SPEAKERS CONTENTS INSERTS
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97–230 PDF
2005
'NOTICE' PROVISION IN THE PIGFORD V. GLICKMAN CONSENT DECREE
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
NOVEMBER 18, 2004
Serial No. 117
Printed for the use of the Committee on the Judiciary
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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
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
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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
STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
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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
NOVEMBER 18, 2004
OPENING STATEMENT
The Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution
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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 John Conyers, Jr., a Representative in Congress from the State of Michigan
WITNESSES
Mr. J.L. Chestnut, Jr., Chestnut, Sanders, Sanders, Pettaway & Campbell, L.L.C., Class Counsel, Pigford v. Glickman
Oral Testimony
Ms. Jeanne C. Finegan, APR, Consultant to Poorman-Douglas Corporation (Court-Appointed Facilitator, Pigford v. Glickman) for Communications and Public Relations, and formerly Vice-President and Director of Huntington Legal Advertising, a division of Poorman-Douglas Corporation
Oral Testimony
Prepared Statement
Mr. Thomas Burrell, Farmer
Oral Testimony
Prepared Statement
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Ms. Bernice Atchison, Farmer
Oral Testimony
Prepared Statement
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution
Prepared Statement of the Honorable Robert C. Scott, a Representative in Congress from the State of Virginia
Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan
Prepared Statement of Gary Grant, President, Black Farmers & Agriculturalists Association
Prepared Statement of Obie L. Beal
BFAA News Articles submitted by Chairman Chabot
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Prepared Statement of Lawrence Lucas, U.S. Department of Agriculture Coalition of Minority Employees
'NOTICE' PROVISION IN THE PIGFORD V. GLICKMAN CONSENT DECREE
THURSDAY, NOVEMBER 18, 2004
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:05 a.m., in Room 2141, Rayburn House Office Building, Hon. Steve Chabot (Chair of the Subcommittee) Presiding.
Mr. CHABOT. The Committee will come to order. This is the Judiciary Subcommittee on the Constitution. I am Steve Chabot, the Chairman of the Subcommittee. Good morning. Thank you all for being here for this very important meeting.
This is the second in a series of hearings the Constitution Subcommittee is holding on the 1999 settlement reached between the U.S. Department of Agriculture and a class of black farmers who have experienced discrimination by the USDA.
From the time this Subcommittee began examining this issue, we have had more reasons than not to believe that the Government has failed to do the right thing. I strongly believe, however, that with all of the information we are gathering in our oversight investigation, including through these hearings, we will have the understanding from which to develop a full and just solution.
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I would like to thank our witnesses for coming. Your insights, expertise and institutional knowledge are critical to the Subcommittee in its efforts to find justice.
During the last hearing, my colleagues and I used our oversight authority to get a better understanding of the Consent Decree. However, as we continue to examine more closely certain aspects of the settlement and its administration, it has become increasingly apparent that certain due process protections fundamental to the Constitution may be lacking in this case.
Due process of law is the legal concept that the framers of our Constitution created to ensure that the Government respects all, not some or even most, of an individual's right to life, liberty, and property. The due process clause places limits on the Government's ability to deprive citizens of these rights, guaranteeing fundamental fairness to all individuals.
One of the most important safeguards that has evolved from this clause is the right to notice, notice of a judicial proceeding in which an individual's right to life, liberty, and property may be affected or eliminated altogether. The form of notice must be reasonably designed to ensure that those individuals will, in fact, be notified of the proceedings. This fundamental right to notice applies to the 1999 Pigford Consent Decree and all those who had a viable claim of discrimination which impacted their lives, liberty, and property against the Department of Agriculture.
Tragically, recent statistics released on the Consent Decree suggest to this Subcommittee that this constitutional right was not safeguarded in the construction and administration of the Consent Decree. Although the notice campaign designed was deemed to be effective by the court in a fairness hearing held on April 14, 1999, the determination was made using advertising industry tools designed to measure the likely effectiveness of a campaign, not the actual effectiveness of a campaign. Reports indicate that approximately 66,000 potential class members submitted their claims late, most because they did not know that they were required to submit a claim sooner, thus losing their right to sue the USDA for past wrongs.
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It is hard for many of us to accept that 66,000 farmers would consciously wait to file a claim that would impact their right to life, liberty, and property, knowing that they were required to do so earlier. Further investigation into the circumstances surrounding the late claims reveals that many farmers failed to get any notice whatsoever or failed to understand the contents of the notice if they did receive the notice. These facts lead this Subcommittee to conclude that the notice implemented in the Pigford case was either ineffective or defective as nearly two-thirds of the putative class failed to be effectively notified of the case requirements.
The hearing this morning will focus on the actual effectiveness of the notice campaign. As we learn more about this aspect of the Consent Decree, we will consider the appropriate remedy to protect the safeguards afforded by the Constitution and uphold Abraham Lincoln's vision that every black American who wants to farm has the tools available to do so.
I would like to close by putting a personal face on what Lincoln's vision means to people who have been impacted by the USDA's action. This promise is still valued today, as this quote explains, and I quote: ''I have worked all my life being a servant to God and his people in Chilton County, Alabama. My forefathers were brought here to farm and the gift of loving the land has passed down for more than 10 decades. I am proud of the heritage in spite of the adversity,'' unquote. This is the sentiment of Bernice Atchison, one of the witnesses at today's hearing.
It is for Bernice and all of those who still have faith in the promises of this country that we are here today working toward finding a solution.
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Thanks to all of the witnesses for taking the time to tell their story and thank you all for attending this hearing. Many of you have come from far away at considerable expense and circumstances, and we appreciate your being here.
And I would recognize the gentleman from Virginia, the Ranking Member, at least this morning, for the purpose of making an opening statement. Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman.
Congressman Jerry Nadler of New York, the Ranking Member of the Subcommittee, asked me to express his regret that he is not able to be here and asked me to serve as Ranking Member today instead. As you know, the Clinton Library is opening today, and we had scheduled this not knowing that. And frankly many of us didn't want to upset the scheduling of this meeting and try for another date since we wanted to keep this date. But several of the Members for that reason are not here.
Mr. Nadler strongly supports the efforts of this Subcommittee to examine the issues surrounding the Pigford settlement and is instrumental in helping to develop these hearings.
I would like to take the opportunity, Mr. Chairman, to express my appreciation for the leadership that you have shown in seeking answers and solutions to the questions and problems that have come to light regarding the settlement, and for the time and attention you and your staff are devoting to pursuing these issues. And I express my appreciation for the open, bipartisan and productive manner in which you, Chairman Sensenbrenner, Agriculture Committee Chairman Goodlatte and your staffs have proceeded to work with us.
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Full Committee Ranking Member Mr. Conyers, Mr. Watt, Mr. Thompson, Mr. Towns, Mr. Butterfield, Sanford Bishop, Artur Davis and their staffs have also been an integral part in the development of these hearings and the issues that we're exploring, as well as working closely with black farmers and their advocates.
This hearing is about the notice provision of the Pigford settlement. The information we have found reveals that some 96,000 claims were filed, but only 22,000 of these were or are slated to be considered on the merits. The primary reason for not considering the remaining claims on the merits is they were not submitted during the initial period set by the court for the filing of claims, which ended October 12, 1999, 6 months after the settlement was entered into. By that time, approximately 22,000 claims had been filed.
Upon realizing the claims were still pouring in beyond the initial deadline, the court set a deadline for accepting late claims. This was first set for January 30, 2000, but with claims still coming in, the court extended it to October 15, 2000. Some 66,000 additional claims were filed by the October 15 deadline and another 7,800 after that deadline. Of the 66,000, only 2,100, approximately 3 percent, were accepted for determination on their merits.
While the merits of all of the 2,100 late claims accepted have not been determined, some have; and according to the reports of the court-appointed Monitor of the settlement, a significant number of those considered were found to warrant payment under the settlement agreement.
A large part of the problem of the settlement appears to have been that no one realized that there was the potential for so many claims to be filed. Early estimates said the potential ranged from a few hundred to eventually a few thousand. It does not seem reasonable to believe that the court would twice extend the filing deadline for filing claims simply to tell virtually all of the late filers that they had filed too late. Nor does it appear reasonable to the court that anyone would have knowingly designed a claims procedure that would leave 75 percent of those who filed a claim without any way to get a determination on the merits.
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It certainly does not seem reasonable to conclude that 75 percent of those who filed a claim knew before the deadline that they could but intentionally waited to file their claim late. With the vast majority of claims being filed after the deadline had passed, my inclination is to think that effective notice did not reach most claimants in a manner that allowed them to file their claims on a timely basis.
The court in trying to accommodate the situation gave the Arbitrator carte blanche authority to determine whether or not late claims should be let in due to extraordinary circumstances. Unfortunately, the Arbitrator established a process that resulted in virtually no one being able to show that they did not file due to extraordinary circumstances. Rather than applying the standard so narrowly as to leave 97 percent of the late filers out of the process, the Arbitrator might well have considered it to be an extraordinary circumstance that 75 percent of the claims filed in a class action settlement will not receive consideration on the merits.
There are, no doubt, a number of explanations and speculations for how we ended up with such a large percentage of the claims being filed beyond the court's initial filing deadline, and we will likely hear some of them today. Yet whatever the reasoning, I find it unacceptable that 75 percent of those who filed claims will not receive a determination on the merits of their claim. However we got here, we have a finite number of approximately 72,000 claims in which long-standing, atrocious misconduct by Federal Government officials is alleged; and I believe that these claims should receive a determination on their merits.
Not all of the claims will be found to be meritorious, but it would be a travesty of justice on top of a travesty of justice to prevent those claims that do have merit not to be resolved in favor of those claimants.
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And so, Mr. Chairman, I would think—I want to thank you for scheduling the hearing. And I look forward to the testimony of the witnesses for any suggestions they may have, not to cast blame, but to ensure that justice is done to the victims of inexcusable Government action.
Mr. CHABOT. Do any Members of the panel wish to make opening statements. Mr. Bachus?
Mr. BACHUS. I thank the Chairman.
I want to go back to 1984. This same Subcommittee had a hearing in 1984, and I think it is important when we consider whether these people that did not file on time, whether or not we allow them to have their claims heard on the merits; and that is what this Subcommittee found back then, and that was 20 years ago.
It examined the very issues that led to the Pigford settlement, and what it found was that there was pervasive racial discrimination in the USDA's operations of its loan programs. Not only did the court find that much later, but as far back as 1984 this Subcommittee came to that conclusion. In addition, it found that there was an ineffective and often nonexistent civil rights complaint process within the USDA. Moreover, the hearing found that there was a complete and irreparable harm experienced by many black farmers by the illegal, racially discriminatory practices used by USDA.
I think that alone, the fact that this Congress took that testimony and came to those conclusions in 1984 makes it incumbent on us today to resolve any doubts in favor of these farmers who—and I think there is no real dispute about it today that they did receive—they were discriminated against, it was pervasive, and that in many cases, it is irreparable.
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The fact that they will get $50,000 is not really going to compensate them for their damages. Even if their claims are allowed to go forward, they are not going to recover. Their children are not going to recover. So I think it is incumbent on us. And if the court—and I attribute good motives to the people. I think there were good people involved in fashioning the notice process. I don't question that. But in hindsight—and we have all done things that we thought at the time were sufficient, but later on because of the results, we found that they were insufficient, that they didn't work. And the very fact that three out of four of the claimants that have now filed claims didn't file on time, I mean that alone ought to tell all of us—that ought to be sufficient for us to know that it was insufficient notice.
And the idea that the judge extends the notice but then denies all the claims and doesn't go to the merits, that is almost—you know, somebody lets you file late and then turns you down because you filed late, that is no—that is almost adding insult to injury. So I think it's incumbent on us to go forward with this, and I mean actually take some action that will—it won't compensate these farmers. We found that back in 1984.
Twenty years ago this Committee concluded no matter what we do, they are not going to be put back to where they were. And you can't uncrack eggs.
Thank you, Mr. Chairman.
Mr. CHABOT. The very distinguished gentleman from Michigan, the Ranking Member of the full Judiciary Committee, Mr. Conyers, is recognized for making an opening statement.
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Mr. CONYERS. Good morning, Chairman Chabot and Members of the Committee. And to the distinguished witnesses and all those who have taken their time to join us again in the Judiciary Committee, I am very proud to be with you again.
And I would like to just, first of all, begin by saying that I believe that former President Clinton, if he knew what made us decide to continue these hearings and keep those of us here who would have liked to have been in Little Rock today for the dedication going on there, but he might have said, I am glad you decided to stay and continue this hearing.
And so, Mr. Scott and I and others would have liked to have been there, but on balance, the historic significance of this referred to by the gentleman from Alabama, Mr. Bachus, is so profound that we have to consider the issues just for a moment on a little bit larger note.
I would like to put my statement about the narrow issue that brings us here into the record. But let me point out that Chairman Steve Chabot and Mr. Scott, Mr. Nadler and Spencer Bachus have done something that I think should be recognized here. They have all made, from their particular points of analysis, incredibly significant and similar statements in the direction of where we are and how we got to this point.
Chairman Chabot did not have to call this hearing. And as has been observed, had we not gone forward, it is very unlikely that there would have been any further action taken on this matter in the 108th Congress. And so it is in this spirit of mutual understanding that brings us here that I would like to make these observations over and above the process question of late filing of claims for just a minute here. And that is to say that the question of how African American agricultural leaders and their families and communities and as individuals have been treated historically is now coming to the first—well, not the first, but one of the most candid discussions that I have ever been witness to.
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And I would like to take this time merely to describe—and I am open to meeting with my colleagues on the Committee, as well as the farmer leaders that are assembled here today about any refinements that are necessary. But it seems to me that we on the Committee, as Members of Congress, have to go to the Agriculture Committee of the House of Representatives to continue the much wider hearing on these historic issues. And I think with our Republican counterparts that we stand a fair chance of having that done.
I am prepared, of course, as Steve is, to go to the Chairman of the Judiciary Committee with whom we have had cordial working relations for two terms. Now we need to get all of this—there are so many peripheral issues that probably won't be gone into today; we need to get this on the record, the historical record of the Congress, and it should come from the Agriculture Committee.
The other item that we need to do is continue the examination of the plight of the black farmer in America, currently and historically, from the perspective of bringing in some of our think tanks and our institutions that deal in special, particular issues to begin to also complement what we expect will be the work of the Agriculture Committee in the 109th session. That would also include the Congressional Black Caucus input and many other organizations that work here in the capacity of think tanks that do these kinds of things, because we are now at the point, it seems to me, Spencer, that we can now begin to build an historical base unlike any that has been assembled before, and I think it will set the framework for the resolution of many of these long-standing problems and move us out of a very unfortunate past, which only our heirs to the future are in a position to correct. And I thank the Chairman for his consideration.
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Mr. CHABOT. Do any other Members wish to make opening statements?
We will move to introduce the witnesses. Our first witness this morning will be J.L. Chestnut, Jr. Mr. Chestnut was born in Selma, Alabama in 1930. He graduated from the Howard University Law School in 1958.
In 1959, Mr. Chestnut opened his law office in Selma, becoming the first African American to ever open a law office in that town and one of only nine black lawyers practicing in the State of Alabama. In his capacity as NAACP lead counsel, he facilitated the implementation of the Brown v. Board of Education school desegregation decision in Alabama.
In 1963, he helped the first professional civil rights worker to visit Selma persuade local African Americans to attend the first mass meetings. That was the beginning of the Selma movement, which later led to the greater civil rights victory in the passage of the Voting Rights Act in 1965. When Martin Luther King set up shop in Selma in 1964, Mr. Chestnut represented Dr. King. Dr. King and Mr. Chestnut worked together to plan much of the historic Selma civil rights battle. He was lead counsel, at least lead class counsel in several class action cases, and is class counsel in the Pigford case.
After a distinguished career handling many civil rights cases, he is the senior partner in the largest black law firm in Alabama, which is the oldest predominantly African American law firm in the Nation. He also sits as a trustee on the board of the University of South Alabama, is a founder of both the Alabama Democratic Conference and the Alabama New South Coalition and is chairman of the board of deacons at the First Baptist Church.
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Our second witness will be Jeanne Finegan, a representative of the Poorman-Douglas Corporation, which is the firm appointed by the court to serve as Facilitator in the Pigford settlement. Ms. Finegan is president of Capabiliti, L.L.C., and is a specialist in class action notification campaigns.
She has provided expert testimony regarding notification campaigns and conducted media audits of proposed notice programs for their adequacy. She has lectured, published, and has been cited on various aspects of legal noticing. Ms. Finegan has implemented many of the Nation's largest legal notice communication and advertising programs and has designed legal notices for a wide range of class actions.
Prior to establishing Capabiliti, Ms. Finegan co-founded Huntington Legal Advertising and spearheaded other companies. She has been a reporter, anchor, and public affairs director for several Oregon radio stations and worked for a television station. She is the author of many articles and is a speaker and panelist for public and private organizations.
And we welcome you here.
Our next witness is Thomas Burrell, a black farmer representative. Mr. Burrell was born May 7, 1949, in Covington, TN. Except for the time he has spent away at college, he has been a lifelong resident of Covington.
As an adult, Mr. Burrell farmed his own land. He is a veteran of the Vietnam war and is graduate of the school of business at the University of Michigan. He is also the father of three and has two grandchildren.
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And we welcome you here.
Our final witness today is Ms. Bernice Atchison. Ms. Atchison was born in Chilton County on May 1, 1938. She married Alan C. Atchison on May 14, 1953, and they supported their family by farming as they raised eight children together until her husband died in 1992. She and her son continue to farm in Chilton County to this day.
And we welcome you here this morning, Ms. Atchison.
If we could have all the witnesses stand for a moment, we have a policy to swear in witnesses.
[Witnesses sworn.]
Mr. CHABOT. I would like to familiarize you with our rules here relative to testifying. We have a lighting system. Each witness is given 5 minutes and the green light will be on for 4 of those minutes. A yellow light will come up that lets you know you have 1 minute to wrap up and the red light indicates that all 5 minutes have elapsed. We will give you a little flexibility on that, but we'll ask you to wrap up as close to the 5 minutes as possible because we are on relatively strict time limits around here, and we want to make sure everybody has an opportunity to ask questions and the hearing moves along.
So we again want to thank all the witnesses for coming here this morning. And, Mr. Chestnut, we will begin with you.
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STATEMENT OF J.L. CHESTNUT, JR., CHESTNUT, SANDERS, SANDERS, PETTAWAY & CAMPBELL, L.L.C., CLASS COUNSEL, PIGFORD V. GLICKMAN(see footnote 1)
Mr. CHESTNUT. Mr. Chairman, Ranking Member and Committee Members, I thank you for the opportunity of appearing here.
My involvement in the Pigford litigation is really an extension of my life. Pigford did not rise out of a vacuum. It is one of many disgraces of what we were going through in Selma in 1958 when I opened a law office there as the first and only black person dedicated or dumb enough to do so.
Less than 70 blacks in the whole county were registered to vote, and each potential voter had to be vouched for by a white person. And there were black and white water fountains, black and white restrooms, graveyards. Not one black person in the whole State had served on a jury in 100 years. No blacks had jobs downtown anywhere in Alabama. And the all-white, all-male police department did whatever, whenever to whomever in black Alabama and nobody dared asked any questions. It is out of that that Pigford comes.
I was representing Congressman John Lewis when he was 20 years old in Selma and other places around Alabama when neither he nor I could know that we would live out the day. So it was natural that I would become a part of Pigford. And I had been in the front ranks of the black struggle, now for almost 50 years.
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When I came into the litigation, the Government would not even discuss settlement in this doubtful case and it was doubtful. And the Government later changed its mind and said it would discuss possible settlement on a case-by-case basis. In the court's 65-page opinion, the judge quotes my argument against that assertion, saying it took us 15 years to get Pigford before a judge. They would always throw it out and dismiss it. And now if we do what the Government suggests, we will be here forever, case by case.
And I insisted that the court set a trial date, because in my judgment the Government would never seriously consider settlement unless there were a trial date. And the court set a trial date. And that's when a settlement in this case really became possible.
It was also at that point that I decided to educate, if you please, my class counsel, Phillip Fraas, about some black facts of life that he couldn't possibly know or understand. In fact, number one is that we face a cultural disconnect. I don't know of any other way to put it. Except for a core of dedicated and perennial-optimist black farmers, no one would believe—no black farmer would believe that a Government that for 150 years had ruined them would now help them. They would only believe that when there was something tangible and concrete what they could see or check. And by the time that happened, we would have serious problems because you can't keep a class action open in perpetuity. That is not the way the law is set up.
Early on I said to my co-counsel that is a serious problem that we will have to face. And in the end, when there is nobody else to blame, they will blame us. I know that because for 50 years I have been representing poor black folk, and I know what it is to be blamed when you can't get done what people are entitled to have done.
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The second problem was that we could, in my considered opinion, succeed in winning all the money in the world and all the injunctive relief in the world, and as Congressman Bachus pointed out, we would not come close to producing justice that these poor black folk deserve. It just couldn't be done in the context of a lawsuit. At best, it's a piecemeal approach to piecemeal justice. And once again, somebody will have to be blamed in the end, and it will be us. And by ''us,'' I mean the lawyers. I fully expected it and said it early on.
Mr. CHABOT. I am going to be blamed for letting you know that you are out of time, but we'll give you an additional 2 minutes if you could wrap it up in that time. And we are going to ask you questions and so you will be able to get into this.
Mr. CHESTNUT. Mr. Chairman, I believe if you sent your staff out tomorrow, within weeks they could find another 65,000 African-Americans who didn't file, but who now want into this lawsuit.
That is the cultural disconnect. That is a far deeper problem than legal notice.
Mr. CHABOT. Thank you very much.
Ms. Finegan, you are recognized for 5 minutes.
STATEMENT OF JEANNE C. FINEGAN, APR, CONSULTANT TO POORMAN-DOUGLAS CORPORATION FOR COMMUNICATIONS AND PUBLIC RELATIONS, AND FORMERLY VICE-PRESIDENT AND DIRECTOR OF HUNTINGTON LEGAL ADVERTISING, A DIVISION OF POORMAN-DOUGLAS CORPORATION
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Ms. FINEGAN. Mr. Chairman, thank you. My name is Jeanne Finegan, and I am pleased to appear before you on behalf of Poorman-Douglas Corporation, the court-appointed Facilitator in the Pigford case.
Poorman and its division, Huntington Legal Advertising, participated in the development and implementation of the direct mail and the advertising components of the Consent Decree. I directed the advertising components and Nicole Hammond, my colleague, who is here today, was responsible for the direct mail component.
As set forth more fully in Exhibit 1 to my written statement, I have over 13 years of experience in the development of legal notice plans and class action and bankruptcy, and over 20 years of experience in the field of communication.
Mr. Chairman, I appreciate the opportunity to address our involvement in the notice and claims administration process in Pigford. We know that some have raised questions about that notice program. But in order to place our work in context, I thought that it might be helpful for me to address some of those questions up front to you and to the Members of the Committee.
First, does the late—the number of late applicants show that the notice program was flawed or inadequate? We believe the answer is no.
One purpose of the notice program was to provide awareness of the complaint process. The Pigford notice did raise awareness. This is shown by the over 96,000 phone calls that Poorman received during the claims period from January to October 1999. This was one of the largest, sustained call volumes in a single case in the company's history. Some 53,000 requests were made for mail claim information.
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These requests greatly exceeded all expectations. By the claims filing deadline, we had mailed nearly 50,000 claim forms and received back almost 18,000 completed forms.
As this Committee has heard from others, about 50 percent of the 67,000 individuals who applied to file a late claim were aware of the settlement in advance, but did not act in time. As this evidence confirms, a notice program may generate interest and awareness, but it cannot make someone file.
The decision to act or file a claim is influenced by many factors. The notice program is only part of that overall decision. So why did so many class members file late claims or seek to file late claims?
African American farmers have faced a long history of discrimination. Many class members may have believed that even with a legitimate claim, relief would not be forthcoming. This perception may have reduced, at least initially, the desire of many class members to act.
The media also tended to reaffirm this perception. If the farmer did not trust the settlement was genuine, this certainly would have affected their behavior. But as word spread that the settlement relief was being granted, class members became increasingly confident that filing a claim would not, in fact, be a waste of time. At this point, the deadline was upon them and many were unable to file in time.
The problem then is not that the class members' awareness was late, but class member activation was late. And I am not certain that any notification program, by itself, could have remedied that. However, this speculation begs the question, how did Poorman-Douglas develop the media strategy that was used?
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We used well-accepted scientific industry methodology to develop our recommendations. We used data from reliable media research bureaus such as Mediamark Research and Nielsen to identify model class members by both their demography and their media consumption habits. From this information, we developed our recommendations for a media strategy.
The Consent Decree specified the following requirements: that a copy of the notice of class certification and the proposed class settlement was mailed to all then-known class members; a one-quarter-page newspaper ad was placed in over 27 general circulation newspapers and over 115 local African American newspapers in an 18-State region. A full-page ad was placed in the 18-State regional edition of TV Guide and a half-page ad was placed in the national edition of Jet Magazine.
Mr. CHABOT. Your time has expired. We would appreciate it if you could wrap up.
Ms. FINEGAN. I would be happy, of course, to answer any questions that the Committee may have about any aspect of our work on the Pigford notice program as negotiated by the parties and approved by Judge Friedman. We believe that the plan did meet its goals.
[The prepared statement of Ms. Finegan follows:]
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Mr. CHABOT. Mr. Burrell, you're recognized for 5 minutes.
STATEMENT OF THOMAS BURRELL, FARMER
Mr. BURRELL. Thank you very much, Mr. Chairman. My name is Thomas Burrell. I'm the President of the Black Farmers and Agriculturalists Association, Inc. I'm a past farmer and son of a lifelong farmer and a grandson of farmers as well.
To the Honorable Members of the United States House of Representatives, Chairman James Sensenbrenner, Ranking Member John Conyers and Constitution Subcommittee Chairman Steve Chabot, Honorable Bobby Scott, Ranking Member on the House Judiciary Committee Constitution Subcommittee, on behalf of the Black Farmers and Agriculturalist Association board of directors, State presidents, members of BFAA, the thousands of black farmers denied relief under the flawed Pigford Consent Decree, track A and track B, 70,000 black farmers designated as late filers, the thousands of potential class members and their heirs and the new black farmers class action lawsuit, we thank you for giving us this opportunity to be heard this date.
I would like to start my discussion relative to the invitation that I received, sir, and that was to talk about the notice provision of the Consent Decree; and in my opinion, by derivation, that would then lead us to paragraph 4 of the Consent Decree. And in paragraph 4, as Ms. Finegan made reference to, the Facilitator, it is our understanding as is expressed in this Consent Decree, was required to notify farmers.
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And I am sure you would appreciate the fact that in the last Committee hearings, you heard comments from individuals. You have heard comments this morning. But one of the things that we have not, and I'm waiting to hear is not why so much black farmers or the mystery that people seem to ascribe to the fact that black farmers did not react. The mystery is simple. They simply were not notified.
One of the things that I think was missing as well is an understanding of the fact that black farmers are notified about opportunities basically the same way white farmers are notified. And that is if John Deere or Case International was going to sell a new tractor, Case is going to use the same advertisement to white farmers that they are going to use to black farmers. They call the magazines. They listen to the dealers in that area.
Black farmers purchase equipment the same way and buy their seeds the same way. Therefore, if you're going to notify them about any other opportunity, you do it the same way you notify white farmers. You notify them through their local newspapers. You talk to them through their local radio stations.
We are somewhat dismayed that in an attempt to notify black farmers in 18 States in the South, you use media who are not culturally and occupationally attuned to those farmers. When John Deere gets ready to sell a combine to a white farmer, they don't call the Wall Street Journal or Newsweek. Advertising is cultural and it is also, shall we say, occupational oriented.
Black farmers, here again, most of them do not have access to cable television, as was referenced in the notice. To those elderly black farmers who do not read in the first place, advertising and notice in Jet Magazine or Ebony is not sufficient.
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More importantly, in my close, sir, I would like to state we are prepared to answer not only why black farmers were not notified, but to give some reason why we think they were not. And if I might, the sad thing about it, USDA admitted and recognized that there were over a million black farmers in 1920. In 1982, they recognized that there were roughly 18,000. As my grandmother would say, you get rid of some in the wash and you get rid of the others in the rinse. In my opinion and the opinion of this organization, USDA has gotten ridden of 982,000 black farmers in the wash and this lawsuit is designed to get rid of the remaining 18,000 in the rinse.
This lawsuit, in my opinion, and the advertisement was never intended to notify black farmers. The advertisement was inadequate, it was arbitrary, and it really never had an issue of notifying black farmers. Thank you.
[The prepared statement of Mr. Burrell follows:]
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Mr. CHABOT. Ms. Atchison, you are recognized for 5 minutes.
STATEMENT OF BERNICE ATCHISON, FARMER
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Ms. ATCHISON. Mr. Chairman, fellow congressmen and this assembly, I stand before you in humbleness representing more than 700 of my fellow kinsmen in my county alone. I have here—been brought here today to speak on this notice.
As I was secretary for the Alabama Democratic Conference for more than 30 years in our county, I never imagined segregation would still be existing in this day at this time. The question that we are asking in Chilton County is, did Judge Friedman mean to leave this county out by not posting or notifying the black farmers and farm helpers?
While we help produce the products that was raised in this county and shipped to many other States to be sold, we had hoped to be treated fairly. We contacted the USDA of Chilton County and was told that they could not help us.
We immediately wrote certified letters to class counsel and to the Monitor stating that there were no affidavits and that there was no claim packages at the USDA, and they informed us they could not help us. The USDA of Chilton County did not have a copy of the Consent Decree, nor did they have a copy of the stipulation for us to view. It was not published in the county newspaper or it was not a notice sent out in our U.S. agriculture for the extension service here in Chilton County.
We were not notified by mail nor were we given a chance to apply even after we notified class counsel that there were no legal help for us in Chilton County. Many of us were sent denial letters and many were not answered or given a tracking number.
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We have been—we have sent packages to inform you and ask that the error be corrected. These packages contain the proof that you needed to know. We know you have received those eight copies because they were sent certified mail. We have called time after time to no avail, beginning in April of 2000 until now, asking and pleading. Many of us are farm helpers, sharecroppers, and some have FMNP numbers as I do, yet you have denied me and many more.
I have lived on the same farm all of my life. I was born in this county in 1938. My mother and father worked hard to secure their own land for their children to inherit. You are now holding me accountable for a late claim affidavit when they were not sent to us as we requested in a timely manner. When we notified you that we had no claims, even your affidavits were not sent to any of our people until after August the 16th, which left only 20 working days, including a Labor Day weekend. Less than 20 days with no affidavit claims for our people or our families who all own farms and none have been notified of the process.
The problem was a USDA and class counsel problem. They defied the judge's order in Chilton County. They did not post. The judge plainly stated it: ''t shall be posted or mailed.'' It was not.
And the USDA did not have a copy of the Decree, of the stipulation on hand for us to view. Without the proper information or instruction, we had no way of knowing what was needed to apply.
I am a farmer who owns 39 acres and a share in another 358 acres of inherited family land. We have proof that we notified both class counsel and the Monitor by certified mail at least in time to bring our problem to their attention.
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When I received the response on August 16, 2000, dated August 10, 2000, we had less than 20 working days to respond and only one affidavit to represent all the peoples in our county. This was all that was sent to serve our county.
We have presented the facts to the class counsel and the Monitor and now to you, our fellow Congressmen. We believe these facts to be extraordinary circumstances beyond our control. We now ask and plead that you will rectify the error lest it become a miscarriage of justice.
[The prepared statement of Ms. Atchison follows:]
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Mr. CHABOT. I want to thank all the panel members here. The Members of the Committee have 5 minutes each to ask questions, and I recognize myself for 5 minutes.
Mr. Chestnut, I will begin with you. In your interview with the Selma Times Journal, you stated and I quote, ''This is not about notice. The notice was as complete as any I have ever seen.'' If that was the case, how do you explain Ms. Atchison's situation, which you just heard her testify to? What would you have to say about that? What could have been done different? And what would your comments be relative to her situation?
Mr. CHESTNUT. I have been involved, Mr. Chairman, in probably more class actions than the average lawyer. And I don't know of any class action where the notice was more complete than in this case.
There are always some problems when you are dealing with large numbers over large territories. But I went around, Mr. Chairman, from county to county—Wilcox County was one of them; it's only about 50 miles from me—and held meetings encouraging farmers to become involved.
My little law firm, Mr. Chairman, borrowed $2.5 million in order to help get the word out and help these farmers fill out the applications. And lo and behold, the Government eventually paid $2 million back and would not pay the interest. I had to eat it.
I was out there scuffling with these problems. I was in her county not once, many times.
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Now, no matter what kind of notice that you put out there, there are going to be people who will not get it. Michael Lewis reported in his supplemental, he went back and looked at the late filings and he found that of all of those 64—I think he looked at 64,000 instead of 65,000, only about 28,000 of these people said they did not have notice. Their reason for filing late were health reasons and things of that sort.
So you really only have a third of that 64,000 people. Of that, I don't know how many of those will turn out to be really black farmers.
Mr. CHABOT. Ms. Finegan, if notice needed to be tangible and concrete, Mr. Chestnut's words, why would you advertise on CNN and Jet Magazine rather than credible sources to the black farmers, like the churches, or as Mr. Burrell mentioned, local newspapers or local African American radio stations and things of that nature?
Ms. FINEGAN. As in the case with any class action, there are certain recommendations that are made to the parties, and this was no different. There were multiple recommendations made regarding notice. However, speaking to the point of local newspaper, we did, in fact, advertise as a one-quarter-page ad in local African American newspapers, 115 of them to be exact.
With respect to television, advertising is a science. It is a science of human behavior. There is a tremendous amount of art and judgment in it. To the extent that science is used, nationally syndicated media research such as Mediamark go directly to survey individuals for their media consumption habits. So this data is a projection based on actual consumption.
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Based on Mediamark information, over 63 percent of the class had access to cable television and, in fact, had viewed some form of cable television in the previous 7 days.
Regarding the art——
Mr. CHABOT. Before you go on, I only have 5 minutes, so let me ask a follow-up question. What sort of local media did you use in either of the States of Kentucky or Ohio?
Ms. FINEGAN. Sir, I don't have the specific media information in front of me. I would be happy to supply you with that information. But more than likely, there was general circulation newspaper and local African-American newspapers.(see footnote 2)
Mr. CHABOT. You mentioned 115 local newspapers, if you could provide that information to the Committee. My time has expired.
I recognize the gentleman from Virginia, Mr. Scott, for 5 minutes.
Mr. SCOTT. Did I understand you to say that you believe that almost half the people that filed late had, in fact, gotten notice on time?
Ms. FINEGAN. I don't believe that I said that. I was citing a report from Mr. Lewis.
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Mr. SCOTT. What portion of the late filers in your judgment—Mr. Chestnut suggested two-thirds, suggested that, had some kind of notice before the deadline. Do you know?
Ms. FINEGAN. I would have to defer to Mr. Lewis. He has probably had the ability to view that document specifically, and I have not.
Mr. SCOTT. You said the notice was designed by traditional scientific methodology to get the notice to people. Do you consider there is a difference between showing that somebody looked at the paper, or a paper was presented to them so they could see it, that kind of notice, and notice that they understood that they actually might have a case and what to do? Is there a difference?
Ms. FINEGAN. Of course, there is always a difference between a notice disseminated and a notice actually communicated.
Mr. SCOTT. Now, apparently, the notice got communicated after the deadline and 60,000-some people acted after the deadline. What did they know after the deadline that they didn't know before?
Ms. FINEGAN. That would be speculation, and I wouldn't care to go there.
Mr. SCOTT. Do you object to people having their claims decided on the merits?
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Ms. FINEGAN. I am not a lawyer, sir.
Mr. SCOTT. Mr. Chestnut, for a Member of Congress to listen to your resume, I just have to remark that without your courage back when it was dangerous to bring the kind of cases that you brought without—and I practiced law for a little while. People wouldn't be here but for your work, and I want to thank you for your lifetime of commitment.
Obviously, a lot of people in class action cases won't get the notice. I mean, I get notices all the time for class actions, and I just look at it, and figure I might get $0.30, but it's going to cost me more to mail this thing in than to worry about it, and I don't do anything. At this point, I think a lot of people, after the deadline, figured out they might actually have a case worth applying.
Do you object to them getting their cases considered on the merits if we can figure out a way to do it?
Mr. CHESTNUT. No, I am for that 1,000 percent.
Mr. SCOTT. Thank you very much.
Mr. Chairman, I don't have any more questions now.
Mr. CHABOT. Thank you very much.
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The gentleman yields back his time.
The gentleman from Tennessee, Mr. Jenkins, is recognized for 5 minutes.
Mr. JENKINS. Thank you, Mr. Chairman.
Mr. Chestnut, I'm sorry I missed your testimony, sir, but I take it from responses that you have given to questions that—was yours the only law firm involved? Were there other law firms involved?
Mr. CHESTNUT. I think there were eight law firms.
Mr. JENKINS. Eight law firms involved. But I take it that you have testified here that it is your belief that the notice was adequate?
Mr. CHESTNUT. I don't have—I don't have any reservations at all about the notice. I am a class action lawyer. I have dealt with notice for the last 20 years. I don't see anything significantly different.
Mr. JENKINS. And your firm and the other firms hired Ms. Finegan to help to see that the notice was disseminated?
Mr. CHESTNUT. My firm, plus the Government, who was paying, that's the big elephant in the room, and that is who said at one point, this is all we are going to pay for.
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Mr. JENKINS. Yes. But Ms. Finegan, you believe the—have you done lots of these in your work?
Ms. FINEGAN. Yes, sir, I have.
Mr. JENKINS. Do you share the belief with Mr. Chestnut that this notice was adequate?
Ms. FINEGAN. Yes, sir, I do.
Mr. JENKINS. All right. Mr. Burrell, I missed your testimony, and I'm sorry, sir, I understand you are a Tennessean.
Mr. BURRELL. Yes, sir, I am.
Mr. JENKINS. From the western part of the State?
Mr. BURRELL. Yes, sir.
Mr. JENKINS. I am from the eastern part of the State, and you know that we are closer to Washington, DC. In my hometown than we are to your part of the State. But we are coming there often now, because we have a son and daughter-in-law and three grandchildren near your home. It is in Covington, isn't it?
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Mr. BURRELL. Yes, sir.
Mr. JENKINS. Mr. Burrell, what was your testimony with respect to the adequacy of this notice?
Mr. BURRELL. My testimony, Congressman Jenkins, is that the notice was arbitrary. It was basically not an issue with USDA.
If you, sir, would read some of the testimony that was given to Judge Friedman at the fairness hearing, both the counsels for the farmers and the counsel for the Government made reference to the fact that the emphasis was put on paragraph 7, paragraph 10, paragraph 9, paragraph 11, and paragraph 12 of the Consent Decree.
Our position is, then, whatever does or does not happen in paragraphs 5, 7, 9, 10, 11, and 12 is a function of what happens in paragraph 4. Paragraph 4 is where class counsel and the Government did not put any emphasis on. And paragraph 4 specifically states—if you don't mind, it says—it says that they are going to do the right thing, the USDA has shown its best efforts, obtained the assistance of community-based organizations, including those organizations that focus on African-Americans and agricultural issues. What is technical about that? What is technical about calling a local radio station or the local news?
Sir, with all due respect, when USDA gets ready to foreclose on a farmer and take his land, they use the local newspaper. Why couldn't they use the local newspaper when it's time to pay him?
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They are making these gestures about the pie-in-the-sky effort. You have got an organization 3,000 miles away from the average black farmer—and that's no disrespect to the people who live in the west—using an organization 2,000 and 3,000 miles away from farmers, and they are saying that they are advertising in the 18-State area. But the majority of the people they paid are heirs to the black farmers who live all over the country. So on its face, the advertisement was not adequate.
And I would—and in our analysis, 92 percent of the people who they paid live outside of those 18 States. If you are going to pay an heir that's moved to Detroit or moved to Washington or moved to L.A. Or moved to Houston, as is the result of the discrimination, why wouldn't you then advertise?
What has happened—in my closing, if you don't mind—is that people who were promised to be paid—they were advertised to the farmer but they paid the heir. But they did not advertise to the heir.
So you have this cross-connect where the regents are concentrating on paying a group, that they are only actually advertising to a group that they only paid 8 percent of the time.
Mr. CHABOT. The gentleman's time has expired.
Mr. JENKINS. Thank you, my time has expired.
Mr. CHABOT. Is the gentleman from Michigan here?
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Okay. The gentleman from Alabama, Mr. Bachus, is recognized for 5 minutes.
Mr. BACHUS. Thank you.
Mr. Chestnut—and I will ask Ms. Finegan this, too. You know, we had 140 years of discrimination. I mean, well, illegal discrimination, and we had 100 years before that. But this 180 days, that sort of bothers me. I mean, why all of a sudden, not to get in that much of a hurry, but that must have been a real hindrance to you, Ms. Finegan, to put together what may have been your largest notification charge you had ever been given, your company. As complex as it was, as Mr. Chestnut says, the black farmers, they have been short shifted. They have been scammed. They have been screwed, you know, for hundreds of years, so you have got to overcome that. They are going to be suspicious that somebody at the same organization that has discriminated against them, and for 40 years, suddenly, going to really give them something. I wouldn't fall for that.
So I will ask you, was the 180 days in the budget that you had?
Mr. Chestnut, actually, you said that you all had to borrow money, your firm. That indicates to me that you didn't have the financial resources to notify people? I mean, the Government may have said, the judge may have said this is what you are going to get.
So I would ask you, did you have a sufficient budget? Would you have liked more? Was 180 days, was that a problem?
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Ms. FINEGAN. I will address the 180 days first, sir. The 180 days is shorter than some, and it's longer than others in class action.
Having said that, there are always constraints under which we have to work to provide notification programs.
Typically, we try to do the best we can with the budget constraints that we have been provided.
Mr. BACHUS. Right.
Ms. FINEGAN. So, in order to accommodate the widest scope program, we did try to run ads. We did run ads on cable network television.
Mr. BACHUS. What was your total network budget?
Ms. FINEGAN. The exact dollars I don't have in front of me. I believe that it was somewhere around $385,000 just for the media.
Mr. BACHUS. Doesn't that just pretty much tell you that you—you know, I spent in my Congressional district, trying to get my message out, I spend $1 million, and I am in an urban area where I can really load up.
Ms. FINEGAN. Again, sir, we were given a budget.
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Mr. BACHUS. I can just tell you, $380,000, that ought to tell everybody in this room. You weren't working on a—you didn't have a tenth of the money you needed.
And I know you are hired by the judge and the court, and it's hard, but, I mean—and the 180 days and $385,000? This thing was designed to fail from day 1.
And I know, you know, that's what you had to work with.
Mr. Chestnut, you said you borrowed $2 million.
Mr. CHESTNUT. $2.5 million. But that had nothing to do with paying for the notice.
Mr. BACHUS. Well, you know, notice—I don't think notice—maybe notice is not the word we ought to use here. What you got to—what ought to be done here, the affidavits have to be delivered. Folks have to be educated in how to file claims.
Mr. CHESTNUT. That's what we borrowed the $2.5 million for.
Mr. BACHUS. Yes, and how much money was budgeted to get the affidavits out, sit down with people and help them with these claims?
Mr. CHESTNUT. We hired lawyers all over the south.
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Mr. BACHUS. Yes.
Mr. CHESTNUT. I was all over the south, all out to California. Not only spreading the word, but giving direct assistance to farmers.
Mr. BACHUS. But you had 180 days to do all of that?
Mr. CHESTNUT. That's right.
Mr. BACHUS. That's not enough time.
Mr. CHESTNUT. Well, this was the Government.
Mr. BACHUS. I am not criticizing your——
Mr. CHESTNUT. I understand.
Mr. BACHUS. I am just saying, it's obvious to me that you aren't under this—for whatever—and I think—Ms. Finegan, you said it greatly exceeded your expectations, you know, all the claims and all.
So, I mean, that had to—I mean, that—''owe me''—isn't that what you—you used that phrase?
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Ms. FINEGAN. Yes, sir. It did greatly exceed the expectations of the parties.
Mr. BACHUS. Yes, so——
Mr. CHESTNUT. But I think the record ought to reflect that this was an adversary proceeding. The Government was not in bed with us. The Government has never been in bed with J.L.——
Mr. BACHUS. I understand that. What we as the Congress have got to look and see whether the Government was reasonable in what they did. I am not criticizing what you did.
Mr. CHESTNUT. No.
Mr. BACHUS. All I am saying is—and the Government gave you 180 days and $385,000 to notify people. It's apparent to everybody up here, that's not enough time, not enough money.
Mr. CHABOT. The gentleman's time has expired.
The gentlelady from Pennsylvania, Ms. Hart, is recognized for 5 minutes.
Ms. HART. Hope that buzzer is not for me.
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Thank you, Mr. Chairman.
Following up, actually, a little bit on Mr. Bachus' questions. Stop it.
Mr. CHABOT. Those bells are just to annoy people, basically. That means the House is going out of session on floor. But there are no votes until, we believe, 8 this evening, because of President Clinton's library opening.
Ms. HART. Thank you, Mr. Chairman. I want to follow up with Mr. Chestnut a little bit more.
I believe you said at one point that two-thirds of the people who made late claims didn't claim that they didn't receive notice. Am I stating that correctly?
Mr. CHESTNUT. I said that the Facilitator, Mr. Michael Lewis, went back after he testified before this Committee and examined the 64,000 of the 65,000 people, and he filed, I think, a supplemental, with this Committee, in which he said only a third—about 28,000 of those persons, said they didn't have notice or were not aware. They filed, for health reasons and other reasons.
Could I just, for 1 minute—Mr. Bachus, it wasn't 180 days. These people had from October 12th to file these claims from the date of the Consent Decree, and some of them began in January 1999, right after it was—there was a preliminary report. So that was 9 months out there that people had a window to file claims. I just want to put that in the record.
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Ms. HART. Okay, that's all right. Thanks. I appreciate that clarification.
I am still stuck on this notice thing. And, you know, if you are trying to get a hold of a certain group of people, then the best way to do that is to inquire what they used to get their information. And so I would like to jump over to Mr. Burrell and Ms. Atchison.
Just, if you could for me, what would you suggest media—what type of media should have been used to provide this kind of notice that was not?
And I will start with Mr. Burrell.
Mr. BURRELL. Well, thank you, Congresswoman Hart.
The organization that I am with, with the Black Farmers and Agriculturalists Association, we have been, with the assistance of our attorney, notifying farmers about the lawsuits as well. It's interesting to note also that Mr. Pires in his statements talked about—and as Mr. Chestnut corroborates—how they travel from State to State. You would read in some testimony where they maintained it was 5 and 6 and 8 and 10 of them in a room.
Our question is—and Mr. Pires went on to say that he went to Alabama 42 times. Alabama, I think, has the largest number of claimants—and rightly so—in this lawsuit. That tells us then, that on average, 100 people heard them when they were visiting.
When we had a meeting in Alabama—we had a meeting in Montgomery—3,000 folks showed up at one meeting. But the difference between the 3,000 that came up to our meeting and, we believe, the 100 that came to his is we spent thousands of dollars buying local radio advertisement. We subscribed to black—Adonis black radio that deals specifically with that area, and we believe that's why the people came out.
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Ms. HART. And that was—that same avenue of notification.
Mr. BURRELL. That same avenue, because virtually every black radio station that we called maintained that they themselves did not even know about the lawsuit.
Ms. HART. Thank you.
Ms. Atchison, could you enlighten us a little bit about your neighbors, and what kind of newspapers that you would read? And if there was any notice given in this?
Mr. BURRELL. We don't have black newspapers in Chilton County, period.
Ms. HART. Is there a local newspaper in Chilton County?
Ms. ATCHISON. We have a local newspaper in Chilton County, but it is not a black newspaper.
Ms. HART. But do people read it?
Ms. ATCHISON. Well, we are in a real rural area. You will find some people that do read it. You will find some people where it is not prevalent.
Ms. HART. Okay.
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Ms. ATCHISON. But what I did to prove to Mr. Lewis, I sent him letters from all four mayors of Chilton County, who all stated—and if you pick up one of these here.
Ms. HART. Yes.
Ms. ATCHISON. You will find that each one of them stated that they did not receive any notice whatsoever to post.
Ms. HART. So there was no local government contact posted in the community bulletin board?
Ms. ATCHISON. No.
Ms. HART. Nothing like that.
Ms. ATCHISON. Wasn't posted at our county courthouse; wasn't posted at the local library. I wrote Mr. Lewis and also sent class counsel a letter, on January 9th of 2000, stating, ''If we were to meet the deadline of September 15, 2000, it was the responsibility of the Facilitator to post all mail from the court house.''
Notification, notifying the landowners, for less than $6, every black church could have been notified, touching literally every black family. There were only 17 black churches in Chilton County. As you noted in the Monitor Review, there has been problems in the claim process. It would be a miscarriage of justice to leave us out after we have brought it to your attention. USDA has failed to post. We didn't even have a Consent Decree to look at to know what we needed to do. We just—just kind of sent something in.
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Ms. HART. I am out of time. Thank you for that.
Mr. CHABOT. Would the gentlelady like an additional minute?
Ms. HART. I would.
Mr. CHABOT. All right. The gentlelady is recognized for an additional minute.
Ms. HART. Thanks, I just want to give Ms. Atchison an opportunity to finish because one of the things that concerns me, you know, we talk about constructive notice. That is basically that people should have known, that there is a constructive notice that should have been given for people to find this out. Do you believe that whatever advertising was done, that people in your community should have been able to figure this out? Just a yes or no.
Ms. ATCHISON. No.
Ms. HART. Thank you very much. That's good.
I yield back.
Mr. CHABOT. The gentleman from Alabama is recognized.
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Mr. BACHUS. Only because—I will say this, Mr. Chestnut. Mr. Chestnut, I would never question anything that you have ever done. I am aware that you have righted injustices for years under great threat of physical harm.
I will say this, I am confused on this 180-day thing. Because it did say that October 12, 1999, which was 6 months following the entering of the Consent Decree, 180 days. Now, the judge did extend this over a year. But now bear in mind, he only extended it for two reasons, hospitalization and natural disasters. I mean, he actually said lack of notice is not an acceptable reason.
Ms. ATCHISON. That's right.
Mr. CHESTNUT. Mr. Bachus, you are——
Mr. CHABOT. Mr. Chestnut, could you turn on the mike?
Mr. CHESTNUT. You are speaking to the choir. I argued.
Mr. BACHUS. Okay.
Mr. CHESTNUT. I argued to the court that we ought to have more time.
Mr. BACHUS. Okay.
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Mr. CHESTNUT. I argued to the court that the Monitor ought not to be somebody in Minnesota. I also argued to the court, Mr. Bachus, that the Monitor ought not to be white and sent two black women around there, and the judge said no.
Mr. BACHUS. Okay. But I just want to clarify, you know, the 180 days is really what we are talking about here. Because after that, it was natural disasters and hospitalizations. You know, that's not really an extension in my mind.
Mr. CHESTNUT. Some people started filing claims right after the Consent Decree was preliminarily approved. That was in January. That's 9 months.
Mr. BACHUS. I agree. Some of them had lawyers. I am just saying that we are talking about all of them.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from Virginia, Mr. Forbes, is recognized for 5 minutes.
Mr. FORBES. Thank you, Mr. Chairman.
Mr. Chairman, it's rare where we get a situation where we basically agree with all of our witnesses, and I think that's where we are today. Sometimes, we just make things a little more complicated than they need to be.
But I don't really see that this is a case of placing blame on anybody. It may very well be that when everything shifts out, this notice was legally proper. But the notice should always be to help stop abuse of process. But it shouldn't be part of encouraging abuse of process.
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And, let me say, I start out with two prejudices, or maybe one big one. Both my grandfathers were farmers, and neither one of them made it, for a long period of time. One had to become a carpenter. One of them went as a bridge tender. And I don't care whether you are a black farmer or white farmer in America; we put our farmers up against the ropes. And I am really concerned there will come a time where we are as dependent on foreign food as we are on foreign oil in America.
Let me just say one other thing about both my grandfathers. One of them only went to the third grade, and I don't care, he wouldn't have read the Wall Street Journal. He wouldn't have read The New York Times. But he wouldn't have read the local newspaper, but I would never have raised that issue to him that he wouldn't do that, because what he did is he got up in the morning, and he worked from the time the sun came up, and he worked until the sun went down, just to keep things going.
And my suspicion is we have got farmers out there that are the same way. Wouldn't have the magazine we put it in.
Mr. Burrell, in fairness, my grandfathers wouldn't have read the trade magazines, but what they would have read, the advertisements that came out in the catalogs, but they just didn't have time to do it.
And one of my concerns is this. I think most of us up here, we don't want a single farmer up here who doesn't have a meritorious claim to recover anything. But at the same time, we don't want any farmers in here who have meritorious claims not to recover.
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And so my question might be oversimplified, but I don't think our issue is whether we should help these farmers. The question I pose to all four of you is, given the situation where we are now, what can we do now to help these farmers?
Mr. CHESTNUT. I think, one, the res judicata of the United States could say, let all 65,000 in, and the Justice Department would ask class counsel to agree to that, and we surely would agree, and that would end the problem right there.
Mr. FORBES. Mr. Chestnut, in all due respect, that's above my pay grade. But what can we do on this Committee and in Congress to help these farmers?
Mr. CHESTNUT. I think Congress can fashion a law that deals with this problem. But I think it has to be very careful. Number one, the Consent Decree is now a contract, a binding contract between the parties and approved by the court. If you fashion legislation to undo that, you could raise all kinds of constitutional problems.
There is also the question of res judicata out there that has to be dealt with. But I think that you could create a new cause of action independent of—and pay for it—that would cover these people, and if you did that, I think you would solve the problem.
I don't think the problem could be solved in any other way. I could be wrong, but I don't think so. But I am also very apprehensive about, once again, falsely raising the expectations of poor black farmers who have suffered enough. They need to understand that there is a big difference between what is a legislative problem and what is a legal problem; what can and what cannot be done in the courts. And the Congress and the White House are the only two bodies that can resolve this problem in my opinion. I don't think it's going to be resolved in the courts.
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Mr. FORBES. And I want to get to Mr. Burrell.
But Mr. Chestnut, we would appreciate your further input on that with thoughts of solutions, if you could.
And Mr. Burrell?
Mr. BURRELL. Ladies and gentlemen of this Committee, the issue for all farmers in general, and black farmers in particular, with no disrespect, is not about legislation. Because if they had gotten—it's about discrimination.
If they were not discriminated against by USDA, if they had received their loans—so any other remedy that is short of freeing them up from the gravitational pull of discrimination at USDA, we will be right back here again.
One of the things in this Consent Decree that disturbed even the judge is that USDA admitted that it would pay the settlement, but it did not say that it will stop discriminating against black farmers.
So whatever else we do. If the farmer is left with going right back to the scene of the crime the morning after, USDA right now has it in its power to undo because the fact that discrimination is being allowed to exist at that agency.
And we just believe that this—first of all, this law sought should be reopened. But more importantly, we have bona fide borrowers, bona fide borrowers, who are being foreclosed on right now. We need some immediate resolution to at least get the Government to do what they did when they admitted to discrimination, and that is to get a moratorium on the foreclosure, stop the bleeding, at least in the short term.
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Mr. FORBES. Okay.
Mr. CHABOT. Okay, thank you. The gentleman's time has expired.
That concludes the questioning of the panel.
I want to thank the witnesses for being here this morning. I think they have very much helped this Committee in dealing with this very significant matter.
I would also let the members of the panel here know that we may be submitting some questions in writing, additional things that may have been brought up here. Maybe we didn't have time to go into some things, so we will perhaps be sending some additional questions to you.
I would also like to let everyone know that we are anticipating possibly having a field hearing, a hearing like this but outside of Washington, possibly in Ohio, possibly in Cincinnati, sometime—coincidentally, that happens to be my district. But it would probably be in late January. And we have, I think, a pretty good communication system going on here as far as getting information and people knowing when we are going to have these hearings. So we will—yes, we have good notice about getting that out. We probably won't be hiring your firm, Ms. Finegan, to get this notice out.
But nonetheless, we will make sure that everyone knows about that hearing, and we will welcome anybody that would like to attend to do that.
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And if there's no further business to come before the Committee, we, again, thank the members for their testimony here this morning, and we are adjourned.
[Whereupon, at 11:32 a.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO, AND CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION
Good morning. Thank you all for being here for this very important hearing. This is the second in a series of hearings the Constitution Subcommittee is holding on the 1999 settlement reached between the U.S. Department of Agriculture and a class of Black farmers who have experienced discrimination by the USDA.
From the time this Subcommittee began examining this issue, we have had more reasons than not to believe that the government has failed to ''do the right thing.''
I strongly believe, however, that with all of the information we are gathering in our oversight investigation, including through these hearings, we will have the understanding from which to develop a full and just solution.
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I would like to thank our witnesses for coming. Your insights, expertise, and institutional knowledge are critical to this Subcommittee in its efforts to find justice.
During the last hearing, my colleagues and I used our oversight authority to gain a better understanding generally of the Consent Decree.
However, as we continue to examine more closely certain aspects of the settlement and its administration, it has become increasingly apparent that certain Due Process protections, fundamental to the Constitution, are lacking in this case.
Due Process of the law is the legal concept that the Framers of our Constitution created to ensure that the government respects all—not some, or even most—of an individual's right to life, liberty, and property.
The Due Process Clause places limits on the government's ability to deprive citizens of these rights—guaranteeing fundamental fairness to all individuals. One of the most important safeguards that has evolved from this Clause is the right to notice—notice of a judicial proceeding in which an individual's right to life, liberty and property may be affected or eliminated altogether. The form of notice must be reasonably designed to ensure that those individuals will, in fact, be notified of the proceedings.
This fundamental right to notice applies to the 1999 Pigford Consent Decree and all those who had a viable claim of discrimination, which impacted their lives, liberty and property, against the Department of Agriculture.
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Tragically, recent statistics released on the Consent Decree suggest to this Subcommittee that this Constitutional right was not safeguarded in the construction and administration of the Consent Decree.
Although the notice campaign design was deemed to be effective by the court in a fairness hearing held on April 14, 1999, the determination was made using advertising industry tools designed to measure the likely effectiveness of a campaign, not the actual effectiveness of a campaign.
Reports indicate that approximately 66,000 potential class members submitted their claim late—most because they did not know that they were required to submit a claim sooner—losing their right to sue the USDA for past wrongs.
It is hard for many of us to accept that 66,000 farmers would consciously wait to have file a claim that would impact their right to life, liberty, and property—knowing that they were required to do so earlier.
Further investigation into the circumstances surrounding the late claims reveals that many farmers failed to get any notice whatsoever—or failed to understand the contents of the notice if they did. These facts lead this Subcommittee to conclude that the notice implemented in the Pigford case was either ineffective or defective—given the nearly two-thirds of the putative class failed to be effectively notified of the case requirements.
The hearing this morning will focus on the actual effectiveness of the notice campaign. As we learn more about this aspect of the Consent Decree, we will consider the appropriate remedy in order to protect the safeguards afforded by the Constitution and uphold Lincoln's vision that every Black American who wants to farm was the tools available to do so.
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I would like to close by putting a personal face on what Lincoln's vision means to people who have been impacted by the USDA's actions. This promise is still valued today, as this quote explains: ''I have worked all my life being a servant to God and his people in Chilton County, Alabama. . . . My forefathers were brought here to farm and the gift of loving the land has passed down for more than 10 decades. I am proud of the heritage in spite of the adversity.'' This is the sentiment of Bernice Atchison, one of the witnesses at today's hearing. It is for Bernice and all of those who still have faith in the promises of this country that we are here today working toward finding a solution.
Again, thanks to all of the witnesses for taking the time to tell their story today.
PREPARED STATEMENT OF THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA
Thank you, Mr. Chairman. Congressman Jerrold Nadler of N.Y., the Ranking Member for this Subcommittee, asked me to express his regret that he was not able to be here and to serve as Ranking Member today, in his stead. Although he is not able to be with us today, he strongly supports the efforts of this Subcommittee to examine the issues surrounding the Pigford Settlement and was instrumental in helping to develop these hearings.
I would also like to take this opportunity to note my appreciation for the leadership you have shown, Mr. Chairman, in seeking answers and solutions to the questions and problems that have come to light regarding the Pigford settlement, and for the time and attention you and your staff are devoting to pursuing these issues. And I, again, express my appreciation for the open, bi-partisan and productive manner in which you, Chairman Sensenbrenner, Agriculture Committee Chairman Goodlatte and your staffs have proceeded to work with us. Full Committee Ranking Member John Conyers, Rep. Watt, Rep. Bennie Thompson, Rep. Towns, Rep. Butterfield, Rep. Sanford Bishop, Rep. Baca and Rep. Autur Davis, and their staffs, have been an integral part of developing these hearings and the issues we are exploring as well, working closely with Black farmers and their advocates.
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This hearing is about the notice provisions for the Pigford Settlement. The information we have found reveals that some 96,000 claims were filed, but only about 22,000 of these claims were, or are slated to be, considered on the merits. The primary reason given for not considering the remaining claims on their merits is that they were not submitted during the initial period set by the court for the filing of claims, which ended October 12, 1999, 6 months after the settlement was entered into. By this time, approximately 22,000 claims had been filed. Upon realizing that claims were still pouring in beyond the initial deadline, the court set a deadline for accepting late claims. It was first set for January 30, 2000, but with claims still coming in, the court extended it to October 15, 2000. Some 66,000 additional claims were filed by the October 15, 2000 deadline, and another 7,800 after the deadline. Of the 66,000, only 2,100, approximately 3%, were accepted for a determination on their merits. While the merits of all of the 2,100 late claims accepted have not been determined, some have and, according to reports from the court appointed Monitor of the settlement, a significant number of those considered were found to warrant payment under the settlement agreement.
A large part of the problem in the settlement appears to have been that no one realized that there was the potential for so many claims to be filed. Early estimates of the potential ranged from a few hundred to, eventually, a few thousand. It does not seem reasonable to believe that the court would twice extend the period for filing claims simply to tell virtually all of the late filers—97% of them—that they had filed too late. Nor does it appear reasonable to believe that the court, or anyone, would have knowingly designed a claims procedure that would leave 75% of those who filed a claim without a way to get a determination on the merits. And it certainly does not seem reasonable to conclude that 75% of those who filed a claim knew before the deadline that they could, but intentionally waited to file their claim late. With the vast majority of claims being filed after the deadline had passed, my inclination is to think that effective notice did not reach most claimants in a manner that allowed them to file their claims on a timely basis.
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The court, in trying to accommodate this situation, gave the Arbitrator carte blanc authority to determine whether late filed claims should be let in due to ''extraordinary circumstances.'' Unfortunately, the Arbitrator established a process that resulted in virtually no one being able to show that they did not file on time due to extraordinary circumstances. Rather than applying this standard so narrowly as to leave 97% of the late claims out of the process, the Arbitrator might well have considered it to be an ''extraordinary circumstance'' that 75% of the claims filed in a class action settlement will not receive consideration on the merits.
There are, no doubt, a number of explanations and speculations for how we ended up with such a large percentage of the claims being filed beyond the court's initial filing deadline, and we will likely hear some of them today. Yet, whatever the reasoning, I find it unacceptable that 75% of those who filed claims will not receive a determination on the merits of their claim. However we got here, we have a finite number of approximately 72,000 claims in which long-standing, atrocious misconduct by the federal government is alleged, and I believe these claims should receive a determination on their merits. Not all of the claims will be found meritorious, but it would be a travesty of justice on top of a travesty of justice to prevent those claims that do have merit to be resolved in favor of the claimants.
So, Mr. Chairman, I want to thank you for scheduling this hearing. I look forward to the testimony of the witnesses for any suggestions they may have, not to cast blame, but to insure that justice is done for the victims of inexcusable government action. Thank you.
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PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
On April 14, 1999, I stood in victory with Black farmers across this country. The United States Department of Agriculture (USDA) had agreed to a $1 billion settlement in the Pigford v. Glickman case. Each black farmer was to receive at least $50,000 to settle claims that they were denied government loans because of their race.
I was disturbed to learn that USDA has denied payments to almost 90% of black farmers. Of the 94,000 growers who sought restitution for discrimination, 81,000 were turned away. The most glaring denial of compensation is the settlement-funded arbitrator's rejection of 64,000 farmers who came forward with claims during the late claims process established by the court. Since the Court in approving the settlement described the claims as almost ''automatic,'' we need to understand what has gone wrong and whether we have a continuing role.
At our last hearing, we started to unravel the procedural aspects of the consent decree that led to the denial of more than 64,000 claims. What became clear was that ''notice issues'' formed the threshold challenge for the claimants. Given the continuing nature of complaints against the USDA, this hearing is extremely well timed and I thank the Chairman for his spirit of cooperation in helping to shed light on these issues.
Before the parties move forward with additional litigation, it is incumbent on Congress to ensure that the goals of the Pigford settlement have been met by the USDA. Unlike most litigation, where Congress watches from the outside, we have taken a more active role here by extending the Statute of litigation and allowing claims to move forward.
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The primary issue for this hearing is why did these 64,000 individuals, plus another 7800 who filed a claim after the 2nd deadline, chose to file a claim, but only after the deadline(s) had passed?
Clearly, this raises the question of whether they received effective notice of the right or opportunity to file a claim withing the time frame(s). Many farmers and their advocates contend that the notice campaign developed by the Poorman Douglas Corporation for the Pigford settlement was not adequately tailored to reach black family farmers.
The most remarkable exclusion from the notice campaign was the lack of a direct mailing to these farmers. Although USDA conducts regular mailings to all farmers who receive loan or subsidy assistance, and has records of applications for these programs, notice of the settlement was not provided in regular USDA direct mail communications or in a mailing specifically aimed at putative class members.
Most class action notice campaigns include a direct mailing component as a way to reach the broadest audience of potential class members. This is vital, of course, because if putative class members do not learn of the settlement in time to opt-out, they lose the right to pursue their claims in court if they do not agree with the terms of the consent decree. I trust that both class counsel and the representative from Poorman Douglas will address this issue, which may form the basis for additional inquiry.
There are other obvious questions: the only television broadcasts of the notice were on cable TV channels: Black Entertainment Television and Cable News Network. Paid cable television may not available in many rural areas, and is generally considered costly for the average citizen. This is especially true for family farmers who must extend every resource to maintain the farm. Overall, despite the findings of the Court, the volume of late filings raises serious issue about whether the notice campaign was well crafted to reach potential claimants.
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The groundbreaking victory for civil rights at USDA has proved to be short lived. Black farmers face major obstacles in obtaining settlement payments in Pigford and continuing allegations of discrimination by the USDA have spawned additional litigation. Ultimately, the process seems to have failed the claimants.
In 1910 Black farmers owned about 16 million acres of land. Today, Black farmers own fewer than 2 million acres. In 1920 there were nearly 1 million Black farmers, but fewer than 30,000 exist today. Unless we can reverse this trend by upholding the principles of equality and fairness, black farmers—who once served at the backbone of our agricultural industry—may soon be nonexistent.
PREPARED STATEMENT OF GARY GRANT, PRESIDENT, BLACK FARMERS & AGRICULTURALISTS ASSOCIATION
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PREPARED STATEMENT OF OBIE L. BEAL
BFAA NEWS ARTICLES SUBMITTED BY CHAIRMAN CHABOT
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PREPARED STATEMENT OF LAWRENCE C. LUCAS
The U.S. Department of Agriculture (USDA) Coalition of Minority Employees, ''The Coalition'' is a multi-ethnic, multi-cultural, multi-racial organization with 55 presidents in 34 states. The Coalition is committed to changing the discriminatory culture at USDA and holding proven discriminatory officials and others accountable for reprisal against employees and farmers. The Coalition has informed USDA leadership on numerous occasions regarding the Department's historical and lingering problems; resulting in demoralized employees, injured customers and the wasting of millions of taxpayer dollars on the Department's dysfunctional civil rights process.
Currently, there have been thirty or more Class Action (employee) lawsuits that have been filed and a backlog of thousands of employee and farmer complaints requiring processing generated by discriminatory officials whose wrong doings go ignored. The US Equal Employment Opportunity Commission (EEOC), Office of Federal Operations, in a report dated February 26, 2003, confirmed ''The Coalition's'' allegations regarding the longstanding systemic problems in civil rights administration and processing. Despite the failures and shortcomings cited in the EEOC report, the Department is still in a state of denial, attempts to gloss over its systemic problems and fails to implement legal settlements regardless of the merits of these cases.
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The purpose of my testimony is to inform, apprise and sensitize members of this Committee and the American taxpayers of the terrible wrongs inflicted by USDA on this Nation's Black farmers and its employees.
Officials responsible for protecting the rights of Black farmers have failed, by concocting a scheme to block settlements and obstruct justice . . . as reported by Black farmers and the recent report written by the Environment Working Group (EWG). Those responsible for this mess are said to include the U.S. Department of Agriculture (USDA), the U.S. Department of Justice (DOJ) and the Attorneys for the Black farmers. Poorman Douglass, court ordered contractor, with a budget of only $385,000, was responsible for the administration of an inadequate notice process, that resulted in their failure to deliver timely information to Black farmers.
''The . . . settlement is a complete failure,'' said Marianne Calendar, a lawyer for the Environmental Working Group (EWG.) ''In part, it was the plaintiffs' lawyers who failed them. They took advantage of every aspect of the court's rules and the settlement's shortcomings to avoid responsibility. Black farmers failed to benefit from a consent decree that was supposed to remedy years of a ''sophisticated, race-based system of intentional discrimination'' that encouraged government officials to discriminate against them, by obstructing and denying the efforts of Black farmers to obtain loans and other programmatic assistance.
At the last hearing of the House Judiciary Committee, Subcommittee on the Constitution, Tuesday, September 28, 2004, lawmakers said the 1999 class action settlement did not help most of the farmers in the class. About 65,000 black farmers were excluded because they did not file claims in time, said subcommittee chairman Steve Chabot, R-Ohio. ''We cannot in good conscience allow a settlement that leaves out more potential claimants than it allows in to go unexamined or remain unresolved,'' Chabot said.
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The Pigford Consent Decree, signed by Judge Paul Friedman in April of 1998, is the written settlement agreement in the federal court case, Pigford et al v. Ann Veneman, Secretary of Agriculture; was settled in 1999 between the U.S. Department of Agriculture and Black farmers who sued the agency over race discrimination in loan practices and loss of millions of acres of land. Black farmers have complained since the settlement was entered into that the process was flawed. The Agriculture Department acknowledged a past history of discrimination and agreed to a two-tiered process of resolving claims. For both, claimants needed to prove that a similarly situated white farmer was treated better than they. Many had trouble acquiring evidence from USDA or local officials to establish unfair treatment. It appears that the wrong choices continue to be made by USDA officials, compounding the injustices emanating from USDA's failure to comply with the Consent Decree.
The settlement contained two options, Track A and Track B, Track A was a more simplified process. Ninety-Nine percent (99%) of the claimants opted for track A. This Track included a $50,000 settlement, plus $12,500 for taxes, forgiveness of previous federal loans and class wide injunctive relief. Track B was more difficult because the burden of proof was higher than in Track A. By opting for Track B, one could receive actual damages, but again, the burden of proof had to be ''beyond shadow of doubt''. The class action lawsuit should have paid more than 30, 000 eligible farmers several billion dollars and provided them forgiveness on loan debts for the USDA's discrimination.
To date, the lawsuit has compensated only 13,000 Black farmers $50,000 each, leaving tens of thousands uncompensated and denying them at least 3 billion dollars or more as well as the land stolen from them by the government. Over twenty-two thousand one hundred fifty nine (22,159) ''Track A'' applications were accepted in the lawsuit. On March 15, 2004, only 61% of the claims were ruled in favor of the claimants and 39% were denied. Although some denials were reversed, no one else has gotten paid in 2 years. The funds money dispersed is about $818,450,387, below the $2.4 billion claimed by the government. It's true that some people did get paid in the lawsuit. However, many more farmers would have been paid had as required by the Consent Decree, had they been notified by USDA. On April 14, 2004, the statute of limitations ran out and more than 65,000 potential claimants were shut out of the process, denying Black farmers an opportunity to prove their claims.
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The Coalition is grateful to the Environmental Working Group (EWG) and John Boyd, Jr., President, The National Black Farmers' Association (NBFA) for the dramatic report entitled, ''A Century of USDA's Institutionalized Racism Subjects African American Farmers to Dramatic Land Loss,'' from which much of the data for this document was obtained. USDA has a long and checkered past when it comes to spending the American taxpayers dollars on lawyers and attorneys to protect themselves against the wrongdoings, discriminatory activities, retaliation and abuses against Black, minority farmers and employees.
The USDA Office of General Counsel (OGC) has a long track record of using government funds to pay big expensive outside attorneys to protect them from customers and employees making claims against the Department. The reason for this waste is that USDA OGC attorneys lack the credentials, expertise and authority required to do it themselves. In addition, they frequently abuse the system and fail to apply laws appropriately. Many of them hide behind the government's dysfunctional abusive arcane civil rights process and successfully break the laws at the expense of the American taxpayer.
Based on historical data and widespread reports, papers filed in court and recent Hearing ''Status of the Implementation of the Pigford v. Glickman Settlement,'' held on Tuesday, September 28, 2004, U.S. House of Representatives, Subcommittee on the Constitution, Black farmers are still suffering at the hands of a failed process which was supposedly designed to protect them . . . not abuse them. This Congress of the United States owes it to the American taxpayer and Black farmers to get to the bottom of this dysfunctional process inside and outside USDA to right this egregious wrong intentionally perpetrated upon Black farmers by those with their own personal agendas . . . racism, sexism, reprisal, intimidation and other abuses.
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The Department of Agriculture has denied payments to approximately 90 percent of Black farmers, who sought compensation for discrimination under a landmark court settlement the agency reached with African American growers five years ago, according to a report released in July 2004, by the Washington-based Environmental Working Group (EWG). A two-year investigation found that USDA officials contracted with Justice Department lawyers who ran up a bill for 55,712 staff hours reviewing the claims . . . again wasting taxpayer money. to aggressively fight the farmers' claims after the settlement of the $3 billion class-action lawsuit. The Report states that of the 94,000 growers who sought restitution in a process set up by the court, 81,000 were turned away. The report, funded by the Ford Foundation, said the USDA's actions ''willfully obstructed justice'' and ''deliberately undermined'' the spirit of the settlement. Employees suffer from the same abuses and reprisals.
It has been proven that individuals including our own government have engaged in a hideous, collusive effort to deny Black farmers not just those in the Pigford class, but also the Black Farmers engaged in the administrative complaints process post Pigford efforts to derail the justice they deserve.
Dan Glickman, Former, Secretary of Agriculture, Under the Clinton Administration, tried to fix the civil rights mess at USDA and briefed incoming Secretary, Ann Veneman on the issues and the pitfalls of trying to change USDA historic racist culture. Mr. Glickman's advice seemingly fell on deaf ears and the power stayed in the hands of discriminating officials who continue to cover up for each other and distort the facts. This generated many additional cases and resulted in new class actions, fueling a culture of non-compliance with laws, settlements and Congressional mandates. This continues to this very day. Secretary Glickman the creator of the Office of General Counsel, Civil Rights Division, for the purpose of solving the problem . . . instead they are part of the problem.
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We must continue to expose those responsible for the injustices against farmers, at the hands of USDA . . . the Justice Department, Court Ordered Monitors, Arbitrators and even their own Attorney. Hopefully, these Hearings will help eliminate the institutionalized abuses partly due to poor USDA leadership and little to no accountability. Lawmakers and others now recognize that the 1999 class action settlement did not help most of the farmers in the Class. About 65,000 Black farmers were excluded because they didn't file claims in time due to a mostly flawed and inadequate notification process. We are ''sick and tired of being sick and tired.''
American taxpayer dollars are being used to fund abuses against Black and minority farmers as well as USDA employees. Hopefully, these Hearings will continue to surface this travesty of justice . . . masterfully designed and perpetrated by those seeking to thwart legal process. Upon corroboration of these allegations, I request that Congress pass legislation (attached) to assure that the approximately 64,000 Black farmers who did not benefit from the Pigford vs. Veneman Lawsuit receive a just and fair haring, on the merits of their cases.
The racial hatred and animus perpetrated by the USDA, dubbed, ''The Last Plantation,'' persists like a plague. USDA officials at the very top rung, through intention, deceit, passivity, inaction and neglect, have knowingly allowed and even encouraged top government administrators and lawyers as well as local federal Farm Service Agency officials across this land to trample on the civil rights of the Black farmers and to make a mockery of our precepts of freedom and justice.
In closing, this is not a Republican problem or Democrat problem, but an American problem and America will have to deal with it.'' The Agriculture Department has steadfastly contended the agency's record on civil rights laws has been exemplary. It cited numerous initiatives it has undertaken to give Black farmers a greater voice in the agencies organizational structure and its efforts to funnel more business to minority farmers . . . at the same time causing their decline. These actions undermine the intent of our constitution . . . freedom of speech and the James S. Sensenbrenner, ''No Fear Bill,'' H.R. 169.
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Too much has been lost and too much is at stake for Black farmers to just accept that the solution in 1999 has failed more people than it has helped. USDA the ''People's Agency'' established in 1862 under President Abraham Lincoln, has sabotaged its reputation and credibility by creating conditions that make farm ownership impossible and a providing an unhealthy work environment for employees. I recommend for the above stated reasons that the Office of Civil Rights be put in ''Receivership'' until such time that the Congress and the Bush Administrations can be guaranteed that this deplorable mess and dysfunctional system will be repaired once and for all and stop being a burden to American taxpayers.
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(Footnote 1 return)
J.L. Chestnut did not submit a written prepared statement prior to the hearing.
(Footnote 2 return)
The material referred to can be found in the prepared statement of this witness on pages 78-89 of this hearing.