United States Government Accountability Office

Washington, DC 20548 

March 17, 2006 

Congressional Requesters 

Subject: Pigford Settlement: The Role of the Court-Appointed Monitor 

In 1997, three African-American farmers filed a class action civil rights lawsuit against 

the United States Department of Agriculture (USDA). These farmers alleged that USDA 

had willfully discriminated against them and other African-American farmers by denying 

their applications for farm loans and benefit programs, or by delaying the processing of 

their applications, and had failed to properly investigate and resolve their complaints of 

discrimination. This lawsuit, Pigford v. Glickman, was certified by the United States 

District Court for the District of Columbia as a class action suit on October 9, 1998.1

 On 

April 14, 1999, District Court Judge Paul L. Friedman approved and entered a consent 

decree settling this lawsuit. In doing so, the court noted USDA’s long-standing 

discriminatory practices. The court stated that for decades USDA discriminated against 

African-American farmers by denying, delaying, or otherwise frustrating AfricanAmerican farmers’ applications for farm loans and other credit and benefit programs. 

The court also noted that USDA disbanded its Office of Civil Rights in 1983, and stopped 

responding to claims of discrimination. Finally, the court observed that the consent 

decree would not undo all that had been done to African-American farmers, but 

nevertheless concluded that it would be a fair, adequate, and reasonable settlement of 

the claims brought in this case. 

Attorneys for the African-American farmers expected the value of the settlement to be 

substantial—estimating it to be worth at least $2.25 billion. However, the court stated 

that it was impossible to know exactly how much the settlement would cost the 

government, in part, because the size of the class of African-American farmers had not 

been determined. The court noted that 15,000 to 20,000 African-American farmers were 

estimated to be members of the class.2

 To notify potential class members, a courtappointed facilitator conducted an advertising campaign between January and March

 1

This case was filed in 1997 when the Honorable Daniel Glickman was Secretary of Agriculture. The case

is also now referred to as Pigford v. Johanns, because the Honorable Mike Johanns has become the 

Secretary of Agriculture. The three farmers who filed the suit were representing a presumed class of 641 

African-American farmers. 

2

As used in this report, the phrase “African-American farmers” refers to the class as defined by the court 

and not a more general definition. The certified class was defined as all African-American farmers who (1) 

farmed or attempted to farm between January 1, 1981, and December 31, 1996; (2) applied to USDA during

that period for loans or benefits and believe they were discriminated against in USDA’s response to that 

application; and (3) filed a discrimination complaint on or before July 1, 1997, regarding USDA’s treatment 

of their applications. 

 GAO-06-469R Pigford Settlement 
1999 to notify potential class members about the preliminary approval of the consent 

decree, and that a hearing on the fairness of the settlement was to be conducted in 

March 1999.3

 Following that hearing and the court’s approval of the settlement, AfricanAmerican farmers then had about six months to file claims and to be eligible for relief 

under the decree, with a filing deadline of October 12, 1999.4

 To assist farmers in 

preparing claims packages, attorneys representing African-American farmers held over 

200 meetings in 21 states.5

 Since the filing deadline, officials appointed by the court have 

been responsible for considering the claims made by African-American farmers. 

As of February 2006, over 97,000 people had filed claims under the consent decree or 

requests to file late claims---about five to six times more claims than anticipated. Of the 

97,000, the court had received 23,314 claims seeking compensation by the filing deadline 

of October 12, 1999. About 900 of the on-time claims were determined to be not eligible. 

The court received an additional 73,816 requests for permission to file a claim after the 

October 12, 1999 filing deadline. Except in relatively few extraordinary cases, the claims 

received after the filing deadline were denied as not timely. Because so many farmers’ 

attempts to file a claim were denied due to late filing, some claimants argued in court 

that the notice of the settlement was insufficient to reach the majority of potential class 

members.6

 Nevertheless, after review, the court ruled that the notice was more than 

adequate. Overall, by January 2006, about 22,400 claims had been reviewed, decided, and 

in some cases reexamined: about 14,300 claims—64 percent—were approved for 

payments and benefits totaling over $900 million. The remaining 8,100 claims—36 

percent—have been denied. More than half of the claims that were initially denied have 

been or will be reviewed by the court-appointed monitor. 

The court appointed four officials as directed under the consent decree: 

• A facilitator to conduct an advertising campaign between January and March 1999 

to notify known and potential members of the class that a settlement had been 

reached, to receive and screen potential class members’ claims to determine 

whether they met the class definition, and to assign the claims to the adjudicator 

and arbitrator for action. 

 3

The parties to the case had agreed to an advertising campaign which included 62 commercials, 

advertisements in 142 newspapers, as well as advertisements in TV Guide and Jet Magazine. The campaign

was carried out by the Poorman-Douglas Corporation, which had experience with class action litigation. 

4

For those individuals who could not file a claim by October 12, 1999 due to extraordinary circumstances 

beyond their control, the consent decree established a process by which they could petition the court to 

participate in the claims resolution procedures. Initially, the court set a deadline of January 30, 2000 for 

such petitions to be postmarked, but later extended this deadline to September 15, 2000.

5

In addition, one meeting occurred in Washington, D.C. and one in the U.S. Virgin Islands. These meetings 

occurred over the nine months leading up to the filing deadline.

6

This issue was also addressed in a November 2004 congressional hearing. ‘Notice’ Provision in the 

Pigford v. Glickman Consent Decree, Hearing before the House Committee on Judiciary, Subcommittee on

Constitution, November 18, 2004. 

2 GAO-06-469R Pigford Settlement 
• An adjudicator to decide whether certain farmers’ claims are supported by 

substantial evidence based on a review of their supporting documentation.7

 The 

adjudicator has reviewed almost all of the claims. 

• An arbitrator to determine, after holding evidentiary hearings, whether certain

farmers’ claims are supported by a “preponderance of evidence.” There have been 

166 claims under this criterion. The arbitrator was also assigned responsibility for 

reviewing petitions to file late claims from potential class members. 

• A monitor to review claimants requests to have a claim decision reexamined and 

to direct the other officials to reexamine a claim when an error occurred that 

resulted or is likely to result in a fundamental miscarriage of justice. The monitor 

began her duties in March 2000, about six months after the October 12, 1999 

deadline for potential class members’ to submit claims. The monitor is also 

responsible for attempting to resolve problems that class members have with the 

consent decree, and for periodically reporting to the court and the Secretary of 

Agriculture on the good faith implementation of the decree, but was not assigned 

specific outreach responsibilities under the consent decree. As of early 2006, the 

monitor’s office had a staff of 26, including 12 attorneys, to assist in performing 

her assigned tasks. 

A detailed description of our scope and methodology is provided in enclosure I. Based 

on the specific interests of our requesters, for this report we (1) determined the extent of 

the monitor’s participation in outreach and outreach oversight for the Pigford case, and 

(2) identified the number of claims that the monitor in the Pigford case directed to be 

reexamined and the associated results. In addressing these objectives, we reviewed 

reports, testimonies, and summary data prepared by court-appointed officials associated 

with the Pigford case, including the court-appointed monitor. We interviewed the 

monitor, and obtained statistical information about the status of claims made under the 

consent decree. We did not review specific cases nor assess case decisions made under 

the consent decree. In addition to those efforts, based upon congressional interest, we 

developed information about the possible use of an ombudsman at USDA to address civil 

rights issues (see encl. II); and we searched legal databases and identified cases where 

the work of other court-appointed monitors was found by courts or Congress to be 

ineffective or problematic and what court or legislative remedies were provided (see 

encl. III). We conducted our work between August 2005 and March 2006 in accordance 

with generally accepted government auditing standards. A more detailed description of 

our methodology is provided in enclosure I. 

 7

Claimants could request that their claims be considered on one of two tracks. Claimants selecting Track 

A have to provide substantial evidence for the adjudicator to approve a claim. Most successful Track A

claimants are eligible for $50,000 payments and other relief. Claimants selecting Track B have to 

demonstrate the merits of their case in an evidentiary hearing conducted by the arbitrator—and can 

receive amounts equal to their actual damages, a discharge of certain existing debt and other relief. 

3 GAO-06-469R Pigford Settlement 
Results in Brief 

The monitor or attorneys from her office participated in 60 public meetings from

February 2000 through December 2005 to reach out to class members, at the request of 

interested organizations. These meetings occurred in states where the majority of 

African-American farmers live, including Alabama, Arkansas, Georgia, Louisiana, 

Maryland, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and 

Virginia. The monitor estimated that 9,400 individuals, including claimants, potential 

claimants, and government officials attended these meetings. However, the number and 

extent of participation at these meeting was uneven among the states—for example, a 

total of about 2,090 individuals attended 12 such meetings in Alabama, but only about 60 

individuals attended the one outreach meeting in Texas. At these meetings, the monitor 

explained the role of her office and the process through which class members could 

petition to have their cases reexamined. In addition, through the monitor’s toll-free 

number, the monitor’s office has received over 131,000 phone calls about the Pigford

case. These calls have involved questions about status of payments, debt relief, tax 

concerns, and other issues. The monitor also established a Web site 

(http://pigfordmonitor.org) that makes information about the case readily available to the 

public. Furthermore, in the monitor’s reports to the Secretary of USDA, the court, class 

counsel and defendant’s counsel she noted that many claimants expressed concern to 

her office that the advertising campaign did not reach many individuals who met the 

class definition but had not submitted a timely claim. 

As of February 6, 2006, the monitor had ordered the reexamination of 2,059 initial claims 

decisions, and most reexaminations reversed or changed the initial decision. More 

specifically, African-American farmers had petitioned the monitor to direct the 

reexamination of 4,939 claims, and the government had requested that 730 claims 

decisions be reexamined. Of the 4,939 petitions from African-American farmers, as of 

February 6, 2006, the monitor had completed reviewing 3,631 of them and directed the 

arbitrator or adjudicator to reexamine 1,979 claims decisions; in 1,232 of these cases a 

previously denied claim was approved or the benefits awarded to the farmer were 

increased. The monitor observed that in most cases where she directed a reexamination, 

the farmer had provided her office with additional information supporting the farmer’s 

claim of discrimination that had not been presented when the claim was initially denied. 

In addition, the government has petitioned the monitor to review claim decisions when it 

thought there were mistakes or flaws in the information provided by the claimants. As of 

February 6, 2006, the monitor had reviewed 605 of the 730 petitions submitted by the 

government for the reexamination of claims decisions and directed that 80 of them be 

reexamined. Of these 80, sixty-seven have been reexamined by the adjudicator or 

arbitrator, and in 59 of these cases a previously approved claim was denied or the 

benefits awarded to the claimant were reduced. Finally, as of February 6, 2006, the 

monitor was still reviewing petitions to reexamine initial claims decisions and the 

adjudicator and arbitrator were continuing to reexamine claims decisions as directed by 

the monitor. 

4 GAO-06-469R Pigford Settlement 
Background 

The Pigford case was initiated in 1997, when African-American farmers filed a class 

action lawsuit against the USDA alleging that it willfully discriminated against them and 

other African-American farmers by denying their applications for farm loans and benefit 

programs, or delaying the processing of their applications, and failing to properly 

investigate and resolve their complaints of discrimination. This lawsuit was certified by 

the United States District Court for the District of Columbia as a class action suit on 

October 9, 1998. On January 5, 1999, District Court Judge Paul L. Friedman preliminarily 

approved a consent decree proposed by the federal government and class counsel to 

settle this lawsuit. After a fairness hearing was held on March 2, 1999, to address 

potential issues with the proposed consent decree, the parties made some revisions and 

filed a modified proposed consent decree. On April 14, 1999, District Court Judge Paul L. 

Friedman approved the modified consent decree as a fair, adequate, and reasonable 

settlement.

The consent decree defined the roles and responsibilities of the following officials who 

were appointed by the court to implement the settlement: 

• The Facilitator (Poorman-Douglas Corporation) The facilitator was responsible 

for notifying known and potential members of the class that a settlement had been 

reached by conducting an advertising campaign composed of television 

commercials and print advertisements early in 1999. The facilitator was also 

responsible for receiving potential class members’ claims, screening claims to 

determine whether they met the class definition, and assigning claims to the 

adjudicator and arbitrator for action. 

• The Adjudicator (JAMS-Endispute Inc.) The adjudicator is responsible for 

deciding whether farmers’ Track A claims have met the required burden of proof. 

Over 22,000 claims have been processed under Track A. 

• The Arbitrator (Mr. Michael K. Lewis of ADR Associates) The arbitrator is 

responsible for determining, after holding evidentiary hearings, whether farmers’ 

Track B claims have met the required burden of proof. A total of 166 claims have 

been processed under Track B. The arbitrator was also assigned responsibility for 

reviewing petitions from potential class members who filed late claims. 

• The Monitor (Ms. Randi Ilyse Roth, formerly of the Farmers Legal Action Group)8

 

The monitor began her duties in March 2000, about six months after the October 

12, 1999 deadline for potential class members’ to submit claims, and was not 

involved in the advertising campaign to reach out to potential class members. The 

monitor is responsible for directing the facilitator, adjudicator, or arbitrator to 

reexamine a claim if she determines that a clear and manifest error occurred in 

 8

Under the terms of the consent decree, counsel for both parties to the lawsuit each submitted two names 

for the court to consider appointing as monitor. On January 4, 2000, the court entered an order appointing

Randi Ilyse Roth as monitor. 

5 GAO-06-469R Pigford Settlement 
the screening, adjudication, or arbitration of a claim that has resulted or is likely 

to result in a fundamental miscarriage of justice. To initiate a reexamination of a 

claim, class members or the federal government were required to file a petition 

requesting a reexamination and explaining why they believed the decision of the 

facilitator, adjudicator, or arbitrator was in error.9

 The monitor reviews such 

petitions and directs the facilitator, adjudicator, or arbitrator to reexamine a claim 

if she determines that a clear and manifest error occurred in the screening, 

adjudication, or arbitration of a claim that resulted or is likely to result in a 

fundamental miscarriage of justice. In addition, the monitor is responsible for 

attempting to resolve problems that class members have with the consent decree, 

staffing a toll-free telephone line, and periodically reporting to the court and the 

Secretary of Agriculture on the good faith implementation of the decree. As of 

early 2006, the monitor’s office had a staff of 26, including 12 attorneys, to assist 

in performing her assigned tasks. 

The efforts to reach potential class members were started in January 1999. Under the 

terms of the consent decree, the court-appointed facilitator, Poorman-Douglas 

Corporation, was assigned the duty of publishing the Notice of Class Settlement as 

directed in the decree. This included mailing a copy of the Notice of Class Certification 

and Proposed Class Settlement to all known members of the class within 10 days of the 

court’s preliminary approval of the consent decree. In addition, the consent decree 

directed the facilitator, as soon as possible after the preliminary approval of the consent 

decree, to take the following actions to announce the preliminary settlement and the 

time and place of the fairness hearing: (1) arrange to have 44 commercials aired on the 

Black Entertainment Television (BET) network and 18 similar commercials on the Cable 

News Network (CNN) during a two-week period; (2) arrange to have one-quarter page 

advertisements in 27 general circulation newspapers and 115 African American 

newspapers in an 18-state region during a two-week period; and (3) arrange to have a full 

page advertisement in the editions of TV Guide that are distributed in an 18-state region 

and a half page advertisement in the national edition of Jet Magazine.10 In his April 1999 

order approving and entering the consent decree, Judge Friedman concluded that the 

potential class members had received more than adequate notice, stating that the parties 

had exercised extraordinary efforts to reach class members through the massive 

advertising campaign that had been conducted. Furthermore, he observed that by March 

26, 1999, 16,559 farmers had requested claims packages from the facilitator. 

The consent decree provided about six months for potential class members to file 

claims, with a deadline of October 12, 1999. To be eligible to obtain relief pursuant to the 

consent decree, a claimant was required to complete a claim sheet and return it with any 

supporting documentation to the facilitator. As part of the claim, the claimant had to 

 9

Under certain circumstances, class members and the federal government are allowed to provide 

additional information to the monitor that was not included with the original claim if their claim was 

processed under Track A. 

10In addition, USDA was to use its best efforts to obtain the assistance of community based organizations to

communicate to class members and potential class members that the court had preliminarily approved the

consent decree and the time and place of the March 1999 fairness hearing.

6 GAO-06-469R Pigford Settlement 
provide the facilitator with evidence that he or she had filed a discrimination complaint 

between January 1, 1981, and July 1, 1997. Under the consent decree terms, the claimant 

could provide this evidence by submitting one of the following: 

• a copy of the discrimination complaint filed with USDA or a copy of a USDA 

document referencing the discrimination complaint; 

• a declaration by a person who was not a member of the claimant’s family, stating 

that the declarant had first-hand knowledge that the claimant had filed a 

discrimination complaint with USDA and describing the manner in which the 

discrimination complaint was filed; 

• a copy of correspondence from the claimant to a member of Congress; the White 

House; or a state, local or federal official averring that the claimant had been 

discriminated against (except that, in the event that USDA did not possess a copy 

of the correspondence, the claimant also was required to submit a declaration 

stating that he or she sent the correspondence to the person to whom it was 

addressed); 

• a declaration by a non-familial witness stating that the witness had first-hand 

knowledge that, while attending a USDA listening session or other meeting with a 

USDA official (or officials), the claimant was explicitly told by a USDA official 

that the official would investigate that specific claimant’s oral complaint of 

discrimination.11

 

An individual who satisfied the criteria for membership in the class, but who did not file 

a discrimination complaint until after July 1, 1997, could be entitled to relief under the 

consent decree by demonstrating that he or she: (1) actively pursued judicial remedies 

by filing a defective pleading during the applicable statute of limitations period; (2) was 

induced or tricked by USDA’s misconduct into allowing the filing deadline for the 

applicable statute of limitations period to pass; or (3) was prevented by other 

extraordinary circumstances beyond his or her control from filing a complaint in a timely 

manner, though neglect did not qualify as an extraordinary circumstance. In these cases, 

the facilitator forwarded the claim package to the adjudicator who reviewed the package 

to determine if the claimant met one of the three standards. Once the adjudicator made 

a determination, the claim package was returned to the facilitator with a written 

determination and the facilitator was to process the claim, if found to be timely, or to 

notify the claimant of the adjudicator’s decision that the claim was untimely. 

Under the consent decree, claimants who satisfied the definition of the class, including 

the filing of a discrimination complaint, but who had not submitted a completed claim 

package by the filing deadline of October 12, 1999 could petition the court to permit 

them to participate in the settlement. However, the consent decree provided that the 

 11Any declarations were required to be made pursuant to 28 U.S.C. § 1746, which prescribes the form in

which such declarations, as true under penalty or perjury, must be provided. 

7 GAO-06-469R Pigford Settlement 
court would grant such a petition only where the claimant demonstrated that his or her 

failure to submit a timely claim was due to extraordinary circumstances beyond his or 

her control. The court delegated the authority to the arbitrator to examine these claims 

on a case-by-case basis. The deadline the court established for filing a petition to file a 

late claim was initially January 30, 2000, and later the court extended this deadline to 

September 15, 2000. According to the arbitrator’s report of November 2005, about 66,000 

petitions to file a late claim were received by September 15, 2000, and an additional 7,800 

were received after the late claim deadline. Of these, the arbitrator denied all but 2,229. 

An example of extraordinary circumstances beyond an individual’s control that the 

arbitrator approved involved farmers who resided or farmed in one of the North Carolina 

counties declared to be a federally designated disaster area as a result of Hurricane 

Floyd and who asserted that the disaster prevented them from submitting a claim before 

the October 12, 1999, deadline. Potential class members’ claims that they did not hear of 

the opportunity to submit a claim until it was too late were not considered by the 

arbitrator to have represented an extraordinary circumstance. When reviewing late 

claims, the arbitrator collaborated with the facilitator’s staff to develop a series of 

categories into which late claim affidavits were sorted. Those affidavits in the "Unaware 

of Lawsuit" category, without any mitigating factors, were rejected. 

The terms of the consent decree required the facilitator to determine whether the 

claimant satisfied the criteria for membership in the class within 20 days of receiving a 

completed claim. If the claimant was determined to be a class member, the facilitator 

was to forward the claim package to the adjudicator or the arbitrator and send a copy of 

the claim package to the class counsel and government counsel. 

To address the claims of class members, the consent decree established two tracks—

Track A and Track B. These tracks differ in three basic ways: the level of evidence 

required, the manner in which claims are decided, and the potential amounts of the 

awards. Class members could generally elect to proceed under either track.12

 

Track A claimants’ cases are decided by the adjudicator based on the evidence that 

claimants can provide, and without a hearing. To prove a Track A claim, the claimant’s 

written materials must provide substantial evidence that he or she was the victim of race 

discrimination by USDA when he or she applied to participate in a farm program.13

 

When a Track A credit-related claim is proven the claimant is eligible to receive a cash 

payment of $50,000, a discharge of certain outstanding debt, and other relief. When a 

Track A claim of discrimination in a non-credit benefits program is proven the claimant 

is eligible for a single payment from USDA of $3,000. 

In contrast, Track B claimants are required to meet a higher standard of proof by 

demonstrating in an evidentiary hearing by a “preponderance of the evidence” that they 

 12Class members whose claims arose exclusively under non-credit benefit programs, however, had to file 

under Track A. 

13Substantial evidence is defined as relevant evidence appearing in the record that a reasonable person 

might accept as adequate to support a conclusion after taking into account other evidence that fairly

detracts from that conclusion.

8 GAO-06-469R Pigford Settlement 
were the victims of racial discrimination and suffered damages as a result of that 

discrimination. A preponderance of the evidence is defined as such relevant evidence as 

is necessary to prove that something is more likely true than not true. Also, at the 

hearing, the government may cross examine opposing witnesses and present legal 

arguments. When a Track B claim is proven, the claimant is provided an amount equal to 

his or her actual damages, receives a discharge of outstanding debt to the USDA’s Farm 

Service Agency, and other relief. Track B awards have ranged from $52,000 to 

approximately $1,500,000. 

In cases where the class member or the federal government disagreed with the 

adjudication or arbitration of a claim, either party could file a petition with the monitor 

to request that these decisions be reexamined.14 The consent decree provides that the 

monitor is to direct a reexamination when she determines that a clear and manifest error 

has occurred in the screening, adjudication, or arbitration of the claim and that this error 

has resulted or is likely to result in a fundamental miscarriage of justice. The monitor 

does not have the power to reverse any of the facilitator’s, adjudicator’s, or arbitrator’s 

decisions. The monitor reviews the petition for reexamination, any response to that 

petition, the record before the facilitator, adjudicator, or arbitrator, and the decision that 

is the subject of the petition. For Track A claims only, under certain circumstances, the 

class member or the government may include with the petition for monitor review any 

documents that help them explain or establish that an error occurred. However, the 

monitor is not permitted to consider additional materials when reviewing Track B 

petitions or to supplement the record with such materials. 

The Monitor’s Participation in Outreach Activities 

The monitor and her staff have participated in outreach activities, although the consent 

decree did not specifically assign outreach duties to the monitor. Outreach 

responsibilities under the consent decree—the initial notification of the known and 

potential class members--were assigned to the facilitator. Between February 2000 and 

December 2005, the monitor and lawyers from the monitor’s office participated in 60 

public meetings at the request of agriculture associations, universities, state and federal 

government agencies, and other interested sponsoring organizations. The monitor and 

her staff served as speakers at these meetings, where they explained the role of the 

monitor as directed by the consent decree and met with individuals to discuss their 

specific concerns. Approximately 9,400 individuals, including claimants and government 

officials, attended these meetings that were held in 12 states and the District of 

Columbia.15 Table 1 shows that the numbers of meetings and attendance varied by state. 

The monitor told us that some of these meetings were the sponsoring organization’s 

annual meetings with attendees from a number of states. 

 14In addition, claimants could petition the monitor to request the reexamination of some of the facilitator’s 

screening decisions. 

15According to the 2002 Agriculture Census, about 87 percent of the African-American farm operators live

in these states. 

9 GAO-06-469R Pigford Settlement 
Table 1: Meetings Attended by the Monitor and/or Her Staff, February 2000 through December 2005. 

State 

Number of 

meetings Sponsoring organizations

Approximate

number of 

attendees 

Alabama 12

• Federation of Southern Cooperatives/Land Assistance 

Fund 

• Professional Agricultural Workers Conference 

• Tuskegee University 

• United Farmers USA 2,090 

Arkansas 13 

• Arkansas Chapter of the Black Farmers and 

Agriculturalists Association, Inc. 

• Arkansas Land and Farm Development Corporation 

• Arkansas Pine Bluff University

• Black Farmers and Agriculturalists Association, Inc. 1,700 

Georgia 11

• African American Family Farmers, Inc. 

• Coordinating Council of Black Farm Groups 

• Federation of Southern Cooperatives/Land Assistance 

Fund 

• Fort Valley State University 

• USDA Outreach 1,355 

Louisiana 2 

• Northeast Louisiana Farmers 

• Southern University and A&M College Family Farm 

Technical Assistance Project 190 

Maryland 1 • USDA 50 

Mississippi 3 • Alcorn State University 

• Mississippi Family Farmers 200 

North Carolina 1 • Congressman Mike McIntyre 250 

Oklahoma 7

• FSA State Directors 

• Oklahoma Chapter of the Black Farmers and 

Agriculturalists Association, Inc. 

• Oklahoma Department of Agriculture 

• USDA Oklahoma Department of Food and Forestry 2,400-2,500 

South Carolina 1 • United Farmers of South Carolina 205 

Tennessee 3 

• Tennessee Chapter of the Black Farmers and 

Agriculturalists Association, Inc. 

• USDA Risk Management 290 

Texas 1 • Landowners’ Association of Texas 60 

Washington, D.C. 3 

• Federation of Southern Cooperatives/Land Assistance 

Fund 

• Congressional Black Caucus 

175 

Virginia 2 • National Black Farmers Association 400 

Source: Randi Roth, Court-appointed Monitor, Pigford v. Glickman. 

Note: Ms. Roth stated that she attended the meetings held over the first year and some others, and also, that Mr. Stephen Carpenter,

Senior Counsel for the monitor’s office, attended almost all of the meetings. 

These meetings provided opportunities for the monitor and her staff to hear and respond 

to the concerns of individuals. For example, claimants with approved claims expressed 

concerns about the timing of payments, the amount of debt relief and injunctive relief 

they would receive, and other issues, such as taxes. Claimants whose claims were 

denied sought information about filing a petition with the monitor to have their claim 

reexamined and the timing of reexamination decisions, among other issues. In the 

monitor’s reports and our interviews with her, she reported that in many cases several of 

10 GAO-06-469R Pigford Settlement 
her staff attended these meetings, which made it possible for one or two attorneys from 

the monitor’s office to address the large group while the other attorneys worked with 

individuals to address their concerns. The monitor has addressed these topics and 

others by publishing 15 Monitor Updates, which the monitor’s staff distributed before 

and after the public meetings, and also during one-on-one sessions with individuals who 

expressed concerns about specific topics. The Monitor Updates are also available on 

the monitor’s official Website. 

In addition, the court required the monitor to be available to class members and the 

public through a toll-free telephone number in order to facilitate the lodging of any 

consent decree complaints and to expedite their resolution. The monitor established a 

toll-free number that has been available to the public since May 29, 2000. The monitor 

said her office has received over 131,000 calls on this toll-free number. Callers who use 

the toll-free number reach phone operators who have been trained regarding the basics 

of the consent decree and who have access to a database containing certain factual 

information about each claimant, such as the claimant’s name, the names of any other 

individual who is authorized to request information on behalf of a claimant, filing dates 

for claims and petitions filed by the claimant, and the status of any payments to the 

claimant. As a result, the operators are able to respond to some questions during a call. 

For example, the operators can respond to questions as to when a payment was 

approved or sent to the individual, as well as questions about filing deadlines associated 

with the case. These operators also have access to documents that can be sent to 

individuals upon request, including court orders, farm loan program notices, monitor 

reports, and monitor updates. For questions about debt relief, injunctive relief, and other 

complex issues, the operators make appointments for the caller to speak with a lawyer 

from the monitor’s office. 

The consent decree requires the monitor to periodically report to the court, class 

counsel, defendant’s counsel and the Secretary of USDA on the good-faith 

implementation of the consent decree. The monitor has completed four implementation

reports which, along with other monitor reports on particular topics, are available on the 

monitor’s Web site. The reports provide details about the activities of her office, 

statistical information on the status of claims processing, and her observations about the 

implementation of the Pigford case. For example, in 2004 and 2005, the monitor’s 

reports on the consent decree implementation noted that claimants had expressed 

concerns that many people who met the class definition had failed to sign up for the 

lawsuit on time because the advertising campaign did not reach them.16 Because a vast 

majority of farmers attempted to file claims after the settlement deadline, some groups, 

such as the National Black Farmer’s Association, have argued that the notice of the 

settlement was insufficient to reach the majority of potential class members. Others 

have suggested additional explanations. In particular, one of the attorneys for the 

plaintiffs explained that many African-American farmers did not apply by the October 

 16See Randi IIyse Roth, Monitor’s Report and Recommendations Regarding Implementation of the 

Consent Decree for the Period of January 1, 2002, through December 31, 2003, (St. Paul Minnesota: Aug. 

19, 2004); and Monitor’s Report Regarding Implementation of the Consent Decree for the Period of 

January 1, 2004, through December 31, 2004, (St. Paul Minnesota: Dec. 16, 2005).

11 GAO-06-469R Pigford Settlement 
filing deadline either because they initially had no faith that the government would ever 

make such payments, or because they did not realize that the children of farmers could 

make claims on behalf of their parents.17 The arbitrator contacted a quarter of those who 

applied late and found several explanations--that they had been unaware of the 

settlement, the deadlines and procedures for the consent decree, or were aware but 

disbelieved in its legitimacy or their eligibility under the consent decree. On January 3, 

2005, Judge Paul L. Friedman of the United States District Court for the District of 

Columbia issued an opinion expressing concern for African-American farmers, who, 

because they had not filed on time, were barred from participating in the consent decree 

claims-resolution process. Nevertheless, the court found that the notice of the 

settlement and claims process was more than adequate and met the standards for class 

action settlements. 

The Monitor Directed the Reexamination of 2,059 Claims and Most 

Reexaminations Reversed or Altered the Initial Decision 

The monitor’s office has played an active role in implementing the consent decree by 

reviewing about one quarter of the claims decisions that have been made in the Pigford 

case. Overall, as of February 6, 2006, the monitor’s office has received 5,669 petitions 

requesting the reexamination of an initial claim decision—4,939 from African-American 

farmers and 730 from the federal government. Most petitions from African-American 

farmers concerned claims that they believed were denied inappropriately, but 162 

farmers filed petitions for review claiming they were due additional benefits. Of the 

4,939 claims that African-American farmers petitioned to be reexamined, the monitor had 

completed reviewing 3,631 of them and directed that 1,979 claims be reexamined as of 

February 6, 2006. 18 The following figure indicates that, of the claims that had been 

reexamined, the adjudicator found in favor of African-American farmers and awarded 

payments in over 90 percent of the cases. As a result, previously denied claims were 

approved or the benefits awarded to the farmer were increased. 

 17Speech of Mr. J.L. Chestnut of Chestnut, Sanders, Sanders, Pettaway, & Campbell, L.L.C. at the Federation

of Southern Cooperatives/Land Assistance Fund's 2005 22nd Annual Farmer's Conference in Albany, 

Georgia, February 19, 2005.

18As of February 6, 2006, the monitor had reviewed 4,236 petitions for reexamination (3,631 from AfricanAmerican farmers and 605 from the government). Of these, the monitor directed the further reexamination 

of 2,057 (1,979 from African-American farmers and 80 from the government). 

12 GAO-06-469R Pigford Settlement 
Figure 1: Status of African-American Farmers Petitions for Reexamination of Claims Decisions as of

February 6, 2006.19

Claimants filed 4,939 petitions requesting 

reexamination of claim decisions

Monitor has reviewed 3,631 petitions; 

1,308 petitions are still pending 

Monitor directed the 

reexamination of 3

claim decisions

Arbitrator resumed the 

hearing process for 3

claims

No final arbitrator 

decisions

Track A Claims Track B Claims

Monitor directed the 

reexamination of 1,976 

claim decisions

Adjudicator reexamined 

1,344 claim decisions; 

632 claims are still 

pending

Claimant prevailed 

upon reexamination of 

1,232 claims

Source: provided by Randi Roth, Court-Appointed Monitor, Pigford v. Glickman.

According to the monitor, some of the flaws that were noted in petitions from claimants 

included (1) the limited time these individuals had to present claim information during 

meetings where class counsel provided assistance in completing claim packages, and (2) 

difficulties providing information about similarly situated white farmers as required 

under Track A. In many of these cases, the class member’s petition for review provided 

the monitor with more complete information that had not been presented when the claim 

was initially denied, including information about their treatment by USDA staff, 

information about similarly situated white farmers, or additional information that 

responded to specific statements in the adjudicator’s initial decision. The monitor 

observed that in most cases where she directed a reexamination, the farmer had 

provided her office with additional information supporting the farmers’ claim of

discrimination. 

In addition, the government petitioned the monitor for a reexamination of 730 claim 

decisions that were found in favor of a claimant and awarded them benefits. When the 

government filed petitions with the monitor to have claims decisions reexamined, the 

 19Ninety-four petitions were from potential class members who had been rejected by the facilitator in the 

initial screening process. The monitor has reviewed all of these petitions and directed the facilitator to 

reexamine 22 of them. As of February 6, 2006, the facilitator had reexamined all 22 cases and has found all 

22 of the claimants to be eligible to participate in the claims process. 

13 GAO-06-469R Pigford Settlement 
types of flaws or mistakes that they noted included flaws in information provided by 

claimants, such as when and to whom in USDA the claimant had complained to about 

discriminatory treatment or constraints on the time the government was allowed when 

responding to the claims initially. For example, some of the historical records for these 

USDA programs were stored on microfiche records that are maintained in St. Louis and 

not readily available. As of February 6, 2006, the monitor had reviewed 605 of these 

petitions, as shown in figure 2. Of the 605 petitions, the monitor has denied the 

government request for a reexamination in about 87 percent of these cases. However, in 

the 80 cases where the monitor directed the reexamination of an initial claim at the 

request of the government, the government prevailed in 59 of those cases. As a result, 

previously approved claims were denied or the benefits awarded to a claimant were 

modified. 

Figure2: Status of Federal Government Petitions for Review of Claims Decisions as of February 6, 2006. 

Government filed 730 petitions requesting 

reexamination of a claims decisions

Monitor has reviewed 605 petitions; 

125 petitions are still pending 

Monitor directed the 

reexamination of 2 

claim decisions

Arbitrator reexamined 1 

claim decision

Government prevailed 

upon reexamination of 

the claim

Track A Claims Track B Claims

Monitor directed the 

reexamination of 78 

claim decisions

Adjudicator reexamined 

66 claim decisions; 12 

claims are still pending

Government prevailed 

on 58 of the 

reexamined claims

Source: provided by Randi Roth, Court-Appointed Monitor, Pigford v. Glickman.

- - - - - 

As agreed with your offices, unless you publicly announce its contents earlier, we plan 

no further distribution of this report until 30 days from the date of this letter. We will 

then send copies of this report to the President, the Attorney General, the Secretary of 

Agriculture, appropriate congressional committees, and other interested parties. We will 

also make copies available to others upon request. In addition, the report will be 

available at no charge on the GAO Web site at http://www.gao.gov. 

14 GAO-06-469R Pigford Settlement 
If you or your staff have any questions about this report or need additional information, 

please contact me at (202) 512-3841 or robinsonr@gao.gov. Contact points for our 

Offices of Congressional Relations or Public Affairs may be found on the last page of this 

report. Key contributors to this report were Charles M. Adams, Assistant Director; John 

Delicath; Natalie Herzog; Lynn Musser; and Amy Webbink. 

Robert A. Robinson 

Managing Director, Natural Resources 

 and Environment 

15 GAO-06-469R Pigford Settlement 
List of Congressional Requesters 

The Honorable Edolphus “Ed” Towns 

Member of Congress 

The Honorable Bennie Thompson 

Member of Congress 

The Honorable John Conyers 

Member of Congress 

The Honorable Robert C. Scott 

Member of Congress 

The Honorable F. James Sensenbrenner, Jr. 

Chairman 

Committee on the Judiciary 

House of Representatives 

The Honorable Steve Chabot 

Chairman 

Subcommittee on the Constitution

Committee on the Judiciary 

House of Representatives 

16 GAO-06-469R Pigford Settlement 
Enclosure I 

Scope and Methodology

To determine what outreach or outreach oversight the monitor provided in the Pigford

case, we reviewed the consent decree that described the monitor’s role in implementing 

the settlement and the standards that she was to follow in carrying out her 

responsibilities; the January 4, 2000, court order appointing the monitor; and the April 4, 

2000, order of reference that further described the monitor’s responsibilities and powers. 

We also interviewed the monitor and staff from her office about the outreach and 

outreach oversight activities that she performed, and the information that she and her 

staff provided during these activities. In addition, we reviewed the monitor’s four 

reports on the good-faith implementation of the consent decree and her congressional 

testimony at a hearing on the status of the implementation of the Pigford consent 

decree. In addition, we reviewed the congressional testimony of the facilitator and 

arbitrator about the notice to the class and requests to file late claims. Further, we 

reviewed the 15 published monitor updates on topics, such as filing deadlines and parties 

to the Pigford consent decree, which the monitor and her staff shared with the public as 

part of her outreach activities. 

To identify the number of cases where the court-appointed monitor’s work in the Pigford

case resulted in reexaminations of claims, and to identify the results of the 

reexaminations, we reviewed the consent decree, court orders, and the monitor’s reports 

to determine the process established for requesting a reexamination of a claim decision 

and the standards the monitor was to use when reviewing and approving these requests. 

We also reviewed the statistics included in the monitor’s September 2004 congressional 

testimony and her reports for 2000 through 2004 to identify the number of petitions that 

were filed with the monitor’s office requesting a reexamination of a claims decision, the 

number of petitions for reexaminations of a claims decision that were approved, and the 

results of any reexaminations. We did not review specific cases nor assess case 

decisions made under the settlement agreement. We further reviewed the data provided 

by the monitor’s office for the period ending February 6, 2006. We did not assess the 

data published in the monitor’s testimony and reports or the data the monitor provided 

to us. Because of the public nature of these data, we deemed them reliable for the 

purposes of this report. 

To describe the role of an agency ombudsman in resolving disputes, we reviewed the 

ombudsman standards developed by the American Bar Association (ABA); the Coalition 

of Federal Ombudsman; the United States Ombudsman Association; and the University 

and College Ombudsman Association. We also reviewed a draft copy of the guide for 

federal employee ombudsmen developed by the Coalition of Federal Ombudsman in 

conjunction with the Federal Interagency Alternative Dispute Resolution Working Group 

Steering Committee. In addition, we reviewed our previous reports on the role of 

ombudsmen in dispute resolution, and on the Environmental Protection Agency’s 

ombudsman. Further, we interviewed the Department of Labor’s Office of Inspector 

General Ombudsman, who is currently the Chair of the Coalition of Federal Ombudsman; 

the Transportation Security Administration’s Ombudsman, who is currently the ViceChair of the Coalition of Federal Ombudsman; the City of Dayton and Montgomery 

County, Ohio Ombudsman, who is currently a Director of the United States Ombudsman 

17 GAO-06-469R Pigford Settlement 
Enclosure I 

Association, and the Stony Brook University Ombudsman, who is currently the President 

of the International Ombudsman Association, to discuss the role of an ombudsman in 

dispute resolution and the potential of ombudsmen to address civil rights.20 We did not 

identify any comprehensive reports on evaluations of the federal ombudsmen who 

address issues raised by the public. 

To identify cases where the work of other monitors was found to be ineffective or 

problematic, and what court or legislative remedies were provided, we searched a 

number of legal databases for relevant examples. To find examples where Congress had 

found the work of a monitor to be ineffective or problematic, and any corresponding 

legislative remedies, we conducted a variety of searches in legislative, legislative history, 

and legal journal databases. Because courts have appointed monitors as “special 

masters” under Rule 53 of the Federal Rules of Civil Procedure, to find examples where 

the courts had found the work of a monitor to be ineffective or problematic, and 

corresponding remedies, we reviewed over 1,600 federal cases citing Rule 53. We also 

reviewed over 600 federal cases in which the terms “court,” “monitor,” and some form of 

the word “appoint” occur in the same sentence. 

We conducted our work between August 2005 and March 2006 in accordance with 

generally accepted government auditing standards.

 20The Ombudsman Association and the University and College Ombuds Association recently merged to

form the International Ombudsman Association. 

18 GAO-06-469R Pigford Settlement 
Enclosure II 

Role of an Agency Ombudsman in Resolving Disputes 

Based on congressional interest, we developed information on ombudsmen that might be 

useful in considering the potential use of an ombudsman at USDA to address civil rights 

issues. USDA does not now have such an ombudsman. Our past work on the use of 

ombudsman offices,21 American Bar Association (ABA) guidance on and information 

about ombudsmen, and our interviews with those familiar with the use of ombudsmen in 

the United States shows that ombudsmen (1) are increasingly being used by federal, 

state and local governments and (2) address a wide variety of workplace problems, 

including program access and civil rights issues. Moreover, the international use of 

ombudsmen is flourishing, with ombudsmen being used at national levels of government 

in about 120 countries as of 2004, according to the International Ombudsman Institute. 

In several countries, the protection of human rights is one of the major purposes of 

ombudsman offices, indicating the potentially significant depth of the ombudsman role. 

An ombudsman, as a protector of individual rights, is a dispute-resolution practitioner. 

An ombudsman is a neutral party who uses a variety of procedures, including alternative 

dispute resolution techniques, to deal with complaints, concerns, and questions. An 

ombudsman (1) receives complaints, concerns, and questions from individuals; (2) 

works to resolve these issues; and (3) makes recommendations for improving the general 

administration of the department, agency, or entity for which they have responsibility. 

Ombudsmen can address a very wide range of issues, for example, from the concerns of 

individuals about access to programs, to systemic management problems, to policy 

shortcomings. Ombudsmen can thereby help correct organization-wide problems and 

also help develop strategies for preventing and managing conflict. A key feature that 

distinguishes ombudsmen from other dispute-resolution practitioners is the 

ombudsman’s focus on addressing systemic issues and developing conflict-prevention 

strategies. 

Growth in the Use of Ombudsmen

Over the past three decades, there has been an extraordinary growth in the number and 

types of ombudsmen. Ombudsman offices have been established in federal, state, and 

local governments, academic institutions, and the private sector. The Chair of the 

Coalition of Federal Ombudsmen told us that the Coalition includes ombudsmen 

members that represent 37 federal agencies. Moreover, the Administrative Dispute 

Resolution Act (ADRA) authorizes federal agencies to use ombudsmen, and Congress 

has established several ombudsman positions in various programs. For example, the 

U.S. Environmental Protection Agency has ombudsmen who serve as points of contact 

for members of the public who have concerns about Superfund activities.22 Also, the 

ombudsman for the National Institutes of Health (NIH) addresses issues for employees 

 21GAO, Human Capital: The Role of Ombudsmen in Dispute Resolution, GAO-01-466 (Washington, D.C.: 

April 13, 2001). 

22The Superfund Program provides support to locate, investigate, and clean up hazardous waste sites 

nationwide. 

19 GAO-06-469R Pigford Settlement 
Enclosure II 

of the NIH, such as staff and management interaction, performance appraisals, difficult 

management situations, discrimination, harassment, interpersonal misunderstandings, 

mentoring, authorship, and scientific collaboration. In addition, the ombudsman for the 

Federal Deposit Insurance Corporation (FDIC) handles inquiries from FDIC-regulated 

banks, the public and FDIC employees. The FDIC ombudsman can answer questions 

about corporation policies and procedures and concerns regarding open or closed bank 

matters, and assist with complaints regarding FDIC operations, employees, and 

contractors. 

Ombudsmen are also in widespread use internationally—including Canada, Europe, 

Latin American, the Caribbean, Africa, Australia and Asia. As of 2004, ombudsmen are 

being used at national levels of government in about 120 countries, according to the 

International Ombudsman Institute. In a number of countries the protection of human 

rights is one of the major purposes of some ombudsmen offices. According to the 

International Ombudsman Institute, examples include the Ombudsman of Finland, Civil 

Rights Protector of Poland, the Human Rights Ombudsman of Slovenia, the 

Parliamentary Commissioner for Human Rights in Hungary, and the Defensores del 

Pueblo in Spain, Argentina and Peru. Also, in the European Union, all citizens have the 

right to refer their problems involving the activities of European community institutions 

to the Ombudsman of the Union. In 2000, the Union’s ombudsman reported that about 8 

percent of the complaints he addressed involved matters of discrimination. For 

example, as a result of inquiries by the European Union Ombudsman, the European 

Commission abolished a rule allowing sex discrimination which had worked to the 

disadvantage of women. In addition, ombudsmen in Britain and Ireland address a wide 

variety of issues including, for example, housing, health, pensions, police investigations, 

insurance, telecommunications, estates, and legal services. 

Standards for Ombudsmen

The ABA developed standards for the use of ombudsmen to provide advice and guidance 

on the structure and operation of ombudsman offices. The standards call for 

ombudsman to operate consistently with the following essential characteristics—

independence, impartiality, and confidentiality. 

Independence—The ombudsman is, and appears to be, free from interference in 

the legitimate performance of duties and independent from control, limitation, 

or a penalty imposed for retaliatory purposes by an official of the appointing 

entity, or by a person who may be the subject of a complaint or inquiry. 

Impartiality in conducting inquiries and investigations—The ombudsman 

conducts inquiries and investigations in an impartial manner, free from initial 

bias and conflicts of interest. Impartiality does not preclude the ombudsman 

from developing an interest in securing changes that are deemed necessary as a 

result of the process, nor from otherwise being an advocate on behalf of a 

designated constituency. The ombudsman may become an advocate for change 

within the entity when the evidence demonstrates a need for it. 

20 GAO-06-469R Pigford Settlement 
Enclosure II 

Confidentiality—An ombudsman does not disclose and is not required to 

disclose any information provided in confidence, except to address an imminent 

risk of serious harm. Records pertaining to a complaint, inquiry, or investigation 

are confidential and not subject to disclosure outside the ombudsman’s office. 

An ombudsman does not reveal the identity of a complainant without that 

person’s express consent. 

The ABA standards also state that an ombudsman may make formal or informal reports 

of results and recommendations stemming from a review of investigation. If such a 

report is issued, the ombudsman should generally consult with an individual or group 

prior to issuing a report critical of that individual or group, and include their comments 

with the report. In addition, the ABA standards state that to ensure the office’s 

accountability, an ombudsman should issue and publish periodic reports summarizing 

the ombudsman’s findings and activities. These reports may include statistical 

information about the number of contacts with the ombudsman and the subjects that the 

ombudsman addressed. The chair of the Coalition of Federal Ombudsmen told us that 

he is part of a working group looking at developing standard data categories for annual 

reports to be prepared by ombudsmen so that the work of ombudsmen in the federal 

government can be compared and summarized. We did not identify any comprehensive 

evaluations of the federal ombudsmen who address concerns from the public. 

According to the ABA standards, there are four types of ombudsmen based on how the 

office was established and their functions. 

Legislative ombudsmen—A legislative ombudsman is established by the 

legislature as part of the legislative branch and addresses issues raised by the 

general public or internally, usually concerning the actions or policies of a 

government agency, official, public employee, or contractor. 

Executive ombudsmen—An executive ombudsman may be located in either the 

public or private sector and receives complaints from the general public or 

internally, and addresses actions or failures to act by the entity, its officials, 

employees, or contractors. 

Organizational ombudsmen—An organizational ombudsman may be located in 

either the public or private sector and ordinarily addresses problems presented 

by members, employees, or contractors of an entity concerning its actions or 

policies. 

Advocate ombudsmen — An advocate ombudsman may be located in either the 

public or private sector and, like other ombudsmen, evaluates claims 

objectively, but is either authorized or required to advocate on behalf of 

individuals or groups found to be aggrieved. 

While an ombudsman may expedite and facilitate the resolution of a complaint and 

recommend changes to agency procedures, an ombudsman as envisioned by the ABA 

standards should supplement and not substitute for an entity’s formal procedures that 

21 GAO-06-469R Pigford Settlement 
Enclosure II 

may be necessary to protect legal rights and to address allegedly inappropriate or 

wrongful behavior or conduct. Nevertheless, if an ombudsman finds a shortcoming in 

agency policies, procedures and processes, he or she is expected to raise those issues for 

resolution or reconsideration. 

Potential for an Ombudsman to Address Civil Rights Issues at USDA

Several core aspects of the functioning and purpose of an ombudsman make such an 

office an option for consideration at USDA. An ombudsman not only works to resolve 

disputes but also is in a position to alert management to systemic problems and thereby 

help correct organization-wide situations and develop strategies for preventing and 

managing conflicts. Moreover, an ombudsman office can help an organization assure a 

fair, equitable and nondiscriminatory environment. In this regard, the voice of an 

independent ombudsman could potentially be useful in addressing concerns about 

equitable access to programs and other civil rights issues at USDA. Before deciding 

whether an ombudsman office at USDA should be instituted, a variety of factors would 

need to be carefully considered, including the relationship of the ombudsman to USDA’s 

existing organizations, the specific roles and responsibilities to be assigned to the 

ombudsman, the authorities that would be provided to ensure a successfully functioning 

ombudsman, the degree of independence to be afforded the ombudsman, and the staffing 

and budgeting of an ombudsman’s office.

22 GAO-06-469R Pigford Settlement 
Enclosure III 

Remedies in Cases of Ineffective or Problematic Monitors

Based upon congressional interest we conducted a search for cases where the work of a 

court-appointed monitor was found by a court or the Congress to be ineffective or 

problematic, and summarized any remedies that were provided in such cases. To 

identify such cases, we searched a number of legal databases for relevant examples. To 

find examples where Congress had found the work of a monitor to be ineffective or 

problematic, and any corresponding legislative remedies, we conducted a variety of 

searches in legislative, legislative history, and legal journal databases. Because courts 

have appointed monitors as “special masters” under Rule 53 of the Federal Rules of Civil 

Procedure, to find examples where the courts had found the work of a monitor to be 

ineffective or problematic, and corresponding remedies, we reviewed over 1,600 federal 

cases citing Rule 53. We also reviewed over 600 federal cases in which the terms “court,” 

“monitor,” and some form of the word “appoint” occur in the same sentence. 

Based upon our review, we determined that it has been rare for a court or the Congress 

to take action because a monitor’s work was found to be ineffective or problematic. We 

found just a handful of cases where a court found that a monitor’s work was in some way 

problematic or ineffective. Additionally, we found only one instance where Congress 

took action with regard to a court-appointed monitor.

In the few instances that we identified where courts found a monitor’s work to be 

ineffective or problematic, monitors mishandled funds and overcharged for their services 

or the monitors’ appointments or delegated functions were invalid. More specifically: 

• One court questioned whether a monitor could accomplish his assigned task of 

transforming an insolvent company's contaminated steel plant site into a means of 

funding the medical plan of former steelworkers. The court found that the 

monitor had (1) rejected valid settlement offers to hold out for more 

compensation for himself, (2) misappropriated funds by forming a $1 million 

litigation “war chest”, (3) paid for personal tax advice with litigant funds, and (4) 

overbilled for a legal assistant. The court terminated the monitor’s appointment 

and ordered the monitor to personally cover $48,035 for personal tax services and 

$65,034 for overbilling the services of the legal assistant.23

 

• In litigation over the Department of the Interior’s handling of monies held in trust 

for individual Indians, the Court of Appeals ordered the removal of a monitor who 

had been appointed by the district court to monitor and review all of the Interior 

defendants’ trust reform activities. The Court of Appeals concluded that the 

appointment of the monitor was made over the objection of the defendants and 

therefore was not valid.

24

 

 23Cordoza v. Pacific States Steel Corp., 320 F.3d 989 (9th Cir. 2003). 

24Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003). 

23 GAO-06-469R Pigford Settlement 
Enclosure III 

• In another appellate court case, the court held that a district court’s order 

appointing a monitor effectively usurped executive functions. A class action 

lawsuit was brought on behalf of female inmates of the District of Columbia, 

where the district court entered an order directing one or more members of the 

court’s Special Officer’s staff to monitor allegations of sexual harassment at each 

facility housing women prisoners. The monitor was to ensure that each reported 

violation be thoroughly investigated and documented. The monitor was to submit 

a final written report to the warden of the institution, including factual findings 

and a conclusion as to whether a preponderance of the evidence showed that a 

violation of the sexual harassment policy occurred. The appellate court, however, 

held that these provisions effectively usurped the executive functions of the 

District of Columbia. The court noted that while the appointment of a special 

master to oversee compliance with a court order may be useful in unusual 

circumstances, the master’s role in such cases has been limited.25

 

In the one case we found where the Congress acted because of concerns that a monitor’s 

work was problematic, Congress expressed concern that a monitor’s pay was excessive 

and took action to limit that pay. After becoming concerned that a monitor appointed in 

Indian trust litigation was receiving excessive compensation, Congress included a 

provision in the Interior’s appropriations legislation for fiscal years 2004 and 2005 that 

prohibited the use of funds to compensate the monitor at an annual rate of more than 

200 percent of the highest Senior Executive Service rate of pay for the WashingtonBaltimore locality pay area.26

Overall, we found that is was rare for a court or the Congress to take action because a 

monitor’s work was found to be ineffective or problematic, and in those few cases where 

a court or the Congress sought to provide a remedy, the concerns with the monitors’ 

work were generally similar and included cases where monitors had mishandled funds, 

overcharged for their services, were receiving excessive pay or where the monitors’ 

appointments or delegated functions were invalid. No concerns have been raised by 

Congress or the courts about the Pigford Monitor's pay, accomplishment of assigned 

functions, or the validity of the court’s delegation of functions to the monitor. 

 25Women Prisoners of District of Columbia Department of Corrections v. District of Columbia, 93 F.3d

910 (D.C. Cir. 1996). 

26See Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, § 124, 118 Stat. 2809 (2004); Department 

of the Interior and Related Agencies Appropriations Act, 2004, Pub. L. No. 108-108, § 127, 117 Stat. 1241

(2003). The court held that this appropriations prohibition made no mention of the Department of 

Treasury, which was also to bear the costs of the monitor, and denied reconsideration of its order 

requiring the defendants’ to bear the costs incurred. In its concluding remarks, the court noted that it 

“knows of no previous Congress that has ever intervened in a specific pending civil action to reduce the 

compensation rate for judicial officials below the market rate set by the Court. For the legislative branch 

to interfere with an ongoing case by attempting to preclude a court from ordering compensation rates for 

its special masters appears to be wholly without precedent.” Cobell v. Norton, 263 F. Supp. 2d 58 (D.D.C. 

2003). 

(360604) 

24 GAO-06-469R Pigford Settlement 
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