In lawsuit against USDA...: Attorney defends black farmers' gains

WHO'S TO blame for the sniping and poor execution of the black farmers-USDA consent decree? According to many black farmers, the culprits are: attorneys (including their own), a bureaucracy run amok, shoddy planning and entrenched discrimination against the have-nots in agriculture.

Lead counsel for the black farmers, Alexander Pires, agrees with all these claims except the one questioning his professionalism and judgment.

On July 31, the federal judge overseeing the USDA-black farmer lawsuit and consent decree held a hearing to gauge how much progress has been made between the sides. With 16 states represented and an overflow crowd spilling into the Washington, D.C., courthouse hallway, black farmers did one thing if nothing else, says Thomas Burrell: "Our strong showing told the judge that the dispensation of this lawsuit is simply unacceptable."

Burrell, a national Black Farmers and Agriculturists Association leader, heaps massive blame for consent decree troubles on the class counsel involved. He terms them too chummy with opposing counsel and too easily bent to USDA desires.

"We maintain that even if the consent decree had remained intact, it was defective. But when you add insult to injury by changing the consent decree, it's outrageous," says Burrell.

How was the decree changed? Through a "constructive application" between Pires and the Justice Department. This agreement has been misunderstood from the get-go, says Pires.

"I'm extremely proud of the constructive application agreement, which is the exact opposite of what some people say I should be feeling," says Pires.

Some 25,000 farmers are now involved in the lawsuit. But getting people into the suit often presented problems, says Pires. One of those problems involved those who claimed they tried to get an application but couldn't.

"In other words, there is no proof of anything because when they went into the office, someone said there were no forms, or there was no money available for the year or something else."

Such farmers were in a difficult position. They couldn't claim discrimination when an application was processed because they never got an application. They couldn't say a loan was too small because paperwork was never filled out. They couldn't meet the requirements for the suit because they never even got a chance to start the loan process.

"I argued that such cases should be included because that's a form of discrimination. We looked through the consent decree and concluded that these cases weren't technically allowed. I asked the government to consider allowing these farmers to participate.

"The government's answer was, `What keeps thousands of people from claiming they tried to get an application when they didn't? How do you keep false stories out?'"

That's when Pires came up with constructive application. This is a set of rules saying if you tried to get an application and your local office wouldn't give you one, you can participate in the suit. But first, you have to answer four or five questions under oath.

Where did you go to get this application? The year? The county office? The person you talked to? Why did you want the loan?

"If you can't answer those basics, then it's more likely than not you weren't there. If you can't give us answers to those few questions, you're not coming into the lawsuit," says Pires.

The judge approved the constructive application rules. Those rules let thousands of people into the case, says Pires.

Meanwhile, there were about 1,200 black farmers who had already filled out their forms and were being considered by adjudicators.

"They were being held in a group and adjudicators were saying they felt they were entitled to win, but they were unsure what set of rules to apply to the group. My argument was to let all of them be approved unless they had no details at all. They were reviewed again and every single one of them were approved - nearly 1,200 people. And they're all set to be paid another $60 million. Constructive application expanded the consent decree to help more people. Everyone should be happy with it," says Pires.

Except everyone isn't.

At the July 31 hearing, attorney Stephon Bowens of the Land Loss Prevention Fund in North Carolina filed a motion that Burrell says will benefit the farmers' cause.

"Bowens is not an attorney of record for the black farmers, but he was there supporting the view that class counsel aren't doing their jobs. The farmers attending weren't there to support class counsel. They were there in support of attorney Bowens," claims Burrell.

Many black farmers say the consent decree is defective. It virtually guarantees that those seeking redress are being denied at an alarmingly high rate, says Burrell.

"USDA keeps pointing out that 60 percent of the claims are being approved. We say that 40 percent denial is excessive and is one reason the newest motion was filed."

Bowen's motion addresses three things:

"First, it's to let the judge know that what all the attorneys said would happen when the consent decree was agreed to isn't occurring. They said 99 percent of the farmers would prevail under the `substantial proof' scenario. That hasn't happened.

"Second, the farmers who have prevailed aren't getting the relief promised.

"Third, it says constructive application is leaving black farmers out of the suit that should be allowed in," says Burrell.

Bowens and those like him are simply trying to stir up trouble in order to garner publicity and get credit for a successful case, says Pires. It's a pattern he's seen before.

"My personal feeling is (Bowen's motion) was meaningless. The problem with that group is we asked them from the beginning to help us with the suit. They never lifted a finger, they never wanted to help, they never wanted to work.

"They took an attitude that the case was going to fail. Now, with the case won, they come in and criticize. They filed an appeal that was thrown out. They filed this latest motion that the judge will deny.

"They claim they represent thousands of farmers. That isn't really true. They probably represent 150 farmers out of 25,000. It's just an organization trying to get some publicity," says Pires.

Calls to Bowens for comment were not returned.

The constructive application agreement coupled with a slow pay-out process has conspiracy theorists foaming at the mouth. What springs to mind, they say, is USDA - which originally paid applicants denied paperwork at the local level - is now claiming the process is bogged down with attempts at fraud.

Pires says patience is necessary and that the lawsuit should not be viewed as a tonic for decades of racial problems in the country.

"The lawsuit was very focused. It said if you were a black farmer that had been discriminated against in trying to get a loan anytime in the last 20 years, you could be a plaintiff. It's limited to that.

"It doesn't address all the land black farmers have lost. It doesn't address all the discrimination they faced in all the federal programs that have nothing to do with loans. It doesn't address the fact that black farmers had to go to offices dominated by white people.

"It doesn't address tons of things that folks are sniping about. It never was intended to," says Pires.

Farmers who have gone to Track-B arbitration have come out with some very large decisions in their favor. One family got $700,000. Two other families got over $600,000. Many other families have been in the $400,000 to $500,000 range. That's substantial, says Pires.

"The fact is that people are upset about things that have nothing to do with the lawsuit. There's nothing I can do about that. If you give me a list of common complaints, I think nine-tenths of it would have nothing to do with the suit."

For example, Pires got a letter three months ago asking where a farmer's check was. Processing of the checks has nothing to do with the government or Pires. The processing is done by a private company that gets court orders from the judge. Checks are paid out from a judgment fund completely separate from USDA, says Pires.

"I read a story in the paper that quotes someone who claims farmers haven't been paid yet. That's just untrue. Over 12,000 farmers have already been paid. Are the checks coming in a week? No. Some people are paid in 90 days, some 120 days. It depends because there are so many checks being processed," says Pires.

False and erroneous Burrell says USDA personnel are submitting erroneous and false statements to adjudicators - something the judge has shown concern about.

The most common remedy sought by black farmers claiming discrimination is a one-time payment of $50,000 and debt relief. One of the elements of proof for receiving that payment is that a farmer must show his claim is reasonable.

"Unfortunately, that provides an opportunity for USDA to counter the claim or give opposing reasons to that claim. What's happening is when a farmer submits his claim saying `X, Y and Z happened to me and therefore I was discriminated against' the adjudicator then sends a form asking USDA what their side of it is," says Burrell.

Delta Farm Press has spoken with black farmers who claim USDA personnel then respond that X, Y and Z didn't happen, that the farmer's credibility is shot because there is testimony (unsworn) that the claims are false. The adjudicator then writes a letter stating the farmer's claim is denied due to credibility questions.

This happens without the farmer even being allowed to respond to the information submitted by USDA, says Burrell.

"There's no due process. We're saying some USDA personnel are outright falsifying documents to the adjudicator that will render legitimate claims baseless. That is a serious allegation," says Burrell.

Up to a point, Pires agrees with Burrell's assertions. He won't say the government supplies false information, but agrees some personnel present an unbalanced story.

"They exaggerate what they did or ignore a lot of what the farmer did. They only tell part of the story. A lot of Track-A cases that lost will win on appeal."

Black farmers must have realistic expectations, however.

"You can't expect the government officials to admit racism. You end up having to read between the lines. Adjudicators often did a good job of that, sometimes they didn't. That's why we're paying close attention to the appeals. Did a lot of farmers lose because the government didn't do a thorough and honest job of answering questions? Absolutely."

Editor's note: In preparing this story, Delta Farm Press attempted to get comments and have questions answered by state FSA offices. We were told there could be no comment from state or local offices and were pointed toward Washington, D.C., offices of USDA. A set of questions were then asked of the USDA office. As of presstime, Delta Farm Press had received no responses.

Alexander Pires, lead counsel for black farmers in the discrimination case against USDA, recently agreed to an interview with Delta Farm Press. Pires works out of a Washington, D.C., office. The following is a partial transcript of the conversation

Q: Briefly, how did you become involved in the class action?

"The case was my idea. I represent farmers for a living. Three years ago, we filed the original complaint with three Southern black farmers. We then went on tour, trying to get other farmers to join in. After a year, we had between 600 and 700 farmers who'd joined.

"Meanwhile the case was progressing. It turned around and we settled at the beginning of 1999. There was a fairness hearing that spring and the judge approved it in April.

"Since that time, we've spent all our time getting farmers through the process required for them to get paid. There are about 23,000 families involved. About 18,000 are now done. We should be done by next January.

"There are thousands of farmers who have lost a decision and are now appealing. So far, around 62 percent of people have won a decision in the first round. Of the 35 percent that have lost, the majority are appealing."

Q: How would you say the agreement has turned out?

"It's the most successful individual lawsuit ever. Farmers are going to end up with more than $1 billion in cash. It's the most successful class-action on behalf of individuals in the history of the country. It's been enormously successful."

Q: So the sniping is unwarranted?

"The sniping has very little to do with the case. We have enormous racial problems. What I tried to do in the lawsuit and what people want the lawsuit to be aren't the same thing.

"I'm an agricultural lawyer. That's all I've done for 20-plus years since I left the Justice Department.

"The reason prior attempts at this type of case were unsuccessful was that suits were filed that had no chance in hell of ever winning. The reason is they covered every single problem that ever occurred since the beginning of time. Lawsuits like that never succeed."

Q: Do you think the figure cited of anywhere from 50 to 80 percent of legitimate farmers out in the field currently not being paid has any basis in fact?

"I don't think that has anything to do with reality."

Q: Do you have anything to go on, or is that just a gut feeling?

"There were three groups of people who got involved in this case. The old-line traditional farmers did quite well in the first round. Why? Because their stories were very consistent with what the local agencies had in files or what folks from the local community knew about them.

"The second group used to farm but don't any more. They did fairly well also.

"Then there's a whole group of people that no one knows if they farmed or not. Their cases were based on their recollections because the government doesn't have a file or can't find it.

"That's a mixed bag of people. People have a tendency to exaggerate when they're frustrated. I've been to meetings where people stand up and say all kinds of things about the suit that aren't based on what's actually happening. They blame the government or me for everything. Neither of us have that much control.

"There are 46 retired judges writing Track-A decisions. There is a facilitator's office. There are arbitrators, 10 or 11, that are hearing Track-B cases. There is a court-appointed monitor that oversees everything. What case has ever had all that, plus everyone gets a free lawyer?

Q: What about the complaints that there wasn't any discovery from you when this deal was brokered?

"There wasn't any discovery to get that we didn't have. We asked the government for their files and they produced them. There isn't anything else to take discovery of.

"People that say that don't understand class actions. What were we supposed to do, interview the government on all 25,000 cases? That's impossible.

"A lot of the problem comes from the fact that most people don't understand the law. It isn't their fault, but they haven't the slightest idea how it really works. They still make comments, though, based on what others say.

"You know, they'll say, `There should have been more discovery or research.' That makes no sense.

We got all the government files. It turned out they didn't have much. Why? Because these cases are 15 and 20 years old and most of the files have been lost.

"During the first round of Track-A cases, should more people have done better? Possibly. But, quite frankly, lots of people didn't take it all that seriously. Lots of people didn't think this case would ever result in a victory.

"When they filled out the forms, lots came in and spent half an hour and didn't think it would go anywhere.

"Now, they blame the lawyers and everyone else. It's understandable, but don't forget there is a right to appeal. We spend more time appealing these cases than anything and they still have free lawyers.

"We took the best of private enterprise and set up a whole separate review system through the private sector and used the government's money to pay for it. And we used free lawyers and no lawyer has been paid yet. I've been working on this case for three years and have yet to be paid."

Q: In regards to your payment, there are reports that the USDA itself is paying you. Is that right?

"Of course not. No one has been paid."

Q: The USDA is not paying your fees?

"They have nothing to do with it. USDA doesn't do anything at all. The U.S. Treasury judgment fund pays all the individual farmers directly by wiring money. The USDA has nothing to do with that.

"The adjudicators, facilitators and arbitrators are being paid directly. We, the lawyers, will be paid from the judgment fund - not USDA."

Q: As far as the breakdown of approval-denial and how that's running - first, do you think the 40 percent denial is too high?

"Well, first off, it's not 40 percent..."

(FP interrupts) I'm just giving a round number...

"But that makes a big difference. It's probably in the 37 to 38 percent range. Is that high? Yeah, but it's early. You need to wait until all the cases on appeal are considered. Many people have been involved in the case for eight months and they're complaining that things aren't moving swiftly enough. That's unfair. I think the denial rate will end up being somewhere around 20 percent."

Q: There were earlier predictions that there would be over 90 percent approval...

"Where was that? I never heard that. You're the first person that's ever said that. I never said that."

Q: When you were at the latest hearing on July 31, I understand you told the judge there were problems. What do you think the judge will do?

"I don't think he'll make any changes to the consent decree. Self-examination is a good thing. I always say if you've got a better way of doing this, tell me. Don't just stand on the sidelines firing bullets in my direction. Help us.

"It's interesting, some people do come in and help. Others seem to make a living off of criticizing us.

"You can take all the recoveries in civil rights cases - Japanese internment's biggest payment was $20,000, the Denny's case had people getting $400 or so each - add them up and this case is bigger.

"And I'm not even that smart to be honest. It has more to do with an administration that was sensitive, a dedicated judge, very good active black farmers, good lawyers, active press.

"I don't mind criticism, it's natural. But a lot of the criticism has to do with the bigger black-white issue. This case only deals with one little part of that. We're not dealing with the underlying problems or anything.

"Are people frustrated with the case and me? Yeah. They want all kinds of other things.

"Let me give you a parallel. I'm working on a native American farmers' case. It's the same thing, only with red skin instead of black. No one thinks we've got a shot at winning. The Land Loss group sits on the side line saying it's a lost cause. The government is trying to get the case dismissed, just like with the blacks.

"We now have 700-plus Indians signed up. I ask many groups to come help us. No one wants to help, they want to see what happens first. Well, I'm going to win the case. I'm going to outlast those doubters and when I do, there will probably be people coming out of the woodwork again complaining about how I did it. But while I'm doing it, no one wants to help."

Q: Did you foresee this happening?

"No. I've spent 21 years representing farmers all day every day. I've been to every state in the country. No one has been to more county and state farmers' hearings than me.

"All I was trying to do in the beginning was help the original 400 farmers. If I did that, I felt I'd done my job. I never foresaw over 20,000 farmers being involved."

Q: Are you familiar with the Carpenters' case (a black farming family from Grady, Ark. that was profiled in the Aug. 4, 2000, issue of Delta Farm Press)?

"Yes. They're wonderful people."

Q: Do you foresee them winning on appeal?

"Yes. Abraham and his family will win. They were discriminated against and everybody knows that.

"Their case is partially political because of their earlier lawsuit. The government heals slowly and is still out there retaliating against them. They were rough.

"Interestingly, the percentage of victories in Arkansas is above the average."

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