An Aug. 13 article about a class action lawsuit filed by black farmers against the U.S. Department of Agriculture incorrectly reported that the lead plaintiff, North Carolina farmer Timothy Pigford, had withdrawn from the suit. Pigford fired his attorney but retained his claim. (Published 9/4/02)
Back when the class-action suit by thousands of black farmers against the U.S. Department of Agriculture was seen as one of the most successful civil rights lawsuits in American history, William H. Miller was a hopeful man.
It was 1999, and Miller, a south Georgia farmer who was then 68, had lived long enough to see the USDA offer a new deal to black farmers who, like him, had sued the agency for decades of discriminatory loan practices.
The suit's colossal settlement was designed to erase farmers' debts to government creditors, put $50,000 in their pockets and give black applicants priority for new loans. The agriculture secretary at the time, Dan Glickman, said it was the government's greatest effort to compensate rural black Americans since they were given the hope of 40 acres and a mule after the Civil War.
But like that broken promise, the lawsuit has become a bitter disappointment to the people it was supposed to help.
More than 12,800 black farmers have been paid a total of $623 million, and more than $17.2 million in outstanding loans has been forgiven. Yet many thousand other farmers have had their claims rejected, the totals of payouts and forgiven loans are far short of what was projected, and the USDA -- which under Glickman had acknowledged racial bias against black farmers going back decades -- is battling almost every claim filed.
In addition, the farmers' attorneys have made such monumental errors that a three-judge panel of the U.S. Court of Appeals in Washington has blasted them for incompetence bordering on malpractice, saying their actions amounted to a "double betrayal" of the farmers.
The lead plaintiff, a North Carolina farmer named Timothy Pigford, withdrew from the case in frustration; 60,000 farmers missed a filing deadline, so their claims cannot be considered; and the nation's largest black farmers' organization is still staging protests across the country against the terms of the settlement.
"What was promised and what has been delivered have been two different things," said Miller, who is appealing the rejection of his $50,000 claim.
From the tobacco fields of North Carolina to the cotton crops of the Mississippi Delta to the wheat fields of Minnesota, the nation's black farmers say these problems have so marred the settlement, and discrimination is still so entrenched in USDA field offices, that little or nothing has improved for black farmers as a group. And because billions of dollars in government subsidies continue to be directed to larger, wealthier farming operations, black farmers say, the settlement isn't enough to help them survive.
Blacks now make up less than 1 percent of the nation's 1.9 million farmers, and their numbers are dropping faster than those of white farmers. The USDA is a major source of farm loans and subsidies -- loans that farmers need to get their crops in the ground and subsidies that help shore up their operations. Access to timely loans is vital, particularly to those who run small farms, as most black farmers do.
"Many people are disturbed that for all the discrimination that occurred over so many years that the settlement money, even for those who won their cases, wasn't enough to really keep them farming," said John Zippert, director of program operations for the Federation of Southern Cooperatives in Epps, Ala. "I've been in this field for 37 years. I've never seen a black farmer who wasn't discriminated against by the USDA, and yet their claims are rejected almost as often as they're accepted."
In the Bush administration, problems have continued with the USDA, said Calvin R. King Sr., president of the Arkansas Land and Farm Development Corporation and a MacArthur "genius" grant recipient for his work with black farmers. "African American farmers continue to be foreclosed on by the USDA; they continue to not have timely access to loans," King said. "Even with this suit, it's almost a hill you can't climb."
Lawsuits concerning USDA discrimination had been bubbling around the nation's courts for several years, but the landmark case began when Pigford and a few other farmers filed suit in U.S. District Court in Washington in 1997.
Their claim, which Judge Paul L. Friedman certified as a class action, was that USDA officials in counties across the country for years had violated the Equal Opportunity Credit Act by systematically denying or delaying loan applications filed by black farmers.
Alexander J. Pires Jr., a Washington lawyer with experience in USDA suits, became the lead attorney, working with local law firms in the Deep South to pull together meetings of black farmers, enlist them in the suit and then represent them in court.
The settlement, or consent decree, that was reached in 1999 was a complicated affair.
There was no settlement for a pot of cash for the plaintiffs to divide, as is the norm in class-action cases. In fact, no one won any money automatically. Each farmer still had to prove he had been personally discriminated against.
The fast-track process for such claims -- Track A -- required farmers to prove they had tried and failed to borrow money from the USDA between 1981 and 1996 and had filed some sort of complaint about that denial. They also had to prove that similarly situated white farmers had been approved at the same time they were denied. If they could, each would get $50,000 tax-free and their USDA debts would be forgiven.
More than 98 percent of the eventual 22,891 class members chose this option, largely because Pires assured the judge that practically every farmer could meet those standards.
"I believe every one of the 80-something cases I've already done will all qualify," Pires told Friedman in the 1999 hearing that led to the settlement. "There are only four questions to be answered under Track A, and with this lawyer you can meet that standard. . . . The government has no record for most of these cases and those cases will survive. There is certainty in that."
Friedman approved the arrangement -- and then things started to go wrong.
Pires and his fellow lawyers had initially thought no more than 5,000 farmers would file claims. Instead, more than 80,000 full- or part-time farmers have filed, swamping the lawyers.
Further, because the farmers' lawyers decided to skip the discovery phase common in lawsuits, farmers had little access to USDA records, not to mention the financial dealings of their white neighbors. In fact, few farmers of any race kept such detailed records.
And once before an adjudicator, their claims did not go unchallenged. The USDA, despite officials' earlier admissions of discrimination, filed objections to almost every case in which it had records.
Projections of near-universal success vanished.
USDA statistics show that although 12,849 farmers won their claims, 8,476 did not. Farmers were so angry that more than 6,000 have filed appeals, and a court monitor in Minnesota now gets 2,900 complaining phone calls each week.
For the 184 farmers who chose a different avenue under the settlement to try to prove a more serious level of discrimination, things have been worse. This process -- Track B -- is a one-day mini-trial before a court adjudicator. Although 54 cases have settled out of court, the USDA has won 15 of 25 cases tried -- and is appealing nine of the 10 it lost.
"I understand how they might feel concerned, but there were no guarantees of prevailing under the terms of the consent decree," said J. Michael Kelly, the USDA deputy general counsel. "Maybe the paucity of victories says something favorable about USDA's treatment of black farmers to begin with."
Stephon Bowens, director of the Land Loss Prevention Project, a North Carolina-based agency that represents black farmers in financial trouble, rejects that analysis. The problem, he says, is the structure of the consent decree.
"One would think that if you could prove that if you were African American and farming from 1981 to 1996, that as a class, based on admissions made by USDA that black farmers were discriminated against, there should never have been any secondary phase to further prove discrimination," he said.
As the case wore on, another critical problem emerged: Pires and his fellow lawyers, who split nearly $15 million in fees awarded in the case, began missing court deadlines, meaning their clients could be disqualified on technicalities.
Friedman repeatedly extended deadlines for farmers, but his patience evaporated when Pires once told him, after missing another court-imposed deadline, that he had never intended to meet it. Friedman became so exasperated that he asked large law firms in Washington to work pro bono for the farmers, and he harshly criticized Pires in several court orders.
Some farmers are now circulating a mock "Wanted" poster, describing Pires as a "snake in the reparations grass." Gary Grant, head of the Black Farmers and Agriculturalists Association, the nation's largest such organization, filed a motion last month to have the court fire Pires for incompetence.
Pires, now representing other minority groups suing the USDA, declined a request for an interview.
One of his fellow attorneys, veteran Alabama civil rights lawyer J.L. Chestnut, warned the court early on that the settlement was unlikely to mollify black farmers' distrust of the government.
In a recent interview, Chestnut said the sprawling nature of the case, coupled with the poor records and frequently inadequate education of black farmers, made the case difficult to fit into the neat confines of modern legal action.
"Any court would have grave difficulties understanding the unique difficulties of dealing with poor black farmers in Alabama, Mississippi and Georgia who have been abused rather than helped by the government all their lives," he said.
Agriculture Secretary Ann M. Veneman met with a group of irate black farmers in mid-July. She said in a statement that she would try to mend relations with the farmers.
"If something is wrong, we need to fix it," she said. "If our employees need more training, we intend to give it to them. If we need to help cut the red tape and bureaucracy to better serve our constituents, then we intend to do it."