Pigford v. Glickman After loss, on to monitor

Of the nearly 22,000 cases heard so far by adjudicators in the black farmers' lawsuit against USDA, some 40 percent of claimants have lost. By losing, these claimants can then petition for monitor review. Most of the 40 percent are making use of that option.

The monitor, Randi Roth, has a job that is four-pronged. The prongs are:

  • First, the office reviews case decisions. Farmers “submit written petitions explaining the errors in their cases. We then issue decisions. We have no power to change results, but we have the power to ask the arbitrator or adjudicator to review their prior decisions.

    “A series of court orders have defined the rules of the monitor review process. Under those rules, it's my job to write out what was either wrong or wasn't wrong with the adjudicator's decision. We've issued 45 decisions so far,” says Roth.

  • Second, Roth's office staffs a toll-free line that the class and public can call about the case. “We get thousands of calls.”

  • Third, is the filing of reports. “We're to file official reports on a variety of topics. Every six months we have to file a big progress report on what's happened. That's in addition to monthly reports.”

  • Fourth, Roth's office attempts to solve any other problems that class members have with the consent decree.

Until her present posting, Roth's job was as a farmer advocate. Now, as a monitor, her job is to work as an agent of the court — something that requires neutrality. However, as a former advocate, Roth says she's still trying to get used to what that means. “It's a whole different mindset and it's important to do the job properly so that justice is dispensed.”

There were many complaints when this case (Pigford vs. Glickman) reached settlement about farmers fraudulently claiming to have grown crops and trying to cash in. Has Roth seen any fraud?

“That's not my job. It's important to me to not be part of fraud investigations. We just look at each case and see if it should win or lose under the standards.”

How is it determined when an individual case will be reviewed by the monitor? Is it alphabetical? By the date it's filed?

“That's not my call, but the facilitator's. In general, I think they've been sending in (files) in the order they've received them.

“But now, we're making an effort to do the cases of people who are still farming. Those who are still farming need their cases resolved quicker. Efforts are being made to get active farmers moved to the top of the list.”

There was some indication early on that Roth's reviews would be a relatively quick process. What is the time frame for being completely finished with reviews?

“From the beginning, we had to decide where we'd be in the quality versus quantity question. Right now, my goal is to get through the first wave of decisions (the petitions from the first 22,000) by December of 2002. There are another 57,000 people trying to get into the class. Whoever gets in will be on another time wave.”

How does a typical review work?

Roth says when someone receives a denial or decision they're unhappy with, they can petition for monitor review. They mail their petition to the facilitator. The facilitator then routes the petition to the other side for response. The opposing side has 60 days to respond.

“The facilitator then puts all documents into a big file they send here. Included in (the file) are the initial claim sheet, the government's initial response, the adjudicator's decision, the farmer's petition for monitor review and the government's response to monitor review.”

A lawyer on Roth's staff then looks at the file and writes a draft decision for her review. Roth then reads the decision and file and makes any changes she deems necessary. The findings are then published. So far Roth has sent back nearly 50 cases for re-evaluation.

The review process isn't an exact science, says Roth. If it were, “I'd be done… There's many ways in which we're developing ‘law of the case.’ The consent decree says I'm only allowed to send a case back for re-examination when there is ‘a clear and manifest error resulting in a fundamental miscarriage of justice.’ That's a direct quote.”

So Roth, even if she has suspicions about a certain case and would like to send it back, often can't. There just isn't a clear miscarriage of justice.

“There can be a time when I can say, ‘I bet I know what's going on here.’ But the file doesn't make my suspicion clear enough. I can't send such cases back.”

Any farmer wanting to help his case, would do well to pay attention to a couple of things, says Roth. First, take some time to explain the error in detail.

“If a farmer is wondering whether to add something or worrying about explaining in too much depth, always give more detail rather than less. Give me all the detail about errors. The more detail I have, the more I have to work with.”

The other very important thing is that before the judge issued the April 4, 2000, order — the order of reference — no one knew what the rules would be in the monitor review process. One thing Roth heard a lot about from class members was the early FOF (fill out form) meetings. Farmers claimed they were rushed. One reason: the government and class counsel didn't anticipate the class would be this big.

“Often, hundreds of people would show up at the meetings. They had to make decisions whether to process people quickly or to work slower and have to turn people away. They decided to try and process everyone quickly.

“Farmers tell me that things they brought to those meetings and wanted to include in their claim sheets, weren't included because of time pressure. In some cases, the fact that those items were missing caused them to lose before the adjudicator.”

The judge, in the April 4 order, allowed the farmers to give new information if it describes a flaw in the claims process. People are now doing that, says Roth.

“So if you're still doing a petition for monitor review, explain why material wasn't given earlier and submit it. When I make a decision in a case, the first thing I do is see if the farmer has supplemented the record with new material.”

When approached about the monitor job, Roth's only trepidation in accepting was the amount of work it would take.

“I thought I could play a meaningful role because I know the regulations well from having dealt with the credit programs (in earlier farmer advocacy work). But I was worried about the amount of work — justifiably, it turned out. This is very large job.”

Editor's note: Ms. Roth, under court order, was unable to answer Delta Farm Press' questions on specific cases.

e-mail: [email protected]

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