June 8, 2001
U.S. District Judge Paul Friedman has a monumental decision to make. Presiding over Pigford vs. Glickman (more commonly known in coffee shops as “the black farmers' lawsuit”), Friedman, having already pushed signup deadlines back several times, must now figure out what to do with an additional 50,000 black U.S. citizens wanting into the lawsuit as claimants. His yea or nay is expected shortly. Many millions, perhaps billions, of taxpayer dollars hinge on his pen-stroke.
Meanwhile, from all colors of the ethnic rainbow, copycat lawsuits have sprung up. American Indians, Asians, Hispanics and whites have all filed, or are preparing to file, separate suits alleging discrimination and incompetence at the hands of USDA agencies.
Few would argue that there haven't been instances of discrimination within USDA agencies in the past. But with so many groups leveling the charge and telling essentially the same story (late FSA loans resulting in late planting and poor yields, bad book-keeping, failure to disclose loan options or new programs properly, etc.), the overriding charge should perhaps shift from discrimination to simple bureaucratic ineptitude. And in dealing with the black farmers' lawsuit, the former brass at USDA certainly didn't do much to dispel such criticism.
Pigford is actually the last of several lawsuits brought by black farmers against USDA. As late as 1995, a lawsuit charging USDA with racism against not only blacks but also Hispanics was filed in Washington, D.C. Titled Williams vs. Glickman, the suit was quickly given the boot by Judge Tom Flannery, who said the suit wasn't worthy of class-action status.
Attorneys filed Pigford in 1997. The suit is actually an amalgamation (at the direction of Judge Friedman) of two suits — one filed by Timothy Pigford and the second by Cecil Brewington. Both men hail from North Carolina, where the suits were brought.
What made these cases viable when their forerunners weren't? Chief among the reasons are that Pigford was filed on behalf of black farmers alone for a specific time period and, most importantly, the political climate was ripe for the charges.
In 1994, Dan Glickman was named secretary of agriculture, replacing Mississippian Mike Espy.
Two years later, a group of black farmers assembled outside the White House gates to protest racism within USDA. The national media covered the assemblage and aired the group's charges.
Shortly thereafter, following a quick investigation, Glickman said that the charges were indeed true: the agency he'd looked after for two years was shot through with racism.
No evidence of the found racism was offered. Instead, several things took place. First, Glickman created a Civil Rights Action Team (CRAT). Then, in January 1997, an 11-stop, coast-to-coast jaunt (termed a “listening tour”) was scheduled. According to reports, the tour was well-attended, and the 11-member CRAT did plenty of note-taking.
The touring personnel eventually returned to Washington, D.C., and CRAT began blaming USDA's Civil Rights Division (CRD) as having been derelict. That charge was proven true when it was discovered that over 900 discrimination complaints were waiting to be handled by CRD. This was largely due, CRAT claimed, to perpetual reorganization within the office.
CRAT wanted action and Glickman accepted the findings and recommendations of the team. First, the 900-plus discrimination complaints were quickly reviewed (at a cost of millions of dollars). Reportedly, only a handful were found to hold discrimination-proving potential. That was, apparently, enough for Glickman and colleagues to start looking for cover.
Still, no one — not USDA, not the attorneys, not black farmers — had a clue that with these original USDA actions a seed was being planted. That seed would soon bloom into a demon flower.
Lowering the bar
Into this setting came the aforementioned Pigford and Brewington lawsuits. Judge Friedman combined the two and, in the fall of 1998, certified the suit class-action. Class attorneys began to salivate.
There were still hurdles, however. One potential problem was dispatched by the Congressional Black Caucus. The federal statute of limitations for discrimination claims is two years. The black caucus pushed legislation through Congress that opened the window of discrimination complaints to include anything between Jan. 1, 1981, and Dec. 31, 1996. The waiver was passed as an amendment to the (fiscal year) 1999 agriculture appropriations bill.
Cowed by mounting criticism from black politicians and a well-executed public relations push by class counsel and black farmer organizations, USDA folded. In April 1999, a consent decree was okayed by Judge Friedman.
While steady criticism of USDA had originally come from black farmers and attorneys, once the decree was signed, a torrent of venom was unleashed by many outside the suit. Was any of this true? If discrimination hadn't been definitively proven, why settle? Why not just go to trial? And, most pertinent: why agree to such a flawed document in the first place?
In retrospect, the last question is the most haunting.
Regardless, class counsel needed suit members. Criss-crossing the country, attorneys held meetings everywhere. Meanwhile, USDA spent over $400,000 taking out ads on the settlement in a variety of print media and on television. The push was on.
According to one Delta farmer who attended class-counsel meetings, attorneys promised “easy money quick. They wanted as many names on the signup sheet as possible. They did a great job selling this thing. I'd be surprised if more than a few farmers walked out without signing up. You know, $50,000 and debts getting forgiven ain't nothing to sneeze at. Who wouldn't want a piece of that?”
Who indeed? And that's why a group of claimants originally estimated to number some 2,500 when the decree came down has swelled to around 22,000. And just offstage, waiting for Friedman's next big announcement, are an additional 50,000 people clamoring for a piece of the USDA settlement pie.
That pie is made up of two tracks: A and B, which are the options claimants have for resolving their cases.
Winning a Track A claim is easier and means a $50,000 payment, loan forgiveness, and prime future loan positioning. Each case is heard by an adjudicator. The overwhelming majority of claimants go with Track A.
Few claimants have chosen to go Track B, which is reserved for those wanting more than the awards listed above. Evidence requirements are much more stringent than with Track A cases. Winners of Track B cases, however, stand to get millions of dollars along with loan forgiveness and other considerations.
There were early signs that USDA had agreed to a terribly flawed settlement. Just a few months into the signup, even claimants say they had trepidation about how the case was being handled.
“There are legitimate cases of discrimination. People don't want to hear that, but it happens, man. There's no doubt about that. But when you open up this suit like they did, people are gonna come out of the woodwork. There's no doubt there's been fraud. Anyone who says that ain't happening doesn't know human nature. But the fraud slows things down and (taints) those of us with legitimate claims,” says a black farmer.
How easy is it to claim USDA discrimination and join the suit? Well, if one is criminally inclined, it isn't too hard. Get over the moral hurdle, and it's easy sailing.
To become a claimant (other than skin color, obviously) three criteria must be met. First, you have to have been discriminated against during the “window” outlined above. Second, you must claim to have applied for a loan or payment and been turned down for discriminatory reasons. Third, you must have filed a discrimination complaint prior to July 1997.
Taken at face value these criteria would seem to do a good job of weeding out fraud attempts. But there are caveats. For example, the key word in the second criteria is “claim.” A claimant doesn't need a shred of evidence beyond a spoken sentence or two.
The third criteria is hardly an impediment to fraud. In fact, it's practically an invitation to it. If no record exists of a complaint being filed, a claimant need only have one of three things:
A statement from a non-family member stating the claimant filed such a complaint.
A statement from a non-family member that they were in earshot when USDA personnel were told of a complaint by the claimant.
Copies of a letter to a government official (state or federal) stating the claimant has been discriminated against.
Obviously, any bogus claimant can find an accomplice to corroborate his story or back-date a letter or two. This, apparently, never occurred to Mr. Glickman or his colleagues.
USDA apparently didn't anticipate a problem arising from USDA recordkeeping. The agency keeps records on unsuccessful loans for only three years. As Pigford was open to complaints from 1981 to 1997, FSA had no records prior to 1994 to combat discrimination claims.
“Surely Glickman and the lawyers up there knew that (FSA) had to take (claimants') word as truth prior to 1994. They had to have known we didn't have those records,” says a current FSA employee.
FSA, however, keeps records of successful loans for up to 30 years. This, say black farmers Delta Farm Press has spoken with, means fraudulent claims are paid quicker because FSA has less to fight with.
“If you've got some FSA fellow that you've been having trouble with for 10 years, he can make your life hell out on the farm. But (claim in the lawsuit that) the guy has discriminated against you and watch the papers fly. These guys know the ins-and-outs of my operation and can manipulate things in their favor. It may not be racism now,” says a claimant, “it may be that that FSA (fellow) is trying to cover his own (rear).”
Or maybe not. However, the facts are that as of December 2000, the government had won some 40 percent of nearly 20,000 cases heard by adjudicators. The vast majority of their wins came against claimants who have been farming legitimately and thus have a paper trail.
Undoubtedly, the files on record helped refute most of those 8,000 discrimination claims. This is brought home by pointing out that of the 12,000 cases the government has lost, less than 10 percent were refuted by FSA documents.
Which is it?
Who is to blame for the predicament one unpaid claimant finds himself in?
“Everyone shares the blame. I haven't been paid yet going on three years! What some (lawsuit) members are doing is wrong and class counsel has made lots of mistakes. But USDA gets its share, too. No one made them agree on that settlement. They try and blame everybody else for how it's turned out, but no one was holding a gun to (Glickman's) head when he signed the thing.”
Ladle some blame out for Congress, too, says another current FSA employee. “During the 1980s, getting money appropriated for the loan programs on time was a constant irritant. It wasn't that we weren't doing our job, it was that there just wasn't any money to disperse. That falls on Congress.
“Then during the 1990s, Congress appropriated money on time but our personnel and resources were drastically cut back. Either way, farmers are hurt and FSA gets slapped around. That's not right.”
So which is it: discrimination or ineptitude? According to the majority of farmers and FSA employees Delta Farm Press has spoken to, with few exceptions it's mostly ineptitude.
“We're under major pressure and don't have enough resources,” says an FSA employee. “With budget cuts, USDA keeps piling work on us and it's hard to keep up. Anyone with half a brain could see USDA was setting itself up for a lawsuit years ago. Farmers don't need loans coming through in July. They need money early. I talked to other (FSA) employees about this way back. A lawsuit was inevitable. I just didn't think it'd take this form.
“There are going to be bad apples in every work place. I don't doubt there are a few racists running around FSA and that there are black farmers with legitimate claims. But racism has nothing to do with 99.9 percent of late checks and stupid regulations. White farmers' checks are late, too.
“And here's the other thing, if Glickman was right and there really were a bunch of racists at USDA, what happened to them? Has anyone asked about that? Do you think they're still on the job? No one seems to know, and Glickman isn't around to ask.”
Abraham Carpenter Jr., (a claimant Delta Farm Press profiled in-depth last fall) says the promises of USDA, class counsel and the lawsuit have vaporized. He wants resolution.
“The same problems black farmers experienced have been experienced by other races. But, for whatever reason our lawsuit was settled for, the facts are that injustices occurred,” says Carpenter.
Even black caucus leader Bennie Thompson, D-Miss., in comments about the white farmer lawsuit against USDA, has said, “I can see little difference in the way black farmers were treated in Pigford and what has happened to the farmers in this suit… I believe (the white farmers' lawsuit) has the potential to be larger than the black farmers' suit once word gets out.”
If Thompson is correct, then discrimination isn't the crowning problem at USDA. Instead, a solid argument can be made that the major problem at USDA is foolish leadership overseeing an antiquated system. Whatever the case, it needs fixing.
EDITOR'S NOTE: Class counsel didn't return numerous calls for comment on this story. Also, a USDA spokesperson says that at this time the department has no comment on questions raised in this story. The text of the consent decree along with updated statistical data from the Pigford case can be found at: www.usda.gov/da/consent.htm.
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