
GAO-01-466 (Washington, D.C.: April 13, 2001).

22The Superfund Program provides support to locate, investigate, and clean
up hazardous waste sites nationwide.

Ombudsmen are also in widespread use internationally-including Canada,
Europe, Latin American, the Caribbean, Africa, Australia and Asia. As of
2004, ombudsmen are being used at national levels of government in about
120 countries, according to the International Ombudsman Institute. In a
number of countries the protection of human rights is one of the major
purposes of some ombudsmen offices. According to the International
Ombudsman Institute, examples include the Ombudsman of Finland, Civil
Rights Protector of Poland, the Human Rights Ombudsman of Slovenia, the
Parliamentary Commissioner for Human Rights in Hungary, and the Defensores
del Pueblo in Spain, Argentina and Peru. Also, in the European Union, all
citizens have the right to refer their problems involving the activities
of European community institutions to the Ombudsman of the Union. In 2000,
the Union's ombudsman reported that about 8 percent of the complaints he
addressed involved matters of discrimination. For example, as a result of
inquiries by the European Union Ombudsman, the European Commission
abolished a rule allowing sex discrimination which had worked to the
disadvantage of women. In addition, ombudsmen in Britain and Ireland
address a wide variety of issues including, for example, housing, health,
pensions, police investigations, insurance, telecommunications, estates,
and legal services.

Standards for Ombudsmen

The ABA developed standards for the use of ombudsmen to provide advice and
guidance on the structure and operation of ombudsman offices. The
standards call for ombudsman to operate consistently with the following
essential characteristics-independence, impartiality, and confidentiality.

Independence-The ombudsman is, and appears to be, free from interference
in the legitimate performance of duties and independent from control,
limitation, or a penalty imposed for retaliatory purposes by an official
of the appointing entity, or by a person who may be the subject of a
complaint or inquiry.

Impartiality in conducting inquiries and investigations-The ombudsman
conducts inquiries and investigations in an impartial manner, free from
initial bias and conflicts of interest. Impartiality does not preclude the
ombudsman from developing an interest in securing changes that are deemed
necessary as a result of the process, nor from otherwise being an advocate
on behalf of a designated constituency. The ombudsman may become an
advocate for change within the entity when the evidence demonstrates a
need for it.

Confidentiality-An ombudsman does not disclose and is not required to
disclose any information provided in confidence, except to address an
imminent risk of serious harm. Records pertaining to a complaint, inquiry,
or investigation are confidential and not subject to disclosure outside
the ombudsman's office. An ombudsman does not reveal the identity of a
complainant without that person's express consent.

The ABA standards also state that an ombudsman may make formal or informal
reports of results and recommendations stemming from a review of
investigation. If such a report is issued, the ombudsman should generally
consult with an individual or group prior to issuing a report critical of
that individual or group, and include their comments with the report. In
addition, the ABA standards state that to ensure the office's
accountability, an ombudsman should issue and publish periodic reports
summarizing the ombudsman's findings and activities. These reports may
include statistical information about the number of contacts with the
ombudsman and the subjects that the ombudsman addressed. The chair of the
Coalition of Federal Ombudsmen told us that he is part of a working group
looking at developing standard data categories for annual reports to be
prepared by ombudsmen so that the work of ombudsmen in the federal
government can be compared and summarized. We did not identify any
comprehensive evaluations of the federal ombudsmen who address concerns
from the public.

According to the ABA standards, there are four types of ombudsmen based on
how the office was established and their functions.

Legislative ombudsmen-A legislative ombudsman is established by the
legislature as part of the legislative branch and addresses issues raised
by the general public or internally, usually concerning the actions or
policies of a government agency, official, public employee, or contractor.

Executive ombudsmen-An executive ombudsman may be located in either the
public or private sector and receives complaints from the general public
or internally, and addresses actions or failures to act by the entity, its
officials, employees, or contractors.

Organizational ombudsmen-An organizational ombudsman may be located in
either the public or private sector and ordinarily addresses problems
presented by members, employees, or contractors of an entity concerning
its actions or policies.

Advocate ombudsmen - An advocate ombudsman may be located in either the
public or private sector and, like other ombudsmen, evaluates claims
objectively, but is either authorized or required to advocate on behalf of
individuals or groups found to be aggrieved.

While an ombudsman may expedite and facilitate the resolution of a
complaint and recommend changes to agency procedures, an ombudsman as
envisioned by the ABA standards should supplement and not substitute for
an entity's formal procedures that may be necessary to protect legal
rights and to address allegedly inappropriate or wrongful behavior or
conduct. Nevertheless, if an ombudsman finds a shortcoming in agency
policies, procedures and processes, he or she is expected to raise those
issues for resolution or reconsideration.

Potential for an Ombudsman to Address Civil Rights Issues at USDA

Several core aspects of the functioning and purpose of an ombudsman make
such an office an option for consideration at USDA. An ombudsman not only
works to resolve disputes but also is in a position to alert management to
systemic problems and thereby help correct organization-wide situations
and develop strategies for preventing and managing conflicts. Moreover, an
ombudsman office can help an organization assure a fair, equitable and
nondiscriminatory environment. In this regard, the voice of an independent
ombudsman could potentially be useful in addressing concerns about
equitable access to programs and other civil rights issues at USDA. Before
deciding whether an ombudsman office at USDA should be instituted, a
variety of factors would need to be carefully considered, including the
relationship of the ombudsman to USDA's existing organizations, the
specific roles and responsibilities to be assigned to the ombudsman, the
authorities that would be provided to ensure a successfully functioning
ombudsman, the degree of independence to be afforded the ombudsman, and
the staffing and budgeting of an ombudsman's office.

            Remedies in Cases of Ineffective or Problematic Monitors

Based upon congressional interest we conducted a search for cases where
the work of a court-appointed monitor was found by a court or the Congress
to be ineffective or problematic, and summarized any remedies that were
provided in such cases. To identify such cases, we searched a number of
legal databases for relevant examples. To find examples where Congress had
found the work of a monitor to be ineffective or problematic, and any
corresponding legislative remedies, we conducted a variety of searches in
legislative, legislative history, and legal journal databases. Because
courts have appointed monitors as "special masters" under Rule 53 of the
Federal Rules of Civil Procedure, to find examples where the courts had
found the work of a monitor to be ineffective or problematic, and
corresponding remedies, we reviewed over 1,600 federal cases citing Rule
53. We also reviewed over 600 federal cases in which the terms "court,"
"monitor," and some form of the word "appoint" occur in the same sentence.

Based upon our review, we determined that it has been rare for a court or
the Congress to take action because a monitor's work was found to be
ineffective or problematic. We found just a handful of cases where a court
found that a monitor's work was in some way problematic or ineffective.
Additionally, we found only one instance where Congress took action with
regard to a court-appointed monitor.

In the few instances that we identified where courts found a monitor's
work to be ineffective or problematic, monitors mishandled funds and
overcharged for their services or the monitors' appointments or delegated
functions were invalid. More specifically:

                o  One court questioned whether a monitor could accomplish
                his assigned task of transforming an insolvent company's
                contaminated steel plant site into a means of funding the
                medical plan of former steelworkers. The court found that the
                monitor had (1) rejected valid settlement offers to hold out
                for more compensation for himself, (2) misappropriated funds
                by forming a $1 million litigation "war chest", (3) paid for
                personal tax advice with litigant funds, and (4) overbilled
                for a legal assistant. The court terminated the monitor's
                appointment and ordered the monitor to personally cover
                $48,035 for personal tax services and $65,034 for overbilling
                the services of the legal assistant.23

                o  In litigation over the Department of the Interior's
                handling of monies held in trust for individual Indians, the
                Court of Appeals ordered the removal of a monitor who had
                been appointed by the district court to monitor and review
                all of the Interior defendants' trust reform activities. The
                Court of Appeals concluded that the appointment of the
                monitor was made over the objection of the defendants and
                therefore was not valid.24

                o  In another appellate court case, the court held that a
                district court's order appointing a monitor effectively
                usurped executive functions. A class action lawsuit was
                brought on behalf of female inmates of the District of
                Columbia, where the district court entered an order directing
                one or more members of the court's Special Officer's staff to
                monitor allegations of sexual harassment at each facility
                housing women prisoners. The monitor was to ensure that each
                reported violation be thoroughly investigated and documented.
                The monitor was to submit a final written report to the
                warden of the institution, including factual findings and a
                conclusion as to whether a preponderance of the evidence
                showed that a violation of the sexual harassment policy
                occurred. The appellate court, however, held that these
                provisions effectively usurped the executive functions of the
                District of Columbia. The court noted that while the
                appointment of a special master to oversee compliance with a
                court order may be useful in unusual circumstances, the
                master's role in such cases has been limited.25

           In the one case we found where the Congress acted because of
           concerns that a monitor's work was problematic, Congress expressed
           concern that a monitor's pay was excessive and took action to
           limit that pay. After becoming concerned that a monitor appointed
           in Indian trust litigation was receiving excessive compensation,
           Congress included a provision in the Interior's appropriations
           legislation for fiscal years 2004 and 2005 that prohibited the use
           of funds to compensate the monitor at an annual rate of more than
           200 percent of the highest Senior Executive Service rate of pay
           for the Washington-Baltimore locality pay area.26

           Overall, we found that is was rare for a court or the Congress to
           take action because a monitor's work was found to be ineffective
           or problematic, and in those few cases where a court or the
           Congress sought to provide a remedy, the concerns with the
           monitors' work were generally similar and included cases where
           monitors had mishandled funds, overcharged for their services,
           were receiving excessive pay or where the monitors' appointments
           or delegated functions were invalid. No concerns have been raised
           by Congress or the courts about the Pigford Monitor's pay,
           accomplishment of assigned functions, or the validity of the
           court's delegation of functions to the monitor.

23Cordoza v. Pacific States Steel Corp., 320 F.3d 989 (9th Cir. 2003).

24Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003).

25Women Prisoners of District of Columbia Department of Corrections v.
District of Columbia, 93 F.3d 910 (D.C. Cir. 1996).

26See Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, S: 124,
118 Stat. 2809 (2004); Department of the Interior and Related Agencies
Appropriations Act, 2004, Pub. L. No. 108-108, S: 127, 117 Stat. 1241
(2003). The court held that this appropriations prohibition made no
mention of the Department of Treasury, which was also to bear the costs of
the monitor, and denied reconsideration of its order requiring the
defendants' to bear the costs incurred. In its concluding remarks, the
court noted that it "knows of no previous Congress that has ever
intervened in a specific pending civil action to reduce the compensation
rate for judicial officials below the market rate set by the Court. For
the legislative branch to interfere with an ongoing case by attempting to
preclude a court from ordering compensation rates for its special masters
appears to be wholly without precedent." Cobell v. Norton, 263 F. Supp. 2d
58 (D.D.C. 2003).

(360604)

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