January 24, 2013
Tired of waiting for resolution of Pigford II, the Memphis-based Black Farmers and Agriculturalists Association (BFAA) is stoking the fire under those adjudicating the settlement.
Towards that end, the BFAA has filed a petition for writ of certiorari with the U.S. Supreme Court. After that, it may be off to present grievances to an international court in The Hague.
While it seems unlikely the Supreme Court will rule in the BFAA’s favor, Thomas Burrell, the organization’s director, doesn’t seem overly bothered. And his threat to drag the USDA’s dirty laundry before the international court – potentially placing it alongside some truly evil, despotic characters -- is a new gambit in the long-running Pigford saga.
For full Pigford coverage, see here.
The BFAA petition, “requests that the Supreme Court, in effect, instruct the appeals court to send up the case files,” says Burrell. “We believe there are still due process violations as it relates to these lawsuits.”
All nine Supreme Court justices will review the claim. If four of them agree, they’ll grant certiorari. From there, several things could happen.
“They can schedule the defendant, USDA, to file memorandums in response to what we’ve said. They can schedule a hearing. The most important thing is once certiorari is granted, we’ll go before them. Our attorneys will make our arguments. Ordinarily it takes 30 to 60 days after that for them to rule.”
The BFAA, claiming glaring due process and equal protection violations in the drawn out resolution of Pigford II, has produced a 28-page document articulating its positions. The Supreme Court, “could grant us basically everything we’ve asked for, some of what we’ve asked for, a little of what we’ve asked for. They could give us what we asked for plus (more) to correct the constitutional violations we’ve stated in our objections.”
Similarity breeds contempt
The BFAA complaints also include the way more recent class-action lawsuits alleging discrimination by the USDA against minorities have been handled. Following on the heels of the first Pigford case, women (Love v Vilsack), Hispanics (Garcia v Vilsack – which will share a $1.25 billion settlement with Love claimants), and Native Americans (Keepseagle v Vilsack -- settled in 2010 for $760 million) settled discrimination suits against the USDA.
More on Love here.
The simple fact is that the similarities between the suits means that the way they are adjudicated will always be a potentially divisive issue. And Burrell has been watching the scoreboard very closely since the original Pigford case, filed some 13 years ago.
“We argue that all those lawsuits are being adjudicated differently with different results, with varying amounts of money,” says Burrell. “That’s a classic due process and equal protection violation.”
To make his points, Burrell is unapologetically willing to push hot buttons – and claims of favoritism for some minorities over others – most would prefer remain untouched. “How do you need five different water fountains for all the victims? All five groups have one thing in common: they were all victims of racial discrimination by USDA. Why do you need five water fountains, five buses, five schools? This is a classic case of separate and unequal.
“We don’t believe the Supreme Court will agree with (the suits’ set-ups) because they found that separate is inherently unequal in both Brown vs. Board of Education (for states) and Bolling vs. Sharpe (for federal institutions).”
So far, he claims, no Pigford II claimant has been paid from the $1.25 billion settlement set up in the 2008 farm bill.
“That’s another argument. Those in Keepseagle are being paid. They began to be paid last August. The court said they’d pay Native Americans because they were victims of the 2012 drought and, ‘We’ll pay them so they can go back to their farming operations.’”
Obviously, the drought affected more than Native American farmers.
“What about black farmers affected by the drought? Again, this is a due process violation. You will pay Group A for reason X yet Group B – also a victim of X – isn’t paid. That’s one of the most glaring, due process and equal protection violations in the last 50 or 60 years.”
Another problem, says Burrell, is three different judges adjudicating cases of racial discrimination by the exact same defendant.
“Why do you need three judges to adjudicate the five cases? Judge A may give his clients one thing, Judge B gives another, and Judge C denies his. And that’s exactly what is going on.”
Judge Paul L. Friedman of the U.S. District Court for the District of Columbia,“is denying the black farmers in Pigford II while, down the hall, the Keepseagle judge is giving Native Americans relief.”
Are the Love/Garcia/Keepseagle cases set up on the same Track A/Track B as Pigford?
“No, the Track Bs are different,” says Burrell. “In Garcia and Love, they’ll get ‘injunctive relief.’ In Pigford II there is no such relief. The only thing Pigford II victims will get is the $1.25 billion, which is limited. However, in Garcia/Love/Keepseagle there is no limit, no cap. So, ultimately, those individuals are more likely to receive ‘actual damages,’ which approximate their losses.”
Meanwhile, an African American farmer’s damages may be declared but -- with 60,000 Pigford II claimants competing for the $1.25 billion pot -- it is unlikely he will be made whole. “Mathematically, there’s no way these individuals will get $50,000 each or anything close. The black farmers in Pigford II won’t even get the same relief as the farmers in Pigford I.”
That would be just fine with those pointing to near-constant fraud claims that have dogged both Pigford and Pigford II. Have the allegations impacted the process? Is that a reason things have been slowed for claimants?
While Burrell admits the fraud claims have hit Pigford claimants hard, he says black farmers have shouldered an undue amount of suspicion. He also challenges authorities to prove the allegations.
“You’re right, (the fraud claims) are out there. But why only for this class of individuals? … I’m not saying there was fraud committed in Garcia or Keepseagle. But why is this cloud of suspicion hovering over the heads of African American farmers?
“The fact that there is a fraud claim doesn’t mean you prevent the person having equal access to the law. If there’s fraud, then prosecute the person guilty of it.
“The fraud claim now is tantamount to what we call ‘a badge of slavery.’ You only have the fraud claims in the African American lawsuit. Are you telling me Native Americans aren’t capable of fraud? That Hispanic Americans aren’t capable of fraud? Are you telling me that the white women who want to be paid in Love aren’t capable of fraud?
“The only individuals in the United States now who are suspected of, and subjected to, the suspicion of fraud are African American? That, in and of itself, is smacks of racism. That is invidious discrimination.”
More importantly, regarding the fraud allegations, are the 13,000 claimants in the first Pigford case that were paid. Those 13,000 “were proven by the courts to be victims of racial discrimination by employees of USDA. That isn’t a claim – that’s a real situation. What (happened) to those USDA employees who violated the victims’ rights?
“Nothing was done to those who violated 13,000 folks’ rights. But now you’re going to tone down the relief for victims who share common issues with the 13,000? And that’s based on being suspected of fraud? That’s a pretext and nothing but invidious racial discrimination, the very type that led to (claimants) having to file a suit in the first place.
Another twist, or two
And The Hague waits.
“We also believe we should file an appeal with the International Court of Justice. This is a serious human rights and civil rights violation.
“This country is the beacon of civil rights. Yet, in 2013, we’re still dealing with the vestiges of an era that I think every red-blooded American citizen would like to see behind us. We should be free of the vestiges of discrimination that (we object to in) other countries.
“We aren’t planning any civil disobedience in this country. But we will continue to go before the higher courts of justice and get them to weigh in – whether in the United States or in The Hague.”
In another twist, BFAA members will try to hitch their wagons to the other discrimination settlements.
Without prodding, Burrell offers that he will soon travel to Little Rock for a BFAA meeting. While there, members will “fill out paperwork in the Garcia and Love lawsuits. That’s because there are more benefits and relief (in them). For those who didn’t get into the Pigford suits, we believe black farmers have the same rights to get the same relief.
“We’ve asked (members) to request claim forms from the Portland, Oregon, claims administrator (for Garcia and Love). And we’re going around the country helping them fill those forms out.”
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