BLACK FARMERS CLASS ACTION CASE:

TIMOTHY PIGFORD, et al. v. ANN VENEMAN, Secretary of the U.S Department of Agriculture, and CECIL BRWEINGTON, et al., v. MIKE JOHANNS, Secretary of the U.S. Department of Agriculture, Civil Class Action Cases Number 97-1978 (PLF) and Number 98-1693 (PLF); Filed: August 28, 1997, U.S. District Court for the District of Columbia; Case "Settled and Terminated": April 14, 1999; Motion for Reconsideration filed on February 3rd, 2005 in re the Court's January 2005 Opinion denying a previous motion by a group of Black Farmers to modify the Consent Decree, by Attorney Charles Jerome Ware, Charles Jerome Ware, P.A., Attorneys and Counsellors.

1. Terms of the Consent Decree

Under the consent decree, an eligible recipient is an African American who (1) farmed or attempted to farm between January 1, 1981, and December 31, 1996, (2) applied to USDA for farm credit or program benefits and believes that he or she was discriminated against by the USDA on the basis of race, and (3) made a complaint against the USDA on or before July 1, 1997. The consent decree set up a system for notice, claims submission, consideration, and review that involved a facilitator, arbitrator, adjudicator, and monitor, all with assigned responsibilities. The funds to pay the costs of the settlement (including legal fees) come from the Judgment Fund operated by the Department of the Treasury, not from USDA accounts or appropriations.

2. Case history

The lawsuit was filed in 1997 by Timothy Pigford, who was joined by 400 additional African-American farmer plaintiffs. Dan Glickman, the Secretary of Agriculture, was the nominal defendant. The allegations were that the USDA treated black farmers unfairly when deciding to allocate price support loans, disaster payments, "farm ownership" loans, and operating loans, and that the USDA had failed to process subsequent complaints about racial discrimination.

After the lawsuit was filed, Pigford requested blanket mediation to cover what was thought to be about 2,000 farmers who may have been discriminated against, but the U.S. Department of Justice opposed the mediation, saying that each case had to be investigated separately. As the case moved toward trial, the presiding judge certified as a class all black farmers who filed discrimination complaints against the USDA between 1983 and 1997.

The Pigford consent decree established a two-track dispute resolution mechanism for those seeking relief.

The most widely used option was called "Track A" which could provide a monetary settlement of $50,000 plus relief in the form of loan forgiveness and offsets of tax liability.

Track A claimants had to present substantial evidence (i.e., a reasonable basis for finding that discrimination happened) that:

• claimant owned or leased, or attempted to own or lease, farm land;
• claimant applied for a specific credit transaction at a USDA county office during the applicable period;
• the loan was denied, provided late, approved for a lesser amount than requested, encumbered by restrictive conditions, or USDA failed to provide appropriate loan service, and such treatment was less favorable than that accorded specifically identified, similarly situated white farmers; and
• the USDA’s treatment of the loan application led to economic damage to the class member.

Alternatively, affected farmers could follow the "Track B" process. Track B claimants had to prove their claims and actual damages by a preponderance of the evidence (i.e., it is more likely than not that their claims are valid). The documentation to support such a claim and the amount of relief are reviewed by a third party arbitrator, who makes a binding decision. The consent decree also provided injunctive relief, primarily in the form of priority consideration for loans and purchases, and technical assistance in filling out forms. Finally, plaintiffs were permitted to withdraw from the class and pursue their individual cases in federal court or through the USDA administrative process.

This settlement was hastily approved on April 14, 1999, by Judge Paul L. Friedman of the U.S. District Court for the District of Columbia.

[see, "The Pigford Case: USDA Settlement of a Discrimination Suit by Black Farmers," Congressional Research Service, Tadlock Cowan (January 13, 2009); www.blackfarmercase.com; cnsnews.com/news/article/ "Thousands of Black Farmers File Claims in USDA Discrimination Settlement"; www.washingtonpost.com/02-19-2010/ "U.S. Approves Settlement for Black Farmers"; www.reuters.com/2010-02-18/"Black Farmers Win $1.25 billion in Discrimination Suit"]