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White farmers suing USDA/FSA

Talk long enough to farmers put out of business by USDA and the images aren't hard to come by. There are some common ones: the humiliating drives to Farm Service Agency offices to hear the verdict on delinquent loans; the last, lonely walk across property soon to be auctioned off; the desperate pleas and tears delivered too often to a stony-faced government official.

But of them all, this is the most potent: a tombstone being torn from the soil of a fresh grave.

The tombstone in question marked the grave of Jimmy Paxton Sr. Before his passing seven years ago, Paxton - a catfish farmer in Isola, Miss. - lost almost everything he owned to the government.

A $26,000 USDA debt lead to foreclosure on Paxton's catfish acreage in May 1992. A year later, Paxton was struck dead with a stroke.

To pay outstanding debts, USDA had already taken Paxton's land and life insurance money. His widow, Grace, hadn't even the money for a grave marker.

"I asked them if I could just have enough to get him a tombstone," she says.

Assured USDA would release the needed money, Grace Paxton had the tombstone placed. But the agency never came through and Paxton's tombstone - to the horror of Paxton's surviving kin - was repossessed.

Upon hearing this story, the obvious questions are these: how could some USDA Farm Service Agency employee not have seen the inherent cruelty in such inaction? Was there no one in the FSA chain of command who was stirred with compassion? Did the case simply fall through the cracks?

Perhaps, suggests attorney James Robertson, the crux of USDA's problems lie in the fact that such questions need be asked at all.

Robertson, a former Mississippi Supreme Court justice, and several of his law partners have taken on Grace Paxton's grievances against USDA and its agencies. Bundled together with numerous other plaintiff complaints, Robertson has carried the lot into a federal courthouse in Jackson, Miss., where a pending class-action lawsuit against the USDA has been filed.

The start

Roughly a year ago, Roy Heidel and Donna Walker visited Robertson in his Jackson office for the first time. The two began recounting all the problems that they and other farmers - mostly in the south part of the Mississippi Delta around Sharkey, Yazoo and Humphreys counties - were having with the FSA. Much as black farmers had earlier, these white farmers wanted to take legal action against USDA.

Robertson agreed to look into the situation. After talking with several more farmers and reviewing documentation, a pattern readily emerged.

"The basic pattern holds two dimensions. One, farmers are denied loans that they are entitled to. Two, farmers are getting loans but receiving checks months later than when the money is needed. And usually the checks are for less than what the plaintiffs thought they'd get. There are nuances within those two themes, but those are the basics. It's hard to plant soybeans on time when you don't get your loan until July," says Robertson.

Black farmer settlement

How big an influence was the black farmers/USDA lawsuit settlement on this case? "I was aware of the African-American settlement with USDA. I read the newspapers. To me it was a civil rights settlement - probably more political than legal," says Robertson.

But after Robertson began reviewing his clients' cases, it occurred to him that he should look closely at the settlement.

"I got my hands on the legal documents and to my great surprise and pleasure found that the case - other than the fact that it's couched in discrimination terms - shows that the problems black farmers claimed to be having were exactly the same as my clients' problems. The substantive treatment the black farmers experienced in the papers I read was exactly the same.

"A friend of mine who knows the ins-and-outs of the FSA said, `Whatever made that judge in D.C. think that the only people being mistreated were the black farmers?' That's a fine question."

Robertson says one of the "great" moments involving the case came a few months ago at a meeting held in Itta Bena, Miss., at Mississippi Valley State University. Presided over by Rosalind Gray - who is a civil rights compliance officer for USDA - the meeting's purpose was to address the black farmers' sluggish settlement process.

"But a bunch of my clients went. After Gray's presentation, the audience was allowed to talk. What happened was a black farmer would get up and explain what had happened to him. A white farmer would stand up after him and offer similar stories.

"It was wonderful to watch. For a few minutes, there was no black or white. These farmers fed off each other. The same stories were heard despite the skin color," says Robertson.

USDA's response

What does the USDA say regarding the case's validity?

"They claim that the black farmers' case was totally a civil rights issue and that white farmers have no rights. They're disdainful of the entire idea. To their way of thinking the black farmers' case is totally a function of the civil rights compliance process within the USDA. That misses the point entirely."

(Editor's note: The Mississippi state FSA office refused comment on this story. A USDA spokesperson in Washington, D.C., had a one sentence response: "We will address this issue in the proper forum which is the legal system.")

Robertson says the substantive treatment of black farmers is identical to his clients.

"The civil rights compliance process has nothing to do with this case. There's a paragraph in the lawsuit where I emphasize that the damages black farmers are getting is a function of the fact that they weren't given loans they were entitled to, that loans weren't dispersed in a timely manner, and that loans were often less than had been promised. Discrimination as a practical matter has nothing to do with it. That's the legal hook you have to hang on to to bring a lawsuit. But when you think about it practically, it has nothing to do with it.

"In other words, I may go to FSA and apply for a loan that is turned down. They may turn me down because of my race, because my hair color is wrong, because my looks offend them. They may not even have a reason," he says.

What has a financial impact on the farmer is the denial of the loan. Why he didn't get the loan has nothing to do with the adverse economic impact of not getting it, says Robertson.

"That's how we're approaching the case. Of course, the legal hook we have to use is that the black farmers have gotten this and the only difference between the two lawsuits is race. Substantively, the government treated both sets of applicants the same way."

How will Robertson and his colleagues address those who claim plaintiffs - whether black or his clients - are simply bad farmers and bad money managers?

"I've told my clients that belief is out there and we'll have to address it. There are two ways we're going to address that. First, we'll show that these people aren't bad farmers. In the class certification papers we submitted a number of individual declarations (legal papers that tell plaintiffs' stories). In each, the farmer told why he or she is a good farmer and why that didn't matter."

Robertson charges a common ploy of FSA is to address anyone who bucks against them as "a sorry farmer. FSA uses this ruse as a way to avoid addressing the merits of individual cases," he says.

Loan timing

"The second thing we must do - given the way FSA handles timing of loans - is show it wouldn't matter how good a farmer you are, you can't make it work. Timing is the critical thing," says Robertson.

USDA regulations say FSA must act on a loan application within 60 days. If approved, the agency must hand over a check within 30 days of approval.

Such a lengthy period, says Robertson, "is crazy. Go ask a bank officer how long it takes them to act on a farmer's loan. If it's someone they know, a response will come the next day.

"Ninety days is absurd as a reasonable timeframe. Several of my clients - because of past timing troubles with FSA - tried to apply for loans as early as November the year before. FSA refuses to accept those applications because they're too early. You have to show up after the first of the year. You can't beat the game by going in early."

Invariably, even on repeat applications, there are troubles, says Robertson. A farmer will fill out the forms and turn them in, thinking he's applied properly. Six weeks later, the FSA office will tell him he's not provided some piece of information. He then goes to the office, provides the additional information and the FSA restarts the 60 day count.

"They interpret the 60-day time period as 60 days from completed application. He may go through filing the forms three or four times before they're actually complete in the FSA's eyes.

"Even if the process works as it should, 90 days to get a loan is crazy. Any good banker would laugh at that. Bankers want the farmer to succeed - they know timing for a farming operation is critical. FSA hasn't figured that out. Or they don't care."

Delta Farm Press has spoken with a loan officer in a Delta bank about loan timing. He agrees that 90 days is prohibitive. "For me, that just wouldn't work. In the springtime, my farmers need to be out in the field quickly - not waiting around for a check. Farmers are already behind the eight-ball as it is. They can't be hamstrung with a late check," says the officer.

The system

Does Robertson think the FSA system is entirely flawed? Or does he think the people within the system are ill-equipped, overworked, incompetent or just plain mean? "It's all of the above, but it's more fundamental than that. The impression I've gotten from dealing with numerous cases is a lot of people in FSA want to do a good job, but they have about 10 times too much work."

One of the underlying problems is USDA - with congressional backing - has set up a massive program and provided about a tenth of the personnel and money needed to administer it, says Robertson.

"My prejudice is that's the core problem. Obviously, there are some bad eggs there. Depending on who you talk to, the number of those eggs varies. Not surprisingly, many of the plaintiffs believe there are just terrible people in the FSA."

Personnel changes

Another dimension to this - one many black farmers frequently complained about in their lawsuit - is the frequent FSA personnel changes.

"Anecdotally, I'm told that officers switch so much it's almost impossible to sometimes figure out where a loan application is, where paperwork has gone. So the farmer ends up starting the filing process over, leaving him in an even bigger hole," says Robertson.

Delta Farm Press has seen documents from a recent USDA National Appeals Division review of a farmer's case. NAD concludes, while denying the farmer's appeal, that a key factor in the farmer's loan troubles was FSA "organizational turnover and other administrative slippage...."

The Department of Justice wants the white farmers' lawsuit moved from Mississippi to Washington, D.C. Why are they pushing to move?

"The judge down here certainly hasn't been mistreating the government lawyers. I can't imagine why they'd want to move unless they think they'll get some home-cooking. I guess the government prefers to be sued in D.C.," says Robertson.

The list of plaintiffs shows most are from the South. Does Robertson think that's because this area's FSA offices are worse?

"No. Word of this lawsuit just hasn't spread. Recently, I've been getting calls from South Dakota, Nebraska and Iowa."

How many potential plaintiff's contact Robertson weekly?

"It varies. We have probably heard from close to 800 people so far. I'd say up to 50 percent of those are from Mississippi. But it's increasingly from folks outside the state. We've heard from farmers in 33 different states."

Any settlement talk yet? "None at all. Presently pending before the court are the government's motion to dismiss and our motion for class certification. Until we clear those two hurdles, I don't expect any settlement discussions.

When does Robertson anticipate rulings? "That's like asking a farmer when it'll rain. I don't know. On the motion to dismiss, all the papers are in. The judge could decide that tomorrow. He can always call for oral arguments. But other than that, there's nothing else for us to do. The government hasn't yet responded to the motion for class certification. We've agreed that the court may hold off on that one until the ruling is made on the motion to dismiss."

TAGS: Legislative
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