SPEAKERS CONTENTS INSERTS
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96–110 PDF
2004
STATUS OF THE IMPLEMENTATION OF THE PIGFORD V. GLICKMAN SETTLEMENT
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
SEPTEMBER 28, 2004
Serial No. 108
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://www.house.gov/judiciary
STATUS OF THE IMPLEMENTATION OF THE PIGFORD V. GLICKMAN SETTLEMENT
96–110 PDF
2004
STATUS OF THE IMPLEMENTATION OF THE PIGFORD V. GLICKMAN SETTLEMENT
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
SEPTEMBER 28, 2004
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Serial No. 108
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
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JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on the Constitution
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STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MELISSA A. HART, Pennsylvania
TOM FEENEY, Florida
J. RANDY FORBES, Virginia
JERROLD NADLER, New York
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ADAM B. SCHIFF, California
PAUL B. TAYLOR, Chief Counsel
E. STEWART JEFFRIES, Counsel
HILARY FUNK, Counsel
MINDY BARRY, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member
C O N T E N T S
SEPTEMBER 28, 2004
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OPENING STATEMENT
The Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution
The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia
The Honorable Spencer Bachus, a Representative in Congress from the State of Alabama
The Honorable Melvin L. Watt, a Representative in Congress from the State of North Carolina
WITNESSES
Mr. Phillip J. Haynie, II, Haynie Farms, LLC
Oral Testimony
Prepared Statement
Ms. Randi Ilyse Roth, Monitor, Pigford v. Glickman
Oral Testimony
Prepared Statement
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Mr. Michael K. Lewis, Adjudicator, Pigford v. Glickman
Oral Testimony
Prepared Statement
Mr. Alexander Pires, Class Counsel, Pigford v. Glickman
Oral Testimony
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of Chairman Chabot
Prepared Statement of the Honorable Robert C. Scott
Prepared Statement of Sanford Bishop
Attachments to hearing testimony submitted by witness Randi Ilyse Roth
Prepared statement with attachments from Arianne Callender
Prepared statement of Thomas Burrell
Letter from the Federation of Southern Cooperatives submitted by Chairman Chabot
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Supplemental statement of witness Michael K. Lewis
Prepared statement of Lawrence Lucas
Supplemental testimony from witness Alexander Pires
STATUS OF THE IMPLEMENTATION OF THE PIGFORD V. GLICKMAN SETTLEMENT
TUESDAY, SEPTEMBER 28, 2004
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 4:05 p.m., in Room 2141, Rayburn House Office Building, Hon. Steve Chabot (Chair of the Subcommittee) presiding.
Mr. CHABOT. The Committee will come to order. This is the Judiciary Subcommittee on the Constitution. I'm Steve Chabot, the Chairman of the Committee. I welcome everyone here this afternoon and I'd like to thank everyone for being here today for this very important hearing.
However, I feel that it's necessary to qualify that statement by saying that it's unfortunate that we even have to be here because time after time it appears that the wrong choices have been made by those in positions of authority. I trust that today's hearing will enable this Subcommittee to examine those issues that are of utmost importance and will enable us to make a substantive and series of substantive recommendations to remedy the injustices that have occurred.
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I would like to take this opportunity to recognize a few people: Arianne Callender of the Environmental Working Group; Mr. John Boyd, with the National Black Farmers Association; Mr. Thomas Burrell, with the National Black Farmers and Agriculturists Association; and Shirley Sherrod, with the Federation of Southern Cooperatives, for taking the time to provide this Committee with information. Through these individuals and others, it has come to this Subcommittee's attention that a second hearing is necessary in order to take additional testimony from additional witnesses, and some of the people that I just mentioned may very well be witnesses at the next hearing. I've directed my staff to investigate the scheduling of a second hearing and we will work with folks to make sure that that's at as convenient a time as possible.
When slavery was ended in the United States, our Government made a promise, a restitution of sorts, to the former slaves that they would be given 40 acres and a mule. While we can debate whether this allotment was intended to compensate the freed slaves for their involuntary service, what is clear is that this promise was intended to help freed slaves be independent economically and psychologically as holders of private property.
What also is clear is that the very Government that made this promise through the People's Agency established back in 1862 under President Abraham Lincoln, the Government has sabotaged it by creating conditions that make sovereign and economically viable farm ownership extremely difficult.
This is the backdrop against which we will be examining the issues before us today. We are here to consider the administration of the 1999 Consent Decree, which resulted from the civil rights case of Pigford v. Glickman.
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The Consent Decree was developed to provide some monetary restitution to black farmers who were victims of racial discrimination carried out by the United States Department of Agriculture, the very institution designated to assist them, supposed to be done in a swift and timely manner.
Rather than help black farmers, this agency has been instrumental in causing their decline. Since the early 1900's the number of black farmers has decreased from nearly one million to fewer than 18,000. During this time, when black farmers tried to seek justice by filing discrimination complaints with the USDA, the United States Department of Agriculture, their claims were either ignored or dismissed, most without an investigation.
Ultimately, several of these black farmers, all whose claims of racial discrimination had been disregarded by the USDA, filed a class action suit against that agency. After extensive negotiations a settlement was reached that established a process to have all the discrimination claims heard in a timely manner. Yet, in an ironic twist the process that was created to provide a forum for those whose claims had been shut out has itself shut out nearly two-thirds of all who wanted to have their discrimination claims heard.
Whether or not each of these claimants would have prevailed on the merits is not the issue before us today. The process should have at least allowed them the opportunity to be heard. We cannot in good conscience allow a settlement that leaves out more potential claimants than it allows in to go unexamined or remain unsolved.
All the parties involved are responsible for developing a solution, whether it be modifying the current Consent Decree, creating a subsequent Consent Decree, or some other process, to stop the destructive cycle from reoccurring. The first step in this process should be to provide the nearly 65,000 people who were denied entry into the process the opportunity to at least be heard. We will never be able to put the racially discriminatory practices that have occurred and continue to occur within the USDA behind us until every one of these individuals has at least had the opportunity to be heard.
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This is just one of the many problems with the Consent Decree that my colleagues and I hear about nearly every day. It is my sincerest hope that this hearing will help us all get a better understanding of what precisely the problems are, what potential solutions there may be, and what we can do to ensure that the Government never finds itself in a similar situation again. Too much has been lost and too much is at stake for black farmers to just accept the solution in 1999 that has failed more people than it has helped.
And that is my opening statement. And I would now yield to the gentleman from Michigan, the distinguished Member of this Committee, Mr. Conyers, for an opening statement.
Mr. CONYERS. Thank you, Chairman Steve Chabot. We appreciate your remarks, and I thank my colleague Bobby Scott, the Ranking Subcommittee Member, for allowing me to just make a brief statement because I am asking to be excused to go to the floor. I have to manage a bill.
But John Boyd of Virginia came to me a number of years ago now about this problem that we have been in, and since April 14, 1999, where we declared victory with black farmers, something incredible has happened. And by the way, I thank you for your opening statement, Chairman Chabot, because you are probably ready now to go on the reparations bill that's been languishing before this Committee for many years. Your analysis of the plight of African American farmers is right on. But here is the problem. We have 90 percent of the claims being denied and 65,000 people, farmers, turned away.
Now, look, folks. That isn't justice. Something is wrong. I want to thank Sister Roth for all that she's done in her capacity over the years as the monitor. But I really want to tell you that the plight of the black farmer is just as bad as it was in 1910 when black farmers owned almost 16 million acres of land, when today it is only a couple of million at best. The farmers are disappearing and so I want to make a direct appeal to Randi Roth—to Michael Lewis, the adjudicator. Brother Lewis, please open up this process so these 65,000 farmers can have their day of justice occur. There's a lot that you could do in the interpretation of this court order. I know that and you know that. Please, Al Pires, the class counsel, please join with us and try to get this Consent Decree amended or we are going—this will go down in history as one of the greatest governmental injustices that has ever occurred.
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And I am here—I have been in this thing from the beginning. And I am going to stay with this Committee, the Chairman and Bobby Scott and Mel Watt, until the end. And I thank you so very much.
Mr. CHABOT. I thank the distinguished gentleman for his statement. I would now yield 5 minutes to Mr. Scott from Virginia.
Mr. SCOTT. I thank you, Mr. Chairman. I would like to take this opportunity to thank you, the Judiciary Committee Chairman, Mr. Sensenbrenner, the Agriculture Committee Chairman, Mr. Goodlatte, for your agreement to develop this hearing for the open bipartisan and productive manner in which you and your staffs have proceeded to do so. I must also acknowledge the work and dedication in developing this hearing by Judiciary Committee Ranking Member Conyers and Subcommittee Ranking Member, Mr. Nadler, and their staffs working on this as well.
There are several other Members and their staffs who have contributed to this effort, including the gentleman from North Carolina, Mel Watt, Bennie Thompson from Mississippi, Ed Towns from New York, G.K. Butterfield from North Carolina, Sanford Bishop from Georgia, and Joe Baca from California. Of course this hearing would not have been possible without the hard work and determination of all of the representatives and advocates of black farmers too numerous to list who have worked with us in developing the hearing over the last year. This has truly been a collaborative effort of all of those that I have mentioned and more.
Now, this hearing is just about the Pigford settlement. There are many other issues and problems with USDA, and there are a number of efforts under way to address those problems. Among those are lawsuits and complaints by Hispanic women and Native American farmers. There is also a new lawsuit pending by black farmers alleging continuing discrimination since the period covered by the Pigford case as well as continuing allegations and complaints of discrimination by USDA employees.
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I believe that all of these civil rights issues warrant oversight by the Judiciary Committee, and I appreciate you mentioning that they will be the focus of subsequent hearings. Everyone who needs to testify today obviously could not be accommodated in one hearing, and so I thank you for committing to the subsequent hearings. We have had a lot of people, like Tom Burrell and attorney James Myart, John Boyd from Virginia, Representative Henry Brooks from Tennessee, who have worked on this, and we obviously couldn't get everybody in this one hearing.
The U.S. farm services programs date back to 1862. Through their history the programs have been laden with the pall of racial discrimination in blatant as well as subtle ways. The Federal Government has stepped up its loan and technical assistance programs to farmers in recognition of the growing capital and other needs of farmers to stay viable, but black farmers have been largely left out due to discrimination and neglect.
In the early 1900's there were as many as a million black owned farms with about 16 million acres. Now there are an estimated 18,000 such farms, less than 3 million acres. Black farmers complained but no systemic action was taken to remedy the situation. And to add insult to injury, in 1983 the Civil Rights Office in USDA was closed down. Many complained about rampant discriminatory practices but others did not even bother, understandably, expecting that nothing would be done to address their complaints.
The Judiciary Committee looked into this issue in 1984 through a hearing held in this subject Committee which exposed racially discriminatory practices then in existence in USDA's loan and assistance programs and its nonexistent civil rights complaints process. Unfortunately, no substantial remedial effort was undertaken by either the Administration or by Congress until Secretary Glickman, in response to the growing and persistent complaints of black farmers and the disarray in complaint processing, ordered a moratorium on farm foreclosures and a series of reforms while pending complaint investigations. Yet it took a lawsuit by the black farmers in 1997 to bring about meaningful attention to the problem.
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The original estimates of the backlog of pending complaints was a few hundred. Over a thousand were discovered. Then there were estimates of about 2,000 farmers who may have suffered discrimination by USDA. By the time the Consent Decree was entered, the estimates had risen to 4-5,000. Over 22,000 filed claims within the initial deadline.
However, as the deadline expired, the court found the claims were still coming in. In fact, they were coming in so fast that the court extended the deadline and directed the adjudicator to determine those entitled to be included due to extraordinary circumstances out of their control. To everyone's astonishment, almost 66,000 claimants filed for consideration during the extension.
Most of them have been considered by the adjudicator and, curiously, only about 3 percent have been allowed in. Moreover, another 7,800 filed beyond the extended deadline. That adds up to almost 96,000 claimants.
Now, Mr. Chairman, I am concerned about the adequacy of the settlement process that leaves 70 percent of its claimants without a determination on the merits of their claim. I don't know whether the problem is the sufficiency of the original notice process or in the criteria applied to filers during the extended period, but I am not willing to accept that nearly 66,000 individuals who believe they have legitimate claims of racial discrimination knowingly ignored notice of the initial filing deadline and chose to submit their claims after the deadline for no good reason. I don't know what percentage of the claimants can show entitlement to relief, but it is certain that some can. As long as 70 percent of those who believe that they are entitled to recover under the settlement are prevented from having a determination on the merits of their claim, I don't see how we can move forward with transforming the image and effectiveness of USDA in serving minority customers fully. If this situation is allowed to stand, black farmers will not only have been victimized by the original discriminatory practices at USDA, but by the remedy process as well.
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So, Mr. Chairman, I look forward to the testimony of the witnesses for any insights that they may provide regarding my questions and concerns about the unfortunate state of affairs of the Pigford settlement, and I thank you and look forward to working with you as we solve these problems.
Mr. CHABOT. I thank you very much for your opening statement. Are there any other panel Members that wish to make an opening statement?
Mr. Bachus, you're recognized for 5 minutes.
Mr. BACHUS. I thank the Chairman. Mr. Chairman, I want to read really a part of what the court said in the Pigford case because I think it is at least what the court thought is the situation. I think it is a pretty good summary.
The court, and I am quoting from the case itself, quote, the department itself, talking about the Department of Agriculture, has recognized that there has always been a disconnect between what President Lincoln envisioned as the people's department serving all the people and the widespread belief that the department is, I quote, the last plantation, end quote, A department perceived as playing a key role in what some see as a conspiracy to force minority and disadvantaged farmers off their land through discriminatory loan practices.
In explaining this point, and noting the failure, what they say, of the USDA to address the problem of discrimination through its Civil Rights Complaint Project, the court goes on to say this: For decades, despite its promise that no person in the United States shall on the grounds of race, color or national origin be excluded from participation and be denied the benefits of or be otherwise subjected to discrimination under any program or activity, receiving Federal financial assistance from the Department of Agriculture, the department and the county commissioners discriminated against African American farmers when they denied, delayed or otherwise frustrated their applications for farm loans and other credit and benefit programs. Further compounding the problem, in 1983 the department disbanded its Office of Civil Rights and stopped responding to claims of discrimination. These events were the culmination of a string of broken promises that has been made to African American farmers for well over a century.
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And I will just close by saying there is evidence, and I think one reason for this hearing today is that the Consent Decree may not be serving its intended purpose. And that's I think a very—it's obviously a very serious charge that the court leveled against the department. And it's certainly something that merits this hearing today to see where we are since the court said that.
So I yield back the balance of my time, but I thank the panel for being here on this most important occasion.
Mr. CHABOT. Thank you very much. The gentleman from North Carolina, Mr. Watt, is recognized for 5 minutes.
Mr. WATT. Thank you, Mr. Chairman. I don't intend to take 5 minutes, although sometimes I don't know how much time I'm going to take. But I certainly don't start this statement with the intention of taking 5 minutes because I don't want the folks in the audience to get the impression that we have these hearings to listen to ourselves rather than to listen to the people who came to testify at the hearing. But I did want to take the opportunity to thank Mr. Scott for his leadership in pulling together the concept of and making the case for the necessity of a hearing such as this, and I want to thank the Chairman for agreeing to have the hearing because we know the power of the Chair in this body. You can't get a hearing without having a Chair who's willing to afford you a hearing unless you go out and do your own renegade hearing, which we have had to do on occasion and have done on this issue on a couple of occasions. So it's great to have a hearing inside the formal process that has a court reporter that produces a record and documents what is being said.
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I actually have the most urban congressional district that North Carolina has ever had throughout its history and consequently don't have many farmers in my congressional district. Most of the farmers in North Carolina happen to be in eastern North Carolina out in G.K. Butterfield's district, Walter Jones' district, and out in eastern North Carolina. But there is not a single issue that I hear more about and more complaints about secondhand, firsthand, directly with people than the plight of black farmers. And I know, because my uncles when I was growing up were farmers, how difficult it is to be a farmer. Even when you don't have the odds stacked against you, even when you don't have the Department of Agriculture and the local officials discriminating against you, it is extremely difficult to be a farmer, even more difficult to be an African American farmer. And so I think we need to do whatever is necessary and I hope that this hearing can give us a basis for trying to figure out what can be done to address the concerns, the complaints that I am hearing even in my more urban congressional district, and that Members of the Congressional Black Caucus are hearing over and over and over again throughout America about exclusion of people who should be in the class, who should have been in the class—maybe that's a better way to put it—and whether there is some effective way to provide compensation that acknowledges the discrimination that they have endured over a number of years and gets us to a point where we can start a new day and move forward and work on issues that are confronting farmers outside the process of discrimination and mistreatment.
So I appreciate the fact that this hearing is being held, and since I am the last person here that might make an opening statement before the witnesses, I will yield back quickly before somebody else comes in and delays us further. With that, I will yield back to the Chairman.
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Mr. CHABOT. Thank you very much, Mr. Watt. Appreciate your opening statement.
I'd first like to introduce the witness panel here if there is no other opening statements to be made, and we want to thank all the witnesses for being here this afternoon and participating in this very important hearing.
The first witness I would like to introduce is Phillip Haynie, II. Mr. Haynie is a farmer in the Commonwealth of Virginia who has been involved in farming his entire life. Mr. Haynie has experienced discrimination in his dealings with the USDA. He was instrumental in bringing about the class action that led to the Pigford settlement. We welcome you here this afternoon, Mr. Haynie.
The next witness is Randi Ilyse Roth, the court appointed monitor in the Pigford case since March 2000. Prior to serving as the monitor, she worked as a legal aid lawyer for 16 years, and since 1986 she worked for the Farmers Legal Action Group, where she represented African American farmers and organizations, and we welcome you here this afternoon, Ms. Roth.
The third witness is Michael K. Lewis, the court appointed arbitrator. Mr. Lewis was involved in the negotiations that led to the Consent Decree, based on his many years of experience in civil rights dispute mediation, and we thank you for being here, Mr. Lewis.
And our final witness is Alexander Pires. He was the lead class counsel representing the black farmer plaintiffs in the Pigford suit. Mr. Pires has made a career of practicing agriculture law and has been involved in the Pigford suit from its inception.
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We want to thank all four of the witnesses for being here this afternoon, and it is the practice of the Subcommittee to swear in all the witnesses, to administer the oath to the witnesses before us. So if you all would please stand and raise your right hand.
[witnesses sworn.]
Mr. CHABOT. We have a lighting system here which you might have noticed, the two boxes on the desk here, and the way it works is each of you will have 5 minutes to testify. And it starts out green. When it goes to yellow that will let you know that you have 1 minute to wrap up. And when the red light comes on your 5 minutes are up, and if you could conclude close to that we would appreciate it. And we always give a little leeway, if you need to wrap up. But to the extent you are able to stay within the 5 minutes we would appreciate. Then each of the panel Members will have 5 minutes to ask questions of any of the witnesses. So are the lights all ready to go here?
Okay, Mr. Haynie, you're recognized for 5 minutes.
STATEMENT OF PHILLIP J. HAYNIE, II, HAYNIE FARMS, LLC
Mr. HAYNIE. Good afternoon. My name is Phillip J. Haynie, II. First of all, on behalf of all the black farmers in the United States of America, I would like to take this opportunity to thank this Committee for holding this hearing.
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Mr. CHABOT. Could you pull the mike just a little closer? We've got a lot of folks, want to make sure everybody can hear you. You can even grab the whole box there and pull it a little closer, and we'll add a few seconds at the end for you.
Mr. HAYNIE. Okay, thank you.
I'm a fourth generation farmer from Heathsville, Virginia. On September the 14 in 1867 my great grandfather, the Reverend Robert Haynie, purchased 60 acres of land in Heathsville, Virginia. This was the first purchase of land by a former slave in Northumberland County. I'm about to lose a part of this land that I inherited due to the discriminatory practices of the USDA. For me and my family, spanning five generations, farming is not a job. It is a way of life.
The Pigford v. Glickman settlement was supposed to put an end to discrimination to black farmers and compensate black farmers for years of discrimination. This settlement has failed black farmers in the following ways:
Financial compensation. According to a recent Environmental Working Group report, that approximately 65,000 farmers did not get a fair hearing in their cases. Black farmers were required to go out and find similarly situated white farmers in order to determine discrimination in their cases.
I have with me today Reverend Nathaniel Jones from Gloucester, Virginia. He's the oldest black farmer in the United States. On October the 12 he will be 99 years old. How is a 99-year-old man going to go out and find similarly situated farmers when everybody that farmed with him is already dead? And he does not have access to USDA records.
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The second, the settlement failed to end discrimination against black farmers by USDA employees.
The settlement failed to prevent the loss of black land.
The settlement has failed to provide educational and financial opportunities to help young African Americans to engage in farming.
The settlement has failed to end foreclosures on black farmers and their land.
The settlement has failed to provide the injunctive relief that is outlined in the settlement.
The settlement has failed to provide black farmers with equal and fair access to land in USDA inventory.
The Government has systematically and purposefully low-balled damage estimates in Track B. They have used a model based on averages, even when the individual Track B farmer's operation was larger and more efficient than average. The USDA collects and analyzes a lot of good data at taxpayers' expense, but then conveniently ignores that information when estimating Track B farmers' damage. In short, to the extent that any farmer in Track B has an operation that was larger than average for that region and county, the USDA underestimated the damage and did so purposely, and this is statistically indefensible. Then to add in injury to insult, the USDA's damage model took a downward adjustment in the damage estimate if a farmer's crop productivity level was higher than the average for the county, again driving the estimates back to the average even when the farmer showed better than average yields and practice.
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Just another example of how the Justice Department and the USDA together have twisted what was supposed to be a good faith settlement for the class into an opportunity to fight individual farmers one by one. Those farmers now have to fight the Government without the benefit of shared expense for the class for things like counsel and experts. They have to fight the Government without the benefit of shared learning for the class. They have to fight the Government without benefit of the normal discovery procedures. And they have to fight the Government without the benefit of an open and transparent process.
One of the trade-offs was supposed to be a fast process. Instead the process is taking years for Track A farmers. The monitor has until 2007 to complete the reviews of the petition. Of course because the Government does not have to pay interest on damage, the Government wins again if it understaffs the settlement process and drags it out.
To sum it up, I don't know how anyone can look at the reality of the settlement and call it a good faith settlement. It is clear that the Government is spending huge sums in fighting these cases. It is clear that the damage models the USDA used in Track B cases is not designed to produce accurate estimates for farmers damage. It is designed to underestimate them. It is clear that the Track A process is moving at a snail's pace. This is not a settlement. This is just a continuation of the USDA's war against black farmers, having disarmed them by false promises of a good faith settlement. USDA has used the Office of Inspector General to intimidate and reprise against farmers, especially large black farmers who have filed civil rights complaints against USDA.
Systemic discrimination at the United States Department of Agriculture goes far beyond black farmers. They include Hispanics, Native American farmers, Asian farmers, women farmers, disabled and other socially disadvantaged farmers. USDA even discriminates against its own employees.
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The Conference of Black Farmers organization is in support of legislation to correct the shortfalls of the Pigford v. Glickman settlement in ending discrimination at USDA.
In closing, I pray that while the sons, daughters and the grandchildren of black farmers spill their blood and lose their lives in Iraq for the cause of democracy that we cannot, and we must not allow democracy to fail their parents and grandparents.
Thank you for this opportunity.
[The prepared statement of Mr. Haynie follows:]
PREPARED STATEMENT OF PHILLIP J. HAYNIE, II
Haynie1.eps
Haynie2.eps
Haynie3.eps
Haynie4.eps
Haynie5.eps
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Haynie6.eps
Mr. CHABOT. Thank you very much, Mr. Haynie. Ms. Roth, you're recognized for 5 minutes.
STATEMENT OF RANDI ILYSE ROTH, MONITOR, PIGFORD V. GLICKMAN
Ms. ROTH. Thank you very much, Mr. Chairman, Members of the Committee. Again, I am the independent court appointed monitor in Pigford and I have served in that capacity for 4 1/2 years since——
Mr. CHABOT. Could you pull the mike up. They can't—it's hard to hear.
Ms. ROTH. Okay. How's that?
Mr. CHABOT. That's great. If I could ask all the witnesses when they testify—it's very—you think they'd pick them up, we'd have better mikes around this place. But your tax dollars at work. Go ahead.
Ms. ROTH. Thank you very much. Is this working now?
Mr. CHABOT. Yes, you sound very good now. We'll start the clock over here for you.
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Ms. ROTH. Thanks a lot.
Mr. CHABOT. Mr. Scott has just reminded me it was probably a low bid, so——
Ms. ROTH. I have served as the independent court appointed monitor in Pigford since March of 2000. Pigford represents an important chapter in civil rights history, and it's important that Congress, the press and the public come to an accurate understanding of what Pigford did and did not accomplish. Some of the recent press is confusing.
Some criticisms assert that the parties are failing to live up to the Consent Decree. Others assert that the parties are living up to the Consent Decree, but the Consent Decree just wasn't good enough to meet African American farmers needs. It's critical to arrive at a realistic assessment of the situation.
My testimony will provide some background about the case, and then will primarily address the question of whether the terms of the Consent Decree itself are being honored. I would like to explain my role in the case.
The court's order of reference in Pigford makes the monitor an agent and officer of the court. Because my role is quasi-judicial, topics about which I can testify are limited. In particular, I cannot testify regarding any matter that's pending before the court.
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Paragraph 12 of the Consent Decree gives the Pigford monitor four jobs. The first is reporting. I have to report to the court about the good faith implementation of the decree. I included my most recent report as Appendix V to this testimony.
My second job is to attempt to resolve problems that class members are having about the Consent Decree. There are more than 22,000 claimants in the class and they raise many concerns. The most significant of these concerns are described in my reports. Historically, they have focused on debt relief, injunctive relief, tax relief and payment status.
My third job is to issue petition decisions. In approximately 5,400 cases claimants and/or the Government have petitioned to the monitor for review of decisions issued by the adjudicator, arbitrator or facilitator. I issue monitor decisions in response to these petitions.
My fourth job is to staff a toll free line for class members and the public.
Next I will highlight some key aspects of implementation and explain what resources I have provided to the Committee to help explain them, following the outline of the written testimony.
First, how does the Consent Decree process work? The Consent Decree sets up a process through which each of the approximately 22,000 claimants is given a chance to prove to a neutral third party that he or she experienced discrimination. Both sides, the claimant and the Government, are allowed to submit information about the claim. Claimants are given the choice of proving discrimination through Track A or Track B. And I have put a table in the written testimony that highlights the differences between the tracks.
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Second is the late claims process. But I am going to skip that in my own testimony because I'm aware that Michael Lewis is going to be explaining that in his.
Third, what is the success rate? About 61 percent of all claimants, people who are eligible to file claims, prevailed in their initial adjudications. So far, the unsuccessful claimants who filed petitions are prevailing in the petition process at a rate of about 50 percent. If one projected solely based on historical percentages, one would conclude that once the petitions process and reexamination process are over, close to 70 percent of the claimants will have prevailed on their claims.
Fourth, how much has been paid out? To date, about $831 million worth of relief has been distributed to more than 13,500 class members in this case, and in the written testimony I provided a table that shows the categories of the relief.
Fifth, what have been the results in the various processes? As Appendices I through III to my testimony, I have provided charts that detail the results in each of the processes. Chart 1 is about the claims process. Chart 2 is about the late claims process. And Chart 3 shows the results for the 2,000 or so people who have been allowed into the case through the late claims process.
Next, I would like to address the key question of whether the terms of the Consent Decree have been honored. This question simply asks whether the parties and the neutrals have done and are doing the things that they agreed to do under the Consent Decree. The answer is yes. Claims are being processed, prevailing claimants are being paid. Debt relief is being awarded and injunctive relief rights are being honored. As I have detailed in my court reports, where problems or administrative snags have arisen in individual claimants' situations the parties have worked in good faith to get the problem solved.
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Finally, I understand that this Committee intends to turn its attention to next steps. The results of lawsuits are limited by the nature of the claims listed in the complaint, the parties' desires about how to resolve those claims, and by the court's ability to fashion relief. Congress is not bound by these limitations. I understand that several congressional Committees are now interested in figuring out the right next steps for legislation to benefit African American farmers. Perhaps the lessons learned in this case and our testimony here today can contribute to a successful outcome in those new efforts.
[The prepared statement of Ms. Roth follows:]
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Mr. CHABOT. Thank you for your testimony this afternoon, Ms. Roth.
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Mr. Lewis, you're recognized for 5 minutes.
STATEMENT OF MICHAEL K. LEWIS, ADJUDICATOR, PIGFORD V. GLICKMAN
Mr. LEWIS. Thank you, Mr. Chairman Members of the Committee. My name is Michael Lewis. I am the Pigford arbitrator. It is a pleasure to be here today. I appreciate the opportunity to testify.
I have had various roles in the progress of the Pigford v. Veneman case from its inception to its current implementation stage. I wanted to identify those to the Committee. And based on the opening comments by, I think, all of the Committee Members, I would focus my attention and my remarks on the late claim process, although I have provided written testimony to cover some aspects of my other roles.
I have served as the parties' mediator from late December or early January 1988—1998, I'm sorry, through the entry of the Consent Decree in April 1999, and continued to help them resolve implementation issues as they arose before the appointment of Ms. Roth as the monitor in 2000. In the Consent Decree itself I am identified as the arbitrator responsible for managing the Track B arbitration process that Ms. Roth spoke about. Subsequent to the entry of the Consent Decree, Judge Friedman delegated to me the responsibility for deciding late claim petitions, what is known as paragraph 5(g) of the Consent Decree, and I will focus on those. And my final role is as an aide, as a court appointed referee to help resolve fee disputes between the Government and counsel.
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Let me focus on my role in the late claim petition process. And I am going to read to the Committee what paragraph 5(g) of the Consent Decree—how it reads: A claimant who satisfies the definition of the class in paragraph 2(a), above, but who fails to submit a completed claim package within 180 days of entry of this Consent Decree may petition the court to permit him to nonetheless participate in the claims resolution procedures provided in paragraphs 9 and 10 below. The court shall grant such a petition only where the claimant demonstrates that his failure to submit a timely claim was due to extraordinary circumstances beyond his control.
On December 20, 1999, Judge Friedman delegated to me the responsibility for reviewing petitions filed pursuant to paragraph 5(g); that is, those who sought to file a claim after the October 12, 1999 deadline. On July 14, 2000, the court issued an order providing among other things that no late claim petition would be accepted for consideration if filed after September 15, 2000. As the monitor's Chart 2 illustrates, 65,950 late claim petitions were filed by the September 15, 2000 deadline. An additional 7,742 were filed after the September 15 deadline. Each of the petitioners in the latter category were sent a letter by me informing them that he or she had missed the court imposed deadline. Those, and there were a few, who subsequently showed that there was a misreading of the postmark became part of the 65,950 petitions considered.
I have completed my initial review of all 65,000 petitions. Of that number, I have found 2,268 petitions to have met the ''extraordinary circumstances beyond his control'' standard contained in paragraph 5(g). All of those whose petitions were approved showed that it was more likely than not that extraordinary circumstances beyond the petitioner's control caused the petitioner to miss the October 12, 1999 deadline. Hurricane Floyd, which resulted among other things in 60 counties in North Carolina being declared disaster areas by FEMA after it struck in mid-September 1999 and medical conditions that rendered an individual or his or her caretaker unable to attend to daily matters, provided the predominant reasons upon which petitions were approved. Any petitioner approved was sent a claim form, with a 60-day filing window. In other words, they started the claims process at that point, once they were declared to be eligible members of the class.
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The overwhelming reason provided by those whose petitions were denied was some form of lack of knowledge: unawareness of the existence of a settlement, disbelief in the settlement's legitimacy, unawareness of deadlines and filing procedures, or disbelief in the petitioner's eligibility under the settlement. This, despite the notice provided under the settlement approved by the court as sufficient under rule 23.
The 5(g) process requires that a farmer provide a written statement, signed under penalty of perjury, indicating why the farmer missed the original filing deadline and the extraordinary circumstances leading to the missed deadline. Because the population of people for whom the late claim process applied might be at a disadvantage by a reliance solely on writing, I employed a cadre of law students and recently minted lawyers, totaling 38 at the high point, as researchers to contact petitioners, to question them about their petitions and to obtain additional information and documentation. Approximately 75 percent of the petitions could be decided on the basis of the petitions themselves. There was some ambiguity in the other approximately 25 percent of the petitions filed. Those petitions were referred to one of the researchers for investigation. Each researcher used as a guide a questionnaire based upon the reason articulated by the farmer provided in each individual petition. Researchers were instructed, however, to deviate from the questionnaire if new information came to light during the interview so that I would have the fullest understanding about why the farmer had missed the October 1999 filing deadline. If the petitioner could not be reached by telephone, a written questionnaire was mailed to him or her.
Although not provided for in the Consent Decree, I created a process permitting late claim petitioners to request reconsideration of my decision to deny their participation in the settlement. The reconsideration process provided petitioners with a 60-day window in which to request reconsideration of the initial decision to deny their late claim petitions. I specifically encouraged petitioners to provide additional information and documentation if available. Approximately 21,000 farmers, constituting about 33 percent of the total number of denied petitions, have timely requested that I reconsider my initial denial of their late claim petition. If upon reconsideration it became clear that my initial decision was incorrect, or that relevant information was not considered, those petitions have been approved. Any request that cast doubt on my initial decision has been referred to a researcher for investigation. All petitions denied upon reconsideration are being sent letters describing in detail how a petitioner has failed to demonstrate, despite all efforts, that his or her situation meets the 5(g) standard.
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Greater detail on the late claim process can be found in the six reports I have filed with the court regarding the process since November 2001, copies of which have been provided to the Committee. The reports also are posted on the monitor's website for review by anyone with Internet access.
I think I will stop there, and I am happy to answer any questions the Committee might have.
[The prepared statement of Mr. Lewis follows:]
PREPARED STATEMENT OF MICHAEL K. LEWIS
I have had various roles in the progress of the Pigford v. Veneman case from its inception to its current implementation stage and would like to describe briefly those roles to you. I have served as the parties' mediator, the Consent Decree Arbitrator, both for the Track B arbitration process and for the 5(g) late claim process, and as a court-appointed referee for fee disputes.
A) Mediator: My first contact with the parties in the Pigford case came in late December 1997 when the parties contacted me regarding my willingness to serve as a mediator in an effort to help them resolve the lawsuit. Beginning in January 1998 through the entry of the Consent Decree in April 1999, I served as the parties' mediator. After the entry of the Decree, especially before the appointment of the Monitor, on a few occasions I attempted to help the parties resolve issues arising in the implementation of the decree.
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B) Arbitrator: The parties chose me as the arbitrator identified in the consent decree to resolve all claims in which farmers chose Track B—the process that provides for an 8 hour in-person hearing to resolve their claims. Statistics for that process are provided in Randi Roth's Chart 1. There is one additional piece of information I wanted to alert you to in the Track B process, that is that the total number of Track B claims filed totals 237, rather than the 174 identified in Chart 1. The difference between the 174 number mentioned in Chart 1 and the 237 I have just mentioned is that because, even though the consent decree's language in Paragraph 5(d) states that a choice of tracks is irrevocable, USDA generally has been willing to permit farmers to switch from Track B to Track A. Sixty farmers have chosen to switch tracks. In such instances, the Facilitator sends to that farmer a claim form for use in the Track A process, and that claim is processed under the decree's terms for Track A claims. The remainder of the difference is attributable to farmers who withdrew their claims.
C) Paragraph 5(g), Late Claim Petitions: Paragraph 5(g) of the consent decree provides that:
A claimant who satisfies the definition of the class in 2(a), above, but who fails to submit a completed claim package within 180 days of entry of this Consent Decree may petition the Court to permit him to nonetheless participate in the claims resolution procedures provided in 9 & 10, below. The Court shall grant such a petition only where the claimant demonstrates that his failure to submit a timely claim was due to extraordinary circumstances beyond his control.
On December 20, 1999, Judge Friedman delegated to me the responsibility for reviewing petitions filed pursuant to 5(g), that is, those who sought to file a claim after the October 12, 1999 deadline. On July 14, 2000, the Court issued an order providing, among other things, that no late claim petition would be accepted for consideration if filed after September 15, 2000. As the Monitor's Chart 2 illustrates, 65,950 late claim petitions were filed by the September 15, 2000 deadline. An additional, 7,742 were filed after the September 15, 2000 deadline. Each of the petitioners in the latter category was sent a letter by me informing them that he or she had missed the court imposed deadline; those who subsequently showed that there was a misreading of the postmark became part of the 65,950 petitions considered.
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I have completed my initial review of all 65,950 petitions. Of the 65,950, I have found 2,268 petitions to have met the ''extraordinary circumstances beyond his control'' standard contained in 5(g). All of those whose petitions were approved showed that it was more likely than not that extraordinary circumstances beyond the petitioner's control caused the petitioner to miss the October 12, 1999 deadline. Hurricane Floyd, which resulted, among other things, in 60 counties in North Carolina being declared disaster areas by FEMA after it struck in mid-September 1999, and medical conditions that rendered an individual or his/her caretaker unable to attend to daily matters, provided the predominant reasons upon which petitions were approved. Any petitioner approved was sent a Claim Form, with a sixty-day filing window.
The overwhelming reason provided by those whose petitions were denied was some form of lack of knowledge: unawareness of the existence of the settlement, disbelief in the settlement's legitimacy, unawareness of deadlines and filing procedures, or disbelief in the petitioner's eligibility under the settlement. This, despite the notice provided under the settlement, approved by the Court as ''sufficient under Rule 23.''
The 5(g) process requires that a farmer provide a written statement, signed under the penalty of perjury, indicating why the farmer missed the original filing deadline of October 12, 1999 and the ''extraordinary circumstances'' leading to the missed deadline. Because the population of people for whom the late claim process applied might be disadvantaged by a reliance solely on writings, I employed a cadre of law students and recently-minted lawyers (totaling 38 at the high point) as researchers to contact petitioners to question them about their petitions, and to obtain additional information and documentation. Approximately 75% of the petitions could be decided on the basis of the petitions themselves. There was ambiguity in the other approximately 25% of the petitions filed. Those petitions were referred to one of the researchers for investigation. Each researcher used as a guide a questionnaire based upon the reason provided in each individual petition. Researchers were instructed, however, to deviate from the questionnaire if new information came to light during the interview so that I would have the fullest understanding about why the farmer had missed the October 1999 filing deadline. If the petitioner could not be reached by telephone, a written questionnaire was mailed to him or her.
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Although not provided for in the consent decree, I created a process permitting late claim petitioners to request reconsideration of my decision to deny their participation in the Pigford settlement. The reconsideration process provided petitioners with a 60 day window in which to request reconsideration of the initial decision to deny their late claim petitions. I specifically encouraged petitioners to provided additional information and documentation, if available. Approximately 21,011 farmers, constituting approximately 33% of the total number of denied petitions, have timely requested that I reconsider my initial denial of their late claim petition. If upon reconsideration, it became clear that my initial decision was incorrect, or that relevant information was not considered, those petitions have been approved. Any request that casts doubt on my initial decision has been referred to a researcher for investigation. All petitions denied upon reconsideration are being sent letters describing in detail how a petitioner has failed to demonstrate, despite all efforts, that his or her situation meets the 5(g) standard.
Greater detail on the late claim process can be found in the six reports I have filed with the Court regarding the process since November 2001, copies of which have been provided to the Committee. The reports also are posted on the Monitor's website for review by anyone with internet access. On more than one occasion, late claim petitioners have attempted to address the fact of their denial to the Court. On each such occasion of which I am aware, and most recently on September 13, 2004, the Court has upheld the late claim petition process I have described.
D) Fee Disputes: On December 30, 2002, the Court referred to me fee disputes arising between class counsel and the government. Under the terms of the Court's order, quarterly fee petitions are to be filed by class counsel, the government responds to those petitions in writing, and my task is then to engage the parties in discussions designed to resolve any outstanding issues. If the parties are successful in resolving their dispute, they so indicate to the Court by filing a stipulation. If the parties are unsuccessful in their efforts, I am required to submit findings and recommendations to the Court on the fees in dispute.
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I am happy to answer any questions members of the Committee might have.
Mr. CHABOT. Okay. Thank you very much. And our last witness this afternoon will be Mr. Pires. You're recognized for 5 minutes.
STATEMENT OF ALEXANDER PIRES, CLASS COUNSEL, PIGFORD V. GLICKMAN
Mr. PIRES. Thank you. Can you hear me?
Mr. CHABOT. Yes.
Mr. PIRES. My name is Alexander Pires. I'm the lead attorney and co-lead counsel in the Pigford case. I want to thank you all for inviting me.
Other than 8 years at the Department of Justice I have spent my entire career representing farmers and that's what I do. I sue the Government and I sue companies on behalf of farmers and that's all I do. Discrimination cases are very, very difficult, and Pigford was a difficult case.
There was a case prior to Pigford called Williams. It was a much bigger black farmers case, and it failed. It was in the District of Columbia here. It was filed in 1995 and it was over in 1997. That case was handled by Mr. Myart, who I believe is here, and other lawyers. We studied that case and tried to figure out a way to help black farmers at least in some limited way. And the Pigford case grew from the failures of the Williams case and our idea was to try to file a black farmers case that would get some relief and would get money.
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Since that time I also filed a case for Hispanic farmers, for women farmers, for Native American farmers, and for tobacco farmers. The tobacco farmers case we just settled, and we got a little over a billion dollars in that case. The other cases are tied up in the court still. They are all being handled by very large law firms, very famous law firms with hundreds of lawyers. It's very hard to win these cases.
Point number 2 is the Pigford case is a very, very limited case. The idea was to try to take care of the people who had complained about discrimination. When we started we were hoping to represent a thousand farmers. That was our goal. We ended up with 22,000.
Point number three is, when we talked about settling this case, we had four black firms, law firms, and we had four white law firms. And in the Committee discussing it we had Charles Ogletree from Harvard University. And the number one demand of the black lawyers was that black people get money. You need to understand that. It was not about injunctive relief. It was not about getting all kinds of requirements from USDA. Congress does that all the time. You can do that better than a court can do that. You can require them through legislation to do what you want. It was about money.
We studied all of the class action cases and Pigford demanded the largest recovery per person in the history of the United States. There was no case in this country where the individual person in a class action case has gotten more money. There are some where there's a thousand people, but I'm talking about a large class action case. So far about 13,500 people have gotten $50,000 tax free. That's about $75,000 in real dollars. We predict it's going to end up being around 16-17,000. It is a very limited case.
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The other cases that we studied, the Denny's case that you all know of, the Avis case, even the Japanese internment case, the Coca-Cola case, all those cases got far less than the individual black farmers got in this case. So to that extent it was somewhat successful. But it's had problems because there are so many black farmers that Pigford could only take care of a small percentage of them.
I've often said this, that there's about 280 million people in this country and about 13 percent of them are black. You can figure out the math. There are literally millions and millions of black people, particularly in the South, and they all came from the farm in one way or another. This was a rural country. So they associate with farming and they associate with USDA. We went on the road to find them and we—I gave, I think, over 200 talks with J.L. Chestnut and other black leaders in the South. We went to Alabama 42 times to find black farmers. And most people, I've found, love the life of farming. Most black farmers in the South love that life more than any other life. So when you're looking at why there were so many people who filed late, I don't think it's all that surprising. We only got 22,000 in this case. There are literally thousands of black farmers out there, part time, full-time, who would like to have participated.
Point number 5, who's complaining? The 13,000 who got paid are not complaining. But those who lost and are on appeal, they're complaining, and I understand that. The late filers are complaining. There are 65,000 of them. I understand. In fairness to Michael Lewis, he had his hands somewhat tied. He's limited to what the Consent Decree states. I remember discussions about the late filers and we predicted about 3,000 people would file late.
Pigford is not a reparations case. It is not a black reparations case. But, people associated it with that effort. And that is why I think many, many black farmers are mad, and justifiably so.
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What can Congress do? I think there are only three choices for you. There is very little that the monitor can do. There is very little that Michael Lewis can do to help these people. There is very little that I can do in the Pigford case.
There are three choices. One is, the Government could consent to let in the 65,000. That is the easiest route. If you happen to know somebody at the White House who could help us, that would be great. We could sign the stipulation and all 65,000 would be in tomorrow. That would be lovely. I would like that.
I don't happen to know Mr. Bush. I don't know the President at all. But that is the fastest way, the Administration agrees and everybody gets in. Option number 2 is, Congress can pass legislation that extends the statute of limitations, waives the statute of limitations for these 65,000, waives the issue of res judicata, and allows them all in; it would be a bill not much different than the original bill we got. Rather difficult for you, I understand, but that is an option.
And the third choice is, that Congress would pass legislation that allows the claims to go administratively to USDA. You would waive statute of limitations, you would waive res judicata, and they could file with the agency. Of course, the third the one I can hear already the chorus at the back saying, we don't want to go to USDA and have them decide our claims, that is where we were before. But, it is an option.
The Pigford case is controversial, and always will be. I met Tim Pigford so, so long ago, 8 years ago, 9 years ago. He is a very unique man, and has long since dropped out of this process to go back to his life.
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But, at the beginning, he was just trying to get some money for a limited group of black farmers that had seen what had happened in Williams, and were just trying to get their complaints resolved. It has evolved into obviously something else much bigger than all of us.
I thank you all very much for inviting me, and I hope this was helpful.
[Alexander Pires did not submit written testimony prior to the hearing.]
Mr. CHABOT. Thank you very much. I want to thank all of the witnesses for their testimony here this afternoon.
At this time the Members of the panel that are here will have 5 minutes to question the witnesses. Mr. Bachus has indicated that he is handling a bill over on the floor of the House of Representatives right now and hopes to make it back here, because he has been very concerned about this matter as well. But he is not sure if he is going to be able to make it or not.
I recognize myself for 5 minutes. I will begin with you, if I can, Mr. Haynie. Would you again describe your involvement in the formation of the consent decree and were your views represented? And what were your expectations, especially in terms of discovery, the discovery process, and, do you—what is your view about whether or not black farmers have been adequately notified?
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I know that is a lot of questions. You can take them in any order that you like.
Mr. HAYNIE. Okay. In my opinion, the process was chaotic and confusing. And the average black farmer didn't understand it. They were called in to meetings. And what happened, in my opinion, Mr. Pires was understaffed to handle the number of farmers that were involved in this lawsuit. And as a result, they would hold a meeting, and it would be about 200 farmers.
And it would be volunteers or students who—people who weren't—didn't understand the law, weren't competent for filling out applications. And, as a result of this, a lot of farmers were denied, because the people who were filling out the applications didn't understand the process, or weren't attorneys. And so the information was not translated onto the documents correctly, or they were told that they didn't need documents that later on, after they got denied, that they found out that they needed.
We were involved, John Boyd and I were involved in this process, and tried to work this thing out, and hopefully that it would be a settlement, and that there was some things that we would do to protect black farmers. They are an endangered species.
And nothing in this settlement has gone on for the education of black farmers to create opportunities for young people to get in. There has been nothing in the settlement to really put an end to discrimination in the USDA.
I have been the victim of having an official, USDA official have a loaded gun in his office for me. My son has been the victim of discrimination. After they investigated his discrimination, the district director filed an IG report, thus causing a whole other investigation of his complaint.
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My wife, who has applied for rural development loans, was the victim of discrimination, and as well as when she was farming, she was the victim of discrimination. So the settlement has done nothing to end the systemic discrimination in USDA. And that is my biggest concern, is that the process has not been fixed and the settlement hasn't corrected any of the problem.
Mr. CHABOT. Thank you very much.
Ms. Roth, let me move to you if I can. When you review petitions for a review of Track A claims that have been denied, what are the types of additional information that you allow to be included in reconsideration? And, do you direct the adjudicator or arbitrator to consider such additional information?
Ms. ROTH. Thank you, Mr. Chairman. Whether I let information in in the petition process is governed by a court order. The order of reference issued April 4th, 2000, states that I am allowed to let information in if the person—if the party submitting it can show that there was a flaw or mistake in the claims process, and that the failure to let the information in would result in a fundamental miscarriage of justice.
So I apply those two tests to each piece of additional information that is submitted. Typically the kinds of information that are submitted and do get in when the test is met are the names of additional similarly situated white farmers, and just all different kinds of documents about the case.
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Mr. CHABOT. Thank you very much.
Mr. Lewis, let me turn to you, if I can now. I have only got about another minute, so I am going to have to be quick, and I would ask if you could be as well.
Mr. LEWIS. I will try.
Mr. CHABOT. Thank you. Based on your experience in handling the late-filed claims, what reasons do you think caused nearly 65,000 potential claimants to file their claims after the filing deadline, and do you believe these farmers knew of the settlement but failed to timely file?
Mr. LEWIS. I know that roughly 50 percent of them did know of the settlement. I mean, because of the reasons that they put forward in their petition. About 50 percent said that they did not know of the settlement.
It is—continues to be a mystery to me as to why there were so many late filers, because the notice that accompanied or that followed Judge Friedman's July 14th, 2000 order which set the deadline of September 15th, 2000, was distributed less broadly than the notice announcing the lawsuit.
And the only thing I have concluded is that the fact that there were real live people who had received real live checks helped to spread knowledge about the lawsuit in a way that simply someone reading a notice announcing the settlement did not. But, that is, Mr. Chairman, just a guess.
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Mr. CHABOT. Okay. Thank you. My time has expired. The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes.
Mr. SCOTT. Thank you. Mr. Lewis, if someone put on their form in the extended—and those that missed the deadline, the original deadline, if they put in their form that they didn't hear about it, would that be—would that disqualify them right off the bat?
Mr. LEWIS. That would disqualify them right off the bat. If—they also were told that they could ask for reconsideration if they wanted to.
Mr. SCOTT. If they put they didn't know, so if, in fact, they didn't know, if they had competent counsel, they wouldn't put that down, would they?
Mr. LEWIS. Probably not, Congressman Scott. But, very few of the petitions, the late-claim petitions—there appeared to be not very much lawyer involvement in the late claim petition process, let me put it that way.
Mr. SCOTT. Well, of all of the people that filed, 75 percent approximately filed late. Is that right?
Mr. LEWIS. I think that is right. Yes.
Mr. SCOTT. 76.
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Mr. LEWIS. Somewhere on that order.
Mr. SCOTT. Doesn't that just tell you that there is something wrong with the process?
Mr. LEWIS. Well, there were also 7,700 people who missed the second deadline. So I don't know what the answer is.
Mr. SCOTT. Now, how many of those people have bona fide claims, if you would ever get to the merits?
Mr. LEWIS. I have no idea. The late claim—what was submitted was a late claim petition, that was a two-sided form. It was one page, two sides. So I——
Mr. SCOTT. Is it fair to say that certainly some have valid claims, and, in fact, some don't?
Mr. LEWIS. Oh, that certainly is true. We know that from both—from the folks who have been admitted into the process.
Mr. SCOTT. And, I mean, when all is said and done, wouldn't the fair thing to do to get to—would be to get to the merits, one way or the other. Now, your hands may be tied because of what your orders were from the consent decree; is that right?
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Mr. LEWIS. Yes.
Mr. SCOTT. Would you object if we opened it up so that people could actually have their cases heard?
Mr. LEWIS. That is not my decision. Congress can do whatever it wants to do here. But——
Mr. SCOTT. You certainly wouldn't object?
Mr. LEWIS. Certainly not.
Mr. SCOTT. Mr. Pires, did—was there any motion made to open—when the—when people filed late, did you file any motions to have them—to help them get in, or keep them out?
Mr. PIRES. Well, prior to—the first time we found there were people late we had 1,100 of them. And we spent a lot of time trying to get them in. And we actually did get the first 1,100 in, as part of our settlement, as part of a process for which I took—we took quite a beating. We did get the first 1,100 in, for which I was chastised. It is complicated what happened. After that——
Mr. SCOTT. Do you have any conflict of interest? I mean, if others come in, that doesn't hurt the ones that are already in; is that right?
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Mr. PIRES. Well, I would like as many as possible. I mean, if you are asking me his question, I would love you to pass a piece of legislation to let everybody in over the next 2 years. That would be——
Mr. SCOTT. Does anybody object to having cases heard on the merits, getting through all of this procedural deadlines, you have got 65,000 people who filed, plus the 20,000. Does anybody object to having cases heard on the merits?
Mr. PIRES. No, sir, not at all. Not that I know of.
Mr. SCOTT. Anybody doubt that that would be a good thing?
Mr. PIRES. It would be a great thing.
Mr. SCOTT. What do we need to do to bring that about?
Mr. PIRES. Can I answer that?
Mr. SCOTT. Sure.
Mr. PIRES. I believe it requires legislation from the House and the Senate, not much more complicated than the original legislation you passed in 1999. A sentence or two that would allow them in. Yes, sir. I think that would be fantastic.
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Mr. SCOTT. That would fix it, Mr. Lewis?
Mr. LEWIS. It would—I think it would fix it. I don't know—I don't know what the legal problems would be given that there is—has been or would be—would have been a determination on whether they were eligible——
Mr. SCOTT. We are talking about claims—we are not talking about claims of one individual against another. We are talking about claims against the Government. So we have a little bit more flexibility then we would if we were trying to balance individual against individual.
Mr. LEWIS. My answer was just—I don't know what legal problems there might be in trying to change a consent decree in this manner after the fact. I am not saying it is a bad idea, I just—I don't know the answer to your question, Mr. Scott.
Mr. PIRES. It would have to be very carefully drafted, because both the statute of limitations and the res judicata defenses would be there, and the Justice Department would fight that. You would have to be very careful. But you have got great counsel. You have got legislative counsel. You have the best there is.
So I am sure you can get around that in some way.
Mr. SCOTT. Ms. Roth, if I can ask one additional question.
Mr. CHABOT. The gentleman's time has expired, but the gentleman is, by unanimous consent, granted another minute?
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Mr. SCOTT. Thank you.
Ms. Roth, when people appeal to you, having lost the original, what kinds of things do you find that you can have the original decision of denial reversed? What have you done for people? I understand that you have a fairly substantial rate of overturning the original denials so that people actually get money.
What have you done for them that wasn't done originally?
Ms. ROTH. Yes, Congressman Scott. For the most part—I don't have the exact statistics, but I would say in most of the cases, where a farmer prevails at the monitor level, it is because some additional pieces of evidence that were allowed in through our process.
Mr. SCOTT. Is that the similarly situated white farmer issue?
Ms. ROTH. Of those cases, in very many of the cases, yes it is the similarly situated—if I had to say one piece of evidence that most often turns it around in the petition process, it is probably the similarly situated white farmer.
Mr. SCOTT. Have you developed a data bank so that each farmer wouldn't have to reinvent the wheel every time they want to have a case heard, that you have people in each county that might be similarly situated that people look to?
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Because, it has been pointed out that some farmers just don't have access to that information.
Ms. ROTH. I understand the question, Congressman Scott. But, I am not allowed to do that, the way my reference order is set up. I am restricted to very particular things from my record, and I can't go outside of the record of one farmer's case to pick a white farmer and put it in that farmer's case.
So I am restricted to five specific categories of information. I am not allowed to do that.
Mr. CHABOT. The gentleman's time has once again expired. The gentleman from North Carolina is recognized for 5 minutes.
Mr. WATT. Ms. Roth, on that same issue. Is that part of the consent—the settlement agreement, or is that part of a judicial order that you—that restricts you?
Ms. ROTH. Yes. Congressman Watt, the rules about what I may and may not do in the petitions process come from a separate order. It is not from the consent decree.
Mr. WATT. So it is not part of the consent decree?
Ms. ROTH. Correct.
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Mr. WATT. That order was issued by Judge Friedman?
Ms. ROTH. Yes. By Judge Friedman on April 4th of 2000.
Mr. WATT. Mr. Pires, you represent the class members only after they are determined to be a part of the class. Do you technically represent—do you represent the farmer who have—who filed late? Are they part of your class that you represent, or are they outside of the class technically?
Mr. PIRES. I have always been—taken the assumption that if they are a black farmer, and they meet the definition of the class they are our clients, yes. Now, you are asking me a difficult question, because having filed late, and not having any determination of whether they are eligible, I don't know whether they will ever be able to participate——
Mr. WATT. I guess the question I am asking is, do they have access to your advice in the preparation and filing of their petitions to be waived from being late?
Mr. PIRES. We had a lot of farmers who asked us how to file a late filing, yes. But, like I said earlier, we expected 3,000 to actually file. And——
Mr. WATT. Well, you got 1,100 in?
Mr. PIRES. I got 1,100 in.
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Mr. WATT. Are those the people who asked you to represent them?
Mr. PIRES. That was the first group of late filers. We got them in and then there another group, but we were unsuccessful, the Government after that point didn't want to negotiate anymore. And then, of course, it started piling up, and we ended up with I believe 65,000.
Mr. WATT. Okay. I take it that the settlement agreement did not provide for a notice to the class, there was a direct mail notice to potential claimants?
Mr. PIRES. We didn't—we didn't know who they were.
Mr. WATT. Now——
Mr. PIRES. I don't understand how—is there such a list of every black farmer in America? I wish there was.
Mr. WATT. Well, my understanding is that the USDA conducts regular mailings to every farmer. Is that not the case?
Mr. PIRES. I don't think most of the participants in the case ever wanted to trust the USDA's list and USDA's system on a major class action.
Mr. WATT. I am not saying that necessarily would have been the exclusive way to give notice. But wouldn't—wouldn't that have been a reasonable way to give notice to potential class members, to do a mailing by the USDA to all farmers?
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Mr. PIRES. I don't think it would have——
Mr. WATT. Does the USDA regularly communicate with farmers about various issues?
Mr. HAYNIE. Yes. And I thank you for asking those questions. The problem was, Mr. Pires waived discovery. Therefore, the black farmers didn't have adequate access to USDA information. And it was one of the requirements why they couldn't fill out these similarly-situated white farmers, because the class counsel waived discovery. And that was a big problem for black farmers in prevailing in this lawsuit.
Mr. WATT. So are you saying discovery might have yielded a list of potential class members?
Mr. HAYNIE. That is correct?
Mr. WATT. As well as information about white farmers who were similarly situated?
Mr. HAYNIE. That is correct. That is why that is a big problem for black farmers.
Mr. WATT. Mr. Pires, have you filed a request to the court or a motion of any kind with USDA or the Department of Justice to seek to change the consent decree?
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Mr. PIRES. Many times. But with respect to the late filers, is that what you are referring to?
Mr. WATT. Yes.
Mr. PIRES. No, sir.
Mr. CHABOT. The gentleman's time has expired. Would you like an additional minute?
Mr. WATT. Yes.
Mr. CHABOT. The gentleman is recognized for an additional minute. We are going to go to a second round also. So——
Mr. WATT. Well, if you are going to a second round, I will just wait. Well, but since I am here, let me just pursue this one thing.
Because, one of the things I was struck by was you said that it would be a fairly complicated order to revise the consent decree?
And it seems to me that the appropriate person, the best person, best situated to word that, would be the class counsel. And one place that that would be—could be worded would be in a motion to revise the consent decree which might then be picked up Congressionally, the same language.
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Mr. PIRES. No, sir, that is not correct. In a nutshell, I cannot change the consent decree by myself. Without the Government's consent, no matter what I want, I can't do it without the Government, sir.
Mr. WATT. I understand that. But you could file a motion, could you not? You have asked the court to change various aspects of the consent decree, haven't you?
Mr. CHABOT. The gentleman's time has expired. But you can answer the question.
Mr. PIRES. Yes, I have.
Mr. WATT. Okay. All right. I am not trying to cross-examine you about this. I am just trying to figure out how best to get some language that would be used as a vehicle by Congress to revise the consent decree.
Mr. PIRES. We have submitted language to you.
Mr. WATT. All right. I yield back.
Mr. CHABOT. Thank you. The gentleman yields back. We are going to go to a second round of questions now, because of the importance of this hearing.
And, Mr. Pires, I hadn't asked you any questions last time, so I will start with you, if I can.
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How many black farmers were your clients when the consent decree was negotiated?
Mr. PIRES. I would have to guess. I don't know.
Mr. CHABOT. Roughly.
Mr. PIRES. Gosh, I honestly wouldn't know because——
Mr. CHABOT. Well, let me ask you this then.
Mr. PIRES. Please. I don't want to guess.
Mr. CHABOT. I understand. I appreciate that. How did you acquire the viewpoints of those farmers that you did not represent? And were there objections to the proposed settlement, either by your clients or those that you didn't represent? And how was it that you ultimately decided to accept the settlement.
Mr. PIRES. Yes, sir. That is fair. Mr. Chairman, we had eight law firms involved. We invited any law firm in the country that wanted to join, as long as they didn't charge anything to the clients. That was the rule. So we had eight. None of the major law firms in the United States wanted to work on Pigford. We asked them all. Pigford was an orphan case, if you know what that means. It is a case that nobody wants.
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And we ended up with eight, four black, four white firms. We had some religious leaders who helped us, like Reverend Lowry. We had some legal leaders like J.L. Chestnut. We had Charles Ogletree from Harvard, who was at the final two negotiations, and actually was at the Justice Department table for the final negotiations.
The feeling was that most major class action cases result in meaningless language, injunctive relief, paragraph after paragraph as to what the defendant shall do. And Charles Ogletree, J.L. Chestnut and others felt strongly that that would never fly in the Black community, that they wanted payment, something that was meaningful, and they wanted the largest single recovery in the history of the country.
So when we were at the table, in the Justice Department, the top floor of the building, where the assistant attorney generals and so forth, it was all about a recovery that was significant and that was tax free. The other issues, what was wrong with USDA, I mean everybody knew what was wrong with USDA.
I had already sued USDA by that time probably two dozen times. So it wasn't that I didn't know, and the other lawyers didn't know what was wrong with USDA. But, it was really about quickly getting money and having a system to get to people, not that this would change their lives, but that it was a symbol of what white USDA had done wrong to both Blacks and Hispanics, and of course Hispanics were not included. So it was a consensus.
Mr. CHABOT. Thank you very much. I know you want to answer a question, Mr. Haynie, or comment. Let me ask you in addition to that, could you comment on the notice? That is obviously a very big issue here, and whether or not that you think the notice was adequate? Not what you think, but I would like you to express——
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Mr. HAYNIE. The notice was not adequate. I would like to comment on that. I was there at that hearing. And all of the farmers objected to consent decree. And even the farmers that Mr. Pires were representing, they were not allowed to go into this negotiation. So it was mind boggling how everybody there was objecting to the settlement, yet the attorney that was representing everybody moved forward with the settlement.
This settlement, what it does, it takes farmers out of the class and puts them on an individual fight with the Government in trying to prove their discrimination, when the attorney that has represented you has waived discovery in denying you to all of the access, which are the tools you use to defend yourself.
So it is mind boggling how the attorney, who is supposed to be representing black farmers, does not listen to the objections, and moves forward with the settlement when everybody is not in agreement with it. And he didn't have the staff to serve the notice to the number of people, and as a result, everybody was filling out forms for farmers and they came up short.
Mr. CHABOT. Thank you. Let me—my time is almost up here, so let me go back to you, if I can, Mr. Pires. Why was 180 days chosen as the filing deadline?
Mr. PIRES. Which filing deadline, Mr. Chairman? I am sorry.
Mr. CHABOT. The initial——
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Mr. PIRES. I believe that was directly in the consent decree, I believe. Yes. I believe it was negotiated in the original consent decree, the 180 days, I believe.
Mr. CHABOT. Do you know why that was, though? I mean, Mr. Lewis, or could you shed any light on that?
Mr. LEWIS. Unfortunately, Mr. Chairman, I cannot. It has been 5 years.
Mr. CHABOT. The witnesses are always able to supplement their testimony. And so, if any of these things, any of the witnesses would like to supplement, you will have the opportunity to do that. And my time has expired. So I will now yield to the gentlemen for Virginia for 5 additional minutes to question.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. Pires, did you file a motion last month in court opposing farmers' request to open up the deadline?
Mr. PIRES. There were various motions filed by various people. I mean, there has been hundreds of motions filed. But, there were motions filed by people who were not representing the class that we opposed, yes.
Mr. SCOTT. The answer is yes, you did?
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Mr. PIRES. I oppose anything that is not in the interests of the class. That is what I do for a living. So, yes, there were motions, and I did oppose them.
Mr. SCOTT. Ms. Roth, on Track A, when people—when—Mr. Lewis, first. What portion of the Track A claimants actually got some money?
Mr. LEWIS. I am sorry, Mr. Scott. I don't have anything to do with Track A and can't answer that question.
Mr. SCOTT. Okay.
Ms Roth.
Ms. ROTH. Congressman Scott, about 61 percent of the people who went through Track A won on their first time through. Of the 8,000 or so people who lost, about 4,900 or so petitioned for monitor review. The remaining petitions were Government petitions. Of the farmers who have gone through the petition process, about 50 percent are prevailing in that process.
But, I don't have the authority, in the petitions process, to say they won or lost. I only have the authority to remand to the adjudicator in Track A. But the adjudicator in Track A is following my recommendations about 90 percent of the time. So about 13,500 claimants have won.
Mr. SCOTT. Now, to win, you have to find the similarly situated white farmer; is that right?
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Ms. ROTH. That is correct.
Mr. SCOTT. How, without the discovery that Mr. Haynie has pointed out, where do they get this information?
Ms. ROTH. Congressman Scott, of course, I don't really know where they get the information. I just know what shows up in the file. But the one thing I can tell you from reading files, is that some people get it by going to the county courthouse and looking for whose names are on, you know, documents that show that a loan happened, a mortgage, or a chattel, a chattel security agreement, and then they submit those names.
Mr. SCOTT. Has that been a problem in people getting compensated, because they cannot get the information—do they have subpoena power to get that information?
Ms. ROTH. Not that I know of. No. You mean, if someone is in the Track A claim process, can they subpoena—in the Track A process? No.
Mr. SCOTT. So that would be a barrier to getting, for a person with a bona fide claim, getting—actually getting paid?
Ms. ROTH. Many of the cases in which people lose, it is because they did not have—they were not able to specifically identify a similarly situated white farmer. That is correct.
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Mr. SCOTT. Does that need to be corrected?
Ms. ROTH. That is not something I can comment on.
Mr. SCOTT. Okay. Are you involved in Track B claims?
Ms. ROTH. I review petitions in the Track B process as well.
Mr. SCOTT. Mr. Haynie suggested some problems with the calculations for damages under Track B. Have you seen the same kinds of problems?
Ms. ROTH. I really couldn't say whether I have seen the exact kinds of problems Mr. Haynie described. But, we do carefully review the evidence on both sides of damages questions in Track B and make our decisions. That is really all I can say about that.
Mr. SCOTT. As I understand the consent decree, there was no technical admission of discrimination. Is there any question in anybody's mind that there was, in fact, discrimination in just about every—each and every one of these cases?
Mr. PIRES. I can answer. There were about 3,800 farmers who lost and did not appeal, even though they had access to lawyers. There were some cases where there—they should not have been in the case. But for those, the vast majority of them I felt had legitimate claims. Yes, sir.
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Mr. SCOTT. When you look at Track A, I thought the idea was that these are going to be pretty well, straightforward cases. If you are in the class, you ought to get the money without a lot of hassle. And I get the sense that the consent decree did not anticipate some of these procedural and burden of proof problems.
Mr. PIRES. You are bringing up what is, for many people, the most important issue. These are claims against the Treasury. This is—and when we were negotiating what the standard had to be, the issue was, how does an adjudicator, a ruler, a neutral know when there is discrimination against Black folks, Hispanics, women, how do you know? It has to be weighed against something.
So the negotiations were about the elements. You have to be a black farmer. You have to have farmed during that period of time. You had to have applied for a loan or tried to get a loan. You had to be discriminated against. How did you know? How did you know you were discriminated against?
Somebody under similar circumstances got a loan and you didn't. The standard was, which is what the law is, you had to show a white person got better treatment than you did. What was interesting, Congressman Scott, was that for the 13,500 who won, and some of those who lost, they had no trouble naming a white person in their community that had better treatment.
I will admit to you there were people who put down the name of a white person whom they thought had better treatment. They put names of two or three. And they were wrong. And on appeal, we spent an enormous amount of time, months and months trying to get a correct white name. We had two shots at those.
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I would admit to you that that was the most difficult part of the case for some people, how to find someone in their community who was treated better than they were, who was white. That was difficult. But, that is also a requirement of the law, this is after all a lawsuit. No one is going to waive that part of it.
Mr. CHABOT. The gentleman's time has expired. The gentleman from North Carolina is recognized for 5 minutes.
Mr. WATT. Ms. Roth, in Appendix 1, and we are trying to locate the place, you say that the claims process was flawed. Can you explain what you meant when you said that?
Ms. ROTH. Congressman, what I think you might be referring to, when I explained how we get additional evidence in the petitions or appeals process. And the test for that is that new evidence can come in if the moving party shows a flaw or mistake in the claims process that would result in the fundamental miscarriage of justice if the evidence were not let in. I don't think it actually says it on the chart.
Mr. WATT. Okay. Mr. Pires, you negotiated a consent decree, the settlement that led to the consent decree. Right?
Mr. PIRES. With many others. Yes, sir.
Mr. WATT. With others. Okay. So you represent the class of people who were eligible to be covered by that consent decree?
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Mr. PIRES. Yes, sir.
Mr. WATT. What role, then, do you play in processing of the individuals claims and the—and marshalling and presenting evidence on behalf of class members that there was a similarly situated individual, white individual, that they—their treatment didn't measure up to?
Mr. PIRES. Throughout 1999 and into 2000, but mostly 1999, we went out to where the farmers live. I mean, we were gone the whole year. And we went to their local high schools, their local community centers. And we actually met with the black farmers. And most people signed up and filled out the forms in the presence of a lawyer, as Mr. Haynie said, sometimes there weren't enough lawyers. And we helped them fill them out. It had to be signed by a lawyer. Each application had to be signed by a lawyer.
Most, talking about the similarly situated white farmers, most black farmers knew one, two, three names of white people in their community who they thought got preferential treatment. That didn't require——
Mr. SCOTT. That is the people who actually got in the class.
Mr. PIRES. That was all 22,000, sir. That was everybody. Nobody, of the 22,000——
Mr. WATT. I guess the question I am asking is, do you have—does anybody have a responsibility to the people who didn't get in the class? Who has a responsibility to them to either try to get them in the class, or—didn't I hear—did I understand that you opposed a motion to get them into the class?
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Mr. PIRES. It is not that simple. I wish it was.
Mr. WATT. Well, I am not trying to simplify it. Either you opposed it or you didn't. I am trying to figure out, obviously, you had a settlement, you negotiated a settlement. Some people you—that settlement then said, each individual then must go and prove something beyond just the settlement. For some of those people, you performed the role of actually marshalling and presenting the evidence.
Mr. PIRES. And we still are. Congressman, what—here is the problem. Because I want to help you help us. We have a lot of responsibilities for the class members. And we are nowhere near done. We are still working for the 22,000. There are a lot of people who haven't been paid. Lots of appeals. Lots of petitions. Lots of problems. We work on them every day.
That is what Judge Friedman wants me to do. He wants me to look out for class members, and take care of them. That is what we do every day.
Mr. WATT. So are you defining the class members as those 22,000 people, and I guess the question I am asking is, is there somebody out there who is advocating and representing the people who didn't get into that 22,000 people, the 65,000 people or so, who didn't meet the deadline?
Mr. PIRES. No, Congressman, that is not what I meant. What I meant is, if tomorrow another 50,000 people came along and said, I also want to file with the court and I would like to get into Pigford, I know from 30 years of experience that I cannot by myself reopen Pigford and let not only the other 65,000, this 50,000, I can't do that without the Government's consent. And they will not consent.
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I have been working with them for 8 years, and I can tell you they won't. So what do I do? We seek to help them. That is why we are here. You have to help them. We are not going to be able to get them through the Pigford case. Judge Friedman is not going to reopen it, because the Government would never consent to it.
Could you get us legislation that would reopen a similar case like this? Yes. But, the Government is never, ever going to consent to reopening Pigford. I know that. So I don't want to abuse the system by trying to spend a lot of my energy on something that I know from 31 years will not work. What I do want to do is take care of the people who are in the——
Mr. WATT. The question I am asking is, is there somebody out there who is doing that? I am not suggesting that it should appropriately be you. I am just asking: Is there somebody out there who is representing a large number of those people?
Mr. CHABOT. The gentleman's time has expired. But you may answer.
Mr. PIRES. Those people who have filed, Congressman Watt, they are before Michael Lewis. In other words, they are in the system. I don't——
Mr. WATT. Maybe I should be asking Mr. Lewis that question then. Who represents the most of those people who—the dispossessed class members, I will characterize them in that way, although, I don't mean it.
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Mr. LEWIS. Congressman Watt, I am not aware that anyone is representing them in the late claim process.
Mr. WATT. All right.
Mr. CHABOT. The gentleman's time has expired. The gentleman from Alabama is back from the hearing on the floor and is recognized for 5 minutes for questions.
Mr. BACHUS. Thank you. Mr. Pires, you are aware of a lot of wild rumors that have been going around that the attorneys have made more money off this case than the farmers?
Mr. PIRES. Yes.
Mr. BACHUS. Let's address that a minute.
Mr. PIRES. Please.
Mr. BACHUS. You know, clarifying the fee would put an end to those rumors.
Mr. PIRES. Please.
Mr. BACHUS. And I don't know. I am not—are your fees based on a set amount, or upon the number of claimants you represent?
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Mr. PIRES. No, sir. It is very simple. It has all been public. We came forward and agreed to represent the class with an agreement that said, we will take none of your money. We were the only ones. Every other firm in the country had an agreement, with the exception of myself and Mr. Fraas, that wanted a percentage.
So when it started, the rule I established was, if you want to help the Black farmers, you can't take any of their money. You can't base it on anything other than the judge will eventually——
Mr. BACHUS. What are they based on?
Mr. PIRES. Let me finish, if I can. Your compensation will depend upon what the judge rules and grants you, period. You are going to have to take your chances and work for free.
So, of the original eight firms, six of them had agreements that said they would get a percentage. They dropped and used ours. And everybody worked. And what happened is, we eventually, in the first round, after working 1997, 1998, 1999, 2000, and I don't know, somewhere around——
Mr. BACHUS. My problem is, I have only got 5 minutes. I am just saying, are you—is your fee based on a set amount per hour, or is it based on the number of claimants? Or what——
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Mr. PIRES. I am trying to answer.
Mr. BACHUS. Well, just can you?
Mr. PIRES. The eight law firms, after 4 1/2 years, had $34 million worth of bills, hours and time and fees.
Mr. BACHUS. So 34 million is what you all——
Mr. PIRES. We submitted it. The judge ruled. And to make a long story short, we received $14 million of that amount. When the case started, there was $1 million given to start the case, which was divided up. And after that period of time, the bills have been paid, you know, sporadically.
Mr. BACHUS. What about this, would it make more——
Mr. PIRES. There has never been more in the entire history of the case than I know of than about $15 million, to pay all of the firms for 7 years of work. We averaged about $100 an hour. That is what we got.
Mr. BACHUS. Let me ask you this. Would it make sense for the class counsel to make a public accounting?
Mr. PIRES. It is all public.
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Mr. BACHUS. Of the attorney fees received in the case?
Mr. PIRES. It is all public.
Mr. BACHUS. I mean, to do a public accounting and release it?
Mr. PIRES. It is in the docket.
Mr. CHABOT. Would the gentleman yield for just a moment? I want to make sure that I understand. You are saying that there were—there have been over $800 million at this point—that were paid out, is that right, and that the attorneys have made 15 million of the over 800 million. That is accurate?
Mr. PIRES. Yes, sir.
Mr. CHABOT. I just wanted to make sure that I understood.
Mr. BACHUS. Would you object—do you object to a public accounting on the attorney fees?
Mr. PIRES. It is public.
Mr. BACHUS. But is it a public accounting, I mean, to make a public accounting?
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Mr. PIRES. It is all in court orders and it is all public, yes.
Mr. CHABOT. I would request that the staff get with the court so that we can verify those.
Mr. BACHUS. Let me shift over. That is sort of a—let me tell you what really—one of the things that bothers me about this whole case, is that for every farmer that filed, there were probably two-thirds more that didn't file.
Now, that indicates to me, if you got, you know, if—somebody is eligible, and they can receive money, and they don't file, I have kind of got to believe that that is because they didn't get notice.
If you tell somebody there is money for you if you file, and you don't file until late, that indicates to me that you didn't know about it. Because, if somebody says there is money out there, you go up and you file. Yet, the judge in this case he said that a natural disaster was a reason for a late filing, or being hospitalized, but he actually, and I think if counsel agreed to this, consented to saying that if you didn't receive notice, that wasn't a reason for a late filing.
Mr. PIRES. That is not true.
Mr. BACHUS. That is not right?
Mr. PIRES. No.
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Mr. BACHUS. I have been looking at this. I am just reading from what—it says, lack of notice is not deemed an acceptable reason by the arbitrator because the court made a legal finding that notice was sufficient.
Did all argue against that and oppose that finding?
Mr. PIRES. I don't know which finding you are reading from.
Mr. BACHUS. A finding in the Pigford case.
Mr. PIRES. You mean from the claim form?
Mr. BACHUS. Well, it says here—is that true? Did the court make a legal finding that notice was sufficient?
Mr. PIRES. Yes. Notice was done by a professional company that does nothing but give notice.
Mr. BACHUS. But, did you all oppose that? I mean, obviously for every person that filed, there were two-thirds more that didn't.
Mr. PIRES. There was a public hearing about notice, and the judge accepted notice as being adequate.
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Mr. BACHUS. Did you vigorously oppose that?
Mr. PIRES. No, I thought notice was adequate.
Mr. BACHUS. So you thought it was adequate too.
Mr. PIRES. I thought it was excellent.
Mr. BACHUS. Doesn't the fact that now, after that thing was set, that two-thirds of the people have missed the filing deadline, does that cause you to maybe believe that in hindsight notice wasn't sufficient?
Mr. PIRES. No. Because I have been doing class actions a long time. And even my tobacco case which just settled, we had thousands of people who were getting checks and they did not file on time.
Mr. BACHUS. Well, but, you know. It——
Mr. PIRES. It is very common.
Mr. CHABOT. The gentleman's time has expired. Would you wish an additional minute to ask——
Mr. BACHUS. I would like an additional minute.
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Mr. CHABOT. Without objection.
Mr. BACHUS. You take, in Alabama, for 294 cases that were granted, 14,268 were rejected. And most all of those were because they filed too late. Does that bother you? I mean, does that——
Mr. PIRES. Alabama, there were 42 meetings of farmers in Alabama. And J.L. Chestnut is from Alabama. Alabama was probably the best serviced of all 50 States. I don't think there is a Black farmer in Alabama who didn't know about the case.
Mr. BACHUS. So 14,268 out of 14,600, or——
Mr. PIRES. There were some Black farmers in Alabama who filed late. But I think there is a different reason for that.
Mr. BACHUS. Well, two-thirds of the applicants were denied entry into the claims process. Is that right?
Mr. PIRES. Sixty-five thousand people who filed late.
Mr. BACHUS. But their claims were never considered on the merits, though?
Mr. PIRES. That is true.
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Mr. BACHUS. That is a tremendous number that never got their cases heard on the merits.
Mr. PIRES. That is true. If you gave notice today, you would get another hundred thousand.
Mr. BACHUS. Yeah, but I mean, that is a tremendous percentage.
Mr. PIRES. Yes, it is.
Mr. BACHUS. That doesn't cause you to question that maybe they didn't get notice?
Mr. PIRES. Fifty percent of the people who—Mr. Lewis testified that 50 percent of them that he reviewed admitted they knew about the case. So——
Mr. BACHUS. I guess, I will close with this. I am a lawyer. I finished near the top of my law school class. But I get these notices in these class action cases all of the time. I can't figure out what they are talking about.
Mr. PIRES. I think that is true.
Mr. CHABOT. The gentleman's time has expired. They agree on something.
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The distinguished gentleman from Michigan, Mr. Conyers, is recognized for 5 minutes.
Mr. CONYERS. Thank you, Chairman Chabot.
Mr. Pires, Attorney Pires, why did you oppose the motion to modify the Pigford suit filed by the Black farmers?
Mr. PIRES. Filed by the Black farmers? Mr. Myart motions? I think Mr. Myart's motions are irresponsible. He does not represent the Black farmers in this case. And his motions are irresponsible. That is why I opposed them.
Mr. CONYERS. Okay. Why did you file a motion to enjoin Black farmers from speaking on the Pigford v. Glickman settlement last week?
Mr. PIRES. In that motion, it is public, Mr. Myart and others ridiculed the court, ridiculed the judicial system, made fun of Judge Friedman and the monitor and others. And I am sworn, as a member of the court, to defend that.
I don't think you get anywhere making fun of the judicial system. And anybody who comes forward and makes fun of Judge Friedman or anyone else, I am going to oppose that. That is my job.
Mr. CONYERS. Well, Counsel, do you still oppose—would you oppose a modification of the time limits for the filing in this case at this point in time?
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Mr. PIRES. I don't think the Pigford consent decree can be modified, Congressman Conyers. The Government has told us for years that they will not consent. So I don't see how it can be accomplished.
And I am trying, through legislation, to get what I got 8 years ago, which has helped. I don't think it is worth repeated filings before Judge Friedman that are denied. I think it is a waste of time. I think the most important thing is to get to the heart of the problem and get relief from Congress.
Mr. CONYERS. Well, that is not quite the question that I asked which was, would you object to the court deciding or reconsidering that 65,000 claimants should be allowed to enter?
Mr. PIRES. Would I oppose——
Mr. CONYERS. Would you object? Yes. Would you object if the court determined that this was such a serious miscarriage of the goals of the farmers across all of the years, and that they—that he decided that he would reconsider and create a new way for them to apply?
Mr. PIRES. Judge Friedman does not have that authority.
Mr. CONYERS. Well, I am glad to hear you tell—this is the first time I had a lawyer explain the jurisdiction of a judge. I mean why couldn't he? You are telling me that he could not extend this even if he wanted to?
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Mr. PIRES. I do not believe that Judge Friedman, on his own, without the Government's consent, can change a consent decree and change the terms such that there is an extension of time to allow people in. I do not believe that is the law. That would be reversed, and it would be wasting years of time.
Mr. CONYERS. Wait a minute. That, sir, is your hypothetical back to me. I didn't tell you that Federal court would—that the Government wouldn't join in with him.
You know, Al, look, let's face it. You seem to be resisting the 65,000 people getting some relief. That is what it sounds to me.
Mr. PIRES. It is the exact opposite, Congressman Conyers. I want to help them, but I want to help them in a meaningful way.
Mr. CONYERS. Well, if it is the exact opposite, it doesn't come across like that in this hearing. I hate to tell you that.
Mr. PIRES. I understand.
Mr. CONYERS. But, you know, something is amiss here. We have got Mr. Lewis sitting at your left, who could make plenty of sounds about what we could do for those 65,000. And I know we have a legislative remedy that I haven't mentioned, but do you know how many more days are left in this Congress? It is—I think they said about a little more than a week, maybe less than 2 weeks.
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So on the for-real side, if the judge heard about this hearing, and heard you explain why he can't do it by himself, that the Government wouldn't join in, that it is too late and that you are working on other issues, to me these are people who would be claimants and would be part of the class action that you are bringing, sir.
Mr. PIRES. Yes.
Mr. CONYERS. I mean, it would seem to me that you would want them in.
Mr. PIRES. I do.
Mr. CONYERS. Well, you have explained to me all of the reasons that they can't come in. I am trying to——
Mr. PIRES. I said to file a motion before Judge Friedman, without the Government's consent is just paper, and it is not going anywhere.
Mr. CONYERS. Well, I am glad you know this. Maybe——
Mr. PIRES. Because I have been doing it for 7 years. I think I have a pretty good idea of how to make the litigation move in a way that provides meaningful relief.
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Mr. CONYERS. Well, look, I don't want to tell you what you should be saying before the Committee. I presume you know what to say in front of the court. But, if I leave this hearing, and they ask me how does Pires and Lewis feel about the 65,000 black farmers, I am going to be strapped to explain this based on the answers and the comments that you have given me.
I would like to yield to Mr. Lewis to see what he—what his feelings are on this subject.
Mr. LEWIS. I don't disagree with Mr. Pires, that if there were some way, outside of the context of the consent decree to provide relief to—we have been talking about 65,000, why not include the other 7,700 who missed the final deadline? So we are talking about 72-73,000 people.
All I would say to you, Congressman Conyers, is that there is—what I have before me now is not the 65,000, but are the 21,000 petitions for whom reconsideration requests have been filed.
And I will, you know, I am marching through those as quickly as I can. Because one of the issues here is those folks are starting the claims process once I find that they are eligible to participate.
So we are talking about, you know, a year or two of processing to—before they get some money.
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Mr. LEWIS. But what I have for you now——
Mr. CONYERS. You would like to see the decree modified to allow them to come in.
Mr. LEWIS. Frankly I agree with Mr. Pires.
Mr. CONYERS. No, I'm asking you. Forget about the class action lawyer. I can question him. What does Mr. Michael Lewis think?
Mr. LEWIS. I think it would be wonderful if 72,000 people got a shot, as Congressman Scott said, to have their cases heard on the merits. I don't believe that can happen within the context of the Pigford consent decree. That's all I'm saying.
Mr. CHABOT. The gentleman's time has expired. All Members shall have 5 legislative days to provide any additional materials for the record.
Mr. BACHUS. Could I have one additional question?
Mr. CHABOT. Make it after this gentleman then. I was going to ask unanimous consent to allow Mr. Scott to ask a question relative to taxes, and then I'll follow up here. But then we're going to wrap it up.
Mr. SCOTT. Thank you. And first, Mr. Chairman, I want to thank you again for calling the hearing.
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We've heard uncontested evidence that about 75 percent of the people who've had potential cases are not able to have their cases heard on the merits. And we—certainly I think the fair thing to do is to try to ascertain what can be done so that they can hear their cases on the merits.
I had one kind of technical question. I'm not sure who can best answer it. We've heard questions that some of these payments constitute taxable income, and payments are made to IRS for those taxes. Is the payment to IRS taxable income, too, that might generate an additional tax check? Or is the check large enough to cover both the tax and the additional tax that's generated?
Ms. ROTH. Here's the way it works, Congressman Scott. In a simple Track A case where someone gets $50,000, the IRS—the $50,000 is paid in cash. And then $12,500, which is 25 percent of that amount, is wired to the claimant's IRS account as partial payment toward the taxes on the $50,000. However, our understanding is that the IRS has taken the position that that $12,500 is itself taxable income. And from my perspective, I think that's going to create lots of problems down the line.
Mr. SCOTT. Well, Mr. Chairman, we need to look into that to see if that needs to be worked on, too.
Mr. CHABOT. I agree. Thank you for bringing that up, Mr. Scott.
And, Mr. Bachus, if you could make this brief.
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Mr. BACHUS. Thank you. I'm going to ask counsel, or anybody else that wants to answer this, and I have to say that, you know, I'm not—my understanding of civil rights law is probably not what it should be, but this similarly situated white farmer requirement that the claimant, in order to get a settlement, has got to find a similarly situated white farmer, that's not normally the case, is it? Normally don't you just prove that you're discriminated against in a civil rights case? I mean, that's not kind of the spirit of remedying discrimination, is it, in our civil rights law? Don't you just prove you were discriminated against because of your color, and then you get recovered? Do you have to—in other cases do you have to go out and find somebody that was—the same thing happened to them and they were treated different? Mr. Haynie.
Mr. HAYNIE. Yes. You know, the Government admitted to discrimination. And I think this boils down to black farmers having bad counsel, because how can your counsel agree to you having to go out and find similar-situated white farmers when he waives the discovery process? So basically your counsel is why you're failing, because he has shut the door on you getting necessary information for you to prove your discrimination.
Mr. BACHUS. You can't subpoena that information?
Mr. HAYNIE. No.
Mr. BACHUS. Well—and did the USDA have the information—that's who might have some of the information, right?
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Mr. HAYNIE. They have all of the information.
Mr. BACHUS. Did they have an absolute obligation to help find a similarly situated white——
Mr. HAYNIE. Once discovery was waived, they did not have to give black farmers this information.
Mr. BACHUS. They could if they wanted to, but they didn't have to?
Mr. HAYNIE. That's correct.
Mr. BACHUS. Yeah. Well, I have—at least our counsel, the Republican counsel, has said that there could be maybe a legislative fix to this, and that's whereby—and I just want, Counsel, maybe to see what you think. We could pass something saying that a special master could be appointed to whom the USDA could be mandated to turn over all evidence relative to the Pigford settlement consent decree, and this special master, you know, he could protect the privacy of the white farmers, but still provide affidavits to individual black farmers required to identify similarly situated white farmers. And any farmer that was denied recovery on the basis that—you know, that he couldn't find a similarly situated white farmer could resubmit their claims. What would you think about a legislative fix like that?
Mr. PIRES. I think only the monitor knows how many of those cases there are that——
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Mr. BACHUS. Well, that's why we'd have a legislative fix. Then we'd find out.
Mr. PIRES. But I think the idea is excellent. I think anything that Congress can do to allow more people to recover would be great.
I did want to answer one of your earlier comments. My understanding of the law is that the only way a black farmer, a black person, in any case in any part of our workforce can prove discrimination is in comparison to a white or another person in the majority. So it is the law. In all of my cases, all five of my class action cases, the comparison to the white is the standard because the white is the majority.
Mr. BACHUS. I guess I just don't see how, you know, a black farmer is able to find—I mean, I just—particularly if the information—the USDA has that information, and this is sort of an adversarial relationship——
Mr. PIRES. Yes, it is.
Mr. WATT. If the gentleman would yield.
Mr. BACHUS. If you go to your adversary to get this information, and they don't have to give it to you, that doesn't sound like a game that you——
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Mr. WATT. Would the gentleman yield?
Mr. BACHUS. I would yield.
Mr. WATT. I think the gentleman is finally finding out how difficult it is to prove a race discrimination claim in this country. On that point Mr. Pires is absolutely right. Discrimination is relative to white people in this country. And if you can't prove that you were discriminated against, the definition of discrimination is that you were treated worse than.
Mr. BACHUS. Oh, I understand that. Maybe I was—what I meant was in the normal case you can subpoena information as to what happened to everybody else similarly situated. This case they didn't have the right to discover that.
Mr. SCOTT. Well, they waived discovery.
Mr. BACHUS. Well, their attorney waived it.
Mr. PIRES. Let me answer, because I teach discovery at Georgetown Law School. I know a lot about discovery, and I have learned the hard way that the best way for the defendant, the United States, which is the richest machine in the world, has the most lawyers, I worked there for 8 years, the best way to bring down the case is to get involved with discovery. And if the black farmers' case had gotten involved with years and years of discovery, we never ever would have gotten out of it because that's what's wrong with a lot of the other cases. And I chose, just like I did in the AT&T case—I chose to have very, very limited discovery.
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Mr. BACHUS. Well, I would put that they were under absolute obligation to supply that information, and that wasn't in there.
Mr. PIRES. To some extent, sir, they had it. To some extent they didn't.
Mr. BACHUS. Well, but to some extent they did, and that's a lot of ground.
Mr. CHABOT. Okay. Well, the gentleman's time has expired.
Mr. PIRES. You're right.
Mr. CHABOT. I want to thank all the witnesses for coming this afternoon. I want to also thank the other folks that took their time out to come here and listen to Congress in action. We are, I think on both sides, both the Democratic side and the Republican side, I think we're very interested in trying to see if we could do anything to remedy this situation.
Some suggestions have been made this afternoon. I had stated in my opening statement that it has also come to our attention that there were a number of other people that would have liked to have testified this afternoon. We allow four people. That's been our policy in the Judiciary Committee to only have four people testify. So we were limited, and that's the reason we weren't able to add others. But I also indicated that our staff would work with the parties to pick a date to have another hearing and allow additional witnesses to testify. So that will be accomplished, we hope, in the near future. I can't give an exact date because we just don't know.
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But I want to once again thank everyone for coming, and if there's no further business to come before the Committee, the Committee's adjourned. Thank you.
[Whereupon, at 6:11 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO, AND CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION
Good afternoon. I would like to thank everyone for being here today for this very important hearing. However, I feel that it is necessary to qualify that statement by saying it is unfortunate that we are here. We are here because, time after time, it appears that the wrong choices continue to be made by those in positions of authority.
I trust that today's hearing will enable this Subcommittee to examine those issues that are of the utmost importance and will enable us to make substantive recommendations to remedy the injustices that have occurred.
I would like to take this opportunity to recognize Arianne Callender, of the Environmental Working Group; Mr. John Boyd, with the National Black Farmers Association; Mr. Thomas Burrell; and Shirley Sherrod, with the Federation of Southern Cooperatives, for taking the time to provide us with information.
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Through these individuals, and others, it has come to this Subcommittee's attention that a second hearing may be necessary. I've directed my staff to investigate the scheduling of a second hearing in the event one is needed in the near future.
When slavery was ended in the United States, our government made a promise—a restitution of sorts—to the former slaves that they would be given 40 acres and a mule. While we can debate whether this allotment was intended to compensate the freed slaves for their involuntary service, what is clear is that this promise was intended to help freed slaves be independent economically and psychologically, as holders of private property rights.
What also is clear is that the very government that made this promise, the ''People's Agency'' established in 1862 under President Abraham Lincoln, has sabotaged it by creating conditions that make sovereign and economically-viable farm ownership extremely difficult.
This is the backdrop against which we will examine the issues before us today. We are here to consider the administration of the 1999 Consent Decree, which resulted from the civil rights case of Pigford v. Glickman.
The Consent Decree was developed to provide some monetary restitution to Black farmers who were victims of racial discrimination carried out by the United States Department of Agriculture, the very institution designated to assist them, in a swift and timely manner.
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Rather than help Black farmers, this Agency has been instrumental in causing their decline. Since the early 1900s, the number of Black farmers has decreased from nearly one million to fewer than 18,000.
During this time, when Black farmers tried to seek justice by filing discrimination complaints with the USDA, their claims were either ignored or dismissed—most without an investigation.
Ultimately, several of these Black farmers—all whose claims of racial discrimination had been disregarded by the USDA, filed a class action suit against the Agency.
After extensive negotiations, a settlement was reached that established a ''just'' process to have all the discrimination claims heard in a timely manner.
Yet, in an ironic twist, the process that was created to provide a forum for those whose claims had been shut out, has itself shut out nearly two-thirds of all who wanted to have their discrimination claims heard. Whether or not each of these claimants would have prevailed on the merits is not the issue before us. The process should have at least allowed them the opportunity to be heard.
We cannot in good conscious allow a settlement that leaves out more potential claimants than it allows in to go unexamined or remain unresolved.
All of the parties involved are responsible for developing a solution—whether it be modifying the Consent Decree, creating a subsequent Consent Decree, or some other process—to stop this destructive cycle from reoccurring.
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The first step in this process should be to provide the nearly 65,000 people who were denied entry into the process the opportunity to be heard. We will never be able to put the racially discriminatory practices that have and continue to occur within the USDA behind us until every one of these individuals has at least had the opportunity to be heard.
This is just one of the many problems with the Consent Decree that my colleagues and I hear about nearly every day.
It is my sincerest hope that this hearing will help us all get a better understanding of what precisely the problems are, what potential solutions there may be, and what we can do to ensure that the government never finds itself in a similar situation again. Too much has been lost and too much is at stake for Black farmers to just accept that the solution in 1999 has failed more people than it has helped.
PREPARED STATEMENT OF THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA, AND RANKING MEMBER, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
Thank you, Mr. Chairman. And I would like to take this opportunity to thank you, Judiciary Committee Chairman Sensenbrenner and Ag Committee Chairman Goodlatte for your agreement to develop this hearing and for the open, bi-partisan and productive manner in which you and your staffs have proceeded to do so. I must also acknowledge the work and dedication to developing this hearing by Judiciary Committee Ranking Members Conyers, and Subcommittee Ranking Member Nadler, and your staffs for your hard work and dedication to this effort, as well. And there are several other members and their staffs who have contributed to this effort, as well, including, Rep. Watt, Rep. Thompson, Rep. Towns, Rep. Butterfield, Rep. Bishop and Rep Baca.
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Of course, the hearing would not have been possible without the hard work and determination of all the representatives and advocates of Black farmers, too numerous to list, who have worked with us in developing this hearing over the last year. This has truly been a collaborative effort of all I have mentioned, and more.
Ths hearing is about the Pigford Settlement. There remain many issues and problems at USDA and there are a number of efforts underway to address those problems. Among them are lawsuits and complaints by Hispanic, women and Native American farmers. There is also a new lawsuit pending by Black farmers alleging continuing discrimination since the period covered by Pigford, as well as continuing allegations and complaints of discrimination by Black USDA employees. I believe all of these civil rights issues warrant oversight by the Judiciary Committee and should be the focus of subsequent hearings.
U.S. farm services programs date back to1862. Throughout their history, the programs have been laden with the pall of racial discrimination, in blatant as well as subtle ways. As the federal government has stepped up its loan and technical assistance programs to farmers in recognition of the growing capital and other needs of farmers to stay viable, Black farmer have been largely been left out due to discrimination and neglect. In the early 1900's there were as many as 1 million Black-owned farms with about 16 million acres. Now there are an estimated 18,000 such farms with less than 3 million acres. Black farmers complained, but no systemic action was taken to remedy the situation. And to add insult to injury, in 1983, the civil rights office at USDA was closed down. Many complained about the rampant discriminatory practices, but others did not even bother, understandably expecting that nothing would be done to redress their complaints.
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The Judiciary Committee looked at the issue in 1984 through a hearing held in this Subcommittee which exposed the racially-discriminatory practices then in existence in USDA's loan and assistance programs and its non-existent, civil rights complaints process. Unfortunately, no substantial remedial effort was undertaken by either the Administration or the Congress until Secretary Glickman, in response to the growing and persistent complaints of Black farmers and the disarray in complaint processing, ordered a moratorium on farm foreclosures and a series of reforms while pending complaint investigations. Yet, it took a lawsuit by Black farmers in 1997 to bring about meaningful attention to the problem.
Original estimates of the backlog of pending complaints was a few hundred. Over 1,000 were discovered. Then there were estimated to be about over 2,000 farmers who had suffered discrimination by USDA. By the time the consent decree was entered into the estimates had risen to 4,000 to 5,000. Over 22,000 filed claims withing the initial deadline. However, as the deadline expired, the court found that claims were still streaming in. In fact, they were coming in so fast that the court extended the deadline and directed the Adjudicator to determine those entitled to be included due to extraordinary circumstances out of their control. To everyone's astonishment, almost 66,000 claimants filed for consideration during the extension. Most of them have been considered by the Adjudicator, and curiously, only about 3% have been allowed in. Moreover, another 7800 filed beyond the extended deadline. That adds up to almost 96,000 claimants.
Mr. Chairman, frankly, I am concerned about the adequacy of a settlement process that leaves 70% of its claimants without a determination on the merits of their claim. I don't know whether the problem is in the sufficiency of the original notice process or in the criteria applied to filers during the extended period, but I am not willing to accept that nearly 66,000 individuals who believe they have legitimate claims of racial discrimination knowingly ignored notice of the initial filing deadline and chose to submit their claims after that deadline for no good reason.
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I don't know what percentage of the claimants can show entitlement to relief, but it is likely that some can. As long as 70% of those who believe they are entitled to recover under the settlement are prevented from having a determination on the merit of their claim, I don't see how we can move forward with transforming the image and effectiveness of USDA in serving its minority customers fully. If this situation is allowed to stand, Black farmers will not only have been victimized by the discriminatory practices at USDA, but by the remedy process, as well.
So, Mr. Chairman, I look forward to the testimony of our witnesses for any insights they may provide regarding my questions and concerns about the unfortunate state of affairs of the Pigford Settlement. Thank you.
PREPARED STATEMENT OF SANFORD BISHOP
Good afternoon ladies and gentlemen. First I would like to thank the Chairman and Ranking member as well as the Subcommittee on the Constitution for taking the time this afternoon to hold this oversight hearing. I would also like to express my appreciation to the panel for taking time to be with us today. I believe that this hearing and your testimony is an important step in resolving these important issues.
Pigford v. Glickman is a historic case and a historic decision. It is historic not only for the African American farmers who found themselves victims of an unjust system, it is historic for the thousands of African Americans today who are looking for equal treatment from the government that represents them. Racial bias is wrong and unconstitutional and it is sad to know that such practices were in place in our very government. But our court system ruled on the side of justice. USDA was wrong and the victims or their representatives should be paid.
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But the wheels of justice are slow. Yes, the Pigford case represents a moral victory for the black farmer. The burden of proof was high, yet the actions of Mr. Pigford led to the largest class action ever awarded by the USDA and the important admission of years of abuse was vindication for so many. We must not corrupt this victory by failing to do what is right, by failing to recognize the claims of so many based on what amounts to a technicality.
In Georgia alone, the arbitrator under the court-mandated extension denied over 3,000 black farmers. The extension was justly granted since many farmers' attorneys failed to notify their clients of the original deadline for application. Out of the original 69,162 claims filed, over 55,000 were rejected only because they were filed late. This is not justice, this is an outrage. I am here to see that every legitimate claim receives full consideration. These are not people looking to abuse the system and make a quick dollar. These are hard working Americans who have earned our consideration
In Georgia, farming is a proud tradition and I am honored to represent farmers of ever color and background. Today we should be focusing on agriculture, on ways to improve the less than perfect system and provide more opportunities in a field that Thomas Jefferson once called a ''pillar'' of American prosperity. But we are instead arguing over technicalities and an issue of justice that has not been properly resolved.
The United States needs to close the door on this process and provide the relief to those who rightfully deserve compensation. I want to thank my colleagues here today for their interest in this settlement and look forward to action settling this issue.
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