U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

36–175 PDF 2007

AFRICAN-AMERICAN FARMERS BENEFIT RELIEF

ACT OF 2007, AND THE PIGFORD CLAIMS

REMEDY ACT OF 2007

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

ON

H.R. 558 and H.R. 899

JUNE 21, 2007

Serial No. 110–46

Printed for the use of the Committee on the Judiciary

(

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

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

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 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

TRENT FRANKS, Arizona 

MIKE PENCE, Indiana 

DARRELL ISSA, California 

STEVE KING, Iowa 

JIM JORDAN, Ohio

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III)

C O N T E N T S 

JUNE 21, 2007

Page 

THE BILLS 

H.R. 558, the ‘‘African-American Farmers Benefits Relief Act of 2007’’ ............. 2

H.R. 899, the ‘‘Pigford Claims Remedy Act of 2007’’ ............................................ 12

OPENING STATEMENT 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 16

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Ranking Member, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 16

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

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 18

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

of Iowa, and Member, Subcommittee on the Constitution, Civil Rights, 

and Civil Liberties ............................................................................................... 19

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

of Virginia, and Member, Subcommittee on the Constitution, Civil Rights, 

and Civil Liberties ............................................................................................... 19

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

of Tennessee, and Member, Subcommittee on the Constitution, Civil Rights, 

and Civil Liberties ............................................................................................... 21

The Honorable Artur Davis, a Representative in Congress from the State 

of Alabama, and Member, Subcommittee on the Constitution, Civil Rights, 

and Civil Liberties ............................................................................................... 21

WITNESSES 

The Honorable Charles E. Grassley, a United States Senator from the State 

of Iowa 

Oral Testimony ..................................................................................................... 14

Mr. John Zippert, Director of Program Operations, The Federation of Southern Cooperatives Land Assistance Fund 

Oral Testimony ..................................................................................................... 33

Prepared Statement ............................................................................................. 34

Ms. Cassandra Jones Havard, Associate Professor of Law, University of Baltimore School of Law 

Oral Testimony ..................................................................................................... 35

Prepared Statement ............................................................................................. 37

Mr. Phillip L. Fraas, Attorney-at-Law 

Oral Testimony ..................................................................................................... 82

Prepared Statement ............................................................................................. 83

The Honorable A. Donald McEachin (D-74th District), Virginia House of 

Delegates 

Oral Testimony ..................................................................................................... 84

Prepared Statement ............................................................................................. 86

Page

IV

Dr. John W. Boyd, Jr., President, National Black Farmers Association 

Oral Testimony ..................................................................................................... 86

Prepared Statement ............................................................................................. 88

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Steve Chabot, a Representative in 

Congress from the State of Ohio, and Member, Committee on the Constitution, Civil Rights, and Civil Liberties ................................................................ 24

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 101

(1)

AFRICAN-AMERICAN FARMERS BENEFIT RELIEF ACT OF 2007, AND THE PIGFORD 

CLAIMS REMEDY ACT OF 2007

THURSDAY, JUNE 21, 2007

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 9:05 a.m., in Room 

2141, Rayburn House Office Building, the Honorable Jerrold Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Nadler, Davis, Ellison, Conyers, Scott, 

Cohen, Franks, and King. 

Staff Present: David Lachmann, Majority Staff Director; Keenan 

Keller, Majority Counsel; Susana Gutierrez, Professional Staff 

Member; and Paul Taylor, Minority Counsel. 

Mr. NADLER. Good morning. This hearing of the Subcommittee 

on the Constitution, Civil Rights, and Civil Liberties will come to 

order. 

Today’s hearing will examine legislation introduced by two of our 

colleagues on the Subcommittee that will deal with the persistent 

injustice perpetrated against African-American farmers by the 

United States Department of Agriculture. 

[The bill, H.R. 558, follows:]

2


HR558-1.eps
3


HR558-2.eps
4


HR558-3.eps
5


HR558-4.eps
6


HR558-5.eps
7


HR558-6.eps
8


HR558-7.eps
9


HR558-8.eps
10


HR558-9.eps
11


HR558-10.eps
12

[The bill, H.R. 899, follows:]


HR899-1.eps
13


HR899-2.eps
14

Mr. NADLER. Normally at this point we would go to opening 

statements but since our first witness, the distinguished Senator 

from Iowa, has a hearing to attend, we will come back to the opening statements after Senator Grassley testifies. 

Our first witness is the distinguished Senator from Iowa, Charles 

Grassley. He needs no introduction. Suffice it to say that the Senator is himself is a family farmer. He served in the House from 

1974 to 1980, when he was elected to the Senate. He was, among 

other achievements, the author of chapter 12 of the Bankruptcy 

Code, which provides special relief for distressed family farmers. 

While we have long disagreed on many other issues having to do 

with the Bankruptcy Code, I am proud to have worked with Senator Grassley to make chapter 12 a permanent part of the Code. 

I would add that our purpose today is not to talk about bankruptcy but to do all we can to protect family farmers who have 

been treated unjustly by our Government and keep them away 

from bankruptcy. 

I want to welcome our colleague from the other body to the Subcommittee today. Senator, your written statement will be made a 

part of the record in its entirety. I would ask that you now summarize your testimony in 5 minutes or less. To help you stay within 

that time limited, there is a timing light at your table. When 1 

minute remains the light will switch from green to yellow and red 

when the 5 minutes are up. Thank you, and we await your testimony. 

TESTIMONY OF THE HONORABLE CHARLES E. GRASSLEY,

A UNITED STATES SENATOR FROM THE STATE OF IOWA 

Mr. GRASSLEY. Well, thank you very much, Mr. Chairman, and 

I would also thank Chairman Scott, Chairman Conyers and Congressman Davis for their support of this very important issue, and 

I would also thank Congressman Chabot and his staff for the hard 

work that they have put into this legislation. 

I know only one Black farmer in Iowa, but justice knows little 

about State lines and my State has a long history of supporting 

fairness and support for farmers. My efforts for this bill is in that 

tradition. 

Ironically, the Department of Agriculture has expanded in size 

and influence in the last several decades. The number of Black 

farmers in this country has declined dramatically. In the 1920’s 

there were more than 900,000 Black farmers owning or operating 

more than 16 million acres of land. Today statistics reveal that 

fewer than 18,000 Black farmers own or operate less than 3 million 

acres. 

In 1997, aggrieved Black farmers came together to hold the Department of Agriculture accountable for systemic discriminatory 

treatment in the administration of loans and other credit opportunities under the Equal Credit Opportunity Act and the Administrative Procedures Act. Unlike previous unsuccessful lawsuits, the 

U.S. District Court certified and consolidated the Pigford and 

Brewington cases as one class action lawsuit, giving aggrieved 

plaintiffs hope for the first time in many decades. 

15

This decision prompted the U.S. Department of Agriculture to 

agree to resolve these claims expeditiously, the result of which is 

the Pigford consent decree. 

At the time the consent decree was the largest racial discrimination settlement in our Nation’s history and expectations were very 

high once again that a turning point in the documented plight of 

the Black farmer had occurred. The consent decree was intended 

to provide a swift resolution for the claims of discrimination that 

had gone unaddressed for far too long. 

Despite these good intentions, the expeditious resolution of tens 

of thousands of claims has not occurred. Testimony before the 

House Constitution Subcommittee revealed many unanticipated 

problems with the consent decree, some of which have impacted the 

ability of many farmers to file timely claims. In particular, the 

Committee was made aware that more than 65,000 potential claimants who requested entry into consent decrees by the court ordered 

September 15, 2000 deadline, that more than half did not have actual notice of the settlement and were denied the opportunity to 

have determinations made on the merits of their claim. 

Thus, more than 75,000 farmers once again have been shut out 

of the process that was created to address their discrimination complaints and are left without any recourse or opportunity to pursue 

those claims. H.R. 899 provides those aggrieved claimants who filed 

late claim petitions with the court appointed arbiter before December 31st, 2005 with a new and needed opportunity. This bill is intended to provide some measure of justice to remedy past injustices. 

With this bill, it is my hope that the U.S. District Court would 

embrace this opportunity and construe it in a remedial spirit in 

which it was intended. In his latest opinion District Court Judge 

Friedman stated, quote, that legislators can take steps that judges 

cannot. If Congress believes that burdens are unfair or that a significant number of African-American farmers, despite extraordinary efforts to reach them, never received notice, then it surely 

has the means—meaning the Congress—has the means at its disposal to correct these wrongs. Legislative solutions are not unprecedented. The court is confident Congress could devise a means to 

provide relief for these farmers, end of quote. 

With this opinion in mind, it is my hope that the court would liberally construe the cause of action, apply the same substantial evidence standard that was utilized in the consent decree and affording those farmers who meet the criteria with an opportunity to expeditiously resolve their complaints through a process similar to 

and within that process established by that consent decree. 

In 1998, Congress waived the applicable statute of limitations 

that would have barred eligible claimants from filing a complaint 

under the original consent decree. The bill, H.R. 899, provides similar assistance enabling those with meritorious claims to have their 

day of justice. 

I offer a Senate companion to H.R. 899 along with Senators 

Obama, Kennedy and Biden. 

Thank you, Mr. Chairman, for allowing me to testify this morning and one final note: I want to recognize the hard work of Dr. 

16

John Boyd, President of the National Farmers Association, in this 

effort as well. Thank you very much. 

Mr. NADLER. Thank you, Senator. Now mindful of the press of 

legislative business, it is usually not the practice to question our 

colleagues and their witnesses here. Unless there is objection, the 

Senator is excused with thanks. 

Mr. CONYERS. Much thanks. 

Mr. GRASSLEY. Thank you, Mr. Chairman. 

Mr. NADLER. Thank you, Senator. We will now return to our normal order of business and the Chair will recognize himself for 5 

minutes for an opening statement. 

The injustices perpetrated against African-American farmers by 

officials of the United States and its agents have resulted in the 

dispossession of countless family farmers and the near ruination of 

thousands of others. The settlement of the Pigford case was intended to have provided a remedy for these terrible injustices. Unfortunately, for a variety of reasons, including mismanagement and 

apparent continuing resistance by the Department of Agriculture 

and the Department of Justice, that remedy remains elusive for 

many. 

This injustice has gone on for far too many years and quite 

frankly I find deeply disturbing that this matter could have been 

solved years ago had the agencies responsible for protecting the 

rights of family farmers not done their best to undermine those 

rights. The longer this drags on the more farmers will be pushed 

into bankruptcy and off the land their families have farmed for 

generations. That is unacceptable. 

Our colleagues, the gentleman from Virginia, Mr. Scott, and the 

gentleman from Alabama, Mr. Davis, have each introduced legislation to deal with their unacceptable situation. I want to commend 

them for their hard work and dedication. This is truly a just cause. 

I want to welcome all of our witnesses and thank them for participating today. I look forward to your testimony. I yield back the 

balance of my time. 

I now recognize our distinguished Ranking Member the gentleman from Arizona, Mr. Franks for his opening statement. 

Mr. FRANKS. Well, thank you, Mr. Chairman. And thank you for 

holding this hearing on this very important issue. 

Mr. Chairman, the United States Department of Agriculture is 

responsible for the farming programs that provide loans, credit, 

and other benefits to farmers. A Federal court has found that the 

USDA’s loan program was plagued by discrimination by the elected 

county committee and supervisors who administered the program 

who systematically denied certain farmers loans and other credit 

opportunities based on the race of the applicants. The collective effect of these actions contributed to the dramatic decline in the 

number of Black farmers in the United States. 

The U.S. District Court for the District of Columbia noted in its 

opinion approving the consent decree resulting in the litigation 

Pigford v. Glickman, that the number of minority farmers and farm 

ownership has declined from nearly a million strong and 16 million 

acres of farmland in the 1900’s to fewer than 18,000 minority farmers owning less than 3 million acres of land today. 

17

While it is true that the number of American farmers of all races 

have declined by large percentages the court’s findings suggested 

that racial discrimination was at least in part the cause for the 

numbers that declined within the minority community. 

Since the consent decree’s opinion, however, criticism has ensued 

over the fairness of the process to adequately resolve past complaints of discrimination. On September 28 of 2004, this Committee 

under Chairman Steve Chabot held an oversight hearing on the 

status of the implementation of the Pigford settlement. The hearing closely examined the consent decree, particularly focusing upon 

whether the intent of the parties has been fulfilled, whether procedure requirements prescribed for the settlement were adequate and 

whether the civil rights issues that led to the settlement had been 

properly addressed and what actions may be further necessary to 

address the outstanding issues. 

On November 18, 2004, the Subcommittee held an additional 

oversight hearing on the notice provision of the consent decree to 

better determine whether the intent of the parties to the settlement has been fulfilled in light of the substantial numbers of late 

filing claimants and what may be done to address the more than 

75,000 late filers. 

Chairman Chabot and Congressman Scott introduced H.R. 899, 

the Pigford Claims Remedy Act of 2007. Section 2(a) of the bill 

grants a new Federal cause of action to those Pigford claims who 

submitted late filing requests with the arbitrator of the Pigford

consent decree but who were denied entry in the settlement. The 

new cause of action would provide those late filers who meet the 

class criteria and who have meritorious complaints of discrimination in the administration of USDA farm loans with the opportunity to have those complaints resolved before a neutral party. 

Without H.R. 899, late claim petitioners will be time barred from 

pursuing their claims. 

A second bill H.R. 558, the African-American Farmers Benefits 

Relief Act of 2007 has also been introduced by Chairman Conyers 

and Representative Davis of Alabama. H.R. 558 addresses the 

same general problem addressed by H.R. 899. I have, however, constitutional concerns with the way that H.R. 558 is structured as it 

may unduly micromanage subsequent judicial proceedings. 

Testimony taken by the Subcommittee on the Constitution during its hearings confirmed that Congress lacks the constitutional 

authority to intervene in a judicially approved settlement, and this 

is precisely what H.R. 558 is structured to do. The testimony from 

the November 18, 2005 hearing, however, supports Congress’ authority to create a new cause of action for those Pigford claims who 

never had a substantive determination made on the merits of their 

claims, and this is done by Representative Chabot’s bill, H.R. 899. 

It is worth noting that this is not the first time Congress has assisted Black farmers subject to the Pigford consent decree. In 1998, 

Congress waived the applicable statute of limitations that would 

have barred putative class members from even participating in the 

consent decree and the Pigford court itself has noted potential need 

for official congressional action. In the last opinion the District 

Court found that judicial power reaches only so far. Legislatures, 

however, can take steps that judges cannot. If Congress believes 

18

that burdens imposed by the administration of the consent decree 

are unfair or that a significant number of African-American farmers never received notice, then it surely has means at its disposal 

to correct these wrongs. The Court is confident that the Congress 

could devise the means to provide relief for these farmers, and I 

believe that too, Mr. Chairman. And I look forward to exploring 

those means today and hearing from all of our witnesses. Thank 

you. 

Mr. NADLER. Thank you. Normally in the interest of proceeding 

to our witnesses and mindful of our busy schedules I would ask 

that other Members submit their statements for the record. In this 

instance since two Members of the Subcommittee have introduced 

the bills that we are considering today, I think it appropriate that 

Members of the Subcommittee who wish to make a statement be 

recognized for that purpose. And so I will ask the Members of the 

Subcommittee in order if they wish to make opening statements, 

starting with the distinguished Chairman of the full Committee. 

Mr. CONYERS. I think that I would like to make a very brief 

statement. 

Mr. NADLER. The gentleman is recognized for 5 minutes. 

Mr. CONYERS. Thank you very much. This is a great deal and I 

just want to take the time and compliment the tremendous interest 

that has been generated around this subject that is bipartisan in 

nature. And the reason that this becomes important, because after 

a number of years in Congress very few things get out of here that 

are not bipartisan. I mean that is the only way we can make laws. 

This comes as a shock to some people who would rather go down 

in a partisan way rather than achieve victory by working together. 

And so in addition to all my colleagues on this side of the aisle 

of whom I am so proud, the Chairman himself, Bobby Scott, and 

many others, I lift up for some special thanks, not only the Republican Senator that was just here, but also Congressman Chabot and 

the Ranking Member of this Committee, Mr. Franks, I am very 

grateful to you, and others that are joining us. 

This is a cause that, because of my seniority, I can claim to have 

been here first and been in here longer than anybody else, but that 

does not get me any points unless we are bringing people with us. 

And now, thanks to the Judiciary Committee of the House, that is 

happening. And it is so important that we examine carefully how 

we are going to proceed. 

The front page of yesterday’s Washington Post tells it all, doesn’t 

it? There are very few people in this room right now that did not 

notice that with great detail. In the Mississippi Delta 95 percent 

of the agricultural subsidies went to large commercial farms primarily, if not exclusively, owned by White farmers despite the fact 

that the majority of residents in the region are African-Americans. 

And what is so impressive to me is that in the Senate and in the 

House all the Members have recognized that the question of race 

has played the determining factor in this. Exactly what we are trying to eliminate in our society has been compounded in the history 

and the experience of Black farmers in America. 

It is a huge American tragedy that begs to be corrected. We have 

two ways suggested to do it. And what I want to pledge is that we 

are going to work this out between the legislative proposals. But 

19

the more important thing is that in this 110th Congress we achieve 

the success that we thought we had accomplished in 1999 when we 

thought that we had really done something. The intransigence inside the Federal Government in the USDA and to the agencies that 

have control over agriculture is astounding. They are really not 

ready for the 21st century of a color-free, color-blind way of farming, which is one of the largest businesses still in the country, after 

all that had been done to them. And I lift up a special plea in the 

case of the family farmer, the small farmer. Black and White. They 

are all disappearing, but the African-American farmer has been 

mistreated by its own Government. Even when we thought we had 

victory in our hands, it was snatched out at the last minute. 

And this is why Chairman Nadler, the work that you and the 

Ranking Member are doing in this Committee is so far important 

to see that that is corrected. And I am so proud that we have all 

of the great leaders here with us today. And I thank you very much 

for this time. 

Mr. NADLER. I thank you. Does the gentleman from Iowa seek 

recognition? 

Mr. KING. Briefly, Mr. Chairman. 

Mr. NADLER. The gentleman is recognized for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. I am going to keep this 

brief, but I do want to express that I am not yet convinced and I 

am going to want to hear on both sides of this argument. I am concerned about some statistics that I see, just going through right 

now 96,000 total filers compared to 20,000 African-American farmers. That is hard for me to equate that and not wanting to have 

some response and answers as to what would bring about such a 

statistic like that. 

I think this Committee knows that I am actively and aggressively against prejudice and bias on either side, and I appreciate 

the Chairman of the overall Committee’s remarks regarding that. 

And so I am going to listen to this with open ears and open mind 

and I am going to ask perhaps some skeptical questions and I ask 

the witnesses to be prepared to answer that. And hopefully we can 

come to a consensus conclusion here. 

And I would thank the Chairman and yield back the balance of 

my time. 

Mr. NADLER. Thank you. The gentleman from Minnesota. Do you 

seek recognition? 

Mr. ELLISON. No, I don’t, Mr. Chairman, thank you. 

Mr. NADLER. Thank you. The gentleman from Virginia. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. NADLER. The gentleman is recognized for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. I want to thank you for 

holding this hearing and for your steadfast support in supporting 

efforts to obtain justice for Black farmers generally and particularly those who are seeking redress for being denied a determination of the merits of their claims of discrimination through the 

Pigford litigation. You have done what you could do to assist the 

efforts both as Ranking Member of the Subcommittee in the last 

Congress and now as Chairman. 

I want to recognize also the efforts of the full Committee Chairman, Mr. Conyers, and the efforts of the gentleman from Alabama, 

20

Mr. Davis, in also seeking justice. I want to further recognize the 

former Chairman of the Subcommittee, Mr. Chabot from Ohio, for 

his efforts to seek justice for Black farmers in holding hearings and 

sponsoring legislation he sought to get passed in the last Congress 

and in cosponsoring legislation this year which was filed simultaneously with the bill in the Senate by Senators Grassley and 

Obama. 

Both bills before us today seek a measure of justice for Black 

farmers. One, H.R. 899, which I am the lead sponsor, is a rifle shot 

effort to provide late filers in the Pigford case an opportunity to 

have their claims heard on the merits. The other bill before us, 

H.R. 558, is a more comprehensive bill which I also support, yet 

it requires consideration by another Committee, the Committee on 

Agriculture, and has provisions directing actions by courts which 

raise problematic issues of separation of powers between the legislative and judicial branches. 

While we are working toward a more comprehensive approach, I 

would hope that we can still proceed with the part that is exclusively within the Judiciary Committee’s jurisdiction, giving late filers a simple chance to have their claims heard on the merit. 

As indicated already, some 94,000 claims were filed but only 

22,000 of those were or are slated to be considered on the merits. 

Of the remaining claims only 2,100, less than 3 percent, were accepted for determination on the merits. While the merits of all 

2,100 late filers accepted have not been determined, some have 

been and, according to reports of the court appointed monitor of the 

settlement, some of those considered were found to warrant payment under the settlement agreement, which indicates that there 

may well be many others among the late filers also entitled to 

awards. 

The large part of the problem in the settlement appears to be 

that nobody realized there would be a potential for so many claims 

to be filed. Early estimates ranged from a few hundred to a few 

thousand. But it does not seem reasonable to believe that the court 

would twice extend the period for late filers simply to tell all of the 

late filers, and almost 97 percent of them, that they too filed late. 

Nor does it appear reasonable to believe the court or anyone would 

have knowingly designed a process that would leave 75 percent of 

those who filed a claim without any way do get their cases heard 

on the merits. 

It certainly does not seem reasonable to conclude that 75 percent 

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

file but intentionally waited after the deadline to file their claim. 

With the vast majority of claims being filed after the deadline had 

passed, it is not unreasonable to conclude that effective notice did 

not reach most of the claimants in a manner that allowed them to 

file their claims on a timely basis. We do not have to determine 

whose fault it was, but we should recognize the fact that 75 percent 

in fact filed late. 

The court in trying to accommodate the situation gave the arbiter carte blanche authority to determine whether late filers’ claims 

should be considered due to extraordinary circumstances. Unfortunately, the arbiter established a process that resulted in most 

claims not being able to show extraordinary circumstances and it 

21

prevented them from being able to file on time. Rather than apply 

a standard so narrowly that 97 percent of those claims were left 

out, the arbiter should have considered it to be an extraordinary 

circumstance that 75 percent of the claims in the class action were 

not considered on the merits and he should have allowed all of 

them to be considered. 

Now, obviously not all of the claims will be found meritorious. 

But it would be a travesty of justice on top of a travesty of justice 

not to allow those claims to have been resolved on their merits. 

So, Mr. Chairman, while I filed H.R. 899 simply to allow the 

farmers to have an opportunity to have their cases heard on the 

merits, I would hope that we would see this swiftly passed into 

law. I would like to thank you for scheduling this hearing. 

As you know, Mr. Chairman, farmers are losing their farms 

every day while this legislation is pending. So I look forward to the 

testimony of witnesses and hope that we can move this bill as expeditiously as possible. 

Thank you. 

Mr. NADLER. I thank the gentleman. I now recognize the gentleman from Tennessee for 5 minutes for an opening statement. 

Mr. COHEN. Thank you, Mr. Chairman. I just want to thank Mr. 

Davis and others who brought H.R. 558 originally, of which I am 

an original cosponsor. I became aware of this issue from then representative, now county commissioner Henry Brooks, who brought 

a resolution to the Tennessee legislature concerning the plight of 

the African-American farmers and the Pigford claims and all. Before that I wasn’t aware of it and opened my eyes and during the 

campaign I had several people talk to me about these issues. And 

my district is about 100 percent urban, but there are folks in Fayette County, right outside of Shelby, that are affected and other 

people throughout the Delta. And of course as those people prosper, 

people in my area prosper. But it is a justice issue, regardless of 

the economic issue that it brings upon the city. 

The articles in the paper the last few days about how so many 

subsidies have gone to the large White farm owners, the big folks, 

just indicated to me again the disparity that we have had in this 

country with people. And it is a thing that has been over the years 

and what we have done with justice with Emmett Till, what we 

need to do in so many areas, is to try to bring this country together 

and it is not just social justice, it is economic justice. And economic 

justice isn’t just an urban thing. It is a rural thing too. 

So I am pleased to be a sponsor, and I hope we can have some 

success. And I thank the Chairman and particularly Representative Davis for bringing this initial legislation. I yield the balance 

of my time. 

Mr. NADLER. I thank the gentleman, and the Chair the now recognizes the gentleman from Alabama for 5 minutes for an opening 

statement. 

Mr. DAVIS. Thank you, Mr. Chairman. And Mr. Cohen, thank 

you for your comments and thank you for your cosponsorship of the 

bill. I know that our Committee Chair, John Conyers, has to leave 

because he has a hundred other things that he needs to do, but Mr. 

Conyers, while you are here I do want to acknowledge you at the 

outset. 

22

This hearing has been a long time coming, ladies and gentlemen. 

We have been talking, as we tend to do in this institution, for a 

long time about relief for African-American farmers. We have been 

talking, as we tend to do in this institution, for a very long time 

about dealing with the practical inequities in the Pigford case. We 

have been talking for a very long time about fixing Pigford. Well, today we move from talking to having a hearing on a bill 

to a markup to enacting legislation. And I am convinced, I know, 

Mr. Chairman, you prefer us to be as nonpartisan as we can be in 

these settings but let me say the obvious. Elections have consequences. We would not be conducting this hearing but for the results of November 6th and John Conyers becoming the Chair of 

this Committee. Mr. Chairman, if you will indulge me that comment. 

Now if I can, turning to the substance, let me thank my very 

good friend, one of my best friends in the Congress, Bobby Scott, 

for the good work that he has done on this issue. Let me thank 

Steve Chabot from Ohio for the work that he has done. For that 

matter, let me thank George Allen for the work that he did. The 

Scott-Chabot bill was introduced in the Senate last term by Senator Allen. And I thank him for his interest in this issue. 

Let me talk about the bills that I have introduced, a number of 

people have cosponsored, which is H.R. 558. It is very simple. It revives the Pigford administrative process. It says to farmers who did 

not get notice that this time the Government will have to provide 

the notice and pay for it. It says to the many Pigford litigants who 

were thrown out because their claims were untimely filed, and Mr. 

Scott mentioned all the issues with the notice process. He mentioned all the issues with the timing. 

This bill says to them that they will now have their opportunity 

to come back in and have their claims heard. This bill says to farmers who were facing foreclosure or default that if you can show that 

your foreclosure or default is proximately connected to discrimination, that it stops, and I think it is a good comprehensive approach. 

Some say that we should simply let African-American farmers 

file a civil claim and simply go into court. I want to point out two 

problems with that. The first one is anyone in this room who has 

practiced employment law knows, and I see at least one good friend 

of mine, Byron Perkins of Birmingham, Alabama, who runs the 

Johnny Cochran firm, there are other lawyers in the room, one of 

whom, Mr. Fraas, will testify. As these gentlemen know very well 

when you file a civil rights case in this country you get your day 

in court. It is the day you file the complaint, and that is it. 

For the overwhelming majority of cases, 90-some percent of civil 

rights cases filed in this country never make their way to a jury 

trial. The overwhelming majority of them go out on summary judgment or dismissal. The ones that settle don’t settle at a very high 

value. Frankly, in this litigation climate most cases don’t have a 

very high settlement value. As I am sure Mr. Fraas will tell you 

cases on behalf of poor farmers who don’t have resources, who often 

don’t have the resources to stay the course in civil litigation, those 

cases I guarantee you don’t have a high settlement value. So a new 

cause of action for African-American farmers in my opinion does 

not do enough to protect their rights. 

23

The final point I will make, let’s put all of this in perspective. 

Ninety percent of the claims filed under Pigford were denied on 

their merits or dismissed as untimely. Nine out of ten. Ladies and 

gentlemen, as everyone in this room knows as a matter of common 

sense, the Federal Government would not have settled a case if 90 

percent of the claims had no merit. The Government wouldn’t have 

given money away. The Government wouldn’t have settled the case 

on the theory that nine out of 10 claims had no value. 

There is proof positive that Pigford has not worked. The fact that 

90 percent of those who tried to go through the process has been 

denied. Yes, Mr. Cohen, Mr. Scott, this is about justice. It is not 

about special treatment for anybody. It is about the Government 

keeping its promise. The Government promised through the 

Pigford process that these individuals would have their shot at a 

hearing. All we simply want to do is make the Government keep 

its promise. 

And Mr. Chairman and the Chair of the Subcommittee, I thank 

you for convening this hearing. 

Mr. NADLER. I thank you, sir. And I now recognize the gentleman from Arizona. 

Mr. FRANKS. Mr. Chairman, I would just like to submit for the 

record the statement of Steve Chabot by unanimous consent. 

[The prepared statement of Mr. Chabot follows:]

24

PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF OHIO, AND MEMBER, COMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES


Chabot-1.eps
25


Chabot-2.eps
26


Chabot-3.eps
27


Chabot-4.eps
28


Chabot-5.eps
29


Chabot-6.eps
30


Chabot-7.eps
31


Chabot-8.eps
32

Mr. NADLER. Without objection, the statement will be admitted 

into the record. 

Without objection, all Members will have 5 legislative days to 

submit opening statements for inclusion in the record, anyone who 

did not read their statement already. 

Without objection, the Chair will be authorized to declare recess 

of the hearing. As we ask questions of our witnesses the Chair will 

recognize Members in the order of their seniority on the Subcommittee alternating between the majority and the minority, providing that the Member is present when his or her turn arrives. 

Members who are not present when their turn begins will be recognized after the other Members have had the opportunity to ask 

their questions. 

The Chair reserves the right to accommodate a Member who is 

unvoidably late or only able to be with us for a short time. 

I will now ask the witnesses to come forward and sit at the witness table. 

I would now like to introduce our second panel. Our first witness 

is John Zippert, Director of Program Operations of the Federation 

of Southern Cooperatives Land Assistance Fund. He has headed 

the Federation’s team to assist member farmers with claims, late 

claim petitions, and appeals in the Pigford case. Mr. Zippert is a 

graduate of the City College of New York. He and his wife Carol 

are copublishers of the Greene County Democrat, a weekly newspaper in their home rural community. 

Our second witness is Cassandra Jones Havard, Associate Professor of Law at the University of Baltimore Law School. In addition to her many publications and accomplishments, she is the author of African-American Farmers and Fair Lending: Racializing 

Rural Economic Space, which appeared in the Stanford Law Policy 

Review. Professor Jones Havard is a graduate of Pennsylvania 

School of Law. She clerked for Judge A. Leon Higginbotham of the 

U.S. Court of Appeals for the Third Circuit. 

Our next witness is Philip Fraas. Mr. Fraas is an attorney here 

in town who has worked on the Pigford case since 1997. He is a 

graduate of the University of Missouri Kansas City School of Law. 

The next witness is the Honorable A. Donald McEachin——

Mr. SCOTT. Mr. Chairman, Mr. McEachin is in the building. He 

will be here presently. 

Mr. NADLER. I figured he will arrive, so I will introduce him. He 

represents the 74th District in the Virginia House of Delegates. He 

is a graduate of the University of Virginia School of Law and currently is a candidate for a Master’s of Divinity at Virginia Union 

University. 

Our final witness is Dr. John Boyd, the President and founder 

of the National Black Farmers Association. Dr. Boyd nearly lost his 

poultry farm in Virginia as a result of discriminatory practices by 

the USDA and has been an outspoken advocate for African-American farmers. 

I am pleased to welcome all of you. As a reminder, each of your 

written statements will be made part of the record in its entirety. 

I ask that you summarize your testimony in 5 minutes or less. To 

help you stay within that time there is a timing light at the table. 

33

When 1 minute remains the light will switch from green to yellow 

and then red when the 5 minutes are up. 

The first witness is Mr. Zippert. 

TESTIMONY OF JOHN ZIPPERT, DIRECTOR OF PROGRAM OPERATIONS, THE FEDERATION OF SOUTHERN COOPERATIVES LAND ASSISTANCE FUND 

Mr. ZIPPERT. Good morning. I want to thank the Members of this 

Committee and also especially my home Congressman, Congressman Artur Davis, for inviting me to this hearing to speak on this 

very important issue. 

The Federation works with 20,000 African-American rural families throughout the Southeast, about half of them engaged in farming, the others members of credit unions, housing co-ops, fishing coops, et cetera. 

We assisted over 5,000 of our members across the South to file 

claims in the Pigford lawsuit by the original deadline date. We also 

assisted thousands more in the process of filing late claims. We 

have heard a lot here this morning about the statistics. One of the 

most interesting statistics is that 20,000 or more of the 65,000 late 

filers filed a second petition explaining in detail their reasons for 

being late. And Michael Lewis, the chief arbitrator in the case, only 

accepted 141 of those petitions. 

So the overwhelming number of people who really expressed interest in having their case heard were not able to have their case 

heard. And so we are appreciative of this hearing, of considering 

these proposals. We strongly support H.R. 558, the proposal by 

Congressman Davis and Conyers and other Members of the Committee. 

We do this because we feel it incorporates most of the concerns 

we have about the Pigford process and it provides a comprehensive 

way of addressing the problems in this case. And we are a little 

concerned about going back to Federal court without real clarity of 

what procedures and how these Pigford late filers and people who 

did not get notice in the Pigford case will get their problems redressed. And so we feel the 558 is a more comprehensive approach 

that includes many of the concerns of the injustice that was in the 

case. 

We are sitting here today 8 years after the original consent decree, and I feel that unless we address this in a comprehensive way 

we will be back here numerous times again trying to address the 

efforts you made to correct the case. So I think we ought to go for 

the most comprehensive review and consideration. 

In my statement, we also indicated some things that maybe 

should be added to 558 to make it stronger and something to be 

included in terms of some kind of attorneys fees or some kind of 

ways to pay the attorneys for handling these claims on behalf of 

late claim filers, because many of the lawyers who were involved 

in this case the first time around have become discouraged by all 

that has happened in the Pigford case. 

Also there are some groups of people who through no fault of 

their own did not get to file appeals with the monitor and other 

steps along the way in this case, and we feel those people should 

be entitled to a second chance for justice in their situation. 

34

We want to see a time limit of 6 months placed once we get into 

this, that the Government would respond to these cases within a 

time limit. 

I think lastly to express some sense of Congress that the Administration and USDA should settle the other discrimination cases 

that are out there by Native Americans, Hispanics and women 

farmers. 

Thank you very much. 

[The prepared statement of Mr. Zippert follows:]

PREPARED STATEMENT OF JOHN ZIPPERT

On behalf of the more than 20,000 rural member families of the Federation of 

Southern Cooperatives/Land Assistance Fund, many of whom are African-American 

farmers and landowners, we are pleased to present testimony at this hearing on corrections in the Pigford Class Action Lawsuit. 

The Federation staff assisted over 5,000 of our members across the rural South 

to file claims in the Pigford lawsuit by the deadline of October 12, 1999. We further 

assisted a similar number to file ‘‘late claims’’ in the case by the second deadline 

of September 15, 2000. We helped many of the late filers to submit affidavits explaining their reasons for filing late. We have also assisted our members in filing 

appeals for issues in the case with the Monitor, especially issues dealing with the 

identification of ‘‘similarly situated white farmers’’ which was a required element of 

a successful claim. 

Of the 65,989 claimants who filed a late claim petitions by the September 15, 

2000 deadline, only 2,119 petitions have been approved to allow claimants to file 

actual claims in the case. Another approximately 7,000 people filed their late claim 

within thirty (30) days of the late claim deadline. These 71,000 people received 

Tracking Numbers in the case, from the Facilitator in Portland, Oregon. Their 

names and addresses, at the time of their claim, are known and available in the 

case. 20,688 of the 65,989 late claim petitioners filed additional documentation with Michael K. Lewis, Arbitrator, in the form of a reconsideration of their petition to file 

a late claim and give additional information on their reasons for filing late, e. g., 

illness, family member’s illness, lack of notice, lack of information, failure to sign 

their original petition, etc. Lewis approved only 141 of these petitions, turning down 

the overwhelming majority of 20,544 petitions. 

Many farmers say that they did not receive adequate notice of the case in 1999 

during the initial six months public notification period. This Subcommittee has held 

previous hearings that established that the notice given Black farmers in this historic case was inadequate. Many farmers say they did not know of the case until 

the official claims period had ended. 

The Federation because of our work with our constituent members in the case and 

work with the Chestnut, Sanders, Sanders law firm in Selma, Alabama, have been 

involved in every step of the case. We developed suggested legislation in 2005, which 

we entitled 

‘‘The Black Farmers Judicial Equity Act of 2005’’, which we submitted to members 

of this Committee and other interested members of Congress, including our Congressman, Artur Davis from the Alabama 7th District. In our suggestions, we submitted a comprehensive set of 

recommendations to improve the situation and provide more equity for Black 

farmers involved in the case. 

We are here today to support H. R. 558, the ‘‘African American Farmers Benefit 

Act of 2007’’ because it incorporates most of the elements and recommendations proposed by the Federation to remedy the problems in the Pigford Class Action Lawsuit. 

We support this legislation because it would provide a second chance for persons 

who filed claims in the Pigford Black Farmers Class Action Lawsuit but whose 

claims were never heard and adjudicated on their merits. The 71,000+ people who 

have been denied a hearing on their merits and potentially thousands of others who 

never received adequate notice of the case would be able to get their petitions and 

claims heard. 

H. R. 558 preserves many of the advantages and benefits of the original Pigford 

Class Action Lawsuit by using it as the contextual framework for continuing reviews 

in the case. Farmers who apply for a Track A case would still get the benefits of 

the more lenient standards of proof of discriminatory treatment and documentation 

35

in Pigford. The provisions of H. R. 899 require farmers to go back to Federal court 

for redress with no certainty of the procedures, which will apply. This requirement 

also potentially will limit the number of claimants who can get their cases heard. 

H. R. 558 provides a new notice requirement and procedures to inform perspective 

claimants of the case and the new opportunities to 

petition. The legislation provides for providing information on similarly situated 

white farmers needed to file successful complaints. The legislation provides for naming a new Monitor to provide independent oversight for the process in the case. 

H. R. 558 also provides some remedies for ongoing discrimination by USDA since 

the filing of the Pigford v. Glickman lawsuit. The USDA is required to report information on loans from January 1, 1992 until the enactment of the legislation by race 

of the borrower to help determine patterns of discriminatory lending. The bill also 

prevents USDA from foreclosing on loans if the borrower makes a prima facie case 

to an adjudicator that the foreclosure is proximately related to discrimination by the 

U. S. Department of Agriculture. H. R. 899 does not have similar protective provisions for the claimants. 

H. R. 588 could be strengthen by adding some of the provisions included in the 

Federation’s suggested legislation, among them are:

• Provisions for providing attorney’s fees and ways that attorneys can be paid 

for handling claims for late claim filers in this case; many of the original attorneys in the case have become discouraged by the payment system under 

Pigford;

• Provisions to allow persons whose petitions for Monitor review, under Pigford, 

that were filed late through no fault of their own, to get their petitions heard;

• Allow seven ( 7) Track B claimants, whose lawyer missed deadlines to have 

their claims heard;

• To suspend offsets during the claims process;

• To require that re-adjudications in the case be completed in six (6) months;

• To express the sense of Congress that the Administration should settle other 

USDA discrimination cases filed by Native American, Hispanic and women 

farmers.

More information on the positions of the Federation of Southern Cooperatives/

Land Assistance Fund can be found on our website at: www.federation.coop. This 

includes The Black Farmers Judicial Equity Act of 2005 and our Position Paper on 

Pigford Legislation, dated March 2, 2007.

Mr. NADLER. Thank you. Professor Havard. 

TESTIMONY OF CASSANDRA JONES HAVARD, ASSOCIATE PROFESSOR OF LAW, UNIVERSITY OF BALTIMORE SCHOOL OF 

LAW 

Ms. HAVARD. Thank you, Chairman Nadler, Ranking Member 

Franks, Members of the Subcommittee, thank you for inviting me. 

Let me first tell you about my interest in the Pigford litigation. 

In my academic work I often study Federal Government programs and evaluate them for fair access to credit. My particular interest in Pigford has a familial background. My father started his 

career at the USDA as a negro county agent. When I first heard 

about the litigation, though my father was by then deceased, I was 

quite interested in looking at the USDA programs to try to understand how the system of Federal farm credit loans and credit and 

benefit works. 

Today’s hearing is very important to reviving the claims of the 

Black farmers who have alleged discrimination in connection with 

the USDA programs. Without a doubt, Congressman Davis and 

Congressman Scott should be applauded for tenaciously fighting for 

Black farmers who have not had their claims resolved. The only 

question is now how to best resolve those claims. 

Certainly everyone thought that the Pigford consent decree 

would be an efficient process but it has been anything but that. 

36

Any legislation redressing the failed claim process of Pigford

should have certain key features. And let me make it clear that I 

think both bills have very good features. I think the remedy should 

be comprehensive. I think it is important to avoid the types of proof 

that are required—that are too stringent for farmers to prove their 

claims and be successful. 

I think it is important to think about the economic consequences 

of whatever remedy is put in place, whatever redress is put in 

place. And I think it is also important to think about the risk of 

whatever reliefs are put in place. 

I want to very briefly address three key features of any legislation that I think should go forward. They are the presumption of 

discrimination, the appointment of multiple monitors should it be 

the administrative process, access to comparable data, the statute 

of limitations, appeal rights, and notice. 

Starting with the presumption of discrimination, the issue of 

proof in the original consent decree provides a presumption of discrimination is a less stringent standard than usually in a trial proceeding. I think that is very important in this particular case because of the date of many of the claims. Because of the date, it will 

be very difficult for plaintiffs to prove their cases to a higher standard of proof. And it is important to remember that the reason a 

consent decree was entered into originally was to hasten the resolution of claims and to have both parties receive what they expected. 

Assuming that an administrative consent decree goes back to the 

administrative process, I agree with Mr. Zippert that it ought to be 

a swift process. The resolution ought to put in place, I think, multiple monitors and multiple administrators. Optimally there would 

be monitors and administrators put in for each State. If not, if cost 

is too prohibitive for that, I think certainly they ought to be put 

in regionally. 

Additionally, when the Pigford claim was filed, it was unclear 

how many claimants there were. That is no longer the case. And 

so in order to again hasten the process and to have their claims 

examined and resolved quickly, Mr. Zippert has suggested 6 

months. I won’t suggest a time but certainly to have them resolved 

quickly would mean that the staff ought to be increased. 

A key provision in H.R. 558 speaks to the access to comparable 

data. This is very important. Unfortunately, the way the FSA is set 

up, the county committee structure, it appears to dictate or control 

access to information that is described as having privacy concerns. 

It is very important in limited discrimination cases that comparable data be made available for comparison. And so in this regard if there is any concern about privacy I think that those materials ought to be redacted so they don’t identify the person, but in 

no way should the FSA county committee structure, because it is 

local and because the comparable data is coming from neighbors 

and friends, in no way should that limit the access to critical information. 

Because my time is moving swiftly ahead let me say that I think 

it is important to have a statute of limitations. Certainly one of the 

features of H.R. 899 is that it preserves the appeal rights. One of 

the things that Pigford has shown the importance of the claims is 

37

1Pigford v. Veneman Consent Decree, 185 F.R.D. 82 (D.D.C. 1999). 2 African-American Farmers and Fair Lending: Racializing Rural Economic Space,12 STANFORD LAW AND POLICY REVIEW 333 (2001). 

that perhaps the appeal rights ought to be preserved. And so certainly if that bill were passed, that would give claimants who have 

decisions that are adverse to them the right to go into Federal 

courts of appeal to have them reviewed again. 

Finally, I think the notice requirement in H.R. 558 is very specific. It is very comprehensive. It would go out to all the known 

class members. And this has been something that was bitterly contested and seems to be the source of why so many claims were filed 

late. And so I think that the fact that the bill provides such a specific notification requirement as well as funds, it certainly would 

address a very intense point of contention. 

Let me again commend the sponsors of the legislation and thank 

the Committee for this is leadership in holding the hearing today. 

I look forward to working with the Committee if the opportunity 

were to arise on this important piece of legislation, and I welcome 

questions at the appropriate time. 

[The prepared statement of Ms. Havard follows:]

PREPARED STATEMENT OF CASSANDRA JONES HAVARD

Chairmen Nadler and Conyers, Ranking Member Franks and Members of the 

Subcommittee: 

I am very pleased to be here today to discuss the proposed legislation that would 

provide relief to African-Americans Farmers covered by the Pigford Consent Decree. 

Today’s hearing on H.R. 558, the African-American Farmers Benefits Relief Act of 

2007 and H.R. 899, Pigford Claims Remedy Act of 2007 discusses ways to revive the 

claims of black farmers who alleged discrimination in connection with the Farm 

Service Administration’s (FSA) farm credit and benefit programs at the United 

State Department of Agriculture’s (USDA). The expectation of the Pigford consent 

decree was that there would be a good and fair claims process. Yet the settlement 

provided relief to only a minuscule of black farmers. Early in the settlement process, 

Congressional action was necessary because the vast majority of black farmers were 

denied relief due to the statute of limitations. Congressional action is needed once 

again because the vast majority of black farmers have been denied hearings on the 

merits of their claims due to untimely filings. 

Introduction 

In my academic research and writing, I often study federal programs and evaluate 

whether the underlying structure of the programs provide fair access to credit. I 

have studied Pigford 1 and concluded that USDA’s farm credit system is structurally 

flawed and fails repeatedly and immeasurably to provide access to credit for minority farmers. My work on Pigford was published in the Stanford Law and Policy Review in 2001. The article is published in the Appendix to my testimony.2 I urge both 

Congress and USDA to redouble their efforts to eliminate the substantial and widespread abuses that the farm credit and benefit programs of USDA have visited upon 

African American farmers for decades. Essentially, this requires significant structural changes in the delivery of credit service programs to minority farmers. 

My testimony today will give my conclusions on the best process for resolving 

complaints based on the Pigford Consent decree and will address what I think 

should be in any legislation of redress. 

The Litigation 

The Pigford Consent Decree has failed in actuality to provide the redress that either the Department of Justice as USDA’s lawyer or, indubitably, the black farmers 

expected. The Consent Decree became final in February, 1999. Due to the unexpectedly large number of claims, the court extended that initial deadline twice. Of the 

approximately 73,000 filed, less than 3%, or about 2,100, were accepted for determination on the merits. The Monitor determined that 66,000 class members’ claims 

were untimely. Class members contend that this inordinately high percentage, 75%, 

of late filers was due to a severely flawed notification process. The Monitor, acting 

within its discretion, did not agree and established a process that resulted in no relief for late filers. 

38

3 Equally important, but not addressed are debt relief, tax relief and injunctive relief. 

4The states are: Alabama, Arkansas, California, Georgia, Kentucky, Louisiana, Maryland, 

Mississippi, North Carolina,. Oklahoma, South Carolina, Tennessee, Texas, Virginia, West Virginia and the District of Columbia. 

Re-evaluation of the Merits of the Claims of African-American Farmers 

Any legislation redressing the failed claims process of Pigford should re-examine 

several key features.3 These include: 

Presumption of Discrimination—A prima facie case of discrimination should be 

relatively easy for the class members to prove, thus allowing the defendants who 

should have access to records and documents to rebut the prima facie case, if they 

can. It would be similar to what plaintiffs have to prove in their prima facie case in a Title VII suit. 

Access to Comparable Data—In order to prove a claim of lending discrimination, 

class members need access to comparable data by identifiable characteristics, such 

as race, sex and marital status. Concern about records identifying particular individuals can be answered by redacting information that ostensibly identifies the person. The structure of the FSA system, e.g., the county committees, requires that this 

comparison be made among neighbors and friends. The legal requirements of proving the claim based on the comparison cannot be accommodated to that structure. 

Statute of Limitations—There must be an identifiable time period in which class 

members may exercise their rights. Otherwise, there may be confusion about the viability of a claim and in the end deny a claimant the ability to recover. Any legislation must provide for a statute of limitations that fits the circumstances of the class 

members whose claims go back a number of years. 

Appeal Rights to Federal Appellate Court—Federal trial court and administrative 

proceedings usually provide a disappointed litigant or claimant with the right to appeal a decision that is adverse to their interests to a federal appellate court. The 

Pigford consent decree precludes appeals of individual claim determinations. Yet, 

the importance of the claims in Pigford suggest that appeal rights should be preserved and not cut-off. H.R. 889 would provide appeal rights to class members. 

Appointment of Multiple Monitors—Factors that attend the timeliness of a claim 

are based on regional conditions and culture that often cannot be easily explained 

nor understood. At this juncture, assuming the administrative process is left in 

place, it would seem wise to appoint facilitators, adjudicators or arbitrators for each 

state in which the class members reside.4 Likewise, a single monitor should be appointed in each state to supervise the claims procedure in that state. Admittedly, 

decisions of multiple monitors might not be uniform. Of course the desire for uniformity in determining the merits of claims as well as other procedural matters 

might argue against having multiple monitors. However, if the parties can exercise 

appeal rights, uniformity is enhanced as these cases go up the appellate ladders. 

Notice Requirement—The class members complained most bitterly about the failure to receive notice of the claims procedure. Local media outlets, including radio, 

television and newspapers, apparently were not used to notify class members of the 

class action. While there seems to be a difference of opinion as to whether the notice 

requirement was adequate or arbitrary and poorly-funded, H.R. 558 outlines six specific media outlets in which notice shall be given to all known class members. This 

is a good provision. 

Conclusion 

What happened to class members in Pigford should never happen again. It is a 

mockery of our judicial system’s settlement process to have a negotiated agreement 

that yielded such poor results when the expectation of the consent decree was that 

the claimants would actually and swiftly receive the relief envisioned. 

Systemic Racism and FSA 

Congress must intervene and require the USDA to become accountable by monitoring and enforcing civil rights standards throughout the agency. USDA has failed 

to institute effective procedures that will ensure compliance with all applicable statutes and regulations prohibiting discrimination. This failure is especially apparent 

and bizarre in the very FSA programs subject to the Pigford consent decree: The 

inherently flawed county committee system remains in place. 

The Pigford consent decree never meant to address all of the needs of AfricanAmerican farmers regarding the discriminatory practices at FSA. The need for accountability and transparency in administering farm credit and non-credit farm benefit programs remains and the inherently biased system of delivery of federally 

funded programs cannot be ignored. The decentralization of the federal program unavoidably means that local discriminatory attitudes may effect the determination of 

who receives the massive amounts of federal tax dollars designated for these programs. Congress, at some point in the near future, must provide forward-looking reVerDate 0ct 09 2002 13:14 Oct 22, 2007 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6621 H:\WORK\CONST\062107\36175.000 HJUD1 PsN: 36175
39

lief and mandate a different operational structure at FSA. All farmers, regardless 

of race, deserve the meaningful access to FSA loans and benefit programs as the 

law requires. 

Let me conclude by again commending the sponsors of both bills, Congressmen 

Davis and Scott, for re-examining this issue and the Committee and its leadership 

for holding today’s hearing. I would gladly accept an opportunity to work with the 

Committee as it moves forward in this area, and welcome any questions that members of the Committee have.

40

ATTACHMENT


CJH-1.eps
41


CJH-2.eps
42


CJH-3.eps
43


CJH-4.eps
44


CJH-5.eps
45


CJH-6.eps
46


CJH-7.eps
47


CJH-8.eps
48


CJH-9.eps
49


CJH-10.eps
50


CJH-11.eps
51


CJH-12.eps
52


CJH-13.eps
53


CJH-14.eps
54


CJH-15.eps
55


CJH-16.eps
56


CJH-17.eps
57


CJH-18.eps
58


CJH-19.eps
59


CJH-20.eps
60


CJH-21.eps
61


CJH-22.eps
62


CJH-23.eps
63


CJH-24.eps
64


CJH-25.eps
65


CJH-26.eps
66


CJH-27.eps
67


CJH-28.eps
68


CJH-29.eps
69


CJH-30.eps
70


CJH-31.eps
71


CJH-32.eps
72


CJH-33.eps
73


CJH-34.eps
74


CJH-35.eps
75


CJH-36.eps
76


CJH-37.eps
77


CJH-38.eps
78


CJH-39.eps
79


CJH-40.eps
80


CJH-41.eps
81


CJH-42.eps
82

Mr. NADLER. Thank you. Mr. Fraas. 

TESTIMONY OF PHILLIP L. FRAAS, ATTORNEY-AT-LAW 

Mr. FRAAS. Thank you, Mr. Chairman. It is an honor and privilege for me to testify before the Subcommittee on Constitution, 

Civil Rights, and Civil Liberties on the important legislative proposals. I would like to talk about H.R. 899, the Pigford Claims 

Remedy Act of 2007. 

As a preliminary matter let me say I support any legislation that 

will ensure that every person that meets a Pigford class definition 

gets a fair opportunity to have their complaint against the Department of Agriculture heard and resolved. As I read H.R. 899, it 

would accomplish that end and would do so by giving the remaining Pigford claimants a right to have the merits of their claims determined by a Federal court in a civil cause of action. 

The bill specifies that the remaining Pigford claimants who 

would be given this right are those that I referred to as late filers. 

That is, they are persons who sought permission to participate in 

the settlement but did so after the deadline for the submission of 

the completed claims packages. That is October 12, 1999. 

Under the bill, the late filer would be given the right to have adjudicated the claim that he or she made in filing a complaint of discrimination as described in the definition of the Pigford class, and 

that is discrimination complaints filed on our before July 1, 1997, 

regarding USDA’s treatment of his or her farm credit or benefit application. 

In that regard, I believe the bill should be amended to cover 

cases where the complaint was made orally at a listening session 

or the complaint does not cover all of the instances of discrimination that the person has suffered at the hand of USDA. In such 

cases the claimant should have the right to spell out the nature of 

the claim in detail using the Pigford claim form. 

H.R. 899 is very short, just establishing a cause of action. But 

by doing so it creates for itself three significant advantages. Number one, it would not impel an action by the Department of Agriculture that could be scored by the Congressional Budget Office as 

incurring new budget outlays, making the bill subject to the 

PAYGO strictures. 

Number two, it does not invade the jurisdiction of any other 

Committee of the House and as a result could be moved more expeditiously to the floor for passage. 

Number three, it avoids a constitutional separation of powers 

problem that might arise should it attempt to modify the terms of 

the Pigford consent decree. 

That being said, I believe additional language should be added 

to the bill that would not negate these three advantages, but that 

are necessary to make it a better fit for the needs of the late filers. 

The bill should clarify that claims heard by the Federal court 

would be subject at the request of the claimant to the substantial 

evidence burden of proof applicable to claims prosecuted under the 

Pigford settlement in return for the claimant accepting the standard Track A relief provided for that that settlement. This would 

put late filers on an equal footing with the original Pigford claimants and it is important to do so, not only the matter of fairness, 

83

but in recognition of the fact that many of the Pigford claims involve events that occurred as far back as 1981. With claims so old, 

documentation gets lost and witnesses disappear, making the 

standard preponderance of the evidence burden of proof an almost 

insurmountable obstacle to many injured farmers seeking Pigford

type relief. 

In a similar vein, it would be appropriate for the bill to clarify 

that the claims of those who elect the tracking type process would 

be handled by the courts as the original Pigford claims were handled as a paper-only review under the substantial evidence standard of the filled out claim form, in light of any relevant documentation submitted by the Department of Agriculture. 

I would like to make one last point that is not in my written 

statement and hearing some of the discussions so far, I think it is 

important to clarify that the late filers have not actually filed 

claims yet like the original 22,000 Pigford claimants. Essentially, 

all they have done is they put their name on a list to ask to file 

that claim. So we are not looking at a universe of people that have 

actually filed documented claims of discrimination. That remains to 

be seen. And a process should be devised to go through the claim 

process with these people to see if they actually qualify to participate. 

And that is my testimony, thank you. 

[The prepared statement of Mr. Fraas follows:]

PREPARED STATEMENT OF PHILLIP L. FRAAS

Mr. Chairman and members of the Subcommittee, my name is Phillip L. Fraas, 

and I practice law in Washington, D.C. I have worked on the Pigford case since late 

April 1997 when Tim Pigford called asking me to assist him in his discrimination 

case against the U.S. Department of Agriculture. 

It is an honor and privilege to testify before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the Committee on the Judiciary on these 

important legislative proposals. I would like to talk about H.R. 899, the Pigford 

Claims Remedy Act of 2007. 

As a preliminary matter, let me say that I support any legislation that will ensure 

that every person that meets the Pigford class definition gets a fair opportunity to 

have their complaint against the Department of Agriculture heard and resolved. 

As I read H.R. 899, it would accomplish that end, and do so by giving to certain 

Pigford claimants the right to have the merits of their claims determined by a Federal court in a civil cause of action. 

The bill specifies that the Pigford claimants who would be given this right are 

those that I refer to as ‘‘late filers.’’ That is, they are persons who sought permission 

to participate in the Pigford settlement, but did so after the deadline for the submission of completed claim packages that was set out in the consent decree memorializing the settlement of the case: 180 days after the April 14, 1999, issuance of the 

consent decree, or October 12, 1999. 

Under the bill, the late filer would be given the right to have adjudicated the 

claim that he or she made in filing a complaint of discrimination as described in 

the definition of the Pigford class: a discrimination complaint filed on or before July 

1, 1997, regarding USDA’s treatment of his or her farm credit or benefit application. 

In that regard, I believe the bill should be amended to cover cases where the complaint was made orally at a listening session or the complaint does not cover all instances of discrimination the person has suffered at the hands of USDA. In such 

cases, the claimant should have the right to spell out the nature of the claim in detail using the Pigford claim form. 

H.R. 899 does not set any deadlines of its own for filing of the civil action, so I 

believe the generally applicable six-year statute of limitations for suits against the 

Federal Government would apply. 

The bill is very short, just establishing the cause of action, and by doing so creates 

for itself three significant advantages:

84

(1) it would not impel an action by the Department of Agriculture that could 

be scored by the Congressional Budget Office as incurring new budget outlays, 

making the bill subject to ‘‘pay go’’ strictures; 

(2) it does not invade the jurisdiction of any other committee of the House, 

and as a result could be moved more expeditiously to the floor for passage; and 

(3) it avoids a constitutional Separation of Powers problem that might arise 

should it attempt to modify the terms of the Pigford consent decree.

That being said, I believe additional language should be added to the bill that 

would not negate those three advantages but that are necessary to make it a better 

fit to the needs of the late filers. 

The bill should clarify that claims heard by the Federal courts would be subject, 

at the request of the claimant, to the ‘‘substantial evidence’’ burden of proof applicable to claims prosecuted under the Pigford settlement in return for the claimant accepting the standard Track A relief provided for in the Pigford settlement. This 

would put late filers on an equal footing with the original Pigford claimants; and 

it is important to do so, not only as a matter of fairness, but in recognition of the 

fact that many of the Pigford claims involve events that occurred as far back as 

1981. With claims so old, documentation gets lost and witnesses disappear, making 

the standard ‘‘preponderance of the evidence’’ burden of proof an almost insurmountable obstacle to many injured farmers seeking Pigford-type relief. 

The last thing that hard-pressed African-American farmers need is to be given 

hope that they will have their complaints resolved in the manner of Pigford, but 

then find out that, unlike the original Pigford claimants, they will have to spend 

thousands on legal fees and wait years for adjudication under a standard that is 

inappropriate for their claim. And, why should this sub-group within the Pigford

class be forced to re-litigate the Pigford case? An equitable variation of res judicata—recognizing what the Pigford settlement has already settled—should be made 

to apply here. 

Also, in a similar vein, it would be appropriate for the bill to clarify that the 

claims of those who elect the Track A-type process would be handled by the courts 

as original Pigford claims were handled—as a paper-only review (under the ‘‘substantial evidence’’ standard) of the filled-out claim form in light of any relevant documentation submitted by the Department of Agriculture. 

Both of these changes would be consonant with the provision already in the bill 

now expressing the intent of Congress that the bill ‘‘be liberally construed so as to 

effectuate its remedial purpose of giving a full determination on the merits for each 

Pigford claim denied that determination.’’

There are other ways to improve the bill—such as by facilitating claimants’ access 

to information on similarly situated white farmers or by imposing a moratorium on 

foreclosures against claimants while their cases are pending. However, I would not 

encourage the adoption of those improvements if they would subject the bill to ‘‘paygo’’ problems. 

Mr. Chairman, the Committee on the Judiciary has before it a wonderful opportunity to ensure equal justice to all farmers who meet the Pigford class definition 

and, in doing so, to send the strong message that Congress will not tolerate any discrimination against minority farmers in the administration of the Department of 

Agriculture programs. I urge the Committee to seize that opportunity and report out 

H.R. 899 with appropriate revisions as I have described. 

Thank you for your time and attention.

Mr. NADLER. Thank you. Mr. McEachin. 

TESTIMONY OF THE HONORABLE A. DONALD McEACHIN

(D-74TH DISTRICT), VIRGINIA HOUSE OF DELEGATES 

Mr. MCEACHIN. Thank you, Mr. Chairman, and Members of the 

House Judiciary Committee. I want to thank you for this invitation 

to appear before your Committee today. I also want to thank Congressmen Scott and Davis for sponsoring these bills, which is an attempt to address the discrimination that African-American farmers 

have suffered because of discriminatory practices on the part of the 

United States Department of Agriculture. 

I also want to thank John Boyd, who is here today. I thank him 

for his persistence in keeping this matter in front of the Congress 

85

as well as keeping the African-American farmers of this country informed, organized and energized on this issue. 

As this Committee is aware from the testimony it heard on September 28, 2004, U.S. Farm Services programs date back to the 

1860’s. History has shown that these programs have been riddled 

with discriminatory practices. While the Federal Government has 

stepped up these programs for farmers in recognition of the growing capital needs of farmers, African-American farmers have largely been left out due to discrimination and neglect. 

In the turn of the 20th century there were a million AfricanAmerican home farms, comprising some 16 million acres. Today 

there are less than 18,000 such farms, comprising 3 million acres. 

At its September 28, 2004 hearing, this Committee learned that 

there are approximately 17,000 late filers to the original Pigford

settlement process. Last summer my law partner traveled to a 

number of States with John Boyd. He saw firsthand the plight of 

these farmers. We saw the desperation in their eyes on a daily 

basis. Even today, we receive calls from these farmers asking about 

the status of the bills before you. 

Many of these farmers are fighting to keep their farms out of 

foreclosure. And I might add, during the course of the last several 

months some 26,000 purportedly late filers have come forward and 

asked for representation contingent on the fact that one of these 

bills might pass. 

I am going to—because my time is moving on, I am going to try 

to wrap up and add something that is not in my written statement. 

Although the original litigation attempted to mete out some measure of justice for the plight of the African-American farmer, in the 

end it failed to do so. To quote my Congressman, Congressman 

Scott: ‘‘I am concerned about the adequacy of a process that leaves 

70 percent of its claimants without a determination on the merits 

of their claim. I am not willing to accept that nearly 66,000 individuals who believe they have legitimate claims of racial discrimination knowingly ignored notice of the initial filing deadline and 

chose to submit their claims after the deadline for no good reason. 

I don’t know what percentage of the claimants can show entitlement to relief, but it is certain some can.’’

In addition to that, Mr. Chairman, what I would like to add is, 

I am a member of the Virginia legislature and a trial lawyer in the 

Richmond area. I think 899 is what is needed to give these farmers 

full redress. 

The concern I have about the other bill, bill 558, is that it places, 

in my judgment, at least as I read it, it places the late filers in an 

evidentiary predicament. 

As you all are aware from your last set of hearings, for whatever 

reason discovery was waived as part of the consent decree. That 

makes it awfully hard to find a similarly situated White farmer 

which was part of what had to be shown in the Pigford process. 

If you can imagine, without the tools of discovery, you literally 

have to hire legal assistance to go to every county courthouse in 

the Nation to look at the land records to try to see who got what 

loan and who didn’t get what loan. That, to me, seems to be an impossible task to meet. 

86

I am going to conclude now, and I am happy to answer any questions that the Committee might have. And thank you for your time. 

[The prepared statement of Mr. McEachin follows:]

PREPARED STATEMENT OF A. DONALD MCEACHIN

Chairman Conyers and members of the House Judiciary Committee, I want to 

thank you for your invitation to appear before the Committee today. I also want to 

thank Congressman Scott and Congressman Davis for sponsoring these bills which 

attempt to redress the discrimination that African American Farmers have suffered 

because of discriminatory practices on the part of the United States Department of 

Agriculture. I also want to thank John Boyd who is here today. I thank him for his 

persistence in keeping this matter in front of the Congress as well as keeping the 

African American farmers of this country informed, organized and energized on this 

issue. 

As this Committee is aware, from the testimony it heard on September 28, 2004, 

U.S. farm services programs date back to the 1860s. History has shown these programs to be riddled with discriminatory practices. While the Federal Government 

has stepped up its programs to farmers in recognition of the growing capital needs 

of farmers, African American farmers have been largely left out due to discrimination and neglect. 

At the turn of the 20th Century there were a million African American owned 

farms comprising some 16 million acres. Today there are less than 18,000 such 

farms comprising some 3 million acres. 

At its September 28, 2004 hearing this Committee learned there are approximately 73,000 late filers to the original Pickford settlement process. Last summer 

my law partner traveled to a number of States with John Boyd. We saw first hand 

the plight of these farmers. We saw the desperation in their eyes. On a daily basis 

we get calls from these farmers asking about the status of these bills. Many of these 

farmers are fighting to keep their farms out of foreclosure. We learned, as you did 

in 2004, that many of these farmers simply did not get the message concerning the 

Pickford settlement in a timely manner. Although the original litigation attempted 

to mete out some measure of justice for the plight of the African American farmer, 

in the end, it failed to do so. To quote my Congressman, Congressman Scott: ‘‘I am 

concerned about the adequacy of [a] . . . process that leaves 70 percent of its claimants without a determination on the merits of their claim. I am not willing to accept 

that nearly 66,000 individuals who believe they have legitimate claims of racial discrimination knowingly ignored notice of the initial filing deadline and chose to submit their claims after the deadline for no good reason. I don’t know what percentage 

of the claimants can show entitlement to relief, but it is certain some can.’’

Mr. Chairman, I thank you for your time and I am happy to try to answer any 

questions that you or the members may have.

Mr. NADLER. Thank you. 

Dr. Boyd is recognized for 5 minutes. 

TESTIMONY OF DR. JOHN W. BOYD, JR., PRESIDENT, 

NATIONAL BLACK FARMERS ASSOCIATION 

Mr. BOYD. Thank you very much. It is a privilege and honor 

today to be here before this prestigious Committee, and I have 

heard very moving testimony from all of my colleagues on this 

issue. 

I would like to thank Chairman Nadler, Congressman Bobby 

Scott, who has had his door open to Black farmers for a number 

of years on this issue. What a lot of people don’t understand is this 

is not a new issue. 

Chairman Conyers, I came to see you in 1986, and you gave us 

a visit on this issue, and you said that you would continue to work 

on this issue. You may not know that you would continue to work 

on it till 2007, but here we are today in front of this Committee 

having a choice, and I want to tell this Committee today, Black 

farmers have never had a choice, not on one bill but two bills. 

87

So I would like to thank Congressman Davis for introducing his 

bill as well. 

This is a trying time in America for Black farmers. We have lost 

land. If you look in this Washington Post article yesterday, we 

aren’t even receiving any subsidies that we have been reporting 

year after year after year after year. And it is time for Congress 

to take a deaf ear and open it up and listen to the cries of the 

empty fields of Black farmers across this country. We need the assistance, the help of this Committee to move our issue to the next 

step. 

So this is a beautiful step in the right direction. It is a good day 

for Black farmers in America, but it is also a very sad day in America for Black farmers. We are dying, and I am tired of going to funerals and hearing, ‘‘Well, Dr. Boyd, when are we going to get justice? When will we get our cases heard based on its merits?’’

And I am telling you today, Black farmers are not asking too 

much today by asking for their cases to be heard on its merits, on 

its own merits. They are not asking for a handout. By God, the 

Government treated us worse than dogs. Somebody knows what I 

am talking about in this hearing room today. The Government 

treated Black farmer people worse than the dirt on the ground. 

When I went to see my county supervisor in Mecklenburg County, Virginia, he tore my application up and threw it in the trash 

can while I was sitting there in front of him. 

When they came out to investigate Mr. Garnett, they said, ‘‘Did 

you throw Mr. Boyd’s application in the trash can?’’ You want to 

know what he said? With arrogance, ‘‘Yes. I wasn’t going to process 

it. We didn’t have any funds available. But that didn’t prevent me 

from doing my job.’’

When you treat an individual differently than you treat another 

individual by color and race, people, that is what discrimination is. 

And that is the kind of discrimination that Black farmers have existed around the country, and that is what they have been fighting 

for year after year after year in a humble way. 

Black farmers are bashful to a certain aspect where they say, 

‘‘Yes, sir,’’ and ‘‘No, sir,’’ and they are not going to have the vocal 

that I have to come here and say, ‘‘I have been treated wrongly.’’

This case needs to move forward swiftly, so I am here today to 

ask Congress to move to the next step. Yes, we have a choice, it 

is a great choice. I support bill 899. People, we worked hard on 

that. We worked hard on that bill with Congressman Scott, Congressman Chabot, the great senator who was here this morning 

and gave testimony and, yes, George Allen too, even George Allen. 

So we are grateful to have a choice of bills, but what we are asking this Committee to do is move swiftly and get us a bill, mark 

it up so that Black farmers can move from the issue of when we 

are going to have our cases heard based on its merits so finally I 

have my day of justice. 

So with that, I will close, and I will happily take any questions 

from the Committee that you have for me today. 

[The prepared statement of Mr. Boyd follows:]

88

PREPARED STATEMENT OF JOHN W. BOYD, JR. 

Honorable Chairman Conyers, Mr. Nadler, Mr. Scott, the rest of the committee 

and others who have worked with the National Black Farmers Association (NBFA) 

on this very important issue over the years. 

My Name is John Boyd and I am the President of the National Black Farmers 

Association. I founded this organization in 1995 to help eradicate discrimination 

faced by black farmers throughout the United States Department of Agriculture 

(USDA) system. 

It is truly an honor and a privilege to testify before your Committee today. During 

the past 15 years I have testified before Congress on numerous occasions about 

black farmers and their hardships. 

I am a fourth generation farmer. But more important, with all the hardship and 

years of struggle it has entailed, I am still proud to say I am an American Black 

farmer from Baskerville, Virginia. A most remarkable fact is that just about every 

Black person in this country is two to three generations away from some family 

farm as farmers, sharecroppers and slaves. 

The NBFA lobbied Congress to lift the statue of limitations for black farmers who 

faced discrimination from USDA. We lobbied to establish the office of the Assistant 

Secretary for Civil Rights. We led rallies and protests around the country to help 

bring much need attention to the plight of the Black farmer. The NBFA has petitioned the United Nations for relief and to raise awareness of the loss of land for 

Black Farmers. And, I even rode my mules, Struggle and Forty Acres, 280 miles 

here to Washington to protest the failure to pay Black farmers; payments that 

should have become a reality following the consent decree. 

For far too long the Black farmer has gone without payment and without justice. 

At the turn of the 19th century there were nearly one million Black farm families. 

Today there are fewer than 29,000 per the U.S. Census. 

The oldest occupation for Blacks in America has become the first occupation facing extinction. Time does not favor the survival of black farming unless discrimination ends and new opportunities are created for black farmers to participate in the 

farm and food service industries. 

Years ago the USDA acknowledged the discrimination against black farmers and 

agreed to settle the largest civil rights lawsuit in American history. Yet today I return to report that many black farmers who may have been eligible to have their 

claims processed were never heard. More black farm families have lost their farms 

and their livelihoods because their government has not acted fast enough. 

Time is not on our side. We are now less than 1% of the nation’s farmers. USDA 

has not become a stimulant for agricultural development for black farmers. ‘‘No 

comment’’ is often the best we can get out of USDA officials. 

In 1983 the USDA’s Office of Civil Rights was abolished, leaving Black farmers 

and other minority farmers with little hope for processing civil rights complaints. 

The Government Accounting Office reported piles of boxes of complaints with 

years of dust. Documents went unprocessed and very few, if any, were investigated. 

There were two employees assigned to work on employment complaints and no one 

working on Black farmer program complaints. 

I recall very vividly calling the USDA years ago to request a status of my complaints 88 times. I desperately searched for answers as I was on the verge of losing 

my farm and livelihood that had been passed down through generations. 

Finally, after I founded the NBFA and was able, I finally did have someone call 

me back from the Office of Civil Rights. 

Decades have gone by since our struggle began in the early 1980s. 

The Black Farmers have become faces of time. Here we are after years of work 

to restore the Office of Civil Rights and the inspector general still cites years in 

processing complaints. Please see the May 2007 report, Appendix A. 

The Pigford v. Glickman Consent Decree resulted from a class action lawsuit initiated by African American farmers who had for decades been discriminated against by USDA officials in the loan program. This settlement 

was reached after Congress intervened in 1998 to waive the applicable statute of limitations. Class counsel, without the approval of the class of plaintiff farmers, waived farmers rights to discovery with the expectation that 

there would be a low evidentiary standard applied to Track A and that 

USDA would turn over relevant documentation that would assist farmers 

in presenting their claims. Monetary awards issued under the Consent Decree would come from the Department of Treasury’s Judgment Fund. 

Approximately 23,000 farmers submitted claims under the Consent Decree by the October 12, 1999 deadline. 900 farmers failed to meet the class 

criteria. Of the remaining 22,00 farmers who met the class criteria, 14,000 

89

were successful in proving discrimination under Track A. 8,000 were denied. 18 Track B Claimants have received an average of $551,000 per claim. 

Approximately 77,000 African American farmers were denied participation in the Consent Decree because these farmers failed to file petitions by 

a Court-appointed late claim deadline. More than half stated they didn’t 

know about the Consent Decree. Thus, these black farmers were denied 

entry and their discrimination complaints are not resolved unless Congress 

again acts to bring about justice and equality for these farmers. 

WHY I SUPPORT H.R. 899

I would like to thank Congressman Davis and others for introducing H. R. 558 

the African American Farmers Benefit Relief Act of 2007. After careful consideration 

the NBFA is supporting H.R. 899 the Pigford Claims Remedy Act of 2007. We urge 

the committee to undertake a swift mark up and send 899 on a speedy trip to the 

House floor for a vote. 

H.R. 899 is the result of careful examination by members of the Judiciary Committees in both chambers of Congress. This bill, H.R. 899, and S. 515 were introduced simultaneously. Senators Grassley, Obama and Kennedy have provided remarkable leadership in the Senate. It is my opinion that H.R 899 and S. 515 have 

the best possibility of passing with bipartisan support. The bill has been introduced 

in both the House and the Senate, a rare bipartisan bill. I am encouraged that Congress is working together, 

Several hearings have been held during the past two Congresses, including a field 

hearing in Cincinnati Ohio Feb 28th 2005. These hearings support the remedy set 

forth in H.R. 899. H.R. 899 is a narrow bill which serves the purpose of providing 

late-claim petitioners a forum to have their claims heard. The bill was tailored narrowly to stay in the Jurisdiction of the Judiciary Committee, where I personally and 

strongly believe the bill has a chance of passage. 

H. R. 899 creates a new cause of action that is available to those African-American farmers who: (1) have filed a late claim petition with the Court-appointed arbitrator prior to December 31, 2005, which was denied by the arbitrator; (2) meet the 

class criteria set forth in the Pigford v. Glickman Consent Decree; (3) establish a 

discrimination complaint in one of the four ways set forth in the Pigford v. Glickman Consent Decree. 

The NBFA states that its recommendation to replace the attorneys, facilitators, 

monitor and adjudicator who processed phase one of Pigford Consent Decree is consistent with its support of H.R. 899. No new responsibilities or requirements are 

placed on the bill if the farmers are allowed to choose their own attorneys. 

How many more black farmers have to die before there is a since of urgency for 

assistance. This is one time congress can put aside partisan politics and do what 

is right for a group of people who helped establish agriculture as the basis for this 

America’s wealth 

We as Black farmers helped make agriculture what it is today with free labor. 

Many minorities today argue to become citizens, even complain of low wages, but 

no one has slaved without pay as the Black farmers did here in America. 

We have the opportunity to right some wrongs with H.R. 899. I urge this committee to swiftly pass H.R. 899. 

The Black farmer issue is not a new one to Congress. 

In 1998 the NBFA lobbied Congress to waive the statue of limitations. The Congressional Black Caucus, under the leadership of Congresswoman Waters, led the 

way to relief for the Black farmers. Congressional action enabled those aggrieved 

farmers to file meritorious claims under the Consent Decree. 

H.R. 899 is an extension of that Congressional action in 1998 and it will ensure 

all late claim petitioners have the opportunity to have their claims of discrimination 

heard on the merits. 

OBSTRUCTION OF JUSTICE

In 2004 The National Black Farmers Association (NBFA) teamed up with the Environmental Working Group (EWG) to address the problems with the Black Farmers 

settlement, many of our finding were echoed by Black farmers around the country. 

Many complained about being denied payments. We worked for years to conduct the 

study which was well worth the wait. 

THE EWG AND NBFA RESEARCH PRODUCED FOUR MAJOR FINDINGS:

• Nine in ten Black family farmers who came forward with complaints of discrimination were denied access to the settlement funds.

90

• The settlement was estimated to be worth 2.3 billion dollars in compensation to 

black farmers before the size of the class was determined. The actual size of the 

class was larger than expected, but black farmers received only 25% of the settlement’s estimated value.

• USDA withheld vital information that was required of Black farmers in order to 

prove their settlement claims. And the Lead Attorney waived discovery.

• USDA spent $12 million dollars to pay for 56,000 staff hours of legal work by the 

Department of Justice to challenge Black farmers settlement claims one-by-one. 

At least one supposed staff attorney, Margaret O’Shea, reviewed Black farmers’ 

cases under false pretense as she was never a licensed attorney. 

TOGETHER THE EWG AND NBFA PROVIDED THE FOLLOWING RECOMMENDATIONS:

• Congress should order USDA to provide full compensation to the nearly 9,000 

farmers who were denied relief after being accepted into the settlement class.

• Congress should order USDA to re-evaluate the merits of the nearly 74,000 farmers claims that were shut out due to lack of notice of the settlement. All black 

farmers who meet the preliminary requirements to qualify as a member of the 

class should receive the $50,000 payments and debt relief provided by the settlement.

• Congress should direct the USDA to institute accountability measure to monitor 

and enforce civil rights standards throughout the agency, requiring that in the future the USDA shall exert best efforts to ensure compliance with all applicable 

statutes and regulations prohibiting discrimination.

• Congress should ensure the full implementation of outreach and financial assistance programs to include grants that support black and other minority farmers. 

STATISTICS REVEALED THAT 81,000 AGGRIEVED BLACK FARMERS RECEIVED NOTHING

FROM THE SETTLEMENT: 

Turning to statistical breakdown of the outcome, the overall result was 94,000 

black farmers came forward with complaints of discrimination and 81,000 received 

nothing from the settlement. Denials came in two forms: late claim denials and 

class member denials. 

The total of 63,816 farmers who filed timely late claims applications were rejected 

for failure to prove that extraordinary circumstances caused their tardiness, a 

standard that was not defined in the consent decree. All farmers who sought late 

entry because they were not notified of the settlement or deadline were rejected because they did not file timely late claims applications. 

CONGRESSIONAL ACTION IS THE ONLY WAY TO ENSURE JUST RESTITUTION

FOR BLACK FARMERS: 

Mr. Chairman, in closing I want to tell you that the more I think of what has 

happened to my people, the Black farmers of America, the more disgusted I have 

become. 

Civil rights laws were violated in the case of the Black farmers. And the USDA 

helped ensure the Justice Department was used to obstruct justice. 

The lack of accountability exists as if all my work has for naught. We have lost 

land—millions of acres—and many have died waiting for justice. These are good 

people, who worked hard to feed the nation 

America we can do better than this. 

I am calling on the members of this Committee to do what is right for the black 

farmer. Pass this legislation to give much due relief to America’s struggling black 

farmers. 

Many of you have seen us on Capitol Hill day after day, week after week, month 

after month, year after year, decade after decade. 

I made a commitment to the NBFA members that I will never give up their fight 

until justice is served. 

Ladies and gentlemen, I pray you will make that same commitment.

Mr. NADLER. Thank you. 

I will begin the questions by recognizing myself for 5 minutes. 

I have two questions. The first question I suppose I will ask Dr. 

Boyd. 

Has the USDA, to your knowledge, taken any action against the 

agents whose discriminatory conduct harmed these farmers, such 

91

as the one you mentioned, and exposed the taxpayers to enormous 

liabilities? How many of these people are still in place and continue 

to make lending decisions? 

Mr. BOYD. Almost all of them are in place. There has been little 

to no accountability at the United States Department of Agriculture, and we are hearing even in this OIG audit report that I 

would like to submit as an exhibit today that they are still taking 

over 21⁄2 years to process our program complaints. 

Mr. NADLER. All these people who have exhibited prejudice and 

discrimination in administering the programs of the United States 

Government are basically still in place. 

Mr. BOYD. They are basically still in place. 

And really, Mr. Chairman, after Secretary Glickman left the department, I think things have gone from bad to worse. I think 

Glickman did try to put some things in place. He had the CRAT 

report, the CRD report, he had a team of officials, Lloyd Wright, 

Pearlie Reed, Rosalind Gray, all these people who had an unbiased 

but a good-hearted looking at trying to help Black farmers. 

And I think with the position that we lobbied for, the assistant 

secretary of civil rights, that we all thought would be a great thing, 

really hasn’t provided the services that it needs. 

Mr. NADLER. Thank you. I am glad to hear your somewhat kind 

comments about Secretary Glickman since he served with many of 

us on this Committee years ago. 

My other question is of Professor Havard and Mr. Fraas. Mention was made of the problem of—and Mr. Fraas mentioned this as 

one problem with, I think it was, 558 in particular—the inability 

to get the comparable data without which you can’t make discrimination cases and the necessity of getting the Department of Agriculture and the Agriculture Committee involved. 

My question, Professor and Mr. Fraas, if we were to amend the 

bill, is there any objection or any reason you think it wouldn’t be 

a satisfactory solution to that problem if we were to amend the bill 

simply to give the normal discovery powers to the court and say 

that at the request of a plaintiff the court has the jurisdiction and 

the mandate to demand production of all this information with the 

appropriate privacy redactions without our placing any mandate in 

law on the Department of Agriculture, simply do this judicially 

through the court and that would not necessitate our doing anything to the Agriculture Department or cross-reference necessity to 

the Agriculture Committee? 

Ms. HAVARD. I don’t see a problem with that. 

Mr. NADLER. Do you think it would solve the problem? 

Ms. HAVARD. I think it would solve the problem. 

Mr. NADLER. Mr. Fraas? 

Mr. FRAAS. I think it would be an excellent idea. As you know, 

these cases have to follow the standard civil rights proof. You have 

to show disparate treatment, and, clearly, USDA is a repository——

Mr. NADLER. But the problem, as I understand it, or one of the 

major problems has been that without this information, you could 

not show disparate treatment——

Mr. FRAAS. That is exactly right. 

92

Mr. NADLER [continuing]. And so I don’t see why we simply don’t 

empower the court and mandate the court to order the production 

of this information as you do in a normal discovery procedure. 

Mr. FRAAS. That would be a good idea. 

Mr. BOYD. Mr. Chairman? 

Mr. NADLER. Yes, sir. 

Mr. BOYD. I would like to weigh in on that. I think you make a 

very valid point, because our attorneys in the first part of the 

Pigford waived discovery, and that was a major, major problem for 

Black farmers around the country, because they were not able to 

go into the county offices and get their files and records, and——

Mr. NADLER. It is obviously the major problem, but if we solve 

this substantively through discovery and we did it through the 

courts so that it didn’t involve another Committee of the House 

that could delay the legislation or asserting jurisdiction over a department that this Committee doesn’t have jurisdiction over, it 

would seem to me that that would go through all those questions 

pretty simply. 

Anybody else want to comment on that? 

Thank you. I will yield back the balance of my time. 

I will recognize the distinguished Ranking Member of the Subcommittee, the gentleman from Arizona. 

Mr. FRANKS. Well, thank you, Mr. Chairman. Again, I appreciate 

you having this hearing. 

Let me just preface my comments by saying, I have to apologize 

both to the Committee and to the panel here for having to leave 

here in just a few moments to a situation that I have tried to avoid 

and cannot. 

But I wanted to, before I go, tell you that I think it is never redundant to remind ourselves that in America we hold these truths 

to be self-evident that all men are created equal, and I think that 

that is the central premise of the discussion here today. 

And I have been very touched by the testimony, especially Dr. 

Boyd’s testimony moved me greatly, and I am glad that this day 

has come and that this injustice has been addressed. And I leave 

here assuring you of my support for 899 and also along the lines 

that Mr. Fraas and Professor Havard have mentioned as far as 

doing some things to improve the bill. 

Again, I congratulate all of you. I know sometimes these things 

are a long time coming, but I congratulate you for your perseverance and pray for ultimate justice here. 

So thank you very much, Mr. Chairman. 

Mr. NADLER. Thank you. 

I will now recognize the distinguished Chairman of the full Committee, the gentleman from Michigan, Mr. Conyers, for 5 minutes. 

Mr. CONYERS. Chairman Nadler, this Committee, this Subcommittee is following in a great historic pattern in the 110th Congress that is so important, because we just had Medgar Evers’ 

widow here, we had the Emmitt Till case being picked up, we had 

a signing of the extension of the Voter Rights Act, all coming out 

of this Subcommittee. 

And it is very clear to me that this measure that we are discussing here for Black farmers extends this necessary backwardVerDate 0ct 09 2002 13:14 Oct 22, 2007 Jkt 000000 PO 00000 Frm 00096 Fmt 6633 Sfmt 6601 H:\WORK\CONST\062107\36175.000 HJUD1 PsN: 36175
93

looking review of what has been going wrong in America that we 

are trying to repair in an amazingly bipartisan way. 

I was at the White House, and all of you were too, when President Bush signed the extension of the voter rights extension bill. 

Now, I call upon the president, Steve King, to join us in helping 

move this forward. I mean, this is not just the Subcommittee of Judiciary’s job. He knows how important this is, and we want to 

weigh in everything that we can because these farmers are dying 

every day, their families are being driven off the land. 

And I was so moved when we had our conference in Detroit, that 

Black farmers were testifying how they love farming, they want to 

stay in this job, they love the land, and young ones as well, and 

they were being forced off the land. 

And so, Dr. Boyd, you come here following the long line of civil 

rights leaders that has sat in this Committee hearing with the 

same courage, with the same pain of the violation of our basic fundamental civil rights. It is absolutely critical that we join in this. 

And I am recommending that this Subcommittee and meet and 

make this tour and see for ourselves and hear for ourselves what 

is going on. I think that is absolutely critical. 

Now, when we had the Black farmers in Detroit, I was shocked 

by the number of Black farmers that there were in greater Detroit 

and in Wayne County. I was asking these folks, ‘‘Where are you 

from?’’ They said, ‘‘I am from right here, Congressman.’’ There were 

Black farmers all around me that I had never imagined what they 

were doing. They were doing their job. 

And so this is so important. I think we are going to hear about 

section 2(d) to try to address the legislator, Attorney McEachin’s 

problem. 

There is just one other little point that I want to make. The 

corporatization of farming in America is wiping out Black farmers, 

but, guess what? They are wiping out small White family farmers 

as well, and many of them have suffered this without the stain of 

racism involved. They are getting wiped out not because they are 

Black but because people want to corporatize this business. And 

this, to me, is a shame. 

I would ask Dr. Boyd if there is anything that I should have 

added to my comments. And I am sorry I didn’t question you all. 

You are going to get questions from me, and we are going to all 

be working in this anyway, and they will go into the record. 

Mr. BOYD. I think you have done great, and we appreciate the 

meeting that we had with you several weeks ago. And you promised that this hearing would happen and take place, and you are 

moving forward swiftly. And on behalf of the Black farmers around 

the country, we would like to thank you for taking action on this 

issue. 

Mr. CONYERS. Thank you very much. 

And I return my time, Mr. Chairman. 

Mr. NADLER. Thank you. 

I will now recognize the gentleman from Iowa for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. 

I expressed some reservations at the opening of this hearing. 

And, again, I want to thank all of the witnesses that are here. 

94

I want to reflect off of Mr. Conyers’ remarks with regard to what 

is happening with small farmers across America. 

First, I should, for the purposes of full disclosure, let you know 

that my view is that I believe there should be no discrimination in 

America. I solidly support title VII of the Civil Rights Act and the 

specific language that is in there. 

And I will often be trying to drag this thing back to the middle. 

I think sometimes it goes to the wrong side too often, and that can 

be on either side of that argument. So, hopefully, my remarks here 

will focus on that. 

I would say also that I would love to see a lot more, millions 

more, African-American farmers in this country. And I have 

watched farmers leave the land all my life. Where I live I can’t see 

a neighbor. There is only one practicing farmer in the section that 

I live in, and we have buried a lot of my neighbors too. So as time 

moves on, technology makes farms larger. That is part of this equation. 

But I would express to you also a debate that I happen to recall, 

as I listened to testimony here, with State representative, Wayne 

Ford, in Iowa. He is an African-American representative, and he 

argued that we should close down some of our rural schools and 

use that money to expand the urban schools in his district. And I 

argued that if you are going to put those kids on a bus and take 

them anywhere, let’s send them out there to the rural areas and 

put them in our schools where we have empty desks, and we can 

do a lot of good things there together for all of us. 

So that is my public sentiment previously expressed; it is my 

public sentiment today. 

Also, I think there is a lot of opportunity for people that are willing to go out and work on the land. I happened to run into a family 

a few years ago that had on a single acre—and I noticed the average farm was 16 acres back at the turn of the century, Mr. 

McEachin’s testimony, I believe it was—on a single acre produced 

and sold $27,000 worth of crop, legal crop—I don’t want any misconceptions here. And maybe it was $40,000 worth of child labor 

that went into that, but those young people in that family learned 

how to work and they learned how to work together as a family. 

There is a richness to that, and I know Dr. Boyd knows that. It 

has extraordinary value in this country, how it ties us together, the 

people that work the land and feed the Nation and feed the world. 

So this is a profound thing for me. 

Also, I want to express, though, that some of the data that I 

would like some clarification on, and I would go first to Mr. 

McEachin’s testimony, and I noticed that you testified that at the 

turn of the previous century, which would be 1900, there were 

about 1 million African-American owned farms on 16 million acres. 

So that equates to the 16 acres per farm that I noted a little bit 

earlier. But, today, 18,000 African-American owned farms on 3 million acres. So I did the math on that, and that comes down to 167 

acres of farm. 

So I would submit and ask you to comment on that, that the African-American farms have grown by a factor of more than 10 over 

the century. And I don’t know what non-African-American farms 

have done. But isn’t that also a significant part of this equation, 

95

that farms have gotten larger and farmers have gotten dramatically fewer regardless of their race? 

Mr. MCEACHIN. Well, that may be true, Congressman King. 

However, the issue still remains that discrimination has been 

shown by the United States Department of Agriculture. The question then becomes, what are we going to do about the late filers? 

As I understand it, that is the question that is really being presented through this legislation. 

The fact that African-American farmers, those farmers who have 

been able to survive, may have grown over the past 100 years I 

think goes to the notion that farmers have had to grow over the 

years to keep up with, as Congressman Conyers said, the corporate 

takeovers and the large corporate entities that have grown. 

Mr. KING. I thank you, Mr. McEachin, and I agree with you on 

that. I just wanted to put that out there for clarification. 

My time seems to be moving fairly quickly, so if I could, I would 

direct to Mr. Fraas, then, a couple of questions, if I can. 

And one of them is that initial estimates by class counsel were 

that approximately 2,500 to 5,000 Black farmers would have 

claims. That number has gone up dramatically. I am going to ask 

one part of the question is, how do you explain that? 

And then the second question is the one that I mentioned in my 

earlier opening remarks: We are looking at a number of perhaps 

20,000 African-American farmers and 96,000 either claims or potential claims. How do you explain that? And we are going to have 

to get to the bottom of that before we can move forward with anything, I believe. 

And so how do you explain that, Mr. Fraas? 

Mr. FRAAS. On your first question——

Mr. NADLER. The gentleman is granted 1 additional minute. 

Mr. FRAAS. On your first question, our initial estimates were 

frankly based on what information we had gotten from USDA 

about pending complaints. So we were really relying on what 

USDA was telling us when we were trying to figure out the scope 

of the case originally. 

On your second question, you know, it is very difficult at this 

point, I think, to determine who among these late filers will actually qualify to participate should this legislation go forward. 

Mr. KING. But five to one? How do you explain a five to one? 

Mr. FRAAS. Just briefly, one response to that, well, two responses. First of all, I think until we actually go through each person’s case and have them fill out a form, we don’t know how many 

of those 70,000 do fit the class definition. It could be a much smaller number. 

Secondly, we are not looking at a snapshot in time, today or 

1997, we are looking at 20 years, going back to 1981, so there may 

be a huge number of people who have retired and left farming over 

that 20-year period in addition to the 16,000 or whatever the number that exists now. And I think that number may be understated. 

I think USDA recently has recalculated the numbers, and they realize they have underestimated the number. 

Mr. KING. If the Chairman will allow Dr. Boyd to answer. 

Mr. NADLER. Yes. 

96

Mr. BOYD. Chairman Nadler, to answer that question, the 96,000 

that you use, these are, for example, on my farm, there is my father, my brother and myself. We have all applied for loans but 

there is only one farm there. The U.S. Census counts us as one 

family farm. You have heirs to these people who have died now 

that has to be looked at. For example, Mississippi, a lot in Alabama, these farmers have passed away, and now their children are 

looking at the rights to these discrimination cases that they have 

filed as well. 

And I believe that if you look at the U.S. Census figures during 

the time span of the consent decree, I believe it is 1981 and 1997, 

what the exact dates are, go back to the census and look at those 

numbers of how many Black farmers there were then versus what 

there are now, and the numbers do jive. 

Mr. KING. I am going to explore that question down that path. 

I thank the Chairman, and I yield back. 

Mr. NADLER. I thank the gentleman. 

I recognize the gentleman from Alabama for 5 minutes. 

Mr. DAVIS. Thank you, Mr. Chairman. 

Delegate McEachin, I have placed in front of you a copy of the 

bill I have introduced, section 558, and I neglected to thank Mr. 

Conyers for being a cosponsor of that bill, so let me do that now. 

Look at section 588, if you will, turn to page five, which will note 

for the record is section 2(d) of the bill, it is page five in the actual 

text. You made a very good and very telling point about the original consent decree that was reached in the case and the waiver of 

discovery that was effected in the consent decree, and you correctly 

mentioned that that was a major problem with the case. A lot of 

these farmers couldn’t get discovery. 

If you look at section 5(d), labeled, ‘‘Loan Data,’’ it states that, 

‘‘No later than 60 days after the secretary of agriculture receives 

notice of a claim filed pursuant to this bill, the secretary shall provide to that claimant a report on farm credit loans made within a 

timeframe of between January 1, 1992, ending on the date of the 

enactment of this act. That report shall contain information on all 

comparators: race of the comparator, date of application, date of 

the loan decision, location of the office, all data relevant to the 

process of deciding on the loan.’’

This is a provision that, in effect, compels discovery which was 

left out of the original consent decree. 

Does this provision of 558 substantially address your concern? 

Mr. MCEACHIN. I think this provision, Congressman, takes a 

good stab at it. But, again, forgive me for being the beast that I 

am, but I am a trial lawyer and I like to find things out for myself. 

And I am not so sure that I would necessarily trust the information 

from USDA to be complete and accurate as to all the claimants, 

given USDA’s history. 

Mr. DAVIS. I recognize that, but, obviously, the discovery, however you look at it, is not going to come from the air, it is going 

to come from the USDA. 

But moving on to another point, just for the record, you will note 

that the next provision contains the confidentiality section that 

Professor Havard talked about and makes clear that there are 

some legitimate confidentiality concerns the comparators might 

97

have and in effect these documents will be scrubbed of any identifying information. 

I want to make sure that the record is also clear to Chairman 

Nadler that the provision, section 2(d), addresses the concern of 

discovery, it compels discovery on the part of the Department of 

Agriculture and compels discovery regarding comparators. And, of 

course, section 899 does not have any discovery provisions at all. 

Let me turn to another point of concern, and I want to ask unanimous consent, Mr. Chairman, to place two documents in the 

record. The first document is labeled, Table C-4. It is a list of all 

civil cases terminated and described by nature of the suit during 

the 12-month period ending March 31, 2006 in all district courts 

in the country. I would ask that that document be placed in the 

official record. 

Second of all, I would ask that a summary that my staff prepared also be placed in the record. 

I ask unanimous consent for both of those, Mr. Nadler. 

Mr. NADLER. Excuse me? 

Mr. DAVIS. I ask unanimous consent that both of these documents be placed in the record. 

Mr. NADLER. Oh, without objection. 

Mr. DAVIS. And, again, all who want to review the record and 

free to look at these documents, but I want to single out for the 

panel the following statistics: Analyzing all civil rights claims 

based on a Federal question that were filed between April 1, 2005, 

and March 31, 2006, the last period for which we have data, 3.4 

percent of those cases reach trial. 

Another analysis: Cases where the United States was a defendant, 1 percent of civil rights cases where the United States was a 

defendant reached trial. One percent and 3.4 percent. 

So, Mr. Boyd, one of the things that I want to make sure everyone takes who is interested in this issue from this hearing, getting 

a right to file a civil claim in United States district court means 

that there is a 97 percent likelihood you will never see your day 

in court. 

And, Mr. Fraas, Mr. McEachin, I think you would both agree 

with me, these aren’t high value settlement cases either. Most civil 

rights cases aren’t high value settlement cases. Do you both agree 

with that? 

Mr. MCEACHIN. I do. Yes, sir. 

Mr. DAVIS. Mr. Fraas, do you agree with that? 

Mr. FRAAS. They are very difficult cases. 

Mr. DAVIS. Very difficult to settle. 

So the best way of getting a recovery would be to have your 

claims heard on the merit. While I applaud the effort, the substantial concern I have with 899 is it simply says, ‘‘Go to court, take 

your shot, file a claim in U.S. district court, join the ranks of the 

97 percent who never get their day in court.’’

Yes, Professor Havard is right that we need to sharpen the administrative process and make it better, 558 would do that, but the 

administrative process—there is a reason we got here in the first 

place. It is because there was a substantial distrust that U.S. district court claims would work. There was a belief that we needed 

a process other than United States district court. 

98

Mr. McEachin, you and Mr. Fraas, as litigators, know very well 

how hard it is to litigate in U.S. district court. You know how aggressive the Government was in denying these claims and defending them even during the administrative process. They presumably 

would be as aggressive during the civil litigation process. 

Both of you would acknowledge the cost of bringing cases. There 

is a cost of bringing cases for plaintiffs. It is difficult to find attorneys as experienced as Mr. McEachin. 

So for all of those reasons, the remedy of saying, ‘‘Go into court, 

take your shot,’’ I am concerned it would be another illusory promise to a lot of these farmers. 

Dr. Zippert, would you like to comment on that? 

Mr. ZIPPERT. I think that was the main reason that we are really 

strongly supporting 558 because those concerns are there. I think 

Mr. Fraas mentioned the problem of the substantial evidence issue 

that if we just go back into court without the framework of Pigford, 

you might not get for people the same consideration they received 

in Pigford, and, therefore, people who have claims that go back 15 

or 20 years would have difficulty producing the required evidence, 

and they were not asked to do that originally in Pigford, and they 

shouldn’t, as late claim filers, be asked to do it. 

So I think the real advantage is to a comprehensive approach 

that is outlined in 558, and I hope it can be done in a way that 

avoids some of these constitutional questions. I am not a lawyer, 

but most of you are, and maybe you can figure out a way around 

some of this to make sure that the farmers in this case get justice. 

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

I now recognize the gentleman from Virginia for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

And thank all of the witnesses for your testimony. 

I just want to get some things on the record. 

We have two bills before us, 899 and 558. With either bill, have 

we covered everybody that needs to be covered? Has anybody, by 

definition, in either bill been left out or do both bills or either bill 

cover pretty much what needs to be covered? 

Mr. ZIPPERT. There are some people who, through no fault of 

their own, who had appeals in this case that didn’t get their appeal 

heard through no fault of their own, that if there is some way in 

this bill to correct that as well, we would like to see that too. 

Mr. SCOTT. They had a case heard on the merits and lost on the 

merits and then appealed? 

Mr. ZIPPERT. Yes. But their appeal was never heard because 

their lawyers didn’t submit in time or there were other problems 

that were beyond their control. 

Mr. SCOTT. Okay. Are there problems with either bill in terms 

of who is covered, Dr. Boyd? 

Mr. BOYD. I don’t think there is a big problem with either bill 

on who it covers. 

Mr. SCOTT. Okay. 

Mr. BOYD. I think that what the issue is, is there were so many 

people involved, the original followers that brought this case forward, the 9,000 people who were denied——

Mr. SCOTT. Okay. Let me go to the next question. With either 

bill, is there a problem or advantage in taking advantage of track 

99

A or track B? Does either bill hurt your chances that you would 

have, as an original plaintiff would, from going to track A and 

track B? 

So either bill would be covered. Okay. 

In terms of the evidence available that we are trying to get discovery to, is all of this evidence in the control of the Department 

of Agriculture? Is there other evidence that they may not have access to? 

The reason I ask that, Mr. Chairman, is that if the Department 

of Agriculture isn’t providing information in these cases, that may 

be something we ought to consider a separate hearing, why they 

are not providing the information that they are to be providing so 

that people can have a fair case heard on the merit. 

Is the information within the control of the Department of Agriculture? 

Mr. MCEACHIN. I will start off with that, Congressman Scott. 

I would think that a lot of that information is within the control 

of the United States Department of Agriculture. 

But, again, I stress to the Committee and those of you who at 

one time or another actually practiced law and tried cases, it is difficult at this juncture to say that all the information is there and 

that we won’t need the discovery tools that are already granted to 

us through the Federal rules to go and discover in other areas besides the USDA. And so I am a little bit hesitant to say that it is 

all there, because my 20 years of experience suggest that it is not 

all there. 

Mr. SCOTT. Well, I guess, the way we know how to encourage 

Federal agencies to do things for them to cooperate, and that would 

solve, I think, a lot of your problems. 

Mr. Fraas, you indicated there are several advantages in 899, 

one of which was PAYGO. Could you kind of expand on that a little 

bit, what the problem is there? 

Mr. FRAAS. Yes, Mr. Scott, and it is really a problem that you 

all would have to wrestle with. As I understand it, the House of 

Representatives, one of the first things it did this year is pass a 

new rule that to the extent that any piece of legislation increases 

mandatory Federal spending, it either has to be offset either by increased revenue or taking money from another program, and I 

know the Committee would not want to be in a position of having 

to do either of those things. 

What we are really——

Mr. SCOTT. And 558 would trigger PAYGO and 899 would not? 

Mr. FRAAS. I haven’t looked at 558 that closely, but to the extent 

that you require a Federal agency to do anything, I assume their 

budget people would say that costs money. 

Mr. SCOTT. And 899 would not trigger PAYGO? 

Mr. FRAAS. Not as I read it. 

Mr. SCOTT. What about the separation of powers issue? 

Mr. FRAAS. That is something that I know the Committee has 

been wrestling with, but, essentially, the consent decree is the 

property of the judicial branch, not the legislative branch, and it 

is also a contract between the parties that settle the case. But the 

separation of powers simply addresses the idea of Congress amending or modifying something that the judicial branch had concluded. 

100

But I would really defer to your experts here on that issue. I am 

not a constitutional scholar. 

Mr. NADLER. I thank the gentleman. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses, 

which we will forward, and ask the witnesses to respond as 

promptly as you can so that their answers may be made part of the 

record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

On behalf of everyone here, I thank the witnesses. 

And with that, the hearing is adjourned. 

[Whereupon, at 10:42 a.m., the Subcommittee was adjourned.] 

(101)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

102


CG-1.eps
103

f


CG-2.eps
104

f


Cohen.eps
105


OOJ-1.eps
106


OOJ-2.eps
107


OOJ-3.eps
108


OOJ-4.eps
109


OOJ-5.eps
110


OOJ-6.eps
111


OOJ-7.eps
112


OOJ-8.eps
113


OOJ-9.eps
114


OOJ-10.eps
115


OOJ-11.eps
116


OOJ-12.eps
117


OOJ-13.eps
118


OOJ-14.eps
119


OOJ-15.eps
120


OOJ-16.eps
121


OOJ-17.eps
122


OOJ-18.eps
123


OOJ-19.eps
124


OOJ-20.eps
125


OOJ-21.eps
126


OOJ-22.eps
127


OOJ-23.eps
128


OOJ-24.eps
129


OOJ-25.eps
130


OOJ-26.eps
131


OOJ-27.eps
132


OOJ-28.eps
133


OOJ-29.eps
134


OOJ-30.eps
135


OOJ-31.eps
136


OOJ-32.eps
137


OOJ-33.eps
138

f


OOJ-34.eps
139


FCS-1.eps
140


FCS-2.eps
141

f


FCS-3.eps
142

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, CHAIRMAN, COMMITTEE ON THE JUDICIARY, AND MEMBER, COMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL

LIBERTIES

On April 14, 1999, I stood in victory with Black farmers across this country. The 

United States Department of Agriculture (USDA) 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. However, this groundbreaking victory for civil rights proved be short lived. Black farmers would soon face major obstacles in obtaining settlement payments and more allegations of discrimination by the USDA would surface. These allegation have included shocking claims of retaliation by USDA through its office of Inspector General. 

Now, eight years and multiple lawsuits later, the nation’s black farmers have not 

yet complete the Pigford claims process. In 2003, black farmer groups filed another 

lawsuit against the USDA alleging that the agency conspired to take their land 

through racial discrimination in government farm loans and programs. A report by 

the Environmental Working Group, issued in July 2004, gives strong credibility to 

the black farmers’ recent claims that the USDA purposefully makes insufficient and 

late operating loans to Black farmers in order to later foreclose on their land. 

Given the continuing nature of complaints against the USDA, this hearing is extremely well timed. 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 limitations and allowing claims to move forward. 

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 process as almost ‘‘automatic,’’ we need to understand what has gone wrong and the nature of 

our role in putting the process back on track. 

Also of concern to me in the Pigford settlement, is that black farmers were limited 

in their ability to bring sufficient claims because they were denied discovery rights. 

While the Track B arbitration process called for the disclosure of witnesses, the settlement’s consent decree included no other provisions for information exchange between the parties. 

As a result, the farmers had to prove discrimination without the benefit of access 

to information held in USDA files. This lack of access to information prevented 

black farmers from identifying similarly situated white farmers, a requisite to prove 

discrimination. 

I do not believe that such issues were the intended results of Pigford. 

Today, I hope to not only gain a better understanding of where we are in the 

Pigford process, but the overall plight of our nation’s Black farmers as well. 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 20,000 exist today. 

Yesterday, in The Washington Post, a front page article pointed out that in the 

Mississippi Delta—where a large section of this nation’s farms are located—95 percent of the agricultural subsidies went to large, commercial farms primarily owned 

by whites despite the fact that the majority of residents in that region are black. 

This is a situation that demands attention. 

Today I stand alongside these farmers in demanding that their livelihood and civil 

rights be protected. Time is of the essence, as records will diminish and black farmers will be gradually forced out of their chosen profession. We must act now to provide an opportunity for the Pigford claimants to have their opportunity to be heard 

and receive appropriate monetary relief. We will not only fail our Black farmers if 

we do not address their plight, but all of society, because the principles of equality 

and fairness should be afforded to everyone in this country. 

f

143

f


CEG.eps
144


CJHA-1.eps
145


HQ-1.eps
146


HQ-2.eps
147


CJHA-2.eps
148

f


CJHA-3.eps
149


ADM-1.eps
150


ADM-2.eps
151


ADM-3.eps
152


ADM-4.eps
153

Æ


ADM-5.eps