NOTICE PROVISION IN THE

PIGFORD V. GLICKMAN CONSENT DECREE

HEARING
BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION

NOVEMBER 18, 2004

Serial No. 117

Printed for the use of the Committee on the Judiciary

(
Available via the World Wide Web: http://www.house.gov/judiciary
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2005

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COMMITTEE ON THE JUDICIARY

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman
HENRY J. HYDE, Illinois
JOHN CONYERS, JR., Michigan
HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina
RICK BOUCHER, Virginia
LAMAR SMITH, Texas
JERROLD NADLER, New York
ELTON GALLEGLY, California
ROBERT C. SCOTT, Virginia
BOB GOODLATTE, Virginia
MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio
ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee
SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah
MAXINE WATERS, California
SPENCER BACHUS, Alabama
MARTIN T. MEEHAN, Massachusetts
JOHN N. HOSTETTLER, Indiana
WILLIAM D. DELAHUNT, Massachusetts
MARK GREEN, Wisconsin
ROBERT WEXLER, Florida
RIC KELLER, Florida
TAMMY BALDWIN, Wisconsin
MELISSA A. HART, Pennsylvania
ANTHONY D. WEINER, New York
JEFF FLAKE, Arizona
ADAM B. SCHIFF, California
MIKE PENCE, Indiana
NCHEZ, California
LINDA T. SA
J. RANDY FORBES, Virginia
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel

SUBCOMMITTEE

ON THE

CONSTITUTION

STEVE CHABOT, Ohio, Chairman

STEVE KING, Iowa
JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee
JOHN CONYERS, JR., Michigan
ROBERT C. SCOTT, Virginia
SPENCER BACHUS, Alabama
MELVIN L. WATT, North Carolina
JOHN N. HOSTETTLER, Indiana
ADAM B. SCHIFF, California
MELISSA A. HART, Pennsylvania
TOM FEENEY, Florida
J. RANDY FORBES, Virginia

DAVID

PAUL B. TAYLOR, Chief Counsel

E. STEWART JEFFRIES, Counsel
HILARY FUNK, Counsel
MINDY BARRY, Full Committee Counsel
LACHMANN, Minority Professional Staff Member

(II)

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CONTENTS
NOVEMBER 18, 2004
OPENING STATEMENT
Page

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

of Ohio, and Chairman, Subcommittee on the Constitution ............................
The Honorable Robert C. Scott, a Representative in Congress from the State
of Virginia .............................................................................................................
The Honorable Spencer Bachus, a Representative in Congress from the State
of Alabama ............................................................................................................
The Honorable John Conyers, Jr., a Representative in Congress from the
State of Michigan .................................................................................................

1
2
4
5

WITNESSES
Mr. J.L. Chestnut, Jr., Chestnut, Sanders, Sanders, Pettaway & Campbell,
L.L.C., Class Counsel, Pigford v. Glickman
Oral Testimony .....................................................................................................
Ms. Jeanne C. Finegan, APR, Consultant to Poorman-Douglas Corporation
(Court-Appointed Facilitator, Pigford v. Glickman) for Communications and
Public Relations, and formerly Vice-President and Director of Huntington
Legal Advertising, a division of Poorman-Douglas Corporation
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
Mr. Thomas Burrell, Farmer
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
Ms. Bernice Atchison, Farmer
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................

9
11
175
177
205
207

APPENDIX
MATERIAL SUBMITTED

FOR THE

HEARING RECORD

Prepared Statement of the Honorable Steve Chabot, a Representative in

Congress from the State of Ohio, and Chairman, Subcommittee on the
Constitution ..........................................................................................................
Prepared Statement of the Honorable Robert C. Scott, a Representative in
Congress from the State of Virginia ...................................................................
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan .............................................................
Prepared Statement of Gary Grant, President, Black Farmers &
Agriculturalists Association ................................................................................
Prepared Statement of Obie L. Beal ......................................................................
BFAA News Articles submitted by Chairman Chabot .........................................
Prepared Statement of Lawrence Lucas, U.S. Department of Agriculture Coalition of Minority Employees ...............................................................................

275
276
277
279
282
288
295

(III)

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NOTICE PROVISION IN THE

PIGFORD V. GLICKMAN CONSENT DECREE
THURSDAY, NOVEMBER 18, 2004

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON THE CONSTITUTION,
COMMITTEE ON THE JUDICIARY,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:05 a.m., in Room
2141, Rayburn House Office Building, Hon. Steve Chabot (Chair of
the Subcommittee) Presiding.
Mr. CHABOT. The Committee will come to order. This is the Judiciary Subcommittee on the Constitution. I am Steve Chabot, the
Chairman of the Subcommittee. Good morning. Thank you all for
being here for this very important meeting.
This is the second in a series of hearings the Constitution Subcommittee is holding on the 1999 settlement reached between the
U.S. Department of Agriculture and a class of black farmers who
have experienced discrimination by the USDA.
From the time this Subcommittee began examining this issue, we
have had more reasons than not to believe that the Government
has failed to do the right thing. I strongly believe, however, that
with all of the information we are gathering in our oversight investigation, including through these hearings, we will have the understanding from which to develop a full and just solution.
I would like to thank our witnesses for coming. Your insights, expertise and institutional knowledge are critical to the Subcommittee in its efforts to find justice.
During the last hearing, my colleagues and I used our oversight
authority to get a better understanding of the Consent Decree.
However, as we continue to examine more closely certain aspects
of the settlement and its administration, it has become increasingly
apparent that certain due process protections fundamental to the
Constitution may be lacking in this case.
Due process of law is the legal concept that the framers of our
Constitution created to ensure that the Government respects all,
not some or even most, of an individuals right to life, liberty, and
property. The due process clause places limits on the Governments
ability to deprive citizens of these rights, guaranteeing fundamental fairness to all individuals.
One of the most important safeguards that has evolved from this
clause is the right to notice, notice of a judicial proceeding in which
an individuals right to life, liberty, and property may be affected
or eliminated altogether. The form of notice must be reasonably designed to ensure that those individuals will, in fact, be notified of
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2
the proceedings. This fundamental right to notice applies to the
1999 Pigford Consent Decree and all those who had a viable claim
of discrimination which impacted their lives, liberty, and property
against the Department of Agriculture.
Tragically, recent statistics released on the Consent Decree suggest to this Subcommittee that this constitutional right was not
safeguarded in the construction and administration of the Consent
Decree. Although the notice campaign designed was deemed to be
effective by the court in a fairness hearing held on April 14, 1999,
the determination was made using advertising industry tools designed to measure the likely effectiveness of a campaign, not the
actual effectiveness of a campaign. Reports indicate that approximately 66,000 potential class members submitted their claims late,
most because they did not know that they were required to submit
a claim sooner, thus losing their right to sue the USDA for past
wrongs.
It is hard for many of us to accept that 66,000 farmers would
consciously wait to file a claim that would impact their right to life,
liberty, and property, knowing that they were required to do so earlier. Further investigation into the circumstances surrounding the
late claims reveals that many farmers failed to get any notice
whatsoever or failed to understand the contents of the notice if
they did receive the notice. These facts lead this Subcommittee to
conclude that the notice implemented in the Pigford case was either ineffective or defective as nearly two-thirds of the putative
class failed to be effectively notified of the case requirements.
The hearing this morning will focus on the actual effectiveness
of the notice campaign. As we learn more about this aspect of the
Consent Decree, we will consider the appropriate remedy to protect
the safeguards afforded by the Constitution and uphold Abraham
Lincolns vision that every black American who wants to farm has
the tools available to do so.
I would like to close by putting a personal face on what Lincolns
vision means to people who have been impacted by the USDAs action. This promise is still valued today, as this quote explains, and
I quote: I have worked all my life being a servant to God and his
people in Chilton County, Alabama. My forefathers were brought
here to farm and the gift of loving the land has passed down for
more than 10 decades. I am proud of the heritage in spite of the
adversity, unquote. This is the sentiment of Bernice Atchison, one
of the witnesses at todays hearing.
It is for Bernice and all of those who still have faith in the promises of this country that we are here today working toward finding
a solution.
Thanks to all of the witnesses for taking the time to tell their
story and thank you all for attending this hearing. Many of you
have come from far away at considerable expense and circumstances, and we appreciate your being here.
And I would recognize the gentleman from Virginia, the Ranking
Member, at least this morning, for the purpose of making an opening statement. Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman.
Congressman Jerry Nadler of New York, the Ranking Member of
the Subcommittee, asked me to express his regret that he is not

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3
able to be here and asked me to serve as Ranking Member today
instead. As you know, the Clinton Library is opening today, and we
had scheduled this not knowing that. And frankly many of us
didnt want to upset the scheduling of this meeting and try for another date since we wanted to keep this date. But several of the
Members for that reason are not here.
Mr. Nadler strongly supports the efforts of this Subcommittee to
examine the issues surrounding the Pigford settlement and is instrumental in helping to develop these hearings.
I would like to take the opportunity, Mr. Chairman, to express
my appreciation for the leadership that you have shown in seeking
answers and solutions to the questions and problems that have
come to light regarding the settlement, and for the time and attention you and your staff are devoting to pursuing these issues. And
I express my appreciation for the open, bipartisan and productive
manner in which you, Chairman Sensenbrenner, Agriculture Committee Chairman Goodlatte and your staffs have proceeded to work
with us.
Full Committee Ranking Member Mr. Conyers, Mr. Watt, Mr.
Thompson, Mr. Towns, Mr. Butterfield, Sanford Bishop, Artur
Davis and their staffs have also been an integral part in the development of these hearings and the issues that were exploring, as
well as working closely with black farmers and their advocates.
This hearing is about the notice provision of the Pigford settlement. The information we have found reveals that some 96,000
claims were filed, but only 22,000 of these were or are slated to be
considered on the merits. The primary reason for not considering
the remaining claims on the merits is they were not submitted during the initial period set by the court for the filing of claims, which
ended October 12, 1999, 6 months after the settlement was entered
into. By that time, approximately 22,000 claims had been filed.
Upon realizing the claims were still pouring in beyond the initial
deadline, the court set a deadline for accepting late claims. This
was first set for January 30, 2000, but with claims still coming in,
the court extended it to October 15, 2000. Some 66,000 additional
claims were filed by the October 15 deadline and another 7,800
after that deadline. Of the 66,000, only 2,100, approximately 3 percent, were accepted for determination on their merits.
While the merits of all of the 2,100 late claims accepted have not
been determined, some have; and according to the reports of the
court-appointed Monitor of the settlement, a significant number of
those considered were found to warrant payment under the settlement agreement.
A large part of the problem of the settlement appears to have
been that no one realized that there was the potential for so many
claims to be filed. Early estimates said the potential ranged from
a few hundred to eventually a few thousand. It does not seem reasonable to believe that the court would twice extend the filing
deadline for filing claims simply to tell virtually all of the late filers
that they had filed too late. Nor does it appear reasonable to the
court that anyone would have knowingly designed a claims procedure that would leave 75 percent of those who filed a claim without
any way to get a determination on the merits.

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4
It certainly does not seem reasonable to conclude that 75 percent
of those who filed a claim knew before the deadline that they could
but intentionally waited to file their claim late. With the vast majority of claims being filed after the deadline had passed, my inclination is to think that effective notice did not reach most claimants
in a manner that allowed them to file their claims on a timely
basis.
The court in trying to accommodate the situation gave the Arbitrator carte blanche authority to determine whether or not late
claims should be let in due to extraordinary circumstances. Unfortunately, the Arbitrator established a process that resulted in virtually no one being able to show that they did not file due to extraordinary circumstances. Rather than applying the standard so
narrowly as to leave 97 percent of the late filers out of the process,
the Arbitrator might well have considered it to be an extraordinary
circumstance that 75 percent of the claims filed in a class action
settlement will not receive consideration on the merits.
There are, no doubt, a number of explanations and speculations
for how we ended up with such a large percentage of the claims
being filed beyond the courts initial filing deadline, and we will
likely hear some of them today. Yet whatever the reasoning, I find
it unacceptable that 75 percent of those who filed claims will not
receive a determination on the merits of their claim. However we
got here, we have a finite number of approximately 72,000 claims
in which long-standing, atrocious misconduct by Federal Government officials is alleged; and I believe that these claims should receive a determination on their merits.
Not all of the claims will be found to be meritorious, but it would
be a travesty of justice on top of a travesty of justice to prevent
those claims that do have merit not to be resolved in favor of those
claimants.
And so, Mr. Chairman, I would thinkI want to thank you for
scheduling the hearing. And I look forward to the testimony of the
witnesses for any suggestions they may have, not to cast blame,
but to ensure that justice is done to the victims of inexcusable Government action.
Mr. CHABOT. Do any Members of the panel wish to make opening
statements. Mr. Bachus?
Mr. BACHUS. I thank the Chairman.
I want to go back to 1984. This same Subcommittee had a hearing in 1984, and I think it is important when we consider whether
these people that did not file on time, whether or not we allow
them to have their claims heard on the merits; and that is what
this Subcommittee found back then, and that was 20 years ago.
It examined the very issues that led to the Pigford settlement,
and what it found was that there was pervasive racial discrimination in the USDAs operations of its loan programs. Not only did
the court find that much later, but as far back as 1984 this Subcommittee came to that conclusion. In addition, it found that there
was an ineffective and often nonexistent civil rights complaint process within the USDA. Moreover, the hearing found that there was
a complete and irreparable harm experienced by many black farmers by the illegal, racially discriminatory practices used by USDA.

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5
I think that alone, the fact that this Congress took that testimony and came to those conclusions in 1984 makes it incumbent
on us today to resolve any doubts in favor of these farmers who
and I think there is no real dispute about it today that they did
receivethey were discriminated against, it was pervasive, and
that in many cases, it is irreparable.
The fact that they will get $50,000 is not really going to compensate them for their damages. Even if their claims are allowed
to go forward, they are not going to recover. Their children are not
going to recover. So I think it is incumbent on us. And if the
courtand I attribute good motives to the people. I think there
were good people involved in fashioning the notice process. I dont
question that. But in hindsightand we have all done things that
we thought at the time were sufficient, but later on because of the
results, we found that they were insufficient, that they didnt work.
And the very fact that three out of four of the claimants that have
now filed claims didnt file on time, I mean that alone ought to tell
all of usthat ought to be sufficient for us to know that it was insufficient notice.
And the idea that the judge extends the notice but then denies
all the claims and doesnt go to the merits, that is almostyou
know, somebody lets you file late and then turns you down because
you filed late, that is nothat is almost adding insult to injury. So
I think its incumbent on us to go forward with this, and I mean
actually take some action that willit wont compensate these
farmers. We found that back in 1984.
Twenty years ago this Committee concluded no matter what we
do, they are not going to be put back to where they were. And you
cant uncrack eggs.
Thank you, Mr. Chairman.
Mr. CHABOT. The very distinguished gentleman from Michigan,
the Ranking Member of the full Judiciary Committee, Mr. Conyers,
is recognized for making an opening statement.
Mr. CONYERS. Good morning, Chairman Chabot and Members of
the Committee. And to the distinguished witnesses and all those
who have taken their time to join us again in the Judiciary Committee, I am very proud to be with you again.
And I would like to just, first of all, begin by saying that I believe
that former President Clinton, if he knew what made us decide to
continue these hearings and keep those of us here who would have
liked to have been in Little Rock today for the dedication going on
there, but he might have said, I am glad you decided to stay and
continue this hearing.
And so, Mr. Scott and I and others would have liked to have been
there, but on balance, the historic significance of this referred to
by the gentleman from Alabama, Mr. Bachus, is so profound that
we have to consider the issues just for a moment on a little bit
larger note.
I would like to put my statement about the narrow issue that
brings us here into the record. But let me point out that Chairman
Steve Chabot and Mr. Scott, Mr. Nadler and Spencer Bachus have
done something that I think should be recognized here. They have
all made, from their particular points of analysis, incredibly signifi-

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6
cant and similar statements in the direction of where we are and
how we got to this point.
Chairman Chabot did not have to call this hearing. And as has
been observed, had we not gone forward, it is very unlikely that
there would have been any further action taken on this matter in
the 108th Congress. And so it is in this spirit of mutual understanding that brings us here that I would like to make these observations over and above the process question of late filing of claims
for just a minute here. And that is to say that the question of how
African American agricultural leaders and their families and communities and as individuals have been treated historically is now
coming to the firstwell, not the first, but one of the most candid
discussions that I have ever been witness to.
And I would like to take this time merely to describeand I am
open to meeting with my colleagues on the Committee, as well as
the farmer leaders that are assembled here today about any refinements that are necessary. But it seems to me that we on the Committee, as Members of Congress, have to go to the Agriculture
Committee of the House of Representatives to continue the much
wider hearing on these historic issues. And I think with our Republican counterparts that we stand a fair chance of having that done.
I am prepared, of course, as Steve is, to go to the Chairman of
the Judiciary Committee with whom we have had cordial working
relations for two terms. Now we need to get all of thisthere are
so many peripheral issues that probably wont be gone into today;
we need to get this on the record, the historical record of the Congress, and it should come from the Agriculture Committee.
The other item that we need to do is continue the examination
of the plight of the black farmer in America, currently and historically, from the perspective of bringing in some of our think tanks
and our institutions that deal in special, particular issues to begin
to also complement what we expect will be the work of the Agriculture Committee in the 109th session. That would also include
the Congressional Black Caucus input and many other organizations that work here in the capacity of think tanks that do these
kinds of things, because we are now at the point, it seems to me,
Spencer, that we can now begin to build an historical base unlike
any that has been assembled before, and I think it will set the
framework for the resolution of many of these long-standing problems and move us out of a very unfortunate past, which only our
heirs to the future are in a position to correct. And I thank the
Chairman for his consideration.
Mr. CHABOT. Do any other Members wish to make opening statements?
We will move to introduce the witnesses. Our first witness this
morning will be J.L. Chestnut, Jr. Mr. Chestnut was born in
Selma, Alabama in 1930. He graduated from the Howard University Law School in 1958.
In 1959, Mr. Chestnut opened his law office in Selma, becoming
the first African American to ever open a law office in that town
and one of only nine black lawyers practicing in the State of Alabama. In his capacity as NAACP lead counsel, he facilitated the
implementation of the Brown v. Board of Education school desegregation decision in Alabama.

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7
In 1963, he helped the first professional civil rights worker to
visit Selma persuade local African Americans to attend the first
mass meetings. That was the beginning of the Selma movement,
which later led to the greater civil rights victory in the passage of
the Voting Rights Act in 1965. When Martin Luther King set up
shop in Selma in 1964, Mr. Chestnut represented Dr. King. Dr.
King and Mr. Chestnut worked together to plan much of the historic Selma civil rights battle. He was lead counsel, at least lead
class counsel in several class action cases, and is class counsel in
the Pigford case.
After a distinguished career handling many civil rights cases, he
is the senior partner in the largest black law firm in Alabama,
which is the oldest predominantly African American law firm in
the Nation. He also sits as a trustee on the board of the University
of South Alabama, is a founder of both the Alabama Democratic
Conference and the Alabama New South Coalition and is chairman
of the board of deacons at the First Baptist Church.
Our second witness will be Jeanne Finegan, a representative of
the Poorman-Douglas Corporation, which is the firm appointed by
the court to serve as Facilitator in the Pigford settlement. Ms.
Finegan is president of Capabiliti, L.L.C., and is a specialist in
class action notification campaigns.
She has provided expert testimony regarding notification campaigns and conducted media audits of proposed notice programs for
their adequacy. She has lectured, published, and has been cited on
various aspects of legal noticing. Ms. Finegan has implemented
many of the Nations largest legal notice communication and advertising programs and has designed legal notices for a wide range of
class actions.
Prior to establishing Capabiliti, Ms. Finegan co-founded Huntington Legal Advertising and spearheaded other companies. She
has been a reporter, anchor, and public affairs director for several
Oregon radio stations and worked for a television station. She is
the author of many articles and is a speaker and panelist for public
and private organizations.
And we welcome you here.
Our next witness is Thomas Burrell, a black farmer representative. Mr. Burrell was born May 7, 1949, in Covington, TN. Except
for the time he has spent away at college, he has been a lifelong
resident of Covington.
As an adult, Mr. Burrell farmed his own land. He is a veteran
of the Vietnam war and is graduate of the school of business at the
University of Michigan. He is also the father of three and has two
grandchildren.
And we welcome you here.
Our final witness today is Ms. Bernice Atchison. Ms. Atchison
was born in Chilton County on May 1, 1938. She married Alan C.
Atchison on May 14, 1953, and they supported their family by
farming as they raised eight children together until her husband
died in 1992. She and her son continue to farm in Chilton County
to this day.
And we welcome you here this morning, Ms. Atchison.
If we could have all the witnesses stand for a moment, we have
a policy to swear in witnesses.

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[Witnesses sworn.]
Mr. CHABOT. I would like to familiarize you with our rules here
relative to testifying. We have a lighting system. Each witness is
given 5 minutes and the green light will be on for 4 of those minutes. A yellow light will come up that lets you know you have 1
minute to wrap up and the red light indicates that all 5 minutes
have elapsed. We will give you a little flexibility on that, but well
ask you to wrap up as close to the 5 minutes as possible because
we are on relatively strict time limits around here, and we want
to make sure everybody has an opportunity to ask questions and
the hearing moves along.
So we again want to thank all the witnesses for coming here this
morning. And, Mr. Chestnut, we will begin with you.
STATEMENT OF J.L. CHESTNUT, JR., CHESTNUT, SANDERS,
SANDERS, PETTAWAY & CAMPBELL, L.L.C., CLASS COUNSEL,
PIGFORD V. GLICKMAN 1

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

Members, I thank you for the opportunity of appearing here.
My involvement in the Pigford litigation is really an extension of
my life. Pigford did not rise out of a vacuum. It is one of many disgraces of what we were going through in Selma in 1958 when I
opened a law office there as the first and only black person dedicated or dumb enough to do so.
Less than 70 blacks in the whole county were registered to vote,
and each potential voter had to be vouched for by a white person.
And there were black and white water fountains, black and white
restrooms, graveyards. Not one black person in the whole State had
served on a jury in 100 years. No blacks had jobs downtown anywhere in Alabama. And the all-white, all-male police department
did whatever, whenever to whomever in black Alabama and nobody
dared asked any questions. It is out of that that Pigford comes.
I was representing Congressman John Lewis when he was 20
years old in Selma and other places around Alabama when neither
he nor I could know that we would live out the day. So it was natural that I would become a part of Pigford. And I had been in the
front ranks of the black struggle, now for almost 50 years.
When I came into the litigation, the Government would not even
discuss settlement in this doubtful case and it was doubtful. And
the Government later changed its mind and said it would discuss
possible settlement on a case-by-case basis. In the courts 65-page
opinion, the judge quotes my argument against that assertion, saying it took us 15 years to get Pigford before a judge. They would
always throw it out and dismiss it. And now if we do what the Government suggests, we will be here forever, case by case.
And I insisted that the court set a trial date, because in my judgment the Government would never seriously consider settlement
unless there were a trial date. And the court set a trial date. And
thats when a settlement in this case really became possible.
It was also at that point that I decided to educate, if you please,
my class counsel, Phillip Fraas, about some black facts of life that
he couldnt possibly know or understand. In fact, number one is
1 J.L.

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

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that we face a cultural disconnect. I dont know of any other way
to put it. Except for a core of dedicated and perennial-optimist
black farmers, no one would believeno black farmer would believe
that a Government that for 150 years had ruined them would now
help them. They would only believe that when there was something
tangible and concrete what they could see or check. And by the
time that happened, we would have serious problems because you
cant keep a class action open in perpetuity. That is not the way
the law is set up.
Early on I said to my co-counsel that is a serious problem that
we will have to face. And in the end, when there is nobody else to
blame, they will blame us. I know that because for 50 years I have
been representing poor black folk, and I know what it is to be
blamed when you cant get done what people are entitled to have
done.
The second problem was that we could, in my considered opinion,
succeed in winning all the money in the world and all the injunctive relief in the world, and as Congressman Bachus pointed out,
we would not come close to producing justice that these poor black
folk deserve. It just couldnt be done in the context of a lawsuit. At
best, its a piecemeal approach to piecemeal justice. And once
again, somebody will have to be blamed in the end, and it will be
us. And by us, I mean the lawyers. I fully expected it and said
it early on.
Mr. CHABOT. I am going to be blamed for letting you know that
you are out of time, but well give you an additional 2 minutes if
you could wrap it up in that time. And we are going to ask you
questions and so you will be able to get into this.
Mr. CHESTNUT. Mr. Chairman, I believe if you sent your staff out
tomorrow, within weeks they could find another 65,000 AfricanAmericans who didnt file, but who now want into this lawsuit.
That is the cultural disconnect. That is a far deeper problem
than legal notice.
Mr. CHABOT. Thank you very much.
Ms. Finegan, you are recognized for 5 minutes.
STATEMENT OF JEANNE C. FINEGAN, APR, CONSULTANT TO
POORMAN-DOUGLAS CORPORATION FOR COMMUNICATIONS
AND PUBLIC RELATIONS, AND FORMERLY VICE-PRESIDENT
AND DIRECTOR OF HUNTINGTON LEGAL ADVERTISING, A
DIVISION OF POORMAN-DOUGLAS CORPORATION

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

Finegan, and I am pleased to appear before you on behalf of
Poorman-Douglas Corporation, the court-appointed Facilitator in
the Pigford case.
Poorman and its division, Huntington Legal Advertising, participated in the development and implementation of the direct mail
and the advertising components of the Consent Decree. I directed
the advertising components and Nicole Hammond, my colleague,
who is here today, was responsible for the direct mail component.
As set forth more fully in Exhibit 1 to my written statement, I
have over 13 years of experience in the development of legal notice
plans and class action and bankruptcy, and over 20 years of experience in the field of communication.

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Mr. Chairman, I appreciate the opportunity to address our involvement in the notice and claims administration process in
Pigford. We know that some have raised questions about that notice program. But in order to place our work in context, I thought
that it might be helpful for me to address some of those questions
up front to you and to the Members of the Committee.
First, does the latethe number of late applicants show that the
notice program was flawed or inadequate? We believe the answer
is no.
One purpose of the notice program was to provide awareness of
the complaint process. The Pigford notice did raise awareness. This
is shown by the over 96,000 phone calls that Poorman received during the claims period from January to October 1999. This was one
of the largest, sustained call volumes in a single case in the companys history. Some 53,000 requests were made for mail claim information.
These requests greatly exceeded all expectations. By the claims
filing deadline, we had mailed nearly 50,000 claim forms and received back almost 18,000 completed forms.
As this Committee has heard from others, about 50 percent of
the 67,000 individuals who applied to file a late claim were aware
of the settlement in advance, but did not act in time. As this evidence confirms, a notice program may generate interest and awareness, but it cannot make someone file.
The decision to act or file a claim is influenced by many factors.
The notice program is only part of that overall decision. So why did
so many class members file late claims or seek to file late claims?
African American farmers have faced a long history of discrimination. Many class members may have believed that even with a
legitimate claim, relief would not be forthcoming. This perception
may have reduced, at least initially, the desire of many class members to act.
The media also tended to reaffirm this perception. If the farmer
did not trust the settlement was genuine, this certainly would have
affected their behavior. But as word spread that the settlement relief was being granted, class members became increasingly confident that filing a claim would not, in fact, be a waste of time. At
this point, the deadline was upon them and many were unable to
file in time.
The problem then is not that the class members awareness was
late, but class member activation was late. And I am not certain
that any notification program, by itself, could have remedied that.
However, this speculation begs the question, how did PoormanDouglas develop the media strategy that was used?
We used well-accepted scientific industry methodology to develop
our recommendations. We used data from reliable media research
bureaus such as Mediamark Research and Nielsen to identify
model class members by both their demography and their media
consumption habits. From this information, we developed our recommendations for a media strategy.
The Consent Decree specified the following requirements: that a
copy of the notice of class certification and the proposed class settlement was mailed to all then-known class members; a one-quarter-page newspaper ad was placed in over 27 general circulation

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newspapers and over 115 local African American newspapers in an

18-State region. A full-page ad was placed in the 18-State regional
edition of TV Guide and a half-page ad was placed in the national
edition of Jet Magazine.
Mr. CHABOT. Your time has expired. We would appreciate it if
you could wrap up.
Ms. FINEGAN. I would be happy, of course, to answer any questions that the Committee may have about any aspect of our work
on the Pigford notice program as negotiated by the parties and approved by Judge Friedman. We believe that the plan did meet its
goals.
[The prepared statement of Ms. Finegan follows:]

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175
Mr. CHABOT. Mr. Burrell, youre recognized for 5 minutes.
STATEMENT OF THOMAS BURRELL, FARMER

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

Thomas Burrell. Im the President of the Black Farmers and
Agriculturalists Association, Inc. Im a past farmer and son of a
lifelong farmer and a grandson of farmers as well.
To the Honorable Members of the United States House of Representatives, Chairman James Sensenbrenner, Ranking Member
John Conyers and Constitution Subcommittee Chairman Steve
Chabot, Honorable Bobby Scott, Ranking Member on the House Judiciary Committee Constitution Subcommittee, on behalf of the
Black Farmers and Agriculturalist Association board of directors,
State presidents, members of BFAA, the thousands of black farmers denied relief under the flawed Pigford Consent Decree, track A
and track B, 70,000 black farmers designated as late filers, the
thousands of potential class members and their heirs and the new
black farmers class action lawsuit, we thank you for giving us this
opportunity to be heard this date.
I would like to start my discussion relative to the invitation that
I received, sir, and that was to talk about the notice provision of
the Consent Decree; and in my opinion, by derivation, that would
then lead us to paragraph 4 of the Consent Decree. And in paragraph 4, as Ms. Finegan made reference to, the Facilitator, it is our
understanding as is expressed in this Consent Decree, was required
to notify farmers.
And I am sure you would appreciate the fact that in the last
Committee hearings, you heard comments from individuals. You
have heard comments this morning. But one of the things that we
have not, and Im waiting to hear is not why so much black farmers or the mystery that people seem to ascribe to the fact that
black farmers did not react. The mystery is simple. They simply
were not notified.
One of the things that I think was missing as well is an understanding of the fact that black farmers are notified about opportunities basically the same way white farmers are notified. And that
is if John Deere or Case International was going to sell a new tractor, Case is going to use the same advertisement to white farmers
that they are going to use to black farmers. They call the magazines. They listen to the dealers in that area.
Black farmers purchase equipment the same way and buy their
seeds the same way. Therefore, if youre going to notify them about
any other opportunity, you do it the same way you notify white
farmers. You notify them through their local newspapers. You talk
to them through their local radio stations.
We are somewhat dismayed that in an attempt to notify black
farmers in 18 States in the South, you use media who are not culturally and occupationally attuned to those farmers. When John
Deere gets ready to sell a combine to a white farmer, they dont call
the Wall Street Journal or Newsweek. Advertising is cultural and
it is also, shall we say, occupational oriented.
Black farmers, here again, most of them do not have access to
cable television, as was referenced in the notice. To those elderly

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176
black farmers who do not read in the first place, advertising and
notice in Jet Magazine or Ebony is not sufficient.
More importantly, in my close, sir, I would like to state we are
prepared to answer not only why black farmers were not notified,
but to give some reason why we think they were not. And if I
might, the sad thing about it, USDA admitted and recognized that
there were over a million black farmers in 1920. In 1982, they recognized that there were roughly 18,000. As my grandmother would
say, you get rid of some in the wash and you get rid of the others
in the rinse. In my opinion and the opinion of this organization,
USDA has gotten ridden of 982,000 black farmers in the wash and
this lawsuit is designed to get rid of the remaining 18,000 in the
rinse.
This lawsuit, in my opinion, and the advertisement was never intended to notify black farmers. The advertisement was inadequate,
it was arbitrary, and it really never had an issue of notifying black
farmers. Thank you.
[The prepared statement of Mr. Burrell follows:]

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205
Mr. CHABOT. Ms. Atchison, you are recognized for 5 minutes.
STATEMENT OF BERNICE ATCHISON, FARMER

Ms. ATCHISON. Mr. Chairman, fellow congressmen and this assembly, I stand before you in humbleness representing more than
700 of my fellow kinsmen in my county alone. I have herebeen
brought here today to speak on this notice.
As I was secretary for the Alabama Democratic Conference for
more than 30 years in our county, I never imagined segregation
would still be existing in this day at this time. The question that
we are asking in Chilton County is, did Judge Friedman mean to
leave this county out by not posting or notifying the black farmers
and farm helpers?
While we help produce the products that was raised in this county and shipped to many other States to be sold, we had hoped to
be treated fairly. We contacted the USDA of Chilton County and
was told that they could not help us.
We immediately wrote certified letters to class counsel and to the
Monitor stating that there were no affidavits and that there was
no claim packages at the USDA, and they informed us they could
not help us. The USDA of Chilton County did not have a copy of
the Consent Decree, nor did they have a copy of the stipulation for
us to view. It was not published in the county newspaper or it was
not a notice sent out in our U.S. agriculture for the extension service here in Chilton County.
We were not notified by mail nor were we given a chance to
apply even after we notified class counsel that there were no legal
help for us in Chilton County. Many of us were sent denial letters
and many were not answered or given a tracking number.
We have beenwe have sent packages to inform you and ask
that the error be corrected. These packages contain the proof that
you needed to know. We know you have received those eight copies
because they were sent certified mail. We have called time after
time to no avail, beginning in April of 2000 until now, asking and
pleading. Many of us are farm helpers, sharecroppers, and some
have FMNP numbers as I do, yet you have denied me and many
more.
I have lived on the same farm all of my life. I was born in this
county in 1938. My mother and father worked hard to secure their
own land for their children to inherit. You are now holding me accountable for a late claim affidavit when they were not sent to us
as we requested in a timely manner. When we notified you that we
had no claims, even your affidavits were not sent to any of our people until after August the 16th, which left only 20 working days,
including a Labor Day weekend. Less than 20 days with no affidavit claims for our people or our families who all own farms and
none have been notified of the process.
The problem was a USDA and class counsel problem. They defied
the judges order in Chilton County. They did not post. The judge
plainly stated it: t shall be posted or mailed. It was not.
And the USDA did not have a copy of the Decree, of the stipulation on hand for us to view. Without the proper information or instruction, we had no way of knowing what was needed to apply.

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206
I am a farmer who owns 39 acres and a share in another 358
acres of inherited family land. We have proof that we notified both
class counsel and the Monitor by certified mail at least in time to
bring our problem to their attention.
When I received the response on August 16, 2000, dated August
10, 2000, we had less than 20 working days to respond and only
one affidavit to represent all the peoples in our county. This was
all that was sent to serve our county.
We have presented the facts to the class counsel and the Monitor
and now to you, our fellow Congressmen. We believe these facts to
be extraordinary circumstances beyond our control. We now ask
and plead that you will rectify the error lest it become a miscarriage of justice.
[The prepared statement of Ms. Atchison follows:]

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264
Mr. CHABOT. I want to thank all the panel members here. The
Members of the Committee have 5 minutes each to ask questions,
and I recognize myself for 5 minutes.
Mr. Chestnut, I will begin with you. In your interview with the
Selma Times Journal, you stated and I quote, This is not about
notice. The notice was as complete as any I have ever seen. If that
was the case, how do you explain Ms. Atchisons situation, which
you just heard her testify to? What would you have to say about
that? What could have been done different? And what would your
comments be relative to her situation?
Mr. CHESTNUT. I have been involved, Mr. Chairman, in probably
more class actions than the average lawyer. And I dont know of
any class action where the notice was more complete than in this
case.
There are always some problems when you are dealing with
large numbers over large territories. But I went around, Mr. Chairman, from county to countyWilcox County was one of them; its
only about 50 miles from meand held meetings encouraging
farmers to become involved.
My little law firm, Mr. Chairman, borrowed $2.5 million in order
to help get the word out and help these farmers fill out the applications. And lo and behold, the Government eventually paid $2 million back and would not pay the interest. I had to eat it.
I was out there scuffling with these problems. I was in her county not once, many times.
Now, no matter what kind of notice that you put out there, there
are going to be people who will not get it. Michael Lewis reported
in his supplemental, he went back and looked at the late filings
and he found that of all of those 64I think he looked at 64,000
instead of 65,000, only about 28,000 of these people said they did
not have notice. Their reason for filing late were health reasons
and things of that sort.
So you really only have a third of that 64,000 people. Of that,
I dont know how many of those will turn out to be really black
farmers.
Mr. CHABOT. Ms. Finegan, if notice needed to be tangible and
concrete, Mr. Chestnuts words, why would you advertise on CNN
and Jet Magazine rather than credible sources to the black farmers, like the churches, or as Mr. Burrell mentioned, local newspapers or local African American radio stations and things of that
nature?
Ms. FINEGAN. As in the case with any class action, there are certain recommendations that are made to the parties, and this was
no different. There were multiple recommendations made regarding
notice. However, speaking to the point of local newspaper, we did,
in fact, advertise as a one-quarter-page ad in local African American newspapers, 115 of them to be exact.
With respect to television, advertising is a science. It is a science
of human behavior. There is a tremendous amount of art and judgment in it. To the extent that science is used, nationally syndicated
media research such as Mediamark go directly to survey individuals for their media consumption habits. So this data is a projection based on actual consumption.

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Based on Mediamark information, over 63 percent of the class
had access to cable television and, in fact, had viewed some form
of cable television in the previous 7 days.
Regarding the art
Mr. CHABOT. Before you go on, I only have 5 minutes, so let me
ask a follow-up question. What sort of local media did you use in
either of the States of Kentucky or Ohio?
Ms. FINEGAN. Sir, I dont have the specific media information in
front of me. I would be happy to supply you with that information.
But more than likely, there was general circulation newspaper and
local African-American newspapers.2
Mr. CHABOT. You mentioned 115 local newspapers, if you could
provide that information to the Committee. My time has expired.
I recognize the gentleman from Virginia, Mr. Scott, for 5 minutes.
Mr. SCOTT. Did I understand you to say that you believe that almost half the people that filed late had, in fact, gotten notice on
time?
Ms. FINEGAN. I dont believe that I said that. I was citing a report from Mr. Lewis.
Mr. SCOTT. What portion of the late filers in your judgmentMr.
Chestnut suggested two-thirds, suggested that, had some kind of
notice before the deadline. Do you know?
Ms. FINEGAN. I would have to defer to Mr. Lewis. He has probably had the ability to view that document specifically, and I have
not.
Mr. SCOTT. You said the notice was designed by traditional scientific methodology to get the notice to people. Do you consider
there is a difference between showing that somebody looked at the
paper, or a paper was presented to them so they could see it, that
kind of notice, and notice that they understood that they actually
might have a case and what to do? Is there a difference?
Ms. FINEGAN. Of course, there is always a difference between a
notice disseminated and a notice actually communicated.
Mr. SCOTT. Now, apparently, the notice got communicated after
the deadline and 60,000-some people acted after the deadline. What
did they know after the deadline that they didnt know before?
Ms. FINEGAN. That would be speculation, and I wouldnt care to
go there.
Mr. SCOTT. Do you object to people having their claims decided
on the merits?
Ms. FINEGAN. I am not a lawyer, sir.
Mr. SCOTT. Mr. Chestnut, for a Member of Congress to listen to
your resume, I just have to remark that without your courage back
when it was dangerous to bring the kind of cases that you brought
withoutand I practiced law for a little while. People wouldnt be
here but for your work, and I want to thank you for your lifetime
of commitment.
Obviously, a lot of people in class action cases wont get the notice. I mean, I get notices all the time for class actions, and I just
look at it, and figure I might get $0.30, but its going to cost me
2 The material referred to can be found in the prepared statement of this witness on pages
78-89 of this hearing.

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more to mail this thing in than to worry about it, and I dont do
anything. At this point, I think a lot of people, after the deadline,
figured out they might actually have a case worth applying.
Do you object to them getting their cases considered on the merits if we can figure out a way to do it?
Mr. CHESTNUT. No, I am for that 1,000 percent.
Mr. SCOTT. Thank you very much.
Mr. Chairman, I dont have any more questions now.
Mr. CHABOT. Thank you very much.
The gentleman yields back his time.
The gentleman from Tennessee, Mr. Jenkins, is recognized for 5
minutes.
Mr. JENKINS. Thank you, Mr. Chairman.
Mr. Chestnut, Im sorry I missed your testimony, sir, but I take
it from responses that you have given to questions thatwas yours
the only law firm involved? Were there other law firms involved?
Mr. CHESTNUT. I think there were eight law firms.
Mr. JENKINS. Eight law firms involved. But I take it that you
have testified here that it is your belief that the notice was adequate?
Mr. CHESTNUT. I dont haveI dont have any reservations at all
about the notice. I am a class action lawyer. I have dealt with notice for the last 20 years. I dont see anything significantly different.
Mr. JENKINS. And your firm and the other firms hired Ms.
Finegan to help to see that the notice was disseminated?
Mr. CHESTNUT. My firm, plus the Government, who was paying,
thats the big elephant in the room, and that is who said at one
point, this is all we are going to pay for.
Mr. JENKINS. Yes. But Ms. Finegan, you believe thehave you
done lots of these in your work?
Ms. FINEGAN. Yes, sir, I have.
Mr. JENKINS. Do you share the belief with Mr. Chestnut that this
notice was adequate?
Ms. FINEGAN. Yes, sir, I do.
Mr. JENKINS. All right. Mr. Burrell, I missed your testimony, and
Im sorry, sir, I understand you are a Tennessean.
Mr. BURRELL. Yes, sir, I am.
Mr. JENKINS. From the western part of the State?
Mr. BURRELL. Yes, sir.
Mr. JENKINS. I am from the eastern part of the State, and you
know that we are closer to Washington, DC. In my hometown than
we are to your part of the State. But we are coming there often
now, because we have a son and daughter-in-law and three grandchildren near your home. It is in Covington, isnt it?
Mr. BURRELL. Yes, sir.
Mr. JENKINS. Mr. Burrell, what was your testimony with respect
to the adequacy of this notice?
Mr. BURRELL. My testimony, Congressman Jenkins, is that the
notice was arbitrary. It was basically not an issue with USDA.
If you, sir, would read some of the testimony that was given to
Judge Friedman at the fairness hearing, both the counsels for the
farmers and the counsel for the Government made reference to the
fact that the emphasis was put on paragraph 7, paragraph 10,

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267
paragraph 9, paragraph 11, and paragraph 12 of the Consent Decree.
Our position is, then, whatever does or does not happen in paragraphs 5, 7, 9, 10, 11, and 12 is a function of what happens in
paragraph 4. Paragraph 4 is where class counsel and the Government did not put any emphasis on. And paragraph 4 specifically
statesif you dont mind, it saysit says that they are going to do
the right thing, the USDA has shown its best efforts, obtained the
assistance of community-based organizations, including those organizations that focus on African-Americans and agricultural issues.
What is technical about that? What is technical about calling a
local radio station or the local news?
Sir, with all due respect, when USDA gets ready to foreclose on
a farmer and take his land, they use the local newspaper. Why
couldnt they use the local newspaper when its time to pay him?
They are making these gestures about the pie-in-the-sky effort.
You have got an organization 3,000 miles away from the average
black farmerand thats no disrespect to the people who live in the
westusing an organization 2,000 and 3,000 miles away from
farmers, and they are saying that they are advertising in the 18State area. But the majority of the people they paid are heirs to
the black farmers who live all over the country. So on its face, the
advertisement was not adequate.
And I wouldand in our analysis, 92 percent of the people who
they paid live outside of those 18 States. If you are going to pay
an heir thats moved to Detroit or moved to Washington or moved
to L.A. Or moved to Houston, as is the result of the discrimination,
why wouldnt you then advertise?
What has happenedin my closing, if you dont mindis that
people who were promised to be paidthey were advertised to the
farmer but they paid the heir. But they did not advertise to the
heir.
So you have this cross-connect where the regents are concentrating on paying a group, that they are only actually advertising
to a group that they only paid 8 percent of the time.
Mr. CHABOT. The gentlemans time has expired.
Mr. JENKINS. Thank you, my time has expired.
Mr. CHABOT. Is the gentleman from Michigan here?
Okay. The gentleman from Alabama, Mr. Bachus, is recognized
for 5 minutes.
Mr. BACHUS. Thank you.
Mr. Chestnutand I will ask Ms. Finegan this, too. You know,
we had 140 years of discrimination. I mean, well, illegal discrimination, and we had 100 years before that. But this 180 days, that
sort of bothers me. I mean, why all of a sudden, not to get in that
much of a hurry, but that must have been a real hindrance to you,
Ms. Finegan, to put together what may have been your largest notification charge you had ever been given, your company. As complex as it was, as Mr. Chestnut says, the black farmers, they have
been short shifted. They have been scammed. They have been
screwed, you know, for hundreds of years, so you have got to overcome that. They are going to be suspicious that somebody at the
same organization that has discriminated against them, and for 40

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268
years, suddenly, going to really give them something. I wouldnt
fall for that.
So I will ask you, was the 180 days in the budget that you had?
Mr. Chestnut, actually, you said that you all had to borrow
money, your firm. That indicates to me that you didnt have the financial resources to notify people? I mean, the Government may
have said, the judge may have said this is what you are going to
get.
So I would ask you, did you have a sufficient budget? Would you
have liked more? Was 180 days, was that a problem?
Ms. FINEGAN. I will address the 180 days first, sir. The 180 days
is shorter than some, and its longer than others in class action.
Having said that, there are always constraints under which we
have to work to provide notification programs.
Typically, we try to do the best we can with the budget constraints that we have been provided.
Mr. BACHUS. Right.
Ms. FINEGAN. So, in order to accommodate the widest scope program, we did try to run ads. We did run ads on cable network television.
Mr. BACHUS. What was your total network budget?
Ms. FINEGAN. The exact dollars I dont have in front of me. I believe that it was somewhere around $385,000 just for the media.
Mr. BACHUS. Doesnt that just pretty much tell you that you
you know, I spent in my Congressional district, trying to get my
message out, I spend $1 million, and I am in an urban area where
I can really load up.
Ms. FINEGAN. Again, sir, we were given a budget.
Mr. BACHUS. I can just tell you, $380,000, that ought to tell everybody in this room. You werent working on ayou didnt have
a tenth of the money you needed.
And I know you are hired by the judge and the court, and its
hard, but, I meanand the 180 days and $385,000? This thing was
designed to fail from day 1.
And I know, you know, thats what you had to work with.
Mr. Chestnut, you said you borrowed $2 million.
Mr. CHESTNUT. $2.5 million. But that had nothing to do with
paying for the notice.
Mr. BACHUS. Well, you know, noticeI dont think notice
maybe notice is not the word we ought to use here. What you got
towhat ought to be done here, the affidavits have to be delivered.
Folks have to be educated in how to file claims.
Mr. CHESTNUT. Thats what we borrowed the $2.5 million for.
Mr. BACHUS. Yes, and how much money was budgeted to get the
affidavits out, sit down with people and help them with these
claims?
Mr. CHESTNUT. We hired lawyers all over the south.
Mr. BACHUS. Yes.
Mr. CHESTNUT. I was all over the south, all out to California. Not
only spreading the word, but giving direct assistance to farmers.
Mr. BACHUS. But you had 180 days to do all of that?
Mr. CHESTNUT. Thats right.
Mr. BACHUS. Thats not enough time.
Mr. CHESTNUT. Well, this was the Government.

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269
Mr. BACHUS. I am not criticizing your
Mr. CHESTNUT. I understand.
Mr. BACHUS. I am just saying, its obvious to me that you arent
under thisfor whateverand I thinkMs. Finegan, you said it
greatly exceeded your expectations, you know, all the claims and
all.
So, I mean, that had toI mean, thatowe meisnt that
what youyou used that phrase?
Ms. FINEGAN. Yes, sir. It did greatly exceed the expectations of
the parties.
Mr. BACHUS. Yes, so
Mr. CHESTNUT. But I think the record ought to reflect that this
was an adversary proceeding. The Government was not in bed with
us. The Government has never been in bed with J.L.
Mr. BACHUS. I understand that. What we as the Congress have
got to look and see whether the Government was reasonable in
what they did. I am not criticizing what you did.
Mr. CHESTNUT. No.
Mr. BACHUS. All I am saying isand the Government gave you
180 days and $385,000 to notify people. Its apparent to everybody
up here, thats not enough time, not enough money.
Mr. CHABOT. The gentlemans time has expired.
The gentlelady from Pennsylvania, Ms. Hart, is recognized for 5
minutes.
Ms. HART. Hope that buzzer is not for me.
Thank you, Mr. Chairman.
Following up, actually, a little bit on Mr. Bachus questions. Stop
it.
Mr. CHABOT. Those bells are just to annoy people, basically. That
means the House is going out of session on floor. But there are no
votes until, we believe, 8 this evening, because of President Clintons library opening.
Ms. HART. Thank you, Mr. Chairman. I want to follow up with
Mr. Chestnut a little bit more.
I believe you said at one point that two-thirds of the people who
made late claims didnt claim that they didnt receive notice. Am
I stating that correctly?
Mr. CHESTNUT. I said that the Facilitator, Mr. Michael Lewis,
went back after he testified before this Committee and examined
the 64,000 of the 65,000 people, and he filed, I think, a supplemental, with this Committee, in which he said only a thirdabout
28,000 of those persons, said they didnt have notice or were not
aware. They filed, for health reasons and other reasons.
Could I just, for 1 minuteMr. Bachus, it wasnt 180 days.
These people had from October 12th to file these claims from the
date of the Consent Decree, and some of them began in January
1999, right after it wasthere was a preliminary report. So that
was 9 months out there that people had a window to file claims.
I just want to put that in the record.
Ms. HART. Okay, thats all right. Thanks. I appreciate that clarification.
I am still stuck on this notice thing. And, you know, if you are
trying to get a hold of a certain group of people, then the best way

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270
to do that is to inquire what they used to get their information.
And so I would like to jump over to Mr. Burrell and Ms. Atchison.
Just, if you could for me, what would you suggest mediawhat
type of media should have been used to provide this kind of notice
that was not?
And I will start with Mr. Burrell.
Mr. BURRELL. Well, thank you, Congresswoman Hart.
The organization that I am with, with the Black Farmers and
Agriculturalists Association, we have been, with the assistance of
our attorney, notifying farmers about the lawsuits as well. Its interesting to note also that Mr. Pires in his statements talked
aboutand as Mr. Chestnut corroborateshow they travel from
State to State. You would read in some testimony where they
maintained it was 5 and 6 and 8 and 10 of them in a room.
Our question isand Mr. Pires went on to say that he went to
Alabama 42 times. Alabama, I think, has the largest number of
claimantsand rightly soin this lawsuit. That tells us then, that
on average, 100 people heard them when they were visiting.
When we had a meeting in Alabamawe had a meeting in Montgomery3,000 folks showed up at one meeting. But the difference
between the 3,000 that came up to our meeting and, we believe, the
100 that came to his is we spent thousands of dollars buying local
radio advertisement. We subscribed to blackAdonis black radio
that deals specifically with that area, and we believe thats why the
people came out.
Ms. HART. And that wasthat same avenue of notification.
Mr. BURRELL. That same avenue, because virtually every black
radio station that we called maintained that they themselves did
not even know about the lawsuit.
Ms. HART. Thank you.
Ms. Atchison, could you enlighten us a little bit about your
neighbors, and what kind of newspapers that you would read? And
if there was any notice given in this?
Mr. BURRELL. We dont have black newspapers in Chilton County, period.
Ms. HART. Is there a local newspaper in Chilton County?
Ms. ATCHISON. We have a local newspaper in Chilton County,
but it is not a black newspaper.
Ms. HART. But do people read it?
Ms. ATCHISON. Well, we are in a real rural area. You will find
some people that do read it. You will find some people where it is
not prevalent.
Ms. HART. Okay.
Ms. ATCHISON. But what I did to prove to Mr. Lewis, I sent him
letters from all four mayors of Chilton County, who all statedand
if you pick up one of these here.
Ms. HART. Yes.
Ms. ATCHISON. You will find that each one of them stated that
they did not receive any notice whatsoever to post.
Ms. HART. So there was no local government contact posted in
the community bulletin board?
Ms. ATCHISON. No.
Ms. HART. Nothing like that.

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Ms. ATCHISON. Wasnt posted at our county courthouse; wasnt
posted at the local library. I wrote Mr. Lewis and also sent class
counsel a letter, on January 9th of 2000, stating, If we were to
meet the deadline of September 15, 2000, it was the responsibility
of the Facilitator to post all mail from the court house.
Notification, notifying the landowners, for less than $6, every
black church could have been notified, touching literally every
black family. There were only 17 black churches in Chilton County.
As you noted in the Monitor Review, there has been problems in
the claim process. It would be a miscarriage of justice to leave us
out after we have brought it to your attention. USDA has failed to
post. We didnt even have a Consent Decree to look at to know
what we needed to do. We justjust kind of sent something in.
Ms. HART. I am out of time. Thank you for that.
Mr. CHABOT. Would the gentlelady like an additional minute?
Ms. HART. I would.
Mr. CHABOT. All right. The gentlelady is recognized for an additional minute.
Ms. HART. Thanks, I just want to give Ms. Atchison an opportunity to finish because one of the things that concerns me, you
know, we talk about constructive notice. That is basically that people should have known, that there is a constructive notice that
should have been given for people to find this out. Do you believe
that whatever advertising was done, that people in your community should have been able to figure this out? Just a yes or no.
Ms. ATCHISON. No.
Ms. HART. Thank you very much. Thats good.
I yield back.
Mr. CHABOT. The gentleman from Alabama is recognized.
Mr. BACHUS. Only becauseI will say this, Mr. Chestnut. Mr.
Chestnut, I would never question anything that you have ever
done. I am aware that you have righted injustices for years under
great threat of physical harm.
I will say this, I am confused on this 180-day thing. Because it
did say that October 12, 1999, which was 6 months following the
entering of the Consent Decree, 180 days. Now, the judge did extend this over a year. But now bear in mind, he only extended it
for two reasons, hospitalization and natural disasters. I mean, he
actually said lack of notice is not an acceptable reason.
Ms. ATCHISON. Thats right.
Mr. CHESTNUT. Mr. Bachus, you are
Mr. CHABOT. Mr. Chestnut, could you turn on the mike?
Mr. CHESTNUT. You are speaking to the choir. I argued.
Mr. BACHUS. Okay.
Mr. CHESTNUT. I argued to the court that we ought to have more
time.
Mr. BACHUS. Okay.
Mr. CHESTNUT. I argued to the court that the Monitor ought not
to be somebody in Minnesota. I also argued to the court, Mr. Bachus, that the Monitor ought not to be white and sent two black
women around there, and the judge said no.
Mr. BACHUS. Okay. But I just want to clarify, you know, the 180
days is really what we are talking about here. Because after that,

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it was natural disasters and hospitalizations. You know, thats not
really an extension in my mind.
Mr. CHESTNUT. Some people started filing claims right after the
Consent Decree was preliminarily approved. That was in January.
Thats 9 months.
Mr. BACHUS. I agree. Some of them had lawyers. I am just saying
that we are talking about all of them.
Mr. CHABOT. The gentlemans time has expired.
The gentleman from Virginia, Mr. Forbes, is recognized for 5
minutes.
Mr. FORBES. Thank you, Mr. Chairman.
Mr. Chairman, its rare where we get a situation where we basically agree with all of our witnesses, and I think thats where we
are today. Sometimes, we just make things a little more complicated than they need to be.
But I dont really see that this is a case of placing blame on anybody. It may very well be that when everything shifts out, this notice was legally proper. But the notice should always be to help
stop abuse of process. But it shouldnt be part of encouraging abuse
of process.
And, let me say, I start out with two prejudices, or maybe one
big one. Both my grandfathers were farmers, and neither one of
them made it, for a long period of time. One had to become a carpenter. One of them went as a bridge tender. And I dont care
whether you are a black farmer or white farmer in America; we put
our farmers up against the ropes. And I am really concerned there
will come a time where we are as dependent on foreign food as we
are on foreign oil in America.
Let me just say one other thing about both my grandfathers. One
of them only went to the third grade, and I dont care, he wouldnt
have read the Wall Street Journal. He wouldnt have read The New
York Times. But he wouldnt have read the local newspaper, but
I would never have raised that issue to him that he wouldnt do
that, because what he did is he got up in the morning, and he
worked from the time the sun came up, and he worked until the
sun went down, just to keep things going.
And my suspicion is we have got farmers out there that are the
same way. Wouldnt have the magazine we put it in.
Mr. Burrell, in fairness, my grandfathers wouldnt have read the
trade magazines, but what they would have read, the advertisements that came out in the catalogs, but they just didnt have time
to do it.
And one of my concerns is this. I think most of us up here, we
dont want a single farmer up here who doesnt have a meritorious
claim to recover anything. But at the same time, we dont want any
farmers in here who have meritorious claims not to recover.
And so my question might be oversimplified, but I dont think
our issue is whether we should help these farmers. The question
I pose to all four of you is, given the situation where we are now,
what can we do now to help these farmers?
Mr. CHESTNUT. I think, one, the res judicata of the United States
could say, let all 65,000 in, and the Justice Department would ask
class counsel to agree to that, and we surely would agree, and that
would end the problem right there.

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Mr. FORBES. Mr. Chestnut, in all due respect, thats above my
pay grade. But what can we do on this Committee and in Congress
to help these farmers?
Mr. CHESTNUT. I think Congress can fashion a law that deals
with this problem. But I think it has to be very careful. Number
one, the Consent Decree is now a contract, a binding contract between the parties and approved by the court. If you fashion legislation to undo that, you could raise all kinds of constitutional problems.
There is also the question of res judicata out there that has to
be dealt with. But I think that you could create a new cause of action independent ofand pay for itthat would cover these people,
and if you did that, I think you would solve the problem.
I dont think the problem could be solved in any other way. I
could be wrong, but I dont think so. But I am also very apprehensive about, once again, falsely raising the expectations of poor black
farmers who have suffered enough. They need to understand that
there is a big difference between what is a legislative problem and
what is a legal problem; what can and what cannot be done in the
courts. And the Congress and the White House are the only two
bodies that can resolve this problem in my opinion. I dont think
its going to be resolved in the courts.
Mr. FORBES. And I want to get to Mr. Burrell.
But Mr. Chestnut, we would appreciate your further input on
that with thoughts of solutions, if you could.
And Mr. Burrell?
Mr. BURRELL. Ladies and gentlemen of this Committee, the issue
for all farmers in general, and black farmers in particular, with no
disrespect, is not about legislation. Because if they had gottenits
about discrimination.
If they were not discriminated against by USDA, if they had received their loansso any other remedy that is short of freeing
them up from the gravitational pull of discrimination at USDA, we
will be right back here again.
One of the things in this Consent Decree that disturbed even the
judge is that USDA admitted that it would pay the settlement, but
it did not say that it will stop discriminating against black farmers.
So whatever else we do. If the farmer is left with going right
back to the scene of the crime the morning after, USDA right now
has it in its power to undo because the fact that discrimination is
being allowed to exist at that agency.
And we just believe that thisfirst of all, this law sought should
be reopened. But more importantly, we have bona fide borrowers,
bona fide borrowers, who are being foreclosed on right now. We
need some immediate resolution to at least get the Government to
do what they did when they admitted to discrimination, and that
is to get a moratorium on the foreclosure, stop the bleeding, at
least in the short term.
Mr. FORBES. Okay.
Mr. CHABOT. Okay, thank you. The gentlemans time has expired.
That concludes the questioning of the panel.

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I want to thank the witnesses for being here this morning. I
think they have very much helped this Committee in dealing with
this very significant matter.
I would also let the members of the panel here know that we
may be submitting some questions in writing, additional things
that may have been brought up here. Maybe we didnt have time
to go into some things, so we will perhaps be sending some additional questions to you.
I would also like to let everyone know that we are anticipating
possibly having a field hearing, a hearing like this but outside of
Washington, possibly in Ohio, possibly in Cincinnati, sometime
coincidentally, that happens to be my district. But it would probably be in late January. And we have, I think, a pretty good communication system going on here as far as getting information and
people knowing when we are going to have these hearings. So we
willyes, we have good notice about getting that out. We probably
wont be hiring your firm, Ms. Finegan, to get this notice out.
But nonetheless, we will make sure that everyone knows about
that hearing, and we will welcome anybody that would like to attend to do that.
And if theres no further business to come before the Committee,
we, again, thank the members for their testimony here this morning, and we are adjourned.
[Whereupon, at 11:32 a.m., the Subcommittee was adjourned.]

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APPENDIX

MATERIAL SUBMITTED

FOR THE

HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF OHIO, AND CHAIRMAN, SUBCOMMITTEE ON THE
CONSTITUTION
Good morning. Thank you all for being here for this very important hearing. This
is the second in a series of hearings the Constitution Subcommittee is holding on
the 1999 settlement reached between the U.S. Department of Agriculture and a
class of Black farmers who have experienced discrimination by the USDA.
From the time this Subcommittee began examining this issue, we have had more
reasons than not to believe that the government has failed to do the right thing.
I strongly believe, however, that with all of the information we are gathering in
our oversight investigation, including through these hearings, we will have the understanding from which to develop a full and just solution.
I would like to thank our witnesses for coming. Your insights, expertise, and institutional knowledge are critical to this Subcommittee in its efforts to find justice.
During the last hearing, my colleagues and I used our oversight authority to gain
a better understanding generally of the Consent Decree.
However, as we continue to examine more closely certain aspects of the settlement
and its administration, it has become increasingly apparent that certain Due Process protections, fundamental to the Constitution, are lacking in this case.
Due Process of the law is the legal concept that the Framers of our Constitution
created to ensure that the government respects allnot some, or even mostof an
individuals right to life, liberty, and property.
The Due Process Clause places limits on the governments ability to deprive citizens of these rightsguaranteeing fundamental fairness to all individuals. One of
the most important safeguards that has evolved from this Clause is the right to noticenotice of a judicial proceeding in which an individuals right to life, liberty and
property may be affected or eliminated altogether. The form of notice must be reasonably designed to ensure that those individuals will, in fact, be notified of the proceedings.
This fundamental right to notice applies to the 1999 Pigford Consent Decree and
all those who had a viable claim of discrimination, which impacted their lives, liberty and property, against the Department of Agriculture.
Tragically, recent statistics released on the Consent Decree suggest to this Subcommittee that this Constitutional right was not safeguarded in the construction
and administration of the Consent Decree.
Although the notice campaign design was deemed to be effective by the court in
a fairness hearing held on April 14, 1999, the determination was made using advertising industry tools designed to measure the likely effectiveness of a campaign, not
the actual effectiveness of a campaign.
Reports indicate that approximately 66,000 potential class members submitted
their claim latemost because they did not know that they were required to submit
a claim soonerlosing their right to sue the USDA for past wrongs.
It is hard for many of us to accept that 66,000 farmers would consciously wait
to have file a claim that would impact their right to life, liberty, and property
knowing that they were required to do so earlier.
Further investigation into the circumstances surrounding the late claims reveals
that many farmers failed to get any notice whatsoeveror failed to understand the
contents of the notice if they did. These facts lead this Subcommittee to conclude
that the notice implemented in the Pigford case was either ineffective or defective
given the nearly two-thirds of the putative class failed to be effectively notified of
the case requirements.
(275)

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The hearing this morning will focus on the actual effectiveness of the notice campaign. As we learn more about this aspect of the Consent Decree, we will consider
the appropriate remedy in order to protect the safeguards afforded by the Constitution and uphold Lincolns vision that every Black American who wants to farm was
the tools available to do so.
I would like to close by putting a personal face on what Lincolns vision means
to people who have been impacted by the USDAs actions. This promise is still valued today, as this quote explains: I have worked all my life being a servant to God
and his people in Chilton County, Alabama. . . . My forefathers were brought here
to farm and the gift of loving the land has passed down for more than 10 decades.
I am proud of the heritage in spite of the adversity. This is the sentiment of Bernice Atchison, one of the witnesses at todays hearing. It is for Bernice and all of
those who still have faith in the promises of this country that we are here today
working toward finding a solution.
Again, thanks to all of the witnesses for taking the time to tell their story today.
PREPARED STATEMENT OF THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE
CONGRESS FROM THE STATE OF VIRGINIA

IN

Thank you, Mr. Chairman. Congressman Jerrold Nadler of N.Y., the Ranking
Member for this Subcommittee, asked me to express his regret that he was not able
to be here and to serve as Ranking Member today, in his stead. Although he is not
able to be with us today, he strongly supports the efforts of this Subcommittee to
examine the issues surrounding the Pigford Settlement and was instrumental in
helping to develop these hearings.
I would also like to take this opportunity to note my appreciation for the leadership you have shown, Mr. Chairman, in seeking answers and solutions to the questions and problems that have come to light regarding the Pigford settlement, and
for the time and attention you and your staff are devoting to pursuing these issues.
And I, again, express my appreciation for the open, bi-partisan and productive manner in which you, Chairman Sensenbrenner, Agriculture Committee Chairman
Goodlatte and your staffs have proceeded to work with us. Full Committee Ranking
Member John Conyers, Rep. Watt, Rep. Bennie Thompson, Rep. Towns, Rep.
Butterfield, Rep. Sanford Bishop, Rep. Baca and Rep. Autur Davis, and their staffs,
have been an integral part of developing these hearings and the issues we are exploring as well, working closely with Black farmers and their advocates.
This hearing is about the notice provisions for the Pigford Settlement. The information we have found reveals that some 96,000 claims were filed, but only about
22,000 of these claims were, or are slated to be, considered on the merits. The primary reason given for not considering the remaining claims on their merits is that
they were not submitted during the initial period set by the court for the filing of
claims, which ended October 12, 1999, 6 months after the settlement was entered
into. By this time, approximately 22,000 claims had been filed. Upon realizing that
claims were still pouring in beyond the initial deadline, the court set a deadline for
accepting late claims. It was first set for January 30, 2000, but with claims still
coming in, the court extended it to October 15, 2000. Some 66,000 additional claims
were filed by the October 15, 2000 deadline, and another 7,800 after the deadline.
Of the 66,000, only 2,100, approximately 3%, were accepted for a determination on
their merits. While the merits of all of the 2,100 late claims accepted have not been
determined, some have and, according to reports from the court appointed Monitor
of the settlement, a significant number of those considered were found to warrant
payment under the settlement agreement.
A large part of the problem in the settlement appears to have been that no one
realized that there was the potential for so many claims to be filed. Early estimates
of the potential ranged from a few hundred to, eventually, a few thousand. It does
not seem reasonable to believe that the court would twice extend the period for filing claims simply to tell virtually all of the late filers97% of themthat they had
filed too late. Nor does it appear reasonable to believe that the court, or anyone,
would have knowingly designed a claims procedure that would leave 75% of those
who filed a claim without a way to get a determination on the merits. And it certainly does not seem reasonable to conclude that 75% of those who filed a claim
knew before the deadline that they could, but intentionally waited to file their claim
late. With the vast majority of claims being filed after the deadline had passed, my
inclination is to think that effective notice did not reach most claimants in a manner
that allowed them to file their claims on a timely basis.
The court, in trying to accommodate this situation, gave the Arbitrator carte blanc
authority to determine whether late filed claims should be let in due to extraor-

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dinary circumstances. Unfortunately, the Arbitrator established a process that resulted in virtually no one being able to show that they did not file on time due to
extraordinary circumstances. Rather than applying this standard so narrowly as to
leave 97% of the late claims out of the process, the Arbitrator might well have considered it to be an extraordinary circumstance that 75% of the claims filed in a
class action settlement will not receive consideration on the merits.
There are, no doubt, a number of explanations and speculations for how we ended
up with such a large percentage of the claims being filed beyond the courts initial
filing deadline, and we will likely hear some of them today. Yet, whatever the reasoning, I find it unacceptable that 75% of those who filed claims will not receive
a determination on the merits of their claim. However we got here, we have a finite
number of approximately 72,000 claims in which long-standing, atrocious misconduct by the federal government is alleged, and I believe these claims should receive a determination on their merits. Not all of the claims will be found meritorious, but it would be a travesty of justice on top of a travesty of justice to prevent
those claims that do have merit to be resolved in favor of the claimants.
So, Mr. Chairman, I want to thank you for scheduling this hearing. I look forward
to the testimony of the witnesses for any suggestions they may have, not to cast
blame, but to insure that justice is done for the victims of inexcusable government
action. Thank you.
PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF MICHIGAN
On April 14, 1999, I stood in victory with Black farmers across this country. The
United States Department of Agriculture (USDA) had agreed to a $1 billion settlement in the Pigford v. Glickman case. Each black farmer was to receive at least
$50,000 to settle claims that they were denied government loans because of their
race.
I was disturbed to learn that USDA has denied payments to almost 90% of black
farmers. Of the 94,000 growers who sought restitution for discrimination, 81,000
were turned away. The most glaring denial of compensation is the settlement-funded arbitrators rejection of 64,000 farmers who came forward with claims during the
late claims process established by the court. Since the Court in approving the settlement described the claims as almost automatic, we need to understand what has
gone wrong and whether we have a continuing role.
At our last hearing, we started to unravel the procedural aspects of the consent
decree that led to the denial of more than 64,000 claims. What became clear was
that notice issues formed the threshold challenge for the claimants. Given the continuing nature of complaints against the USDA, this hearing is extremely well
timed and I thank the Chairman for his spirit of cooperation in helping to shed light
on these issues.
Before the parties move forward with additional litigation, it is incumbent on Congress to ensure that the goals of the Pigford settlement have been met by the
USDA. Unlike most litigation, where Congress watches from the outside, we have
taken a more active role here by extending the Statute of litigation and allowing
claims to move forward.
The primary issue for this hearing is why did these 64,000 individuals, plus another 7800 who filed a claim after the 2nd deadline, chose to file a claim, but only
after the deadline(s) had passed?
Clearly, this raises the question of whether they received effective notice of the
right or opportunity to file a claim withing the time frame(s). Many farmers and
their advocates contend that the notice campaign developed by the Poorman Douglas Corporation for the Pigford settlement was not adequately tailored to reach
black family farmers.
The most remarkable exclusion from the notice campaign was the lack of a direct
mailing to these farmers. Although USDA conducts regular mailings to all farmers
who receive loan or subsidy assistance, and has records of applications for these programs, notice of the settlement was not provided in regular USDA direct mail communications or in a mailing specifically aimed at putative class members.
Most class action notice campaigns include a direct mailing component as a way
to reach the broadest audience of potential class members. This is vital, of course,
because if putative class members do not learn of the settlement in time to opt-out,
they lose the right to pursue their claims in court if they do not agree with the
terms of the consent decree. I trust that both class counsel and the representative
from Poorman Douglas will address this issue, which may form the basis for additional inquiry.

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There are other obvious questions: the only television broadcasts of the notice
were on cable TV channels: Black Entertainment Television and Cable News Network. Paid cable television may not available in many rural areas, and is generally
considered costly for the average citizen. This is especially true for family farmers
who must extend every resource to maintain the farm. Overall, despite the findings
of the Court, the volume of late filings raises serious issue about whether the notice
campaign was well crafted to reach potential claimants.
The groundbreaking victory for civil rights at USDA has proved to be short lived.
Black farmers face major obstacles in obtaining settlement payments in Pigford and
continuing allegations of discrimination by the USDA have spawned additional litigation. Ultimately, the process seems to have failed the claimants.
In 1910 Black farmers owned about 16 million acres of land. Today, Black farmers
own fewer than 2 million acres. In 1920 there were nearly 1 million Black farmers,
but fewer than 30,000 exist today. Unless we can reverse this trend by upholding
the principles of equality and fairness, black farmerswho once served at the backbone of our agricultural industrymay soon be nonexistent.

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PREPARED STATEMENT OF GARY GRANT, PRESIDENT, BLACK FARMERS &

AGRICULTURALISTS ASSOCIATION

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282

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PREPARED STATEMENT

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295
PREPARED STATEMENT

OF

LAWRENCE C. LUCAS

The U.S. Department of Agriculture (USDA) Coalition of Minority Employees,

The Coalition is a multi-ethnic, multi-cultural, multi-racial organization with 55
presidents in 34 states. The Coalition is committed to changing the discriminatory
culture at USDA and holding proven discriminatory officials and others accountable
for reprisal against employees and farmers. The Coalition has informed USDA leadership on numerous occasions regarding the Departments historical and lingering
problems; resulting in demoralized employees, injured customers and the wasting of
millions of taxpayer dollars on the Departments dysfunctional civil rights process.
Currently, there have been thirty or more Class Action (employee) lawsuits that
have been filed and a backlog of thousands of employee and farmer complaints requiring processing generated by discriminatory officials whose wrong doings go ignored. The US Equal Employment Opportunity Commission (EEOC), Office of Federal Operations, in a report dated February 26, 2003, confirmed The Coalitions
allegations regarding the longstanding systemic problems in civil rights administration and processing. Despite the failures and shortcomings cited in the EEOC report, the Department is still in a state of denial, attempts to gloss over its systemic
problems and fails to implement legal settlements regardless of the merits of these
cases.
The purpose of my testimony is to inform, apprise and sensitize members of this
Committee and the American taxpayers of the terrible wrongs inflicted by USDA
on this Nations Black farmers and its employees.
Officials responsible for protecting the rights of Black farmers have failed, by concocting a scheme to block settlements and obstruct justice . . . as reported by Black
farmers and the recent report written by the Environment Working Group (EWG).
Those responsible for this mess are said to include the U.S. Department of Agriculture (USDA), the U.S. Department of Justice (DOJ) and the Attorneys for the
Black farmers. Poorman Douglass, court ordered contractor, with a budget of only
$385,000, was responsible for the administration of an inadequate notice process,
that resulted in their failure to deliver timely information to Black farmers.
The . . . settlement is a complete failure, said Marianne Calendar, a lawyer for
the Environmental Working Group (EWG.) In part, it was the plaintiffs lawyers
who failed them. They took advantage of every aspect of the courts rules and the
settlements shortcomings to avoid responsibility. Black farmers failed to benefit
from a consent decree that was supposed to remedy years of a sophisticated, racebased system of intentional discrimination that encouraged government officials to
discriminate against them, by obstructing and denying the efforts of Black farmers
to obtain loans and other programmatic assistance.
At the last hearing of the House Judiciary Committee, Subcommittee on the Constitution, Tuesday, September 28, 2004, lawmakers said the 1999 class action settlement did not help most of the farmers in the class. About 65,000 black farmers were
excluded because they did not file claims in time, said subcommittee chairman Steve
Chabot, R-Ohio. We cannot in good conscience allow a settlement that leaves out
more potential claimants than it allows in to go unexamined or remain unresolved,
Chabot said.
The Pigford Consent Decree, signed by Judge Paul Friedman in April of 1998, is
the written settlement agreement in the federal court case, Pigford et al v. Ann
Veneman, Secretary of Agriculture; was settled in 1999 between the U.S. Department of Agriculture and Black farmers who sued the agency over race discrimination in loan practices and loss of millions of acres of land. Black farmers have complained since the settlement was entered into that the process was flawed. The Agriculture Department acknowledged a past history of discrimination and agreed to a
two-tiered process of resolving claims. For both, claimants needed to prove that a
similarly situated white farmer was treated better than they. Many had trouble acquiring evidence from USDA or local officials to establish unfair treatment. It appears that the wrong choices continue to be made by USDA officials, compounding
the injustices emanating from USDAs failure to comply with the Consent Decree.
The settlement contained two options, Track A and Track B, Track A was a more
simplified process. Ninety-Nine percent (99%) of the claimants opted for track A.
This Track included a $50,000 settlement, plus $12,500 for taxes, forgiveness of previous federal loans and class wide injunctive relief. Track B was more difficult because the burden of proof was higher than in Track A. By opting for Track B, one
could receive actual damages, but again, the burden of proof had to be beyond
shadow of doubt. The class action lawsuit should have paid more than 30, 000 eligible farmers several billion dollars and provided them forgiveness on loan debts for
the USDAs discrimination.

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To date, the lawsuit has compensated only 13,000 Black farmers $50,000 each,
leaving tens of thousands uncompensated and denying them at least 3 billion dollars
or more as well as the land stolen from them by the government. Over twenty-two
thousand one hundred fifty nine (22,159) Track A applications were accepted in
the lawsuit. On March 15, 2004, only 61% of the claims were ruled in favor of the
claimants and 39% were denied. Although some denials were reversed, no one else
has gotten paid in 2 years. The funds money dispersed is about $818,450,387, below
the $2.4 billion claimed by the government. Its true that some people did get paid
in the lawsuit. However, many more farmers would have been paid had as required
by the Consent Decree, had they been notified by USDA. On April 14, 2004, the
statute of limitations ran out and more than 65,000 potential claimants were shut
out of the process, denying Black farmers an opportunity to prove their claims.
The Coalition is grateful to the Environmental Working Group (EWG) and John
Boyd, Jr., President, The National Black Farmers Association (NBFA) for the dramatic report entitled, A Century of USDAs Institutionalized Racism Subjects African American Farmers to Dramatic Land Loss, from which much of the data for
this document was obtained. USDA has a long and checkered past when it comes
to spending the American taxpayers dollars on lawyers and attorneys to protect
themselves against the wrongdoings, discriminatory activities, retaliation and
abuses against Black, minority farmers and employees.
The USDA Office of General Counsel (OGC) has a long track record of using government funds to pay big expensive outside attorneys to protect them from customers and employees making claims against the Department. The reason for this
waste is that USDA OGC attorneys lack the credentials, expertise and authority required to do it themselves. In addition, they frequently abuse the system and fail
to apply laws appropriately. Many of them hide behind the governments dysfunctional abusive arcane civil rights process and successfully break the laws at the expense of the American taxpayer.
Based on historical data and widespread reports, papers filed in court and recent
Hearing Status of the Implementation of the Pigford v. Glickman Settlement, held
on Tuesday, September 28, 2004, U.S. House of Representatives, Subcommittee on
the Constitution, Black farmers are still suffering at the hands of a failed process
which was supposedly designed to protect them . . . not abuse them. This Congress
of the United States owes it to the American taxpayer and Black farmers to get to
the bottom of this dysfunctional process inside and outside USDA to right this egregious wrong intentionally perpetrated upon Black farmers by those with their own
personal agendas . . . racism, sexism, reprisal, intimidation and other abuses.
The Department of Agriculture has denied payments to approximately 90 percent
of Black farmers, who sought compensation for discrimination under a landmark
court settlement the agency reached with African American growers five years ago,
according to a report released in July 2004, by the Washington-based Environmental Working Group (EWG). A two-year investigation found that USDA officials
contracted with Justice Department lawyers who ran up a bill for 55,712 staff hours
reviewing the claims . . . again wasting taxpayer money. to aggressively fight the
farmers claims after the settlement of the $3 billion class-action lawsuit. The Report states that of the 94,000 growers who sought restitution in a process set up
by the court, 81,000 were turned away. The report, funded by the Ford Foundation,
said the USDAs actions willfully obstructed justice and deliberately undermined
the spirit of the settlement. Employees suffer from the same abuses and reprisals.
It has been proven that individuals including our own government have engaged
in a hideous, collusive effort to deny Black farmers not just those in the Pigford
class, but also the Black Farmers engaged in the administrative complaints process
post Pigford efforts to derail the justice they deserve.
Dan Glickman, Former, Secretary of Agriculture, Under the Clinton Administration, tried to fix the civil rights mess at USDA and briefed incoming Secretary, Ann
Veneman on the issues and the pitfalls of trying to change USDA historic racist culture. Mr. Glickmans advice seemingly fell on deaf ears and the power stayed in the
hands of discriminating officials who continue to cover up for each other and distort
the facts. This generated many additional cases and resulted in new class actions,
fueling a culture of non-compliance with laws, settlements and Congressional mandates. This continues to this very day. Secretary Glickman the creator of the Office
of General Counsel, Civil Rights Division, for the purpose of solving the problem
. . . instead they are part of the problem.
We must continue to expose those responsible for the injustices against farmers,
at the hands of USDA . . . the Justice Department, Court Ordered Monitors, Arbitrators and even their own Attorney. Hopefully, these Hearings will help eliminate
the institutionalized abuses partly due to poor USDA leadership and little to no accountability. Lawmakers and others now recognize that the 1999 class action settle-

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ment did not help most of the farmers in the Class. About 65,000 Black farmers
were excluded because they didnt file claims in time due to a mostly flawed and
inadequate notification process. We are sick and tired of being sick and tired.
American taxpayer dollars are being used to fund abuses against Black and minority farmers as well as USDA employees. Hopefully, these Hearings will continue
to surface this travesty of justice . . . masterfully designed and perpetrated by those
seeking to thwart legal process. Upon corroboration of these allegations, I request
that Congress pass legislation (attached) to assure that the approximately 64,000
Black farmers who did not benefit from the Pigford vs. Veneman Lawsuit receive
a just and fair haring, on the merits of their cases.
The racial hatred and animus perpetrated by the USDA, dubbed, The Last Plantation, persists like a plague. USDA officials at the very top rung, through intention, deceit, passivity, inaction and neglect, have knowingly allowed and even encouraged top government administrators and lawyers as well as local federal Farm
Service Agency officials across this land to trample on the civil rights of the Black
farmers and to make a mockery of our precepts of freedom and justice.
In closing, this is not a Republican problem or Democrat problem, but an American problem and America will have to deal with it. The Agriculture Department
has steadfastly contended the agencys record on civil rights laws has been exemplary. It cited numerous initiatives it has undertaken to give Black farmers a greater voice in the agencies organizational structure and its efforts to funnel more business to minority farmers . . . at the same time causing their decline. These actions
undermine the intent of our constitution . . . freedom of speech and the James S.
Sensenbrenner, No Fear Bill, H.R. 169.
Too much has been lost and too much is at stake for Black farmers to just accept
that the solution in 1999 has failed more people than it has helped. USDA the Peoples Agency established in 1862 under President Abraham Lincoln, has sabotaged
its reputation and credibility by creating conditions that make farm ownership impossible and a providing an unhealthy work environment for employees. I recommend for the above stated reasons that the Office of Civil Rights be put in Receivership until such time that the Congress and the Bush Administrations can be
guaranteed that this deplorable mess and dysfunctional system will be repaired
once and for all and stop being a burden to American taxpayers.

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