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‘NOTICE’ PROVISION IN THE

PIGFORD V. GLICKMAN CONSENT DECREE

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

NOVEMBER 18, 2004

Serial No. 117

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JOHN R. CARTER, Texas 

TOM FEENEY, Florida 

MARSHA BLACKBURN, Tennessee 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

STEVE CHABOT, Ohio, Chairman

STEVE KING, Iowa 

WILLIAM L. JENKINS, Tennessee 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MELISSA A. HART, Pennsylvania 

TOM FEENEY, Florida 

J. RANDY FORBES, Virginia 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ADAM B. SCHIFF, California

PAUL B. TAYLOR, Chief Counsel 

E. STEWART JEFFRIES, Counsel 

HILARY FUNK, Counsel 

MINDY BARRY, Full Committee Counsel 

DAVID LACHMANN, Minority Professional Staff Member 

(III)

C O N T E N T S 

NOVEMBER 18, 2004

OPENING STATEMENT 

Page 

The Honorable Steve Chabot, a Representative in Congress from the State 

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 1

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia ............................................................................................................. 2

The Honorable Spencer Bachus, a Representative in Congress from the State 

of Alabama ............................................................................................................ 4

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan ................................................................................................. 5

WITNESSES 

Mr. J.L. Chestnut, Jr., Chestnut, Sanders, Sanders, Pettaway & Campbell, 

L.L.C., Class Counsel, Pigford v. Glickman

Oral Testimony ..................................................................................................... 8

Ms. Jeanne C. Finegan, APR, Consultant to Poorman-Douglas Corporation 

(Court-Appointed Facilitator, Pigford v. Glickman) for Communications and 

Public Relations, and formerly Vice-President and Director of Huntington 

Legal Advertising, a division of Poorman-Douglas Corporation 

Oral Testimony ..................................................................................................... 9

Prepared Statement ............................................................................................. 11

Mr. Thomas Burrell, Farmer 

Oral Testimony ..................................................................................................... 175

Prepared Statement ............................................................................................. 177

Ms. Bernice Atchison, Farmer 

Oral Testimony ..................................................................................................... 205

Prepared Statement ............................................................................................. 207

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Steve Chabot, a Representative in 

Congress from the State of Ohio, and Chairman, Subcommittee on the 

Constitution .......................................................................................................... 275

Prepared Statement of the Honorable Robert C. Scott, a Representative in 

Congress from the State of Virginia ................................................................... 276

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan ............................................................. 277

Prepared Statement of Gary Grant, President, Black Farmers & 

Agriculturalists Association ................................................................................ 279

Prepared Statement of Obie L. Beal ...................................................................... 282

BFAA News Articles submitted by Chairman Chabot ......................................... 288

Prepared Statement of Lawrence Lucas, U.S. Department of Agriculture Coalition of Minority Employees ............................................................................... 295

(1)

‘NOTICE’ PROVISION IN THE

PIGFORD V. GLICKMAN CONSENT DECREE 

THURSDAY, NOVEMBER 18, 2004

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to call, at 10:05 a.m., in Room 

2141, Rayburn House Office Building, Hon. Steve Chabot (Chair of 

the Subcommittee) Presiding. 

Mr. CHABOT. The Committee will come to order. This is the Judiciary Subcommittee on the Constitution. I am Steve Chabot, the 

Chairman of the Subcommittee. Good morning. Thank you all for 

being here for this very important meeting. 

This is the second in a series of hearings the Constitution Subcommittee is holding on the 1999 settlement reached between the 

U.S. Department of Agriculture and a class of black farmers who 

have experienced discrimination by the USDA. 

From the time this Subcommittee began examining this issue, we 

have had more reasons than not to believe that the Government 

has failed to do the right thing. I strongly believe, however, that 

with all of the information we are gathering in our oversight investigation, including through these hearings, we will have the understanding from which to develop a full and just solution. 

I would like to thank our witnesses for coming. Your insights, expertise and institutional knowledge are critical to the Subcommittee in its efforts to find justice. 

During the last hearing, my colleagues and I used our oversight 

authority to get a better understanding of the Consent Decree. 

However, as we continue to examine more closely certain aspects 

of the settlement and its administration, it has become increasingly 

apparent that certain due process protections fundamental to the 

Constitution may be lacking in this case. 

Due process of law is the legal concept that the framers of our 

Constitution created to ensure that the Government respects all, 

not some or even most, of an individual’s right to life, liberty, and 

property. The due process clause places limits on the Government’s 

ability to deprive citizens of these rights, guaranteeing fundamental fairness to all individuals. 

One of the most important safeguards that has evolved from this 

clause is the right to notice, notice of a judicial proceeding in which 

an individual’s right to life, liberty, and property may be affected 

or eliminated altogether. The form of notice must be reasonably designed to ensure that those individuals will, in fact, be notified of 

2

the proceedings. This fundamental right to notice applies to the 

1999 Pigford Consent Decree and all those who had a viable claim 

of discrimination which impacted their lives, liberty, and property 

against the Department of Agriculture. 

Tragically, recent statistics released on the Consent Decree suggest to this Subcommittee that this constitutional right was not 

safeguarded in the construction and administration of the Consent 

Decree. Although the notice campaign designed was deemed to be 

effective by the court in a fairness hearing held on April 14, 1999, 

the determination was made using advertising industry tools designed to measure the likely effectiveness of a campaign, not the 

actual effectiveness of a campaign. Reports indicate that approximately 66,000 potential class members submitted their claims late, 

most because they did not know that they were required to submit 

a claim sooner, thus losing their right to sue the USDA for past 

wrongs. 

It is hard for many of us to accept that 66,000 farmers would 

consciously wait to file a claim that would impact their right to life, 

liberty, and property, knowing that they were required to do so earlier. Further investigation into the circumstances surrounding the 

late claims reveals that many farmers failed to get any notice 

whatsoever or failed to understand the contents of the notice if 

they did receive the notice. These facts lead this Subcommittee to 

conclude that the notice implemented in the Pigford case was either ineffective or defective as nearly two-thirds of the putative 

class failed to be effectively notified of the case requirements. 

The hearing this morning will focus on the actual effectiveness 

of the notice campaign. As we learn more about this aspect of the 

Consent Decree, we will consider the appropriate remedy to protect 

the safeguards afforded by the Constitution and uphold Abraham 

Lincoln’s vision that every black American who wants to farm has 

the tools available to do so. 

I would like to close by putting a personal face on what Lincoln’s 

vision means to people who have been impacted by the USDA’s action. This promise is still valued today, as this quote explains, and 

I quote: ‘‘I have worked all my life being a servant to God and his 

people in Chilton County, Alabama. My forefathers were brought 

here to farm and the gift of loving the land has passed down for 

more than 10 decades. I am proud of the heritage in spite of the 

adversity,’’ unquote. This is the sentiment of Bernice Atchison, one 

of the witnesses at today’s hearing. 

It is for Bernice and all of those who still have faith in the promises of this country that we are here today working toward finding 

a solution. 

Thanks to all of the witnesses for taking the time to tell their 

story and thank you all for attending this hearing. Many of you 

have come from far away at considerable expense and circumstances, and we appreciate your being here. 

And I would recognize the gentleman from Virginia, the Ranking 

Member, at least this morning, for the purpose of making an opening statement. Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Congressman Jerry Nadler of New York, the Ranking Member of 

the Subcommittee, asked me to express his regret that he is not 

3

able to be here and asked me to serve as Ranking Member today 

instead. As you know, the Clinton Library is opening today, and we 

had scheduled this not knowing that. And frankly many of us 

didn’t want to upset the scheduling of this meeting and try for another date since we wanted to keep this date. But several of the 

Members for that reason are not here. 

Mr. Nadler strongly supports the efforts of this Subcommittee to 

examine the issues surrounding the Pigford settlement and is instrumental in helping to develop these hearings. 

I would like to take the opportunity, Mr. Chairman, to express 

my appreciation for the leadership that you have shown in seeking 

answers and solutions to the questions and problems that have 

come to light regarding the settlement, and for the time and attention you and your staff are devoting to pursuing these issues. And 

I express my appreciation for the open, bipartisan and productive 

manner in which you, Chairman Sensenbrenner, Agriculture Committee Chairman Goodlatte and your staffs have proceeded to work 

with us. 

Full Committee Ranking Member Mr. Conyers, Mr. Watt, Mr. 

Thompson, Mr. Towns, Mr. Butterfield, Sanford Bishop, Artur 

Davis and their staffs have also been an integral part in the development of these hearings and the issues that we’re exploring, as 

well as working closely with black farmers and their advocates. 

This hearing is about the notice provision of the Pigford settlement. The information we have found reveals that some 96,000 

claims were filed, but only 22,000 of these were or are slated to be 

considered on the merits. The primary reason for not considering 

the remaining claims on the merits is they were not submitted during the initial period set by the court for the filing of claims, which 

ended October 12, 1999, 6 months after the settlement was entered 

into. By that time, approximately 22,000 claims had been filed. 

Upon realizing the claims were still pouring in beyond the initial 

deadline, the court set a deadline for accepting late claims. This 

was first set for January 30, 2000, but with claims still coming in, 

the court extended it to October 15, 2000. Some 66,000 additional 

claims were filed by the October 15 deadline and another 7,800 

after that deadline. Of the 66,000, only 2,100, approximately 3 percent, were accepted for determination on their merits. 

While the merits of all of the 2,100 late claims accepted have not 

been determined, some have; and according to the reports of the 

court-appointed Monitor of the settlement, a significant number of 

those considered were found to warrant payment under the settlement agreement. 

A large part of the problem of the settlement appears to have 

been that no one realized that there was the potential for so many 

claims to be filed. Early estimates said the potential ranged from 

a few hundred to eventually a few thousand. It does not seem reasonable to believe that the court would twice extend the filing 

deadline for filing claims simply to tell virtually all of the late filers 

that they had filed too late. Nor does it appear reasonable to the 

court that anyone would have knowingly designed a claims procedure that would leave 75 percent of those who filed a claim without 

any way to get a determination on the merits. 

4

It certainly does not seem reasonable to conclude that 75 percent 

of those who filed a claim knew before the deadline that they could 

but intentionally waited to file their claim late. With the vast majority of claims being filed after the deadline had passed, my inclination is to think that effective notice did not reach most claimants 

in a manner that allowed them to file their claims on a timely 

basis. 

The court in trying to accommodate the situation gave the Arbitrator carte blanche authority to determine whether or not late 

claims should be let in due to extraordinary circumstances. Unfortunately, the Arbitrator established a process that resulted in virtually no one being able to show that they did not file due to extraordinary circumstances. Rather than applying the standard so 

narrowly as to leave 97 percent of the late filers out of the process, 

the Arbitrator might well have considered it to be an extraordinary 

circumstance that 75 percent of the claims filed in a class action 

settlement will not receive consideration on the merits. 

There are, no doubt, a number of explanations and speculations 

for how we ended up with such a large percentage of the claims 

being filed beyond the court’s initial filing deadline, and we will 

likely hear some of them today. Yet whatever the reasoning, I find 

it unacceptable that 75 percent of those who filed claims will not 

receive a determination on the merits of their claim. However we 

got here, we have a finite number of approximately 72,000 claims 

in which long-standing, atrocious misconduct by Federal Government officials is alleged; and I believe that these claims should receive a determination on their merits. 

Not all of the claims will be found to be meritorious, but it would 

be a travesty of justice on top of a travesty of justice to prevent 

those claims that do have merit not to be resolved in favor of those 

claimants. 

And so, Mr. Chairman, I would think—I want to thank you for 

scheduling the hearing. And I look forward to the testimony of the 

witnesses for any suggestions they may have, not to cast blame, 

but to ensure that justice is done to the victims of inexcusable Government action. 

Mr. CHABOT. Do any Members of the panel wish to make opening 

statements. Mr. Bachus? 

Mr. BACHUS. I thank the Chairman. 

I want to go back to 1984. This same Subcommittee had a hearing in 1984, and I think it is important when we consider whether 

these people that did not file on time, whether or not we allow 

them to have their claims heard on the merits; and that is what 

this Subcommittee found back then, and that was 20 years ago. 

It examined the very issues that led to the Pigford settlement, 

and what it found was that there was pervasive racial discrimination in the USDA’s operations of its loan programs. Not only did 

the court find that much later, but as far back as 1984 this Subcommittee came to that conclusion. In addition, it found that there 

was an ineffective and often nonexistent civil rights complaint process within the USDA. Moreover, the hearing found that there was 

a complete and irreparable harm experienced by many black farmers by the illegal, racially discriminatory practices used by USDA. 

5

I think that alone, the fact that this Congress took that testimony and came to those conclusions in 1984 makes it incumbent 

on us today to resolve any doubts in favor of these farmers who—

and I think there is no real dispute about it today that they did 

receive—they were discriminated against, it was pervasive, and 

that in many cases, it is irreparable. 

The fact that they will get $50,000 is not really going to compensate them for their damages. Even if their claims are allowed 

to go forward, they are not going to recover. Their children are not 

going to recover. So I think it is incumbent on us. And if the 

court—and I attribute good motives to the people. I think there 

were good people involved in fashioning the notice process. I don’t 

question that. But in hindsight—and we have all done things that 

we thought at the time were sufficient, but later on because of the 

results, we found that they were insufficient, that they didn’t work. 

And the very fact that three out of four of the claimants that have 

now filed claims didn’t file on time, I mean that alone ought to tell 

all of us—that ought to be sufficient for us to know that it was insufficient notice. 

And the idea that the judge extends the notice but then denies 

all the claims and doesn’t go to the merits, that is almost—you 

know, somebody lets you file late and then turns you down because 

you filed late, that is no—that is almost adding insult to injury. So 

I think it’s incumbent on us to go forward with this, and I mean 

actually take some action that will—it won’t compensate these 

farmers. We found that back in 1984. 

Twenty years ago this Committee concluded no matter what we 

do, they are not going to be put back to where they were. And you 

can’t uncrack eggs. 

Thank you, Mr. Chairman. 

Mr. CHABOT. The very distinguished gentleman from Michigan, 

the Ranking Member of the full Judiciary Committee, Mr. Conyers, 

is recognized for making an opening statement. 

Mr. CONYERS. Good morning, Chairman Chabot and Members of 

the Committee. And to the distinguished witnesses and all those 

who have taken their time to join us again in the Judiciary Committee, I am very proud to be with you again. 

And I would like to just, first of all, begin by saying that I believe 

that former President Clinton, if he knew what made us decide to 

continue these hearings and keep those of us here who would have 

liked to have been in Little Rock today for the dedication going on 

there, but he might have said, I am glad you decided to stay and 

continue this hearing. 

And so, Mr. Scott and I and others would have liked to have been 

there, but on balance, the historic significance of this referred to 

by the gentleman from Alabama, Mr. Bachus, is so profound that 

we have to consider the issues just for a moment on a little bit 

larger note. 

I would like to put my statement about the narrow issue that 

brings us here into the record. But let me point out that Chairman 

Steve Chabot and Mr. Scott, Mr. Nadler and Spencer Bachus have 

done something that I think should be recognized here. They have 

all made, from their particular points of analysis, incredibly signifiVerDate 0ct 09 2002 15:26 Feb 01, 2005 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 G:\WORK\CONST\111804\97230.000 HJUD1 PsN: 97230
6

cant and similar statements in the direction of where we are and 

how we got to this point. 

Chairman Chabot did not have to call this hearing. And as has 

been observed, had we not gone forward, it is very unlikely that 

there would have been any further action taken on this matter in 

the 108th Congress. And so it is in this spirit of mutual understanding that brings us here that I would like to make these observations over and above the process question of late filing of claims 

for just a minute here. And that is to say that the question of how 

African American agricultural leaders and their families and communities and as individuals have been treated historically is now 

coming to the first—well, not the first, but one of the most candid 

discussions that I have ever been witness to. 

And I would like to take this time merely to describe—and I am 

open to meeting with my colleagues on the Committee, as well as 

the farmer leaders that are assembled here today about any refinements that are necessary. But it seems to me that we on the Committee, as Members of Congress, have to go to the Agriculture 

Committee of the House of Representatives to continue the much 

wider hearing on these historic issues. And I think with our Republican counterparts that we stand a fair chance of having that done. 

I am prepared, of course, as Steve is, to go to the Chairman of 

the Judiciary Committee with whom we have had cordial working 

relations for two terms. Now we need to get all of this—there are 

so many peripheral issues that probably won’t be gone into today; 

we need to get this on the record, the historical record of the Congress, and it should come from the Agriculture Committee. 

The other item that we need to do is continue the examination 

of the plight of the black farmer in America, currently and historically, from the perspective of bringing in some of our think tanks 

and our institutions that deal in special, particular issues to begin 

to also complement what we expect will be the work of the Agriculture Committee in the 109th session. That would also include 

the Congressional Black Caucus input and many other organizations that work here in the capacity of think tanks that do these 

kinds of things, because we are now at the point, it seems to me, 

Spencer, that we can now begin to build an historical base unlike 

any that has been assembled before, and I think it will set the 

framework for the resolution of many of these long-standing problems and move us out of a very unfortunate past, which only our 

heirs to the future are in a position to correct. And I thank the 

Chairman for his consideration. 

Mr. CHABOT. Do any other Members wish to make opening statements? 

We will move to introduce the witnesses. Our first witness this 

morning will be J.L. Chestnut, Jr. Mr. Chestnut was born in 

Selma, Alabama in 1930. He graduated from the Howard University Law School in 1958. 

In 1959, Mr. Chestnut opened his law office in Selma, becoming 

the first African American to ever open a law office in that town 

and one of only nine black lawyers practicing in the State of Alabama. In his capacity as NAACP lead counsel, he facilitated the 

implementation of the Brown v. Board of Education school desegregation decision in Alabama. 

7

In 1963, he helped the first professional civil rights worker to 

visit Selma persuade local African Americans to attend the first 

mass meetings. That was the beginning of the Selma movement, 

which later led to the greater civil rights victory in the passage of 

the Voting Rights Act in 1965. When Martin Luther King set up 

shop in Selma in 1964, Mr. Chestnut represented Dr. King. Dr. 

King and Mr. Chestnut worked together to plan much of the historic Selma civil rights battle. He was lead counsel, at least lead 

class counsel in several class action cases, and is class counsel in 

the Pigford case. 

After a distinguished career handling many civil rights cases, he 

is the senior partner in the largest black law firm in Alabama, 

which is the oldest predominantly African American law firm in 

the Nation. He also sits as a trustee on the board of the University 

of South Alabama, is a founder of both the Alabama Democratic 

Conference and the Alabama New South Coalition and is chairman 

of the board of deacons at the First Baptist Church. 

Our second witness will be Jeanne Finegan, a representative of 

the Poorman-Douglas Corporation, which is the firm appointed by 

the court to serve as Facilitator in the Pigford settlement. Ms. 

Finegan is president of Capabiliti, L.L.C., and is a specialist in 

class action notification campaigns. 

She has provided expert testimony regarding notification campaigns and conducted media audits of proposed notice programs for 

their adequacy. She has lectured, published, and has been cited on 

various aspects of legal noticing. Ms. Finegan has implemented 

many of the Nation’s largest legal notice communication and advertising programs and has designed legal notices for a wide range of 

class actions. 

Prior to establishing Capabiliti, Ms. Finegan co-founded Huntington Legal Advertising and spearheaded other companies. She 

has been a reporter, anchor, and public affairs director for several 

Oregon radio stations and worked for a television station. She is 

the author of many articles and is a speaker and panelist for public 

and private organizations. 

And we welcome you here. 

Our next witness is Thomas Burrell, a black farmer representative. Mr. Burrell was born May 7, 1949, in Covington, TN. Except 

for the time he has spent away at college, he has been a lifelong 

resident of Covington. 

As an adult, Mr. Burrell farmed his own land. He is a veteran 

of the Vietnam war and is graduate of the school of business at the 

University of Michigan. He is also the father of three and has two 

grandchildren. 

And we welcome you here. 

Our final witness today is Ms. Bernice Atchison. Ms. Atchison 

was born in Chilton County on May 1, 1938. She married Alan C. 

Atchison on May 14, 1953, and they supported their family by 

farming as they raised eight children together until her husband 

died in 1992. She and her son continue to farm in Chilton County 

to this day. 

And we welcome you here this morning, Ms. Atchison. 

If we could have all the witnesses stand for a moment, we have 

a policy to swear in witnesses. 

8

1 J.L. Chestnut did not submit a written prepared statement prior to the hearing. 

[Witnesses sworn.] 

Mr. CHABOT. I would like to familiarize you with our rules here 

relative to testifying. We have a lighting system. Each witness is 

given 5 minutes and the green light will be on for 4 of those minutes. A yellow light will come up that lets you know you have 1 

minute to wrap up and the red light indicates that all 5 minutes 

have elapsed. We will give you a little flexibility on that, but we’ll 

ask you to wrap up as close to the 5 minutes as possible because 

we are on relatively strict time limits around here, and we want 

to make sure everybody has an opportunity to ask questions and 

the hearing moves along. 

So we again want to thank all the witnesses for coming here this 

morning. And, Mr. Chestnut, we will begin with you. 

STATEMENT OF J.L. CHESTNUT, JR., CHESTNUT, SANDERS, 

SANDERS, PETTAWAY & CAMPBELL, L.L.C., CLASS COUNSEL, 

PIGFORD V. GLICKMAN 1

Mr. CHESTNUT. Mr. Chairman, Ranking Member and Committee 

Members, I thank you for the opportunity of appearing here. 

My involvement in the Pigford litigation is really an extension of 

my life. Pigford did not rise out of a vacuum. It is one of many disgraces of what we were going through in Selma in 1958 when I 

opened a law office there as the first and only black person dedicated or dumb enough to do so. 

Less than 70 blacks in the whole county were registered to vote, 

and each potential voter had to be vouched for by a white person. 

And there were black and white water fountains, black and white 

restrooms, graveyards. Not one black person in the whole State had 

served on a jury in 100 years. No blacks had jobs downtown anywhere in Alabama. And the all-white, all-male police department 

did whatever, whenever to whomever in black Alabama and nobody 

dared asked any questions. It is out of that that Pigford comes. 

I was representing Congressman John Lewis when he was 20 

years old in Selma and other places around Alabama when neither 

he nor I could know that we would live out the day. So it was natural that I would become a part of Pigford. And I had been in the 

front ranks of the black struggle, now for almost 50 years. 

When I came into the litigation, the Government would not even 

discuss settlement in this doubtful case and it was doubtful. And 

the Government later changed its mind and said it would discuss 

possible settlement on a case-by-case basis. In the court’s 65-page 

opinion, the judge quotes my argument against that assertion, saying it took us 15 years to get Pigford before a judge. They would 

always throw it out and dismiss it. And now if we do what the Government suggests, we will be here forever, case by case. 

And I insisted that the court set a trial date, because in my judgment the Government would never seriously consider settlement 

unless there were a trial date. And the court set a trial date. And 

that’s when a settlement in this case really became possible. 

It was also at that point that I decided to educate, if you please, 

my class counsel, Phillip Fraas, about some black facts of life that 

he couldn’t possibly know or understand. In fact, number one is 

9

that we face a cultural disconnect. I don’t know of any other way 

to put it. Except for a core of dedicated and perennial-optimist 

black farmers, no one would believe—no black farmer would believe 

that a Government that for 150 years had ruined them would now 

help them. They would only believe that when there was something 

tangible and concrete what they could see or check. And by the 

time that happened, we would have serious problems because you 

can’t keep a class action open in perpetuity. That is not the way 

the law is set up. 

Early on I said to my co-counsel that is a serious problem that 

we will have to face. And in the end, when there is nobody else to 

blame, they will blame us. I know that because for 50 years I have 

been representing poor black folk, and I know what it is to be 

blamed when you can’t get done what people are entitled to have 

done. 

The second problem was that we could, in my considered opinion, 

succeed in winning all the money in the world and all the injunctive relief in the world, and as Congressman Bachus pointed out, 

we would not come close to producing justice that these poor black 

folk deserve. It just couldn’t be done in the context of a lawsuit. At 

best, it’s a piecemeal approach to piecemeal justice. And once 

again, somebody will have to be blamed in the end, and it will be 

us. And by ‘‘us,’’ I mean the lawyers. I fully expected it and said 

it early on. 

Mr. CHABOT. I am going to be blamed for letting you know that 

you are out of time, but we’ll give you an additional 2 minutes if 

you could wrap it up in that time. And we are going to ask you 

questions and so you will be able to get into this. 

Mr. CHESTNUT. Mr. Chairman, I believe if you sent your staff out 

tomorrow, within weeks they could find another 65,000 AfricanAmericans who didn’t file, but who now want into this lawsuit. 

That is the cultural disconnect. That is a far deeper problem 

than legal notice. 

Mr. CHABOT. Thank you very much. 

Ms. Finegan, you are recognized for 5 minutes. 

STATEMENT OF JEANNE C. FINEGAN, APR, CONSULTANT TO 

POORMAN-DOUGLAS CORPORATION FOR COMMUNICATIONS 

AND PUBLIC RELATIONS, AND FORMERLY VICE-PRESIDENT 

AND DIRECTOR OF HUNTINGTON LEGAL ADVERTISING, A 

DIVISION OF POORMAN-DOUGLAS CORPORATION 

Ms. FINEGAN. Mr. Chairman, thank you. My name is Jeanne 

Finegan, and I am pleased to appear before you on behalf of 

Poorman-Douglas Corporation, the court-appointed Facilitator in 

the Pigford case. 

Poorman and its division, Huntington Legal Advertising, participated in the development and implementation of the direct mail 

and the advertising components of the Consent Decree. I directed 

the advertising components and Nicole Hammond, my colleague, 

who is here today, was responsible for the direct mail component. 

As set forth more fully in Exhibit 1 to my written statement, I 

have over 13 years of experience in the development of legal notice 

plans and class action and bankruptcy, and over 20 years of experience in the field of communication. 

10

Mr. Chairman, I appreciate the opportunity to address our involvement in the notice and claims administration process in 

Pigford. We know that some have raised questions about that notice program. But in order to place our work in context, I thought 

that it might be helpful for me to address some of those questions 

up front to you and to the Members of the Committee. 

First, does the late—the number of late applicants show that the 

notice program was flawed or inadequate? We believe the answer 

is no. 

One purpose of the notice program was to provide awareness of 

the complaint process. The Pigford notice did raise awareness. This 

is shown by the over 96,000 phone calls that Poorman received during the claims period from January to October 1999. This was one 

of the largest, sustained call volumes in a single case in the company’s history. Some 53,000 requests were made for mail claim information. 

These requests greatly exceeded all expectations. By the claims 

filing deadline, we had mailed nearly 50,000 claim forms and received back almost 18,000 completed forms. 

As this Committee has heard from others, about 50 percent of 

the 67,000 individuals who applied to file a late claim were aware 

of the settlement in advance, but did not act in time. As this evidence confirms, a notice program may generate interest and awareness, but it cannot make someone file. 

The decision to act or file a claim is influenced by many factors. 

The notice program is only part of that overall decision. So why did 

so many class members file late claims or seek to file late claims? 

African American farmers have faced a long history of discrimination. Many class members may have believed that even with a 

legitimate claim, relief would not be forthcoming. This perception 

may have reduced, at least initially, the desire of many class members to act. 

The media also tended to reaffirm this perception. If the farmer 

did not trust the settlement was genuine, this certainly would have 

affected their behavior. But as word spread that the settlement relief was being granted, class members became increasingly confident that filing a claim would not, in fact, be a waste of time. At 

this point, the deadline was upon them and many were unable to 

file in time. 

The problem then is not that the class members’ awareness was 

late, but class member activation was late. And I am not certain 

that any notification program, by itself, could have remedied that. 

However, this speculation begs the question, how did PoormanDouglas develop the media strategy that was used? 

We used well-accepted scientific industry methodology to develop 

our recommendations. We used data from reliable media research 

bureaus such as Mediamark Research and Nielsen to identify 

model class members by both their demography and their media 

consumption habits. From this information, we developed our recommendations for a media strategy. 

The Consent Decree specified the following requirements: that a 

copy of the notice of class certification and the proposed class settlement was mailed to all then-known class members; a one-quarter-page newspaper ad was placed in over 27 general circulation 

11

newspapers and over 115 local African American newspapers in an 

18-State region. A full-page ad was placed in the 18-State regional 

edition of TV Guide and a half-page ad was placed in the national 

edition of Jet Magazine. 

Mr. CHABOT. Your time has expired. We would appreciate it if 

you could wrap up. 

Ms. FINEGAN. I would be happy, of course, to answer any questions that the Committee may have about any aspect of our work 

on the Pigford notice program as negotiated by the parties and approved by Judge Friedman. We believe that the plan did meet its 

goals. 

[The prepared statement of Ms. Finegan follows:]


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Mr. CHABOT. Mr. Burrell, you’re recognized for 5 minutes. 

STATEMENT OF THOMAS BURRELL, FARMER 

Mr. BURRELL. Thank you very much, Mr. Chairman. My name is 

Thomas Burrell. I’m the President of the Black Farmers and 

Agriculturalists Association, Inc. I’m a past farmer and son of a 

lifelong farmer and a grandson of farmers as well. 

To the Honorable Members of the United States House of Representatives, Chairman James Sensenbrenner, Ranking Member 

John Conyers and Constitution Subcommittee Chairman Steve 

Chabot, Honorable Bobby Scott, Ranking Member on the House Judiciary Committee Constitution Subcommittee, on behalf of the 

Black Farmers and Agriculturalist Association board of directors, 

State presidents, members of BFAA, the thousands of black farmers denied relief under the flawed Pigford Consent Decree, track A 

and track B, 70,000 black farmers designated as late filers, the 

thousands of potential class members and their heirs and the new 

black farmers class action lawsuit, we thank you for giving us this 

opportunity to be heard this date. 

I would like to start my discussion relative to the invitation that 

I received, sir, and that was to talk about the notice provision of 

the Consent Decree; and in my opinion, by derivation, that would 

then lead us to paragraph 4 of the Consent Decree. And in paragraph 4, as Ms. Finegan made reference to, the Facilitator, it is our 

understanding as is expressed in this Consent Decree, was required 

to notify farmers. 

And I am sure you would appreciate the fact that in the last 

Committee hearings, you heard comments from individuals. You 

have heard comments this morning. But one of the things that we 

have not, and I’m waiting to hear is not why so much black farmers or the mystery that people seem to ascribe to the fact that 

black farmers did not react. The mystery is simple. They simply 

were not notified. 

One of the things that I think was missing as well is an understanding of the fact that black farmers are notified about opportunities basically the same way white farmers are notified. And that 

is if John Deere or Case International was going to sell a new tractor, Case is going to use the same advertisement to white farmers 

that they are going to use to black farmers. They call the magazines. They listen to the dealers in that area. 

Black farmers purchase equipment the same way and buy their 

seeds the same way. Therefore, if you’re going to notify them about 

any other opportunity, you do it the same way you notify white 

farmers. You notify them through their local newspapers. You talk 

to them through their local radio stations. 

We are somewhat dismayed that in an attempt to notify black 

farmers in 18 States in the South, you use media who are not culturally and occupationally attuned to those farmers. When John 

Deere gets ready to sell a combine to a white farmer, they don’t call 

the Wall Street Journal or Newsweek. Advertising is cultural and 

it is also, shall we say, occupational oriented. 

Black farmers, here again, most of them do not have access to 

cable television, as was referenced in the notice. To those elderly 

176

black farmers who do not read in the first place, advertising and 

notice in Jet Magazine or Ebony is not sufficient. 

More importantly, in my close, sir, I would like to state we are 

prepared to answer not only why black farmers were not notified, 

but to give some reason why we think they were not. And if I 

might, the sad thing about it, USDA admitted and recognized that 

there were over a million black farmers in 1920. In 1982, they recognized that there were roughly 18,000. As my grandmother would 

say, you get rid of some in the wash and you get rid of the others 

in the rinse. In my opinion and the opinion of this organization, 

USDA has gotten ridden of 982,000 black farmers in the wash and 

this lawsuit is designed to get rid of the remaining 18,000 in the 

rinse. 

This lawsuit, in my opinion, and the advertisement was never intended to notify black farmers. The advertisement was inadequate, 

it was arbitrary, and it really never had an issue of notifying black 

farmers. Thank you. 

[The prepared statement of Mr. Burrell follows:]

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Mr. CHABOT. Ms. Atchison, you are recognized for 5 minutes. 

STATEMENT OF BERNICE ATCHISON, FARMER 

Ms. ATCHISON. Mr. Chairman, fellow congressmen and this assembly, I stand before you in humbleness representing more than 

700 of my fellow kinsmen in my county alone. I have here—been 

brought here today to speak on this notice. 

As I was secretary for the Alabama Democratic Conference for 

more than 30 years in our county, I never imagined segregation 

would still be existing in this day at this time. The question that 

we are asking in Chilton County is, did Judge Friedman mean to 

leave this county out by not posting or notifying the black farmers 

and farm helpers? 

While we help produce the products that was raised in this county and shipped to many other States to be sold, we had hoped to 

be treated fairly. We contacted the USDA of Chilton County and 

was told that they could not help us. 

We immediately wrote certified letters to class counsel and to the 

Monitor stating that there were no affidavits and that there was 

no claim packages at the USDA, and they informed us they could 

not help us. The USDA of Chilton County did not have a copy of 

the Consent Decree, nor did they have a copy of the stipulation for 

us to view. It was not published in the county newspaper or it was 

not a notice sent out in our U.S. agriculture for the extension service here in Chilton County. 

We were not notified by mail nor were we given a chance to 

apply even after we notified class counsel that there were no legal 

help for us in Chilton County. Many of us were sent denial letters 

and many were not answered or given a tracking number. 

We have been—we have sent packages to inform you and ask 

that the error be corrected. These packages contain the proof that 

you needed to know. We know you have received those eight copies 

because they were sent certified mail. We have called time after 

time to no avail, beginning in April of 2000 until now, asking and 

pleading. Many of us are farm helpers, sharecroppers, and some 

have FMNP numbers as I do, yet you have denied me and many 

more. 

I have lived on the same farm all of my life. I was born in this 

county in 1938. My mother and father worked hard to secure their 

own land for their children to inherit. You are now holding me accountable for a late claim affidavit when they were not sent to us 

as we requested in a timely manner. When we notified you that we 

had no claims, even your affidavits were not sent to any of our people until after August the 16th, which left only 20 working days, 

including a Labor Day weekend. Less than 20 days with no affidavit claims for our people or our families who all own farms and 

none have been notified of the process. 

The problem was a USDA and class counsel problem. They defied 

the judge’s order in Chilton County. They did not post. The judge 

plainly stated it: ‘‘t shall be posted or mailed.’’ It was not. 

And the USDA did not have a copy of the Decree, of the stipulation on hand for us to view. Without the proper information or instruction, we had no way of knowing what was needed to apply. 

206

I am a farmer who owns 39 acres and a share in another 358 

acres of inherited family land. We have proof that we notified both 

class counsel and the Monitor by certified mail at least in time to 

bring our problem to their attention. 

When I received the response on August 16, 2000, dated August 

10, 2000, we had less than 20 working days to respond and only 

one affidavit to represent all the peoples in our county. This was 

all that was sent to serve our county. 

We have presented the facts to the class counsel and the Monitor 

and now to you, our fellow Congressmen. We believe these facts to 

be extraordinary circumstances beyond our control. We now ask 

and plead that you will rectify the error lest it become a miscarriage of justice. 

[The prepared statement of Ms. Atchison follows:]

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Mr. CHABOT. I want to thank all the panel members here. The 

Members of the Committee have 5 minutes each to ask questions, 

and I recognize myself for 5 minutes. 

Mr. Chestnut, I will begin with you. In your interview with the 

Selma Times Journal, you stated and I quote, ‘‘This is not about 

notice. The notice was as complete as any I have ever seen.’’ If that 

was the case, how do you explain Ms. Atchison’s situation, which 

you just heard her testify to? What would you have to say about 

that? What could have been done different? And what would your 

comments be relative to her situation? 

Mr. CHESTNUT. I have been involved, Mr. Chairman, in probably 

more class actions than the average lawyer. And I don’t know of 

any class action where the notice was more complete than in this 

case. 

There are always some problems when you are dealing with 

large numbers over large territories. But I went around, Mr. Chairman, from county to county—Wilcox County was one of them; it’s 

only about 50 miles from me—and held meetings encouraging 

farmers to become involved. 

My little law firm, Mr. Chairman, borrowed $2.5 million in order 

to help get the word out and help these farmers fill out the applications. And lo and behold, the Government eventually paid $2 million back and would not pay the interest. I had to eat it. 

I was out there scuffling with these problems. I was in her county not once, many times. 

Now, no matter what kind of notice that you put out there, there 

are going to be people who will not get it. Michael Lewis reported 

in his supplemental, he went back and looked at the late filings 

and he found that of all of those 64—I think he looked at 64,000 

instead of 65,000, only about 28,000 of these people said they did 

not have notice. Their reason for filing late were health reasons 

and things of that sort. 

So you really only have a third of that 64,000 people. Of that, 

I don’t know how many of those will turn out to be really black 

farmers. 

Mr. CHABOT. Ms. Finegan, if notice needed to be tangible and 

concrete, Mr. Chestnut’s words, why would you advertise on CNN 

and Jet Magazine rather than credible sources to the black farmers, like the churches, or as Mr. Burrell mentioned, local newspapers or local African American radio stations and things of that 

nature? 

Ms. FINEGAN. As in the case with any class action, there are certain recommendations that are made to the parties, and this was 

no different. There were multiple recommendations made regarding 

notice. However, speaking to the point of local newspaper, we did, 

in fact, advertise as a one-quarter-page ad in local African American newspapers, 115 of them to be exact. 

With respect to television, advertising is a science. It is a science 

of human behavior. There is a tremendous amount of art and judgment in it. To the extent that science is used, nationally syndicated 

media research such as Mediamark go directly to survey individuals for their media consumption habits. So this data is a projection based on actual consumption. 

265

2The material referred to can be found in the prepared statement of this witness on pages 

78-89 of this hearing. 

Based on Mediamark information, over 63 percent of the class 

had access to cable television and, in fact, had viewed some form 

of cable television in the previous 7 days. 

Regarding the art——

Mr. CHABOT. Before you go on, I only have 5 minutes, so let me 

ask a follow-up question. What sort of local media did you use in 

either of the States of Kentucky or Ohio? 

Ms. FINEGAN. Sir, I don’t have the specific media information in 

front of me. I would be happy to supply you with that information. 

But more than likely, there was general circulation newspaper and 

local African-American newspapers.2

Mr. CHABOT. You mentioned 115 local newspapers, if you could 

provide that information to the Committee. My time has expired. 

I recognize the gentleman from Virginia, Mr. Scott, for 5 minutes. 

Mr. SCOTT. Did I understand you to say that you believe that almost half the people that filed late had, in fact, gotten notice on 

time? 

Ms. FINEGAN. I don’t believe that I said that. I was citing a report from Mr. Lewis. 

Mr. SCOTT. What portion of the late filers in your judgment—Mr. 

Chestnut suggested two-thirds, suggested that, had some kind of 

notice before the deadline. Do you know? 

Ms. FINEGAN. I would have to defer to Mr. Lewis. He has probably had the ability to view that document specifically, and I have 

not. 

Mr. SCOTT. You said the notice was designed by traditional scientific methodology to get the notice to people. Do you consider 

there is a difference between showing that somebody looked at the 

paper, or a paper was presented to them so they could see it, that 

kind of notice, and notice that they understood that they actually 

might have a case and what to do? Is there a difference? 

Ms. FINEGAN. Of course, there is always a difference between a 

notice disseminated and a notice actually communicated. 

Mr. SCOTT. Now, apparently, the notice got communicated after 

the deadline and 60,000-some people acted after the deadline. What 

did they know after the deadline that they didn’t know before? 

Ms. FINEGAN. That would be speculation, and I wouldn’t care to 

go there. 

Mr. SCOTT. Do you object to people having their claims decided 

on the merits? 

Ms. FINEGAN. I am not a lawyer, sir. 

Mr. SCOTT. Mr. Chestnut, for a Member of Congress to listen to 

your resume, I just have to remark that without your courage back 

when it was dangerous to bring the kind of cases that you brought 

without—and I practiced law for a little while. People wouldn’t be 

here but for your work, and I want to thank you for your lifetime 

of commitment. 

Obviously, a lot of people in class action cases won’t get the notice. I mean, I get notices all the time for class actions, and I just 

look at it, and figure I might get $0.30, but it’s going to cost me 

266

more to mail this thing in than to worry about it, and I don’t do 

anything. At this point, I think a lot of people, after the deadline, 

figured out they might actually have a case worth applying. 

Do you object to them getting their cases considered on the merits if we can figure out a way to do it? 

Mr. CHESTNUT. No, I am for that 1,000 percent. 

Mr. SCOTT. Thank you very much. 

Mr. Chairman, I don’t have any more questions now. 

Mr. CHABOT. Thank you very much. 

The gentleman yields back his time. 

The gentleman from Tennessee, Mr. Jenkins, is recognized for 5 

minutes. 

Mr. JENKINS. Thank you, Mr. Chairman. 

Mr. Chestnut, I’m sorry I missed your testimony, sir, but I take 

it from responses that you have given to questions that—was yours 

the only law firm involved? Were there other law firms involved? 

Mr. CHESTNUT. I think there were eight law firms. 

Mr. JENKINS. Eight law firms involved. But I take it that you 

have testified here that it is your belief that the notice was adequate? 

Mr. CHESTNUT. I don’t have—I don’t have any reservations at all 

about the notice. I am a class action lawyer. I have dealt with notice for the last 20 years. I don’t see anything significantly different. 

Mr. JENKINS. And your firm and the other firms hired Ms. 

Finegan to help to see that the notice was disseminated? 

Mr. CHESTNUT. My firm, plus the Government, who was paying, 

that’s the big elephant in the room, and that is who said at one 

point, this is all we are going to pay for. 

Mr. JENKINS. Yes. But Ms. Finegan, you believe the—have you 

done lots of these in your work? 

Ms. FINEGAN. Yes, sir, I have. 

Mr. JENKINS. Do you share the belief with Mr. Chestnut that this 

notice was adequate? 

Ms. FINEGAN. Yes, sir, I do. 

Mr. JENKINS. All right. Mr. Burrell, I missed your testimony, and 

I’m sorry, sir, I understand you are a Tennessean. 

Mr. BURRELL. Yes, sir, I am. 

Mr. JENKINS. From the western part of the State? 

Mr. BURRELL. Yes, sir. 

Mr. JENKINS. I am from the eastern part of the State, and you 

know that we are closer to Washington, DC. In my hometown than 

we are to your part of the State. But we are coming there often 

now, because we have a son and daughter-in-law and three grandchildren near your home. It is in Covington, isn’t it? 

Mr. BURRELL. Yes, sir. 

Mr. JENKINS. Mr. Burrell, what was your testimony with respect 

to the adequacy of this notice? 

Mr. BURRELL. My testimony, Congressman Jenkins, is that the 

notice was arbitrary. It was basically not an issue with USDA. 

If you, sir, would read some of the testimony that was given to 

Judge Friedman at the fairness hearing, both the counsels for the 

farmers and the counsel for the Government made reference to the 

fact that the emphasis was put on paragraph 7, paragraph 10, 

267

paragraph 9, paragraph 11, and paragraph 12 of the Consent Decree. 

Our position is, then, whatever does or does not happen in paragraphs 5, 7, 9, 10, 11, and 12 is a function of what happens in 

paragraph 4. Paragraph 4 is where class counsel and the Government did not put any emphasis on. And paragraph 4 specifically 

states—if you don’t mind, it says—it says that they are going to do 

the right thing, the USDA has shown its best efforts, obtained the 

assistance of community-based organizations, including those organizations that focus on African-Americans and agricultural issues. 

What is technical about that? What is technical about calling a 

local radio station or the local news? 

Sir, with all due respect, when USDA gets ready to foreclose on 

a farmer and take his land, they use the local newspaper. Why 

couldn’t they use the local newspaper when it’s time to pay him? 

They are making these gestures about the pie-in-the-sky effort. 

You have got an organization 3,000 miles away from the average 

black farmer—and that’s no disrespect to the people who live in the 

west—using an organization 2,000 and 3,000 miles away from 

farmers, and they are saying that they are advertising in the 18-

State area. But the majority of the people they paid are heirs to 

the black farmers who live all over the country. So on its face, the 

advertisement was not adequate. 

And I would—and in our analysis, 92 percent of the people who 

they paid live outside of those 18 States. If you are going to pay 

an heir that’s moved to Detroit or moved to Washington or moved 

to L.A. Or moved to Houston, as is the result of the discrimination, 

why wouldn’t you then advertise? 

What has happened—in my closing, if you don’t mind—is that 

people who were promised to be paid—they were advertised to the 

farmer but they paid the heir. But they did not advertise to the 

heir. 

So you have this cross-connect where the regents are concentrating on paying a group, that they are only actually advertising 

to a group that they only paid 8 percent of the time. 

Mr. CHABOT. The gentleman’s time has expired. 

Mr. JENKINS. Thank you, my time has expired. 

Mr. CHABOT. Is the gentleman from Michigan here? 

Okay. The gentleman from Alabama, Mr. Bachus, is recognized 

for 5 minutes. 

Mr. BACHUS. Thank you. 

Mr. Chestnut—and I will ask Ms. Finegan this, too. You know, 

we had 140 years of discrimination. I mean, well, illegal discrimination, and we had 100 years before that. But this 180 days, that 

sort of bothers me. I mean, why all of a sudden, not to get in that 

much of a hurry, but that must have been a real hindrance to you, 

Ms. Finegan, to put together what may have been your largest notification charge you had ever been given, your company. As complex as it was, as Mr. Chestnut says, the black farmers, they have 

been short shifted. They have been scammed. They have been 

screwed, you know, for hundreds of years, so you have got to overcome that. They are going to be suspicious that somebody at the 

same organization that has discriminated against them, and for 40 

268

years, suddenly, going to really give them something. I wouldn’t 

fall for that. 

So I will ask you, was the 180 days in the budget that you had? 

Mr. Chestnut, actually, you said that you all had to borrow 

money, your firm. That indicates to me that you didn’t have the financial resources to notify people? I mean, the Government may 

have said, the judge may have said this is what you are going to 

get. 

So I would ask you, did you have a sufficient budget? Would you 

have liked more? Was 180 days, was that a problem? 

Ms. FINEGAN. I will address the 180 days first, sir. The 180 days 

is shorter than some, and it’s longer than others in class action. 

Having said that, there are always constraints under which we 

have to work to provide notification programs. 

Typically, we try to do the best we can with the budget constraints that we have been provided. 

Mr. BACHUS. Right. 

Ms. FINEGAN. So, in order to accommodate the widest scope program, we did try to run ads. We did run ads on cable network television. 

Mr. BACHUS. What was your total network budget? 

Ms. FINEGAN. The exact dollars I don’t have in front of me. I believe that it was somewhere around $385,000 just for the media. 

Mr. BACHUS. Doesn’t that just pretty much tell you that you— you know, I spent in my Congressional district, trying to get my 

message out, I spend $1 million, and I am in an urban area where 

I can really load up. 

Ms. FINEGAN. Again, sir, we were given a budget. 

Mr. BACHUS. I can just tell you, $380,000, that ought to tell everybody in this room. You weren’t working on a—you didn’t have 

a tenth of the money you needed. 

And I know you are hired by the judge and the court, and it’s 

hard, but, I mean—and the 180 days and $385,000? This thing was 

designed to fail from day 1. 

And I know, you know, that’s what you had to work with. Mr. Chestnut, you said you borrowed $2 million. 

Mr. CHESTNUT. $2.5 million. But that had nothing to do with 

paying for the notice. 

Mr. BACHUS. Well, you know, notice—I don’t think notice— maybe notice is not the word we ought to use here. What you got 

to—what ought to be done here, the affidavits have to be delivered. 

Folks have to be educated in how to file claims. 

Mr. CHESTNUT. That’s what we borrowed the $2.5 million for. 

Mr. BACHUS. Yes, and how much money was budgeted to get the 

affidavits out, sit down with people and help them with these 

claims? 

Mr. CHESTNUT. We hired lawyers all over the south. 

Mr. BACHUS. Yes. 

Mr. CHESTNUT. I was all over the south, all out to California. Not 

only spreading the word, but giving direct assistance to farmers. 

Mr. BACHUS. But you had 180 days to do all of that? 

Mr. CHESTNUT. That’s right. 

Mr. BACHUS. That’s not enough time. 

Mr. CHESTNUT. Well, this was the Government. 

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Mr. BACHUS. I am not criticizing your——

Mr. CHESTNUT. I understand. 

Mr. BACHUS. I am just saying, it’s obvious to me that you aren’t 

under this—for whatever—and I think—Ms. Finegan, you said it 

greatly exceeded your expectations, you know, all the claims and 

all. 

So, I mean, that had to—I mean, that—′′owe me′′—isn’t that 

what you—you used that phrase? 

Ms. FINEGAN. Yes, sir. It did greatly exceed the expectations of 

the parties. 

Mr. BACHUS. Yes, so——

Mr. CHESTNUT. But I think the record ought to reflect that this 

was an adversary proceeding. The Government was not in bed with 

us. The Government has never been in bed with J.L.——

Mr. BACHUS. I understand that. What we as the Congress have 

got to look and see whether the Government was reasonable in 

what they did. I am not criticizing what you did. 

Mr. CHESTNUT. No. 

Mr. BACHUS. All I am saying is—and the Government gave you 

180 days and $385,000 to notify people. It’s apparent to everybody 

up here, that’s not enough time, not enough money. 

Mr. CHABOT. The gentleman’s time has expired. 

The gentlelady from Pennsylvania, Ms. Hart, is recognized for 5 

minutes. 

Ms. HART. Hope that buzzer is not for me. 

Thank you, Mr. Chairman. 

Following up, actually, a little bit on Mr. Bachus’ questions. Stop 

it. 

Mr. CHABOT. Those bells are just to annoy people, basically. That 

means the House is going out of session on floor. But there are no 

votes until, we believe, 8 this evening, because of President Clinton’s library opening. 

Ms. HART. Thank you, Mr. Chairman. I want to follow up with 

Mr. Chestnut a little bit more. 

I believe you said at one point that two-thirds of the people who 

made late claims didn’t claim that they didn’t receive notice. Am 

I stating that correctly? 

Mr. CHESTNUT. I said that the Facilitator, Mr. Michael Lewis, 

went back after he testified before this Committee and examined 

the 64,000 of the 65,000 people, and he filed, I think, a supplemental, with this Committee, in which he said only a third—about 

28,000 of those persons, said they didn’t have notice or were not 

aware. They filed, for health reasons and other reasons. 

Could I just, for 1 minute—Mr. Bachus, it wasn’t 180 days. 

These people had from October 12th to file these claims from the 

date of the Consent Decree, and some of them began in January 

1999, right after it was—there was a preliminary report. So that 

was 9 months out there that people had a window to file claims. 

I just want to put that in the record. 

Ms. HART. Okay, that’s all right. Thanks. I appreciate that clarification. 

I am still stuck on this notice thing. And, you know, if you are 

trying to get a hold of a certain group of people, then the best way 

270

to do that is to inquire what they used to get their information. 

And so I would like to jump over to Mr. Burrell and Ms. Atchison. 

Just, if you could for me, what would you suggest media—what 

type of media should have been used to provide this kind of notice 

that was not? 

And I will start with Mr. Burrell. 

Mr. BURRELL. Well, thank you, Congresswoman Hart. 

The organization that I am with, with the Black Farmers and 

Agriculturalists Association, we have been, with the assistance of 

our attorney, notifying farmers about the lawsuits as well. It’s interesting to note also that Mr. Pires in his statements talked 

about—and as Mr. Chestnut corroborates—how they travel from 

State to State. You would read in some testimony where they 

maintained it was 5 and 6 and 8 and 10 of them in a room. 

Our question is—and Mr. Pires went on to say that he went to 

Alabama 42 times. Alabama, I think, has the largest number of 

claimants—and rightly so—in this lawsuit. That tells us then, that 

on average, 100 people heard them when they were visiting. 

When we had a meeting in Alabama—we had a meeting in Montgomery—3,000 folks showed up at one meeting. But the difference 

between the 3,000 that came up to our meeting and, we believe, the 

100 that came to his is we spent thousands of dollars buying local 

radio advertisement. We subscribed to black—Adonis black radio 

that deals specifically with that area, and we believe that’s why the 

people came out. 

Ms. HART. And that was—that same avenue of notification. 

Mr. BURRELL. That same avenue, because virtually every black 

radio station that we called maintained that they themselves did 

not even know about the lawsuit. 

Ms. HART. Thank you. 

Ms. Atchison, could you enlighten us a little bit about your 

neighbors, and what kind of newspapers that you would read? And 

if there was any notice given in this? 

Mr. BURRELL. We don’t have black newspapers in Chilton County, period. 

Ms. HART. Is there a local newspaper in Chilton County? 

Ms. ATCHISON. We have a local newspaper in Chilton County, 

but it is not a black newspaper. 

Ms. HART. But do people read it? 

Ms. ATCHISON. Well, we are in a real rural area. You will find 

some people that do read it. You will find some people where it is 

not prevalent. 

Ms. HART. Okay. 

Ms. ATCHISON. But what I did to prove to Mr. Lewis, I sent him 

letters from all four mayors of Chilton County, who all stated—and 

if you pick up one of these here. 

Ms. HART. Yes. 

Ms. ATCHISON. You will find that each one of them stated that 

they did not receive any notice whatsoever to post. 

Ms. HART. So there was no local government contact posted in 

the community bulletin board? 

Ms. ATCHISON. No. 

Ms. HART. Nothing like that. 

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Ms. ATCHISON. Wasn’t posted at our county courthouse; wasn’t 

posted at the local library. I wrote Mr. Lewis and also sent class 

counsel a letter, on January 9th of 2000, stating, ‘‘If we were to 

meet the deadline of September 15, 2000, it was the responsibility 

of the Facilitator to post all mail from the court house.’’

Notification, notifying the landowners, for less than $6, every 

black church could have been notified, touching literally every 

black family. There were only 17 black churches in Chilton County. 

As you noted in the Monitor Review, there has been problems in 

the claim process. It would be a miscarriage of justice to leave us 

out after we have brought it to your attention. USDA has failed to 

post. We didn’t even have a Consent Decree to look at to know 

what we needed to do. We just—just kind of sent something in. 

Ms. HART. I am out of time. Thank you for that. 

Mr. CHABOT. Would the gentlelady like an additional minute? 

Ms. HART. I would. 

Mr. CHABOT. All right. The gentlelady is recognized for an additional minute. 

Ms. HART. Thanks, I just want to give Ms. Atchison an opportunity to finish because one of the things that concerns me, you 

know, we talk about constructive notice. That is basically that people should have known, that there is a constructive notice that 

should have been given for people to find this out. Do you believe 

that whatever advertising was done, that people in your community should have been able to figure this out? Just a yes or no. 

Ms. ATCHISON. No. 

Ms. HART. Thank you very much. That’s good. 

I yield back. 

Mr. CHABOT. The gentleman from Alabama is recognized. 

Mr. BACHUS. Only because—I will say this, Mr. Chestnut. Mr. 

Chestnut, I would never question anything that you have ever 

done. I am aware that you have righted injustices for years under 

great threat of physical harm. 

I will say this, I am confused on this 180-day thing. Because it 

did say that October 12, 1999, which was 6 months following the 

entering of the Consent Decree, 180 days. Now, the judge did extend this over a year. But now bear in mind, he only extended it 

for two reasons, hospitalization and natural disasters. I mean, he 

actually said lack of notice is not an acceptable reason. 

Ms. ATCHISON. That’s right. 

Mr. CHESTNUT. Mr. Bachus, you are——

Mr. CHABOT. Mr. Chestnut, could you turn on the mike? 

Mr. CHESTNUT. You are speaking to the choir. I argued. 

Mr. BACHUS. Okay. 

Mr. CHESTNUT. I argued to the court that we ought to have more 

time. 

Mr. BACHUS. Okay. 

Mr. CHESTNUT. I argued to the court that the Monitor ought not 

to be somebody in Minnesota. I also argued to the court, Mr. Bachus, that the Monitor ought not to be white and sent two black 

women around there, and the judge said no. 

Mr. BACHUS. Okay. But I just want to clarify, you know, the 180 

days is really what we are talking about here. Because after that, 

272

it was natural disasters and hospitalizations. You know, that’s not 

really an extension in my mind. 

Mr. CHESTNUT. Some people started filing claims right after the 

Consent Decree was preliminarily approved. That was in January. 

That’s 9 months. 

Mr. BACHUS. I agree. Some of them had lawyers. I am just saying 

that we are talking about all of them. 

Mr. CHABOT. The gentleman’s time has expired. 

The gentleman from Virginia, Mr. Forbes, is recognized for 5 

minutes. 

Mr. FORBES. Thank you, Mr. Chairman. 

Mr. Chairman, it’s rare where we get a situation where we basically agree with all of our witnesses, and I think that’s where we 

are today. Sometimes, we just make things a little more complicated than they need to be. 

But I don’t really see that this is a case of placing blame on anybody. It may very well be that when everything shifts out, this notice was legally proper. But the notice should always be to help 

stop abuse of process. But it shouldn’t be part of encouraging abuse 

of process. 

And, let me say, I start out with two prejudices, or maybe one 

big one. Both my grandfathers were farmers, and neither one of 

them made it, for a long period of time. One had to become a carpenter. One of them went as a bridge tender. And I don’t care 

whether you are a black farmer or white farmer in America; we put 

our farmers up against the ropes. And I am really concerned there 

will come a time where we are as dependent on foreign food as we 

are on foreign oil in America. 

Let me just say one other thing about both my grandfathers. One 

of them only went to the third grade, and I don’t care, he wouldn’t 

have read the Wall Street Journal. He wouldn’t have read The New 

York Times. But he wouldn’t have read the local newspaper, but 

I would never have raised that issue to him that he wouldn’t do 

that, because what he did is he got up in the morning, and he 

worked from the time the sun came up, and he worked until the 

sun went down, just to keep things going. 

And my suspicion is we have got farmers out there that are the 

same way. Wouldn’t have the magazine we put it in. 

Mr. Burrell, in fairness, my grandfathers wouldn’t have read the 

trade magazines, but what they would have read, the advertisements that came out in the catalogs, but they just didn’t have time 

to do it. 

And one of my concerns is this. I think most of us up here, we 

don’t want a single farmer up here who doesn’t have a meritorious 

claim to recover anything. But at the same time, we don’t want any 

farmers in here who have meritorious claims not to recover. 

And so my question might be oversimplified, but I don’t think 

our issue is whether we should help these farmers. The question 

I pose to all four of you is, given the situation where we are now, 

what can we do now to help these farmers? 

Mr. CHESTNUT. I think, one, the res judicata of the United States 

could say, let all 65,000 in, and the Justice Department would ask 

class counsel to agree to that, and we surely would agree, and that 

would end the problem right there. 

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Mr. FORBES. Mr. Chestnut, in all due respect, that’s above my 

pay grade. But what can we do on this Committee and in Congress 

to help these farmers? 

Mr. CHESTNUT. I think Congress can fashion a law that deals 

with this problem. But I think it has to be very careful. Number 

one, the Consent Decree is now a contract, a binding contract between the parties and approved by the court. If you fashion legislation to undo that, you could raise all kinds of constitutional problems. 

There is also the question of res judicata out there that has to 

be dealt with. But I think that you could create a new cause of action independent of—and pay for it—that would cover these people, 

and if you did that, I think you would solve the problem. 

I don’t think the problem could be solved in any other way. I 

could be wrong, but I don’t think so. But I am also very apprehensive about, once again, falsely raising the expectations of poor black 

farmers who have suffered enough. They need to understand that 

there is a big difference between what is a legislative problem and 

what is a legal problem; what can and what cannot be done in the 

courts. And the Congress and the White House are the only two 

bodies that can resolve this problem in my opinion. I don’t think 

it’s going to be resolved in the courts. 

Mr. FORBES. And I want to get to Mr. Burrell. 

But Mr. Chestnut, we would appreciate your further input on 

that with thoughts of solutions, if you could. 

And Mr. Burrell? 

Mr. BURRELL. Ladies and gentlemen of this Committee, the issue 

for all farmers in general, and black farmers in particular, with no 

disrespect, is not about legislation. Because if they had gotten—it’s 

about discrimination. 

If they were not discriminated against by USDA, if they had received their loans—so any other remedy that is short of freeing 

them up from the gravitational pull of discrimination at USDA, we 

will be right back here again. 

One of the things in this Consent Decree that disturbed even the 

judge is that USDA admitted that it would pay the settlement, but 

it did not say that it will stop discriminating against black farmers. 

So whatever else we do. If the farmer is left with going right 

back to the scene of the crime the morning after, USDA right now 

has it in its power to undo because the fact that discrimination is 

being allowed to exist at that agency. 

And we just believe that this—first of all, this law sought should 

be reopened. But more importantly, we have bona fide borrowers, 

bona fide borrowers, who are being foreclosed on right now. We 

need some immediate resolution to at least get the Government to 

do what they did when they admitted to discrimination, and that 

is to get a moratorium on the foreclosure, stop the bleeding, at 

least in the short term. 

Mr. FORBES. Okay. 

Mr. CHABOT. Okay, thank you. The gentleman’s time has expired. 

That concludes the questioning of the panel. 

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I want to thank the witnesses for being here this morning. I 

think they have very much helped this Committee in dealing with 

this very significant matter. 

I would also let the members of the panel here know that we 

may be submitting some questions in writing, additional things 

that may have been brought up here. Maybe we didn’t have time 

to go into some things, so we will perhaps be sending some additional questions to you. 

I would also like to let everyone know that we are anticipating 

possibly having a field hearing, a hearing like this but outside of 

Washington, possibly in Ohio, possibly in Cincinnati, sometime— coincidentally, that happens to be my district. But it would probably be in late January. And we have, I think, a pretty good communication system going on here as far as getting information and 

people knowing when we are going to have these hearings. So we 

will—yes, we have good notice about getting that out. We probably 

won’t be hiring your firm, Ms. Finegan, to get this notice out. 

But nonetheless, we will make sure that everyone knows about 

that hearing, and we will welcome anybody that would like to attend to do that. 

And if there’s no further business to come before the Committee, 

we, again, thank the members for their testimony here this morning, and we are adjourned. 

[Whereupon, at 11:32 a.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF OHIO, AND CHAIRMAN, SUBCOMMITTEE ON THE

CONSTITUTION

Good morning. Thank you all for being here for this very important hearing. This 

is the second in a series of hearings the Constitution Subcommittee is holding on 

the 1999 settlement reached between the U.S. Department of Agriculture and a 

class of Black farmers who have experienced discrimination by the USDA. 

From the time this Subcommittee began examining this issue, we have had more 

reasons than not to believe that the government has failed to ‘‘do the right thing.’’

I strongly believe, however, that with all of the information we are gathering in 

our oversight investigation, including through these hearings, we will have the understanding from which to develop a full and just solution. 

I would like to thank our witnesses for coming. Your insights, expertise, and institutional knowledge are critical to this Subcommittee in its efforts to find justice. 

During the last hearing, my colleagues and I used our oversight authority to gain 

a better understanding generally of the Consent Decree. 

However, as we continue to examine more closely certain aspects of the settlement 

and its administration, it has become increasingly apparent that certain Due Process protections, fundamental to the Constitution, are lacking in this case. 

Due Process of the law is the legal concept that the Framers of our Constitution 

created to ensure that the government respects all—not some, or even most—of an 

individual’s right to life, liberty, and property. 

The Due Process Clause places limits on the government’s ability to deprive citizens of these rights—guaranteeing fundamental fairness to all individuals. One of 

the most important safeguards that has evolved from this Clause is the right to notice—notice of a judicial proceeding in which an individual’s right to life, liberty and 

property may be affected or eliminated altogether. The form of notice must be reasonably designed to ensure that those individuals will, in fact, be notified of the proceedings. 

This fundamental right to notice applies to the 1999 Pigford Consent Decree and 

all those who had a viable claim of discrimination, which impacted their lives, liberty and property, against the Department of Agriculture. 

Tragically, recent statistics released on the Consent Decree suggest to this Subcommittee that this Constitutional right was not safeguarded in the construction 

and administration of the Consent Decree. 

Although the notice campaign design was deemed to be effective by the court in 

a fairness hearing held on April 14, 1999, the determination was made using advertising industry tools designed to measure the likely effectiveness of a campaign, not 

the actual effectiveness of a campaign. 

Reports indicate that approximately 66,000 potential class members submitted 

their claim late—most because they did not know that they were required to submit 

a claim sooner—losing their right to sue the USDA for past wrongs. 

It is hard for many of us to accept that 66,000 farmers would consciously wait 

to have file a claim that would impact their right to life, liberty, and property—

knowing that they were required to do so earlier. 

Further investigation into the circumstances surrounding the late claims reveals 

that many farmers failed to get any notice whatsoever—or failed to understand the 

contents of the notice if they did. These facts lead this Subcommittee to conclude 

that the notice implemented in the Pigford case was either ineffective or defective—

given the nearly two-thirds of the putative class failed to be effectively notified of 

the case requirements. 

276

The hearing this morning will focus on the actual effectiveness of the notice campaign. As we learn more about this aspect of the Consent Decree, we will consider 

the appropriate remedy in order to protect the safeguards afforded by the Constitution and uphold Lincoln’s vision that every Black American who wants to farm was 

the tools available to do so. 

I would like to close by putting a personal face on what Lincoln’s vision means 

to people who have been impacted by the USDA’s actions. This promise is still valued today, as this quote explains: ‘‘I have worked all my life being a servant to God 

and his people in Chilton County, Alabama. . . . My forefathers were brought here 

to farm and the gift of loving the land has passed down for more than 10 decades. 

I am proud of the heritage in spite of the adversity.’’ This is the sentiment of Bernice Atchison, one of the witnesses at today’s hearing. It is for Bernice and all of 

those who still have faith in the promises of this country that we are here today 

working toward finding a solution. 

Again, thanks to all of the witnesses for taking the time to tell their story today. 

PREPARED STATEMENT OF THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF VIRGINIA

Thank you, Mr. Chairman. Congressman Jerrold Nadler of N.Y., the Ranking 

Member for this Subcommittee, asked me to express his regret that he was not able 

to be here and to serve as Ranking Member today, in his stead. Although he is not 

able to be with us today, he strongly supports the efforts of this Subcommittee to 

examine the issues surrounding the Pigford Settlement and was instrumental in 

helping to develop these hearings. 

I would also like to take this opportunity to note my appreciation for the leadership you have shown, Mr. Chairman, in seeking answers and solutions to the questions and problems that have come to light regarding the Pigford settlement, and 

for the time and attention you and your staff are devoting to pursuing these issues. 

And I, again, express my appreciation for the open, bi-partisan and productive manner in which you, Chairman Sensenbrenner, Agriculture Committee Chairman 

Goodlatte and your staffs have proceeded to work with us. Full Committee Ranking 

Member John Conyers, Rep. Watt, Rep. Bennie Thompson, Rep. Towns, Rep. 

Butterfield, Rep. Sanford Bishop, Rep. Baca and Rep. Autur Davis, and their staffs, 

have been an integral part of developing these hearings and the issues we are exploring as well, working closely with Black farmers and their advocates. 

This hearing is about the notice provisions for the Pigford Settlement. The information we have found reveals that some 96,000 claims were filed, but only about 

22,000 of these claims were, or are slated to be, considered on the merits. The primary reason given for not considering the remaining claims on their merits is that 

they were not submitted during the initial period set by the court for the filing of 

claims, which ended October 12, 1999, 6 months after the settlement was entered 

into. By this time, approximately 22,000 claims had been filed. Upon realizing that 

claims were still pouring in beyond the initial deadline, the court set a deadline for 

accepting late claims. It was first set for January 30, 2000, but with claims still 

coming in, the court extended it to October 15, 2000. Some 66,000 additional claims 

were filed by the October 15, 2000 deadline, and another 7,800 after the deadline. 

Of the 66,000, only 2,100, approximately 3%, were accepted for a determination on 

their merits. While the merits of all of the 2,100 late claims accepted have not been 

determined, some have and, according to reports from the court appointed Monitor 

of the settlement, a significant number of those considered were found to warrant 

payment under the settlement agreement. 

A large part of the problem in the settlement appears to have been that no one 

realized that there was the potential for so many claims to be filed. Early estimates 

of the potential ranged from a few hundred to, eventually, a few thousand. It does 

not seem reasonable to believe that the court would twice extend the period for filing claims simply to tell virtually all of the late filers—97% of them—that they had 

filed too late. Nor does it appear reasonable to believe that the court, or anyone, 

would have knowingly designed a claims procedure that would leave 75% of those 

who filed a claim without a way to get a determination on the merits. And it certainly does not seem reasonable to conclude that 75% of those who filed a claim 

knew before the deadline that they could, but intentionally waited to file their claim 

late. With the vast majority of claims being filed after the deadline had passed, my 

inclination is to think that effective notice did not reach most claimants in a manner 

that allowed them to file their claims on a timely basis. 

The court, in trying to accommodate this situation, gave the Arbitrator carte blanc 

authority to determine whether late filed claims should be let in due to ‘‘extraorVerDate 0ct 09 2002 15:26 Feb 01, 2005 Jkt 000000 PO 00000 Frm 00280 Fmt 6601 Sfmt 6621 G:\WORK\CONST\111804\97230.000 HJUD1 PsN: 97230
277

dinary circumstances.’’ Unfortunately, the Arbitrator established a process that resulted in virtually no one being able to show that they did not file on time due to 

extraordinary circumstances. Rather than applying this standard so narrowly as to 

leave 97% of the late claims out of the process, the Arbitrator might well have considered it to be an ‘‘extraordinary circumstance’’ that 75% of the claims filed in a 

class action settlement will not receive consideration on the merits. 

There are, no doubt, a number of explanations and speculations for how we ended 

up with such a large percentage of the claims being filed beyond the court’s initial 

filing deadline, and we will likely hear some of them today. Yet, whatever the reasoning, I find it unacceptable that 75% of those who filed claims will not receive 

a determination on the merits of their claim. However we got here, we have a finite 

number of approximately 72,000 claims in which long-standing, atrocious misconduct by the federal government is alleged, and I believe these claims should receive a determination on their merits. Not all of the claims will be found meritorious, but it would be a travesty of justice on top of a travesty of justice to prevent 

those claims that do have merit to be resolved in favor of the claimants. 

So, Mr. Chairman, I want to thank you for scheduling this hearing. I look forward 

to the testimony of the witnesses for any suggestions they may have, not to cast 

blame, but to insure that justice is done for the victims of inexcusable government 

action. Thank you. 

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN

On April 14, 1999, I stood in victory with Black farmers across this country. The 

United States Department of Agriculture (USDA) had agreed to a $1 billion settlement in the Pigford v. Glickman case. Each black farmer was to receive at least 

$50,000 to settle claims that they were denied government loans because of their 

race. 

I was disturbed to learn that USDA has denied payments to almost 90% of black 

farmers. Of the 94,000 growers who sought restitution for discrimination, 81,000 

were turned away. The most glaring denial of compensation is the settlement-funded arbitrator’s rejection of 64,000 farmers who came forward with claims during the 

late claims process established by the court. Since the Court in approving the settlement described the claims as almost ‘‘automatic,’’ we need to understand what has 

gone wrong and whether we have a continuing role. 

At our last hearing, we started to unravel the procedural aspects of the consent 

decree that led to the denial of more than 64,000 claims. What became clear was 

that ‘‘notice issues’’ formed the threshold challenge for the claimants. Given the continuing nature of complaints against the USDA, this hearing is extremely well 

timed and I thank the Chairman for his spirit of cooperation in helping to shed light 

on these issues. 

Before the parties move forward with additional litigation, it is incumbent on Congress to ensure that the goals of the Pigford settlement have been met by the 

USDA. Unlike most litigation, where Congress watches from the outside, we have 

taken a more active role here by extending the Statute of litigation and allowing 

claims to move forward. 

The primary issue for this hearing is why did these 64,000 individuals, plus another 7800 who filed a claim after the 2nd deadline, chose to file a claim, but only 

after the deadline(s) had passed? 

Clearly, this raises the question of whether they received effective notice of the 

right or opportunity to file a claim withing the time frame(s). Many farmers and 

their advocates contend that the notice campaign developed by the Poorman Douglas Corporation for the Pigford settlement was not adequately tailored to reach 

black family farmers. 

The most remarkable exclusion from the notice campaign was the lack of a direct 

mailing to these farmers. Although USDA conducts regular mailings to all farmers 

who receive loan or subsidy assistance, and has records of applications for these programs, notice of the settlement was not provided in regular USDA direct mail communications or in a mailing specifically aimed at putative class members. 

Most class action notice campaigns include a direct mailing component as a way 

to reach the broadest audience of potential class members. This is vital, of course, 

because if putative class members do not learn of the settlement in time to opt-out, 

they lose the right to pursue their claims in court if they do not agree with the 

terms of the consent decree. I trust that both class counsel and the representative 

from Poorman Douglas will address this issue, which may form the basis for additional inquiry. 

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There are other obvious questions: the only television broadcasts of the notice 

were on cable TV channels: Black Entertainment Television and Cable News Network. Paid cable television may not available in many rural areas, and is generally 

considered costly for the average citizen. This is especially true for family farmers 

who must extend every resource to maintain the farm. Overall, despite the findings 

of the Court, the volume of late filings raises serious issue about whether the notice 

campaign was well crafted to reach potential claimants. 

The groundbreaking victory for civil rights at USDA has proved to be short lived. 

Black farmers face major obstacles in obtaining settlement payments in Pigford and 

continuing allegations of discrimination by the USDA have spawned additional litigation. Ultimately, the process seems to have failed the claimants. 

In 1910 Black farmers owned about 16 million acres of land. Today, Black farmers 

own fewer than 2 million acres. In 1920 there were nearly 1 million Black farmers, 

but fewer than 30,000 exist today. Unless we can reverse this trend by upholding 

the principles of equality and fairness, black farmers—who once served at the backbone of our agricultural industry—may soon be nonexistent.

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PREPARED STATEMENT OF GARY GRANT, PRESIDENT, BLACK FARMERS & 

AGRICULTURALISTS ASSOCIATION


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PREPARED STATEMENT OF OBIE L. BEAL


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BFAA NEWS ARTICLES SUBMITTED BY CHAIRMAN CHABOT


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PREPARED STATEMENT OF LAWRENCE C. LUCAS

The U.S. Department of Agriculture (USDA) Coalition of Minority Employees, 

‘‘The Coalition’’ is a multi-ethnic, multi-cultural, multi-racial organization with 55 

presidents in 34 states. The Coalition is committed to changing the discriminatory 

culture at USDA and holding proven discriminatory officials and others accountable 

for reprisal against employees and farmers. The Coalition has informed USDA leadership on numerous occasions regarding the Department’s historical and lingering 

problems; resulting in demoralized employees, injured customers and the wasting of 

millions of taxpayer dollars on the Department’s dysfunctional civil rights process. 

Currently, there have been thirty or more Class Action (employee) lawsuits that 

have been filed and a backlog of thousands of employee and farmer complaints requiring processing generated by discriminatory officials whose wrong doings go ignored. The US Equal Employment Opportunity Commission (EEOC), Office of Federal Operations, in a report dated February 26, 2003, confirmed ‘‘The Coalition’s’’

allegations regarding the longstanding systemic problems in civil rights administration and processing. Despite the failures and shortcomings cited in the EEOC report, the Department is still in a state of denial, attempts to gloss over its systemic 

problems and fails to implement legal settlements regardless of the merits of these 

cases. 

The purpose of my testimony is to inform, apprise and sensitize members of this 

Committee and the American taxpayers of the terrible wrongs inflicted by USDA 

on this Nation’s Black farmers and its employees. 

Officials responsible for protecting the rights of Black farmers have failed, by concocting a scheme to block settlements and obstruct justice . . . as reported by Black 

farmers and the recent report written by the Environment Working Group (EWG). 

Those responsible for this mess are said to include the U.S. Department of Agriculture (USDA), the U.S. Department of Justice (DOJ) and the Attorneys for the 

Black farmers. Poorman Douglass, court ordered contractor, with a budget of only 

$385,000, was responsible for the administration of an inadequate notice process, 

that resulted in their failure to deliver timely information to Black farmers. 

‘‘The . . . settlement is a complete failure,’’ said Marianne Calendar, a lawyer for 

the Environmental Working Group (EWG.) ‘‘In part, it was the plaintiffs’ lawyers 

who failed them. They took advantage of every aspect of the court’s rules and the 

settlement’s shortcomings to avoid responsibility. Black farmers failed to benefit 

from a consent decree that was supposed to remedy years of a ‘‘sophisticated, racebased system of intentional discrimination’’ that encouraged government officials to 

discriminate against them, by obstructing and denying the efforts of Black farmers 

to obtain loans and other programmatic assistance. 

At the last hearing of the House Judiciary Committee, Subcommittee on the Constitution, Tuesday, September 28, 2004, lawmakers said the 1999 class action settlement did not help most of the farmers in the class. About 65,000 black farmers were 

excluded because they did not file claims in time, said subcommittee chairman Steve 

Chabot, R-Ohio. ‘‘We cannot in good conscience allow a settlement that leaves out 

more potential claimants than it allows in to go unexamined or remain unresolved,’’

Chabot said. 

The Pigford Consent Decree, signed by Judge Paul Friedman in April of 1998, is 

the written settlement agreement in the federal court case, Pigford et al v. Ann 

Veneman, Secretary of Agriculture; was settled in 1999 between the U.S. Department of Agriculture and Black farmers who sued the agency over race discrimination in loan practices and loss of millions of acres of land. Black farmers have complained since the settlement was entered into that the process was flawed. The Agriculture Department acknowledged a past history of discrimination and agreed to a 

two-tiered process of resolving claims. For both, claimants needed to prove that a 

similarly situated white farmer was treated better than they. Many had trouble acquiring evidence from USDA or local officials to establish unfair treatment. It appears that the wrong choices continue to be made by USDA officials, compounding 

the injustices emanating from USDA’s failure to comply with the Consent Decree. 

The settlement contained two options, Track A and Track B, Track A was a more 

simplified process. Ninety-Nine percent (99%) of the claimants opted for track A. 

This Track included a $50,000 settlement, plus $12,500 for taxes, forgiveness of previous federal loans and class wide injunctive relief. Track B was more difficult because the burden of proof was higher than in Track A. By opting for Track B, one 

could receive actual damages, but again, the burden of proof had to be ‘‘beyond 

shadow of doubt’’. The class action lawsuit should have paid more than 30, 000 eligible farmers several billion dollars and provided them forgiveness on loan debts for 

the USDA’s discrimination. 

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To date, the lawsuit has compensated only 13,000 Black farmers $50,000 each, 

leaving tens of thousands uncompensated and denying them at least 3 billion dollars 

or more as well as the land stolen from them by the government. Over twenty-two 

thousand one hundred fifty nine (22,159) ‘‘Track A’’ applications were accepted in 

the lawsuit. On March 15, 2004, only 61% of the claims were ruled in favor of the 

claimants and 39% were denied. Although some denials were reversed, no one else 

has gotten paid in 2 years. The funds money dispersed is about $818,450,387, below 

the $2.4 billion claimed by the government. It’s true that some people did get paid 

in the lawsuit. However, many more farmers would have been paid had as required 

by the Consent Decree, had they been notified by USDA. On April 14, 2004, the 

statute of limitations ran out and more than 65,000 potential claimants were shut 

out of the process, denying Black farmers an opportunity to prove their claims. 

The Coalition is grateful to the Environmental Working Group (EWG) and John 

Boyd, Jr., President, The National Black Farmers’ Association (NBFA) for the dramatic report entitled, ‘‘A Century of USDA’s Institutionalized Racism Subjects African American Farmers to Dramatic Land Loss,’’ from which much of the data for 

this document was obtained. USDA has a long and checkered past when it comes 

to spending the American taxpayers dollars on lawyers and attorneys to protect 

themselves against the wrongdoings, discriminatory activities, retaliation and 

abuses against Black, minority farmers and employees. 

The USDA Office of General Counsel (OGC) has a long track record of using government funds to pay big expensive outside attorneys to protect them from customers and employees making claims against the Department. The reason for this 

waste is that USDA OGC attorneys lack the credentials, expertise and authority required to do it themselves. In addition, they frequently abuse the system and fail 

to apply laws appropriately. Many of them hide behind the government’s dysfunctional abusive arcane civil rights process and successfully break the laws at the expense of the American taxpayer. 

Based on historical data and widespread reports, papers filed in court and recent 

Hearing ‘‘Status of the Implementation of the Pigford v. Glickman Settlement,’’ held 

on Tuesday, September 28, 2004, U.S. House of Representatives, Subcommittee on 

the Constitution, Black farmers are still suffering at the hands of a failed process 

which was supposedly designed to protect them . . . not abuse them. This Congress 

of the United States owes it to the American taxpayer and Black farmers to get to 

the bottom of this dysfunctional process inside and outside USDA to right this egregious wrong intentionally perpetrated upon Black farmers by those with their own 

personal agendas . . . racism, sexism, reprisal, intimidation and other abuses. 

The Department of Agriculture has denied payments to approximately 90 percent 

of Black farmers, who sought compensation for discrimination under a landmark 

court settlement the agency reached with African American growers five years ago, 

according to a report released in July 2004, by the Washington-based Environmental Working Group (EWG). A two-year investigation found that USDA officials 

contracted with Justice Department lawyers who ran up a bill for 55,712 staff hours 

reviewing the claims . . . again wasting taxpayer money. to aggressively fight the 

farmers’ claims after the settlement of the $3 billion class-action lawsuit. The Report states that of the 94,000 growers who sought restitution in a process set up 

by the court, 81,000 were turned away. The report, funded by the Ford Foundation, 

said the USDA’s actions ‘‘willfully obstructed justice’’ and ‘‘deliberately undermined’’

the spirit of the settlement. Employees suffer from the same abuses and reprisals. 

It has been proven that individuals including our own government have engaged 

in a hideous, collusive effort to deny Black farmers not just those in the Pigford 

class, but also the Black Farmers engaged in the administrative complaints process 

post Pigford efforts to derail the justice they deserve. 

Dan Glickman, Former, Secretary of Agriculture, Under the Clinton Administration, tried to fix the civil rights mess at USDA and briefed incoming Secretary, Ann 

Veneman on the issues and the pitfalls of trying to change USDA historic racist culture. Mr. Glickman’s advice seemingly fell on deaf ears and the power stayed in the 

hands of discriminating officials who continue to cover up for each other and distort 

the facts. This generated many additional cases and resulted in new class actions, 

fueling a culture of non-compliance with laws, settlements and Congressional mandates. This continues to this very day. Secretary Glickman the creator of the Office 

of General Counsel, Civil Rights Division, for the purpose of solving the problem 

. . . instead they are part of the problem. 

We must continue to expose those responsible for the injustices against farmers, 

at the hands of USDA . . . the Justice Department, Court Ordered Monitors, Arbitrators and even their own Attorney. Hopefully, these Hearings will help eliminate 

the institutionalized abuses partly due to poor USDA leadership and little to no accountability. Lawmakers and others now recognize that the 1999 class action settleVerDate 0ct 09 2002 15:26 Feb 01, 2005 Jkt 000000 PO 00000 Frm 00300 Fmt 6601 Sfmt 6621 G:\WORK\CONST\111804\97230.000 HJUD1 PsN: 97230
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ment did not help most of the farmers in the Class. About 65,000 Black farmers 

were excluded because they didn’t file claims in time due to a mostly flawed and 

inadequate notification process. We are ‘‘sick and tired of being sick and tired.’’

American taxpayer dollars are being used to fund abuses against Black and minority farmers as well as USDA employees. Hopefully, these Hearings will continue 

to surface this travesty of justice . . . masterfully designed and perpetrated by those 

seeking to thwart legal process. Upon corroboration of these allegations, I request 

that Congress pass legislation (attached) to assure that the approximately 64,000 

Black farmers who did not benefit from the Pigford vs. Veneman Lawsuit receive 

a just and fair haring, on the merits of their cases. 

The racial hatred and animus perpetrated by the USDA, dubbed, ‘‘The Last Plantation,’’ persists like a plague. USDA officials at the very top rung, through intention, deceit, passivity, inaction and neglect, have knowingly allowed and even encouraged top government administrators and lawyers as well as local federal Farm 

Service Agency officials across this land to trample on the civil rights of the Black 

farmers and to make a mockery of our precepts of freedom and justice. 

In closing, this is not a Republican problem or Democrat problem, but an American problem and America will have to deal with it.’’ The Agriculture Department 

has steadfastly contended the agency’s record on civil rights laws has been exemplary. It cited numerous initiatives it has undertaken to give Black farmers a greater voice in the agencies organizational structure and its efforts to funnel more business to minority farmers . . . at the same time causing their decline. These actions 

undermine the intent of our constitution . . . freedom of speech and the James S. 

Sensenbrenner, ‘‘No Fear Bill,’’ H.R. 169. 

Too much has been lost and too much is at stake for Black farmers to just accept 

that the solution in 1999 has failed more people than it has helped. USDA the ‘‘People’s Agency’’ established in 1862 under President Abraham Lincoln, has sabotaged 

its reputation and credibility by creating conditions that make farm ownership impossible and a providing an unhealthy work environment for employees. I recommend for the above stated reasons that the Office of Civil Rights be put in ‘‘Receivership’’ until such time that the Congress and the Bush Administrations can be 

guaranteed that this deplorable mess and dysfunctional system will be repaired 

once and for all and stop being a burden to American taxpayers.

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