Pigford Settlement
The Role of the Court-Appointed Monitor
Gao ID: GAO-06-469R March 17, 2006
In 1997, three African-American farmers filed a class action civil rights lawsuit against the United States Department of Agriculture (USDA). These farmers alleged that USDA had willfully discriminated against them and other African-American farmers by denying their applications for farm loans and benefit programs, or by delaying the processing of their applications, and had failed to properly investigate and resolve their complaints of discrimination. This lawsuit, Pigford v. Glickman, was certified by the United States District Court for the District of Columbia as a class action suit on October 9, 1998. On April 14, 1999, District Court Judge Paul L. Friedman approved and entered a consent decree settling this lawsuit. In doing so, the court noted USDA's long-standing discriminatory practices. The court stated that for decades USDA discriminated against African-American farmers by denying, delaying, or otherwise frustrating African-American farmers' applications for farm loans and other credit and benefit programs. The court also noted that USDA disbanded its Office of Civil Rights in 1983, and stopped responding to claims of discrimination. Finally, the court observed that the consent decree would not undo all that had been done to African-American farmers, but nevertheless concluded that it would be a fair, adequate, and reasonable settlement of the claims brought in this case. Based on the specific interests of our requesters, for this report we (1) determined the extent of the monitor's participation in outreach and outreach oversight for the Pigford case, and (2) identified the number of claims that the monitor in the Pigford case directed to be reexamined and the associated results.
The Pigford Monitor or attorneys from her office participated in 60 public meetings from February 2000 through December 2005 to reach out to class members, at the request of interested organizations. These meetings occurred in states where the majority of African-American farmers live, including Alabama, Arkansas, Georgia, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and Virginia. The monitor estimated that 9,400 individuals, including claimants, potential claimants, and government officials attended these meetings. However, the number and extent of participation at these meeting was uneven among the states--for example, a total of about 2,090 individuals attended 12 such meetings in Alabama, but only about 60 individuals attended the one outreach meeting in Texas. At these meetings, the monitor explained the role of her office and the process through which class members could petition to have their cases reexamined. In addition, through the monitor's toll-free number, the monitor's office has received over 131,000 phone calls about the Pigford case. These calls have involved questions about status of payments, debt relief, tax concerns, and other issues. The monitor also established a Web site (http://pigfordmonitor.org) that makes information about the case readily available to the public. Furthermore, in the monitor's reports to the Secretary of USDA, the court, class counsel and defendant's counsel she noted that many claimants expressed concern to her office that the advertising campaign did not reach many individuals who met the class definition but had not submitted a timely claim. As of February 6, 2006, the monitor had ordered the reexamination of 2,059 initial claims decisions, and most reexaminations reversed or changed the initial decision. More specifically, African-American farmers had petitioned the monitor to direct the reexamination of 4,939 claims, and the government had requested that 730 claims decisions be reexamined. Of the 4,939 petitions from African-American farmers, as of February 6, 2006, the monitor had completed reviewing 3,631 of them and directed the arbitrator or adjudicator to reexamine 1,979 claims decisions; in 1,232 of these cases a previously denied claim was approved or the benefits awarded to the farmer were increased. The monitor observed that in most cases where she directed a reexamination, the farmer had provided her office with additional information supporting the farmer's claim of discrimination that had not been presented when the claim was initially denied. In addition, the government has petitioned the monitor to review claim decisions when it thought there were mistakes or flaws in the information provided by the claimants. As of February 6, 2006, the monitor had reviewed 605 of the 730 petitions submitted by the government for the reexamination of claims decisions and directed that 80 of them be reexamined. Of these 80, sixty-seven have been reexamined by the adjudicator or arbitrator, and in 59 of these cases a previously approved claim was denied or the benefits awarded to the claimant were reduced. Finally, as of February 6, 2006, the monitor was still reviewing petitions to reexamine initial claims decisions and the adjudicator and arbitrator were continuing to reexamine claims decisions as directed by the monitor.
GAO-06-469R, Pigford Settlement: The Role of the Court-Appointed Monitor
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March 17, 2006:
Congressional Requesters:
Subject: Pigford Settlement: The Role of the Court-Appointed Monitor:
In 1997, three African-American farmers filed a class action civil
rights lawsuit against the United States Department of Agriculture
(USDA). These farmers alleged that USDA had willfully discriminated
against them and other African-American farmers by denying their
applications for farm loans and benefit programs, or by delaying the
processing of their applications, and had failed to properly
investigate and resolve their complaints of discrimination. This
lawsuit, Pigford v. Glickman, was certified by the United States
District Court for the District of Columbia as a class action suit on
October 9, 1998.[Footnote 1] On April 14, 1999, District Court Judge
Paul L. Friedman approved and entered a consent decree settling this
lawsuit. In doing so, the court noted USDA's long-standing
discriminatory practices. The court stated that for decades USDA
discriminated against African-American farmers by denying, delaying, or
otherwise frustrating African-American farmers' applications for farm
loans and other credit and benefit programs. The court also noted that
USDA disbanded its Office of Civil Rights in 1983, and stopped
responding to claims of discrimination. Finally, the court observed
that the consent decree would not undo all that had been done to
African-American farmers, but nevertheless concluded that it would be a
fair, adequate, and reasonable settlement of the claims brought in this
case.
Attorneys for the African-American farmers expected the value of the
settlement to be substantial--estimating it to be worth at least $2.25
billion. However, the court stated that it was impossible to know
exactly how much the settlement would cost the government, in part,
because the size of the class of African-American farmers had not been
determined. The court noted that 15,000 to 20,000 African-American
farmers were estimated to be members of the class.[Footnote 2] To
notify potential class members, a court-appointed facilitator conducted
an advertising campaign between January and March 1999 to notify
potential class members about the preliminary approval of the consent
decree, and that a hearing on the fairness of the settlement was to be
conducted in March 1999.[Footnote 3] Following that hearing and the
court's approval of the settlement, African-American farmers then had
about six months to file claims and to be eligible for relief under the
decree, with a filing deadline of October 12, 1999.[Footnote 4] To
assist farmers in preparing claims packages, attorneys representing
African-American farmers held over 200 meetings in 21 states.[Footnote
5] Since the filing deadline, officials appointed by the court have
been responsible for considering the claims made by African-American
farmers.
As of February 2006, over 97,000 people had filed claims under the
consent decree or requests to file late claims---about five to six
times more claims than anticipated. Of the 97,000, the court had
received 23,314 claims seeking compensation by the filing deadline of
October 12, 1999. About 900 of the on-time claims were determined to be
not eligible. The court received an additional 73,816 requests for
permission to file a claim after the October 12, 1999 filing deadline.
Except in relatively few extraordinary cases, the claims received after
the filing deadline were denied as not timely. Because so many farmers'
attempts to file a claim were denied due to late filing, some claimants
argued in court that the notice of the settlement was insufficient to
reach the majority of potential class members.[Footnote 6]
Nevertheless, after review, the court ruled that the notice was more
than adequate. Overall, by January 2006, about 22,400 claims had been
reviewed, decided, and in some cases reexamined: about 14,300 claims--
-64 percent---were approved for payments and benefits totaling over
$900 million. The remaining 8,100 claims---36 percent---have been
denied. More than half of the claims that were initially denied have
been or will be reviewed by the court-appointed monitor.
The court appointed four officials as directed under the consent decree:
A facilitator to conduct an advertising campaign between January and
March 1999 to notify known and potential members of the class that a
settlement had been reached, to receive and screen potential class
members' claims to determine whether they met the class definition, and
to assign the claims to the adjudicator and arbitrator for action.
An adjudicator to decide whether certain farmers' claims are supported
by substantial evidence based on a review of their supporting
documentation.[Footnote 7] The adjudicator has reviewed almost all of
the claims.
An arbitrator to determine, after holding evidentiary hearings, whether
certain farmers' claims are supported by a "preponderance of evidence."
There have been 166 claims under this criterion. The arbitrator was
also assigned responsibility for reviewing petitions to file late
claims from potential class members.
A monitor to review claimants requests to have a claim decision
reexamined and to direct the other officials to reexamine a claim when
an error occurred that resulted or is likely to result in a fundamental
miscarriage of justice. The monitor began her duties in March 2000,
about six months after the October 12, 1999 deadline for potential
class members' to submit claims. The monitor is also responsible for
attempting to resolve problems that class members have with the consent
decree, and for periodically reporting to the court and the Secretary
of Agriculture on the good faith implementation of the decree, but was
not assigned specific outreach responsibilities under the consent
decree. As of early 2006, the monitor's office had a staff of 26,
including 12 attorneys, to assist in performing her assigned tasks.
A detailed description of our scope and methodology is provided in
enclosure I. Based on the specific interests of our requesters, for
this report we (1) determined the extent of the monitor's participation
in outreach and outreach oversight for the Pigford case, and (2)
identified the number of claims that the monitor in the Pigford case
directed to be reexamined and the associated results. In addressing
these objectives, we reviewed reports, testimonies, and summary data
prepared by court-appointed officials associated with the Pigford case,
including the court-appointed monitor. We interviewed the monitor, and
obtained statistical information about the status of claims made under
the consent decree. We did not review specific cases nor assess case
decisions made under the consent decree. In addition to those efforts,
based upon congressional interest, we developed information about the
possible use of an ombudsman at USDA to address civil rights issues
(see encl. II); and we searched legal databases and identified cases
where the work of other court-appointed monitors was found by courts or
Congress to be ineffective or problematic and what court or legislative
remedies were provided (see encl. III). We conducted our work between
August 2005 and March 2006 in accordance with generally accepted
government auditing standards. A more detailed description of our
methodology is provided in enclosure I.
Results in Brief:
The monitor or attorneys from her office participated in 60 public
meetings from February 2000 through December 2005 to reach out to class
members, at the request of interested organizations. These meetings
occurred in states where the majority of African-American farmers live,
including Alabama, Arkansas, Georgia, Louisiana, Maryland, Mississippi,
North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and
Virginia. The monitor estimated that 9,400 individuals, including
claimants, potential claimants, and government officials attended these
meetings. However, the number and extent of participation at these
meeting was uneven among the states --for example, a total of about
2,090 individuals attended 12 such meetings in Alabama, but only about
60 individuals attended the one outreach meeting in Texas. At these
meetings, the monitor explained the role of her office and the process
through which class members could petition to have their cases
reexamined. In addition, through the monitor's toll-free number, the
monitor's office has received over 131,000 phone calls about the
Pigford case. These calls have involved questions about status of
payments, debt relief, tax concerns, and other issues. The monitor also
established a Web site (http://pigfordmonitor.org) that makes
information about the case readily available to the public.
Furthermore, in the monitor's reports to the Secretary of USDA, the
court, class counsel and defendant's counsel she noted that many
claimants expressed concern to her office that the advertising campaign
did not reach many individuals who met the class definition but had not
submitted a timely claim.
As of February 6, 2006, the monitor had ordered the reexamination of
2,059 initial claims decisions, and most reexaminations reversed or
changed the initial decision. More specifically, African-American
farmers had petitioned the monitor to direct the reexamination of 4,939
claims, and the government had requested that 730 claims decisions be
reexamined. Of the 4,939 petitions from African-American farmers, as of
February 6, 2006, the monitor had completed reviewing 3,631 of them and
directed the arbitrator or adjudicator to reexamine 1,979 claims
decisions; in 1,232 of these cases a previously denied claim was
approved or the benefits awarded to the farmer were increased. The
monitor observed that in most cases where she directed a reexamination,
the farmer had provided her office with additional information
supporting the farmer's claim of discrimination that had not been
presented when the claim was initially denied. In addition, the
government has petitioned the monitor to review claim decisions when it
thought there were mistakes or flaws in the information provided by the
claimants. As of February 6, 2006, the monitor had reviewed 605 of the
730 petitions submitted by the government for the reexamination of
claims decisions and directed that 80 of them be reexamined. Of these
80, sixty-seven have been reexamined by the adjudicator or arbitrator,
and in 59 of these cases a previously approved claim was denied or the
benefits awarded to the claimant were reduced. Finally, as of February
6, 2006, the monitor was still reviewing petitions to reexamine initial
claims decisions and the adjudicator and arbitrator were continuing to
reexamine claims decisions as directed by the monitor.
Background:
The Pigford case was initiated in 1997, when African-American farmers
filed a class action lawsuit against the USDA alleging that it
willfully discriminated against them and other African-American farmers
by denying their applications for farm loans and benefit programs, or
delaying the processing of their applications, and failing to properly
investigate and resolve their complaints of discrimination. This
lawsuit was certified by the United States District Court for the
District of Columbia as a class action suit on October 9, 1998. On
January 5, 1999, District Court Judge Paul L. Friedman preliminarily
approved a consent decree proposed by the federal government and class
counsel to settle this lawsuit. After a fairness hearing was held on
March 2, 1999, to address potential issues with the proposed consent
decree, the parties made some revisions and filed a modified proposed
consent decree. On April 14, 1999, District Court Judge Paul L.
Friedman approved the modified consent decree as a fair, adequate, and
reasonable settlement.
The consent decree defined the roles and responsibilities of the
following officials who were appointed by the court to implement the
settlement:
The Facilitator (Poorman-Douglas Corporation) The facilitator was
responsible for notifying known and potential members of the class that
a settlement had been reached by conducting an advertising campaign
composed of television commercials and print advertisements early in
1999. The facilitator was also responsible for receiving potential
class members' claims, screening claims to determine whether they met
the class definition, and assigning claims to the adjudicator and
arbitrator for action.
The Adjudicator (JAMS-Endispute Inc.) The adjudicator is responsible
for deciding whether farmers' Track A claims have met the required
burden of proof. Over 22,000 claims have been processed under Track A.
The Arbitrator (Mr. Michael K. Lewis of ADR Associates) The arbitrator
is responsible for determining, after holding evidentiary hearings,
whether farmers' Track B claims have met the required burden of proof.
A total of 166 claims have been processed under Track B. The arbitrator
was also assigned responsibility for reviewing petitions from potential
class members who filed late claims.
The Monitor (Ms. Randi Ilyse Roth, formerly of the Farmers Legal Action
Group)[Footnote 8] The monitor began her duties in March 2000, about
six months after the October 12, 1999 deadline for potential class
members' to submit claims, and was not involved in the advertising
campaign to reach out to potential class members. The monitor is
responsible for directing the facilitator, adjudicator, or arbitrator
to reexamine a claim if she determines that a clear and manifest error
occurred in the screening, adjudication, or arbitration of a claim that
has resulted or is likely to result in a fundamental miscarriage of
justice. To initiate a reexamination of a claim, class members or the
federal government were required to file a petition requesting a
reexamination and explaining why they believed the decision of the
facilitator, adjudicator, or arbitrator was in error.[Footnote 9] The
monitor reviews such petitions and directs the facilitator,
adjudicator, or arbitrator to reexamine a claim if she determines that
a clear and manifest error occurred in the screening, adjudication, or
arbitration of a claim that resulted or is likely to result in a
fundamental miscarriage of justice. In addition, the monitor is
responsible for attempting to resolve problems that class members have
with the consent decree, staffing a toll-free telephone line, and
periodically reporting to the court and the Secretary of Agriculture on
the good faith implementation of the decree. As of early 2006, the
monitor's office had a staff of 26, including 12 attorneys, to assist
in performing her assigned tasks.
The efforts to reach potential class members were started in January
1999. Under the terms of the consent decree, the court-appointed
facilitator, Poorman-Douglas Corporation, was assigned the duty of
publishing the Notice of Class Settlement as directed in the decree.
This included mailing a copy of the Notice of Class Certification and
Proposed Class Settlement to all known members of the class within 10
days of the court's preliminary approval of the consent decree. In
addition, the consent decree directed the facilitator, as soon as
possible after the preliminary approval of the consent decree, to take
the following actions to announce the preliminary settlement and the
time and place of the fairness hearing: (1) arrange to have 44
commercials aired on the Black Entertainment Television (BET) network
and 18 similar commercials on the Cable News Network (CNN) during a two-
week period; (2) arrange to have one-quarter page advertisements in 27
general circulation newspapers and 115 African American newspapers in
an 18-state region during a two-week period; and (3) arrange to have a
full page advertisement in the editions of TV Guide that are
distributed in an 18-state region and a half page advertisement in the
national edition of Jet Magazine.[Footnote 10] In his April 1999 order
approving and entering the consent decree, Judge Friedman concluded
that the potential class members had received more than adequate
notice, stating that the parties had exercised extraordinary efforts to
reach class members through the massive advertising campaign that had
been conducted. Furthermore, he observed that by March 26, 1999, 16,559
farmers had requested claims packages from the facilitator.
The consent decree provided about six months for potential class
members to file claims, with a deadline of October 12, 1999. To be
eligible to obtain relief pursuant to the consent decree, a claimant
was required to complete a claim sheet and return it with any
supporting documentation to the facilitator. As part of the claim, the
claimant had to provide the facilitator with evidence that he or she
had filed a discrimination complaint between January 1, 1981, and July
1, 1997. Under the consent decree terms, the claimant could provide
this evidence by submitting one of the following:
* a copy of the discrimination complaint filed with USDA or a copy of a
USDA document referencing the discrimination complaint;
* a declaration by a person who was not a member of the claimant's
family, stating that the declarant had first-hand knowledge that the
claimant had filed a discrimination complaint with USDA and describing
the manner in which the discrimination complaint was filed;
* a copy of correspondence from the claimant to a member of Congress;
the White House; or a state, local or federal official averring that
the claimant had been discriminated against (except that, in the event
that USDA did not possess a copy of the correspondence, the claimant
also was required to submit a declaration stating that he or she sent
the correspondence to the person to whom it was addressed);
* a declaration by a non-familial witness stating that the witness had
first-hand knowledge that, while attending a USDA listening session or
other meeting with a USDA official (or officials), the claimant was
explicitly told by a USDA official that the official would investigate
that specific claimant's oral complaint of discrimination.[Footnote 11]
An individual who satisfied the criteria for membership in the class,
but who did not file a discrimination complaint until after July 1,
1997, could be entitled to relief under the consent decree by
demonstrating that he or she: (1) actively pursued judicial remedies by
filing a defective pleading during the applicable statute of
limitations period; (2) was induced or tricked by USDA's misconduct
into allowing the filing deadline for the applicable statute of
limitations period to pass; or (3) was prevented by other extraordinary
circumstances beyond his or her control from filing a complaint in a
timely manner, though neglect did not qualify as an extraordinary
circumstance. In these cases, the facilitator forwarded the claim
package to the adjudicator who reviewed the package to determine if the
claimant met one of the three standards. Once the adjudicator made a
determination, the claim package was returned to the facilitator with a
written determination and the facilitator was to process the claim, if
found to be timely, or to notify the claimant of the adjudicator's
decision that the claim was untimely.
Under the consent decree, claimants who satisfied the definition of the
class, including the filing of a discrimination complaint, but who had
not submitted a completed claim package by the filing deadline of
October 12, 1999 could petition the court to permit them to participate
in the settlement. However, the consent decree provided that the court
would grant such a petition only where the claimant demonstrated that
his or her failure to submit a timely claim was due to extraordinary
circumstances beyond his or her control. The court delegated the
authority to the arbitrator to examine these claims on a case-by-case
basis. The deadline the court established for filing a petition to file
a late claim was initially January 30, 2000, and later the court
extended this deadline to September 15, 2000. According to the
arbitrator's report of November 2005, about 66,000 petitions to file a
late claim were received by September 15, 2000, and an additional 7,800
were received after the late claim deadline. Of these, the arbitrator
denied all but 2,229. An example of extraordinary circumstances beyond
an individual's control that the arbitrator approved involved farmers
who resided or farmed in one of the North Carolina counties declared to
be a federally designated disaster area as a result of Hurricane Floyd
and who asserted that the disaster prevented them from submitting a
claim before the October 12, 1999, deadline. Potential class members'
claims that they did not hear of the opportunity to submit a claim
until it was too late were not considered by the arbitrator to have
represented an extraordinary circumstance. When reviewing late claims,
the arbitrator collaborated with the facilitator's staff to develop a
series of categories into which late claim affidavits were sorted.
Those affidavits in the "Unaware of Lawsuit" category, without any
mitigating factors, were rejected.
The terms of the consent decree required the facilitator to determine
whether the claimant satisfied the criteria for membership in the class
within 20 days of receiving a completed claim. If the claimant was
determined to be a class member, the facilitator was to forward the
claim package to the adjudicator or the arbitrator and send a copy of
the claim package to the class counsel and government counsel.
To address the claims of class members, the consent decree established
two tracks --Track A and Track B. These tracks differ in three basic
ways: the level of evidence required, the manner in which claims are
decided, and the potential amounts of the awards. Class members could
generally elect to proceed under either track.[Footnote 12]
Track A claimants' cases are decided by the adjudicator based on the
evidence that claimants can provide, and without a hearing. To prove a
Track A claim, the claimant's written materials must provide
substantial evidence that he or she was the victim of race
discrimination by USDA when he or she applied to participate in a farm
program.[Footnote 13] When a Track A credit-related claim is proven the
claimant is eligible to receive a cash payment of $50,000, a discharge
of certain outstanding debt, and other relief. When a Track A claim of
discrimination in a non-credit benefits program is proven the claimant
is eligible for a single payment from USDA of $3,000.
In contrast, Track B claimants are required to meet a higher standard
of proof by demonstrating in an evidentiary hearing by a "preponderance
of the evidence" that they were the victims of racial discrimination
and suffered damages as a result of that discrimination. A
preponderance of the evidence is defined as such relevant evidence as
is necessary to prove that something is more likely true than not true.
Also, at the hearing, the government may cross examine opposing
witnesses and present legal arguments. When a Track B claim is proven,
the claimant is provided an amount equal to his or her actual damages,
receives a discharge of outstanding debt to the USDA's Farm Service
Agency, and other relief. Track B awards have ranged from $52,000 to
approximately $1,500,000.
In cases where the class member or the federal government disagreed
with the adjudication or arbitration of a claim, either party could
file a petition with the monitor to request that these decisions be
reexamined.[Footnote 14] The consent decree provides that the monitor
is to direct a reexamination when she determines that a clear and
manifest error has occurred in the screening, adjudication, or
arbitration of the claim and that this error has resulted or is likely
to result in a fundamental miscarriage of justice. The monitor does not
have the power to reverse any of the facilitator's, adjudicator's, or
arbitrator's decisions. The monitor reviews the petition for
reexamination, any response to that petition, the record before the
facilitator, adjudicator, or arbitrator, and the decision that is the
subject of the petition. For Track A claims only, under certain
circumstances, the class member or the government may include with the
petition for monitor review any documents that help them explain or
establish that an error occurred. However, the monitor is not permitted
to consider additional materials when reviewing Track B petitions or to
supplement the record with such materials.
The Monitor's Participation in Outreach Activities:
The monitor and her staff have participated in outreach activities,
although the consent decree did not specifically assign outreach duties
to the monitor. Outreach responsibilities under the consent decree--the
initial notification of the known and potential class members--were
assigned to the facilitator. Between February 2000 and December 2005,
the monitor and lawyers from the monitor's office participated in 60
public meetings at the request of agriculture associations,
universities, state and federal government agencies, and other
interested sponsoring organizations. The monitor and her staff served
as speakers at these meetings, where they explained the role of the
monitor as directed by the consent decree and met with individuals to
discuss their specific concerns. Approximately 9,400 individuals,
including claimants and government officials, attended these meetings
that were held in 12 states and the District of Columbia.[Footnote 15]
Table 1 shows that the numbers of meetings and attendance varied by
state. The monitor told us that some of these meetings were the
sponsoring organization's annual meetings with attendees from a number
of states.
Table 1: Meetings Attended by the Monitor and/or Her Staff, February
2000 through December 2005.
State: Alabama;
Number of meetings: 12;
Sponsoring organizations: Federation of Southern Cooperatives/Land
Assistance Fund;
Professional Agricultural Workers Conference;
Tuskegee University;
United Farmers USA;
Approximate number of attendees: 2,090.
State: Arkansas;
Number of meetings: 13;
Sponsoring organizations: Arkansas Chapter of the Black Farmers and
Agriculturalists Association, Inc;
Arkansas Land and Farm Development Corporation;
Arkansas Pine Bluff University;
Black Farmers and Agriculturalists Association, Inc;
Approximate number of attendees: 1,700.
State: Georgia;
Number of meetings: 11;
Sponsoring organizations: African American Family Farmers, Inc;
Coordinating Council of Black Farm Groups;
Federation of Southern Cooperatives/Land Assistance Fund;
Fort Valley State University;
USDA Outreach;
Approximate number of attendees: 1,355.
State: Louisiana;
Number of meetings: 2;
Sponsoring organizations: Northeast Louisiana Farmers;
Southern University and A&M College Family Farm Technical Assistance
Project;
Approximate number of attendees: 190.
State: Maryland;
Number of meetings: 1;
Sponsoring organizations: USDA;
Approximate number of attendees: 50.
State: Mississippi;
Number of meetings: 3;
Sponsoring organizations: Alcorn State University;
Mississippi Family Farmers;
Approximate number of attendees: 200.
State: North Carolina;
Number of meetings: 1;
Sponsoring organizations: Congressman Mike McIntyre;
Approximate number of attendees: 250.
State: Oklahoma;
Number of meetings: 7;
Sponsoring organizations: FSA State Directors;
Oklahoma Chapter of the Black Farmers and Agriculturalists Association,
Inc;
Oklahoma Department of Agriculture;
USDA Oklahoma Department of Food and Forestry;
Approximate number of attendees: 2,400-2,500.
State: South Carolina;
Sponsoring organizations: Number of meetings: 1;
United Farmers of South Carolina;
Approximate number of attendees: 205.
State: Tennessee;
Number of meetings: 3;
Sponsoring organizations: Tennessee Chapter of the Black Farmers and
Agriculturalists Association, Inc;
USDA Risk Management;
Approximate number of attendees: 290.
State: Texas;
Number of meetings: 1;
Sponsoring organizations: Landowners' Association of Texas;
Approximate number of attendees: 60.
State: Washington, D.C;
Number of meetings: 3;
Sponsoring organizations: Federation of Southern Cooperatives/Land
Assistance Fund;
Congressional Black Caucus;
Approximate number of attendees: 175.
State: Virginia;
Number of meetings: 2;
Sponsoring organizations: National Black Farmers Association;
Approximate number of attendees: 400.
Source: Randi Roth, Court-appointed Monitor, Pigford v. Glickman.
Note: Ms. Roth stated that she attended the meetings held over the
first year and some others, and also, that Mr. Stephen Carpenter,
Senior Counsel for the monitor's office, attended almost all of the
meetings.
[End of table]
These meetings provided opportunities for the monitor and her staff to
hear and respond to the concerns of individuals. For example, claimants
with approved claims expressed concerns about the timing of payments,
the amount of debt relief and injunctive relief they would receive, and
other issues, such as taxes. Claimants whose claims were denied sought
information about filing a petition with the monitor to have their
claim reexamined and the timing of reexamination decisions, among other
issues. In the monitor's reports and our interviews with her, she
reported that in many cases several of her staff attended these
meetings, which made it possible for one or two attorneys from the
monitor's office to address the large group while the other attorneys
worked with individuals to address their concerns. The monitor has
addressed these topics and others by publishing 15 Monitor Updates,
which the monitor's staff distributed before and after the public
meetings, and also during one-on-one sessions with individuals who
expressed concerns about specific topics. The Monitor Updates are also
available on the monitor's official Website.
In addition, the court required the monitor to be available to class
members and the public through a toll-free telephone number in order to
facilitate the lodging of any consent decree complaints and to expedite
their resolution. The monitor established a toll-free number that has
been available to the public since May 29, 2000. The monitor said her
office has received over 131,000 calls on this toll-free number.
Callers who use the toll-free number reach phone operators who have
been trained regarding the basics of the consent decree and who have
access to a database containing certain factual information about each
claimant, such as the claimant's name, the names of any other
individual who is authorized to request information on behalf of a
claimant, filing dates for claims and petitions filed by the claimant,
and the status of any payments to the claimant. As a result, the
operators are able to respond to some questions during a call. For
example, the operators can respond to questions as to when a payment
was approved or sent to the individual, as well as questions about
filing deadlines associated with the case. These operators also have
access to documents that can be sent to individuals upon request,
including court orders, farm loan program notices, monitor reports, and
monitor updates. For questions about debt relief, injunctive relief,
and other complex issues, the operators make appointments for the
caller to speak with a lawyer from the monitor's office.
The consent decree requires the monitor to periodically report to the
court, class counsel, defendant's counsel and the Secretary of USDA on
the good-faith implementation of the consent decree. The monitor has
completed four implementation reports which, along with other monitor
reports on particular topics, are available on the monitor's Web site.
The reports provide details about the activities of her office,
statistical information on the status of claims processing, and her
observations about the implementation of the Pigford case. For example,
in 2004 and 2005, the monitor's reports on the consent decree
implementation noted that claimants had expressed concerns that many
people who met the class definition had failed to sign up for the
lawsuit on time because the advertising campaign did not reach
them.[Footnote 16] Because a vast majority of farmers attempted to file
claims after the settlement deadline, some groups, such as the National
Black Farmer's Association, have argued that the notice of the
settlement was insufficient to reach the majority of potential class
members. Others have suggested additional explanations. In particular,
one of the attorneys for the plaintiffs explained that many African-
American farmers did not apply by the October filing deadline either
because they initially had no faith that the government would ever make
such payments, or because they did not realize that the children of
farmers could make claims on behalf of their parents.[Footnote 17] The
arbitrator contacted a quarter of those who applied late and found
several explanations--that they had been unaware of the settlement, the
deadlines and procedures for the consent decree, or were aware but
disbelieved in its legitimacy or their eligibility under the consent
decree. On January 3, 2005, Judge Paul L. Friedman of the United States
District Court for the District of Columbia issued an opinion
expressing concern for African-American farmers, who, because they had
not filed on time, were barred from participating in the consent decree
claims-resolution process. Nevertheless, the court found that the
notice of the settlement and claims process was more than adequate and
met the standards for class action settlements.
The Monitor Directed the Reexamination of 2,059 Claims and Most
Reexaminations Reversed or Altered the Initial Decision:
The monitor's office has played an active role in implementing the
consent decree by reviewing about one quarter of the claims decisions
that have been made in the Pigford case. Overall, as of February 6,
2006, the monitor's office has received 5,669 petitions requesting the
reexamination of an initial claim decision--4,939 from African-American
farmers and 730 from the federal government. Most petitions from
African-American farmers concerned claims that they believed were
denied inappropriately, but 162 farmers filed petitions for review
claiming they were due additional benefits. Of the 4,939 claims that
African-American farmers petitioned to be reexamined, the monitor had
completed reviewing 3,631 of them and directed that 1,979 claims be
reexamined as of February 6, 2006.[Footnote 18] The following figure
indicates that, of the claims that had been reexamined, the adjudicator
found in favor of African-American farmers and awarded payments in over
90 percent of the cases. As a result, previously denied claims were
approved or the benefits awarded to the farmer were increased.
Figure 1: Status of African-American Farmers Petitions for
Reexamination of Claims Decisions as of February 6, 2006.[Footnote 19]
[See PDF For Image]
[End of Figure]
According to the monitor, some of the flaws that were noted in
petitions from claimants included (1) the limited time these
individuals had to present claim information during meetings where
class counsel provided assistance in completing claim packages, and (2)
difficulties providing information about similarly situated white
farmers as required under Track A. In many of these cases, the class
member's petition for review provided the monitor with more complete
information that had not been presented when the claim was initially
denied, including information about their treatment by USDA staff,
information about similarly situated white farmers, or additional
information that responded to specific statements in the adjudicator's
initial decision. The monitor observed that in most cases where she
directed a reexamination, the farmer had provided her office with
additional information supporting the farmers' claim of discrimination.
In addition, the government petitioned the monitor for a reexamination
of 730 claim decisions that were found in favor of a claimant and
awarded them benefits. When the government filed petitions with the
monitor to have claims decisions reexamined, the types of flaws or
mistakes that they noted included flaws in information provided by
claimants, such as when and to whom in USDA the claimant had complained
to about discriminatory treatment or constraints on the time the
government was allowed when responding to the claims initially. For
example, some of the historical records for these USDA programs were
stored on microfiche records that are maintained in St. Louis and not
readily available. As of February 6, 2006, the monitor had reviewed 605
of these petitions, as shown in figure 2. Of the 605 petitions, the
monitor has denied the government request for a reexamination in about
87 percent of these cases. However, in the 80 cases where the monitor
directed the reexamination of an initial claim at the request of the
government, the government prevailed in 59 of those cases. As a result,
previously approved claims were denied or the benefits awarded to a
claimant were modified.
Figure 2: Status of Federal Government Petitions for Review of Claims
Decisions as of February 6, 2006.
[See PDF for Image]
[End of Figure]
- - - --:
As agreed with your offices, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days
from the date of this letter. We will then send copies of this report
to the President, the Attorney General, the Secretary of Agriculture,
appropriate congressional committees, and other interested parties. We
will also make copies available to others upon request. In addition,
the report will be available at no charge on the GAO Web site at http:/
/www.gao.gov.
If you or your staff have any questions about this report or need
additional information, please contact me at (202) 512-3841 or
robinsonr@gao.gov. Contact points for our Offices of Congressional
Relations or Public Affairs may be found on the last page of this
report. Key contributors to this report were Charles M. Adams,
Assistant Director; John Delicath; Natalie Herzog; Lynn Musser; and Amy
Webbink.
Signed by:
Robert A. Robinson:
Managing Director, Natural Resources and Environment:
List of Congressional Requesters:
The Honorable Edolphus "Ed" Towns:
Member of Congress:
The Honorable Bennie Thompson:
Member of Congress:
The Honorable John Conyers:
Member of Congress:
The Honorable Robert C. Scott:
Member of Congress:
The Honorable F. James Sensenbrenner, Jr.
Chairman:
Committee on the Judiciary:
House of Representatives:
The Honorable Steve Chabot:
Chairman:
Subcommittee on the Constitution:
Committee on the Judiciary:
House of Representatives:
[End of Section]
Enclosure 1:
Scope and Methodology:
To determine what outreach or outreach oversight the monitor provided
in the Pigford case, we reviewed the consent decree that described the
monitor's role in implementing the settlement and the standards that
she was to follow in carrying out her responsibilities; the January 4,
2000, court order appointing the monitor; and the April 4, 2000, order
of reference that further described the monitor's responsibilities and
powers. We also interviewed the monitor and staff from her office about
the outreach and outreach oversight activities that she performed, and
the information that she and her staff provided during these
activities. In addition, we reviewed the monitor's four reports on the
good-faith implementation of the consent decree and her congressional
testimony at a hearing on the status of the implementation of the
Pigford consent decree. In addition, we reviewed the congressional
testimony of the facilitator and arbitrator about the notice to the
class and requests to file late claims. Further, we reviewed the 15
published monitor updates on topics, such as filing deadlines and
parties to the Pigford consent decree, which the monitor and her staff
shared with the public as part of her outreach activities.
To identify the number of cases where the court-appointed monitor's
work in the Pigford case resulted in reexaminations of claims, and to
identify the results of the reexaminations, we reviewed the consent
decree, court orders, and the monitor's reports to determine the
process established for requesting a reexamination of a claim decision
and the standards the monitor was to use when reviewing and approving
these requests. We also reviewed the statistics included in the
monitor's September 2004 congressional testimony and her reports for
2000 through 2004 to identify the number of petitions that were filed
with the monitor's office requesting a reexamination of a claims
decision, the number of petitions for reexaminations of a claims
decision that were approved, and the results of any reexaminations. We
did not review specific cases nor assess case decisions made under the
settlement agreement. We further reviewed the data provided by the
monitor's office for the period ending February 6, 2006. We did not
assess the data published in the monitor's testimony and reports or the
data the monitor provided to us. Because of the public nature of these
data, we deemed them reliable for the purposes of this report.
To describe the role of an agency ombudsman in resolving disputes, we
reviewed the ombudsman standards developed by the American Bar
Association (ABA); the Coalition of Federal Ombudsman; the United
States Ombudsman Association; and the University and College Ombudsman
Association. We also reviewed a draft copy of the guide for federal
employee ombudsmen developed by the Coalition of Federal Ombudsman in
conjunction with the Federal Interagency Alternative Dispute Resolution
Working Group Steering Committee. In addition, we reviewed our previous
reports on the role of ombudsmen in dispute resolution, and on the
Environmental Protection Agency's ombudsman. Further, we interviewed
the Department of Labor's Office of Inspector General Ombudsman, who is
currently the Chair of the Coalition of Federal Ombudsman; the
Transportation Security Administration's Ombudsman, who is currently
the Vice-Chair of the Coalition of Federal Ombudsman; the City of
Dayton and Montgomery County, Ohio Ombudsman, who is currently a
Director of the United States Ombudsman Association, and the Stony
Brook University Ombudsman, who is currently the President of the
International Ombudsman Association, to discuss the role of an
ombudsman in dispute resolution and the potential of ombudsmen to
address civil rights.[Footnote 20] We did not identify any
comprehensive reports on evaluations of the federal ombudsmen who
address issues raised by the public.
To identify cases where the work of other monitors was found to be
ineffective or problematic, and what court or legislative remedies were
provided, we searched a number of legal databases for relevant
examples. To find examples where Congress had found the work of a
monitor to be ineffective or problematic, and any corresponding
legislative remedies, we conducted a variety of searches in
legislative, legislative history, and legal journal databases. Because
courts have appointed monitors as "special masters" under Rule 53 of
the Federal Rules of Civil Procedure, to find examples where the courts
had found the work of a monitor to be ineffective or problematic, and
corresponding remedies, we reviewed over 1,600 federal cases citing
Rule 53. We also reviewed over 600 federal cases in which the terms
"court," "monitor," and some form of the word "appoint" occur in the
same sentence.
We conducted our work between August 2005 and March 2006 in accordance
with generally accepted government auditing standards.
[End of Section]
Enclosure 2:
Role of an Agency Ombudsman in Resolving Disputes:
Based on congressional interest, we developed information on ombudsmen
that might be useful in considering the potential use of an ombudsman
at USDA to address civil rights issues. USDA does not now have such an
ombudsman. Our past work on the use of ombudsman offices,[Footnote 21]
American Bar Association (ABA) guidance on and information about
ombudsmen, and our interviews with those familiar with the use of
ombudsmen in the United States shows that ombudsmen (1) are
increasingly being used by federal, state and local governments and (2)
address a wide variety of workplace problems, including program access
and civil rights issues. Moreover, the international use of ombudsmen
is flourishing, with ombudsmen being used at national levels of
government in about 120 countries as of 2004, according to the
International Ombudsman Institute. In several countries, the protection
of human rights is one of the major purposes of ombudsman offices,
indicating the potentially significant depth of the ombudsman role.
An ombudsman, as a protector of individual rights, is a dispute-
resolution practitioner. An ombudsman is a neutral party who uses a
variety of procedures, including alternative dispute resolution
techniques, to deal with complaints, concerns, and questions. An
ombudsman (1) receives complaints, concerns, and questions from
individuals; (2) works to resolve these issues; and (3) makes
recommendations for improving the general administration of the
department, agency, or entity for which they have responsibility.
Ombudsmen can address a very wide range of issues, for example, from
the concerns of individuals about access to programs, to systemic
management problems, to policy shortcomings. Ombudsmen can thereby help
correct organization-wide problems and also help develop strategies for
preventing and managing conflict. A key feature that distinguishes
ombudsmen from other dispute-resolution practitioners is the
ombudsman's focus on addressing systemic issues and developing conflict-
prevention strategies.
Growth in the Use of Ombudsmen:
Over the past three decades, there has been an extraordinary growth in
the number and types of ombudsmen. Ombudsman offices have been
established in federal, state, and local governments, academic
institutions, and the private sector. The Chair of the Coalition of
Federal Ombudsmen told us that the Coalition includes ombudsmen members
that represent 37 federal agencies. Moreover, the Administrative
Dispute Resolution Act (ADRA) authorizes federal agencies to use
ombudsmen, and Congress has established several ombudsman positions in
various programs. For example, the U.S. Environmental Protection Agency
has ombudsmen who serve as points of contact for members of the public
who have concerns about Superfund activities.[Footnote 22] Also, the
ombudsman for the National Institutes of Health (NIH) addresses issues
for employees of the NIH, such as staff and management interaction,
performance appraisals, difficult management situations,
discrimination, harassment, interpersonal misunderstandings, mentoring,
authorship, and scientific collaboration. In addition, the ombudsman
for the Federal Deposit Insurance Corporation (FDIC) handles inquiries
from FDIC-regulated banks, the public and FDIC employees. The FDIC
ombudsman can answer questions about corporation policies and
procedures and concerns regarding open or closed bank matters, and
assist with complaints regarding FDIC operations, employees, and
contractors.
Ombudsmen are also in widespread use internationally--including Canada,
Europe, Latin American, the Caribbean, Africa, Australia and Asia. As
of 2004, ombudsmen are being used at national levels of government in
about 120 countries, according to the International Ombudsman
Institute. In a number of countries the protection of human rights is
one of the major purposes of some ombudsmen offices. According to the
International Ombudsman Institute, examples include the Ombudsman of
Finland, Civil Rights Protector of Poland, the Human Rights Ombudsman
of Slovenia, the Parliamentary Commissioner for Human Rights in
Hungary, and the Defensores del Pueblo in Spain, Argentina and Peru.
Also, in the European Union, all citizens have the right to refer their
problems involving the activities of European community institutions to
the Ombudsman of the Union. In 2000, the Union's ombudsman reported
that about 8 percent of the complaints he addressed involved matters of
discrimination. For example, as a result of inquiries by the European
Union Ombudsman, the European Commission abolished a rule allowing sex
discrimination which had worked to the disadvantage of women. In
addition, ombudsmen in Britain and Ireland address a wide variety of
issues including, for example, housing, health, pensions, police
investigations, insurance, telecommunications, estates, and legal
services.
Standards for Ombudsmen:
The ABA developed standards for the use of ombudsmen to provide advice
and guidance on the structure and operation of ombudsman offices. The
standards call for ombudsman to operate consistently with the following
essential characteristics --independence, impartiality, and
confidentiality.
Independence --The ombudsman is, and appears to be, free from
interference in the legitimate performance of duties and independent
from control, limitation, or a penalty imposed for retaliatory purposes
by an official of the appointing entity, or by a person who may be the
subject of a complaint or inquiry.
Impartiality in conducting inquiries and investigations --The ombudsman
conducts inquiries and investigations in an impartial manner, free from
initial bias and conflicts of interest. Impartiality does not preclude
the ombudsman from developing an interest in securing changes that are
deemed necessary as a result of the process, nor from otherwise being
an advocate on behalf of a designated constituency. The ombudsman may
become an advocate for change within the entity when the evidence
demonstrates a need for it.
Confidentiality --An ombudsman does not disclose and is not required to
disclose any information provided in confidence, except to address an
imminent risk of serious harm. Records pertaining to a complaint,
inquiry, or investigation are confidential and not subject to
disclosure outside the ombudsman's office. An ombudsman does not reveal
the identity of a complainant without that person's express consent.
The ABA standards also state that an ombudsman may make formal or
informal reports of results and recommendations stemming from a review
of investigation. If such a report is issued, the ombudsman should
generally consult with an individual or group prior to issuing a report
critical of that individual or group, and include their comments with
the report. In addition, the ABA standards state that to ensure the
office's accountability, an ombudsman should issue and publish periodic
reports summarizing the ombudsman's findings and activities. These
reports may include statistical information about the number of
contacts with the ombudsman and the subjects that the ombudsman
addressed. The chair of the Coalition of Federal Ombudsmen told us that
he is part of a working group looking at developing standard data
categories for annual reports to be prepared by ombudsmen so that the
work of ombudsmen in the federal government can be compared and
summarized. We did not identify any comprehensive evaluations of the
federal ombudsmen who address concerns from the public.
According to the ABA standards, there are four types of ombudsmen based
on how the office was established and their functions.
Legislative ombudsmen --A legislative ombudsman is established by the
legislature as part of the legislative branch and addresses issues
raised by the general public or internally, usually concerning the
actions or policies of a government agency, official, public employee,
or contractor.
Executive ombudsmen --An executive ombudsman may be located in either
the public or private sector and receives complaints from the general
public or internally, and addresses actions or failures to act by the
entity, its officials, employees, or contractors.
Organizational ombudsmen --An organizational ombudsman may be located
in either the public or private sector and ordinarily addresses
problems presented by members, employees, or contractors of an entity
concerning its actions or policies.
Advocate ombudsmen --An advocate ombudsman may be located in either the
public or private sector and, like other ombudsmen, evaluates claims
objectively, but is either authorized or required to advocate on behalf
of individuals or groups found to be aggrieved.
While an ombudsman may expedite and facilitate the resolution of a
complaint and recommend changes to agency procedures, an ombudsman as
envisioned by the ABA standards should supplement and not substitute
for an entity's formal procedures that may be necessary to protect
legal rights and to address allegedly inappropriate or wrongful
behavior or conduct. Nevertheless, if an ombudsman finds a shortcoming
in agency policies, procedures and processes, he or she is expected to
raise those issues for resolution or reconsideration.
Potential for an Ombudsman to Address Civil Rights Issues at USDA:
Several core aspects of the functioning and purpose of an ombudsman
make such an office an option for consideration at USDA. An ombudsman
not only works to resolve disputes but also is in a position to alert
management to systemic problems and thereby help correct organization-
wide situations and develop strategies for preventing and managing
conflicts. Moreover, an ombudsman office can help an organization
assure a fair, equitable and nondiscriminatory environment. In this
regard, the voice of an independent ombudsman could potentially be
useful in addressing concerns about equitable access to programs and
other civil rights issues at USDA. Before deciding whether an ombudsman
office at USDA should be instituted, a variety of factors would need to
be carefully considered, including the relationship of the ombudsman to
USDA's existing organizations, the specific roles and responsibilities
to be assigned to the ombudsman, the authorities that would be provided
to ensure a successfully functioning ombudsman, the degree of
independence to be afforded the ombudsman, and the staffing and
budgeting of an ombudsman's office.
[End of Section]
Enclosure 3:
Remedies in Cases of Ineffective or Problematic Monitors:
Based upon congressional interest we conducted a search for cases where
the work of a court-appointed monitor was found by a court or the
Congress to be ineffective or problematic, and summarized any remedies
that were provided in such cases. To identify such cases, we searched a
number of legal databases for relevant examples. To find examples where
Congress had found the work of a monitor to be ineffective or
problematic, and any corresponding legislative remedies, we conducted a
variety of searches in legislative, legislative history, and legal
journal databases. Because courts have appointed monitors as "special
masters" under Rule 53 of the Federal Rules of Civil Procedure, to find
examples where the courts had found the work of a monitor to be
ineffective or problematic, and corresponding remedies, we reviewed
over 1,600 federal cases citing Rule 53. We also reviewed over 600
federal cases in which the terms "court," "monitor," and some form of
the word "appoint" occur in the same sentence.
Based upon our review, we determined that it has been rare for a court
or the Congress to take action because a monitor's work was found to be
ineffective or problematic. We found just a handful of cases where a
court found that a monitor's work was in some way problematic or
ineffective. Additionally, we found only one instance where Congress
took action with regard to a court-appointed monitor.
In the few instances that we identified where courts found a monitor's
work to be ineffective or problematic, monitors mishandled funds and
overcharged for their services or the monitors' appointments or
delegated functions were invalid. More specifically:
One court questioned whether a monitor could accomplish his assigned
task of transforming an insolvent company's contaminated steel plant
site into a means of funding the medical plan of former steelworkers.
The court found that the monitor had (1) rejected valid settlement
offers to hold out for more compensation for himself, (2)
misappropriated funds by forming a $1 million litigation "war chest",
(3) paid for personal tax advice with litigant funds, and (4)
overbilled for a legal assistant. The court terminated the monitor's
appointment and ordered the monitor to personally cover $48,035 for
personal tax services and $65,034 for overbilling the services of the
legal assistant.[Footnote 23]
In litigation over the Department of the Interior's handling of monies
held in trust for individual Indians, the Court of Appeals ordered the
removal of a monitor who had been appointed by the district court to
monitor and review all of the Interior defendants' trust reform
activities. The Court of Appeals concluded that the appointment of the
monitor was made over the objection of the defendants and therefore was
not valid.[Footnote 24]
In another appellate court case, the court held that a district court's
order appointing a monitor effectively usurped executive functions. A
class action lawsuit was brought on behalf of female inmates of the
District of Columbia, where the district court entered an order
directing one or more members of the court's Special Officer's staff to
monitor allegations of sexual harassment at each facility housing women
prisoners. The monitor was to ensure that each reported violation be
thoroughly investigated and documented. The monitor was to submit a
final written report to the warden of the institution, including
factual findings and a conclusion as to whether a preponderance of the
evidence showed that a violation of the sexual harassment policy
occurred. The appellate court, however, held that these provisions
effectively usurped the executive functions of the District of
Columbia. The court noted that while the appointment of a special
master to oversee compliance with a court order may be useful in
unusual circumstances, the master's role in such cases has been
limited.[Footnote 25]
In the one case we found where the Congress acted because of concerns
that a monitor's work was problematic, Congress expressed concern that
a monitor's pay was excessive and took action to limit that pay. After
becoming concerned that a monitor appointed in Indian trust litigation
was receiving excessive compensation, Congress included a provision in
the Interior's appropriations legislation for fiscal years 2004 and
2005 that prohibited the use of funds to compensate the monitor at an
annual rate of more than 200 percent of the highest Senior Executive
Service rate of pay for the Washington-Baltimore locality pay
area.[Footnote 26]
Overall, we found that is was rare for a court or the Congress to take
action because a monitor's work was found to be ineffective or
problematic, and in those few cases where a court or the Congress
sought to provide a remedy, the concerns with the monitors' work were
generally similar and included cases where monitors had mishandled
funds, overcharged for their services, were receiving excessive pay or
where the monitors' appointments or delegated functions were invalid.
No concerns have been raised by Congress or the courts about the
Pigford Monitor's pay, accomplishment of assigned functions, or the
validity of the court's delegation of functions to the monitor.
(360604):
FOOTNOTES
[1] This case was filed in 1997 when the Honorable Daniel Glickman was
Secretary of Agriculture. The case is also now referred to as Pigford
v. Johanns, because the Honorable Mike Johanns has become the Secretary
of Agriculture. The three farmers who filed the suit were representing
a presumed class of 641 African-American farmers.
[2] As used in this report, the phrase "African-American farmers"
refers to the class as defined by the court and not a more general
definition. The certified class was defined as all African-American
farmers who (1) farmed or attempted to farm between January 1, 1981,
and December 31, 1996; (2) applied to USDA during that period for loans
or benefits and believe they were discriminated against in USDA's
response to that application; and (3) filed a discrimination complaint
on or before July 1, 1997, regarding USDA's treatment of their
applications.
[3] The parties to the case had agreed to an advertising campaign which
included 62 commercials, advertisements in 142 newspapers, as well as
advertisements in TV Guide and Jet Magazine. The campaign was carried
out by the Poorman-Douglas Corporation, which had experience with class
action litigation.
[4] For those individuals who could not file a claim by October 12,
1999 due to extraordinary circumstances beyond their control, the
consent decree established a process by which they could petition the
court to participate in the claims resolution procedures. Initially,
the court set a deadline of January 30, 2000 for such petitions to be
postmarked, but later extended this deadline to September 15, 2000.
[5] In addition, one meeting occurred in Washington, D.C. and one in
the U.S. Virgin Islands. These meetings occurred over the nine months
leading up to the filing deadline.
[6] This issue was also addressed in a November 2004 congressional
hearing. 'Notice' Provision in the Pigford v. Glickman Consent Decree,
Hearing before the House Committee on Judiciary, Subcommittee on
Constitution, November 18, 2004.
[7] Claimants could request that their claims be considered on one of
two tracks. Claimants selecting Track A have to provide substantial
evidence for the adjudicator to approve a claim. Most successful Track
A claimants are eligible for $50,000 payments and other relief.
Claimants selecting Track B have to demonstrate the merits of their
case in an evidentiary hearing conducted by the arbitrator--and can
receive amounts equal to their actual damages, a discharge of certain
existing debt and other relief.
[8] Under the terms of the consent decree, counsel for both parties to
the lawsuit each submitted two names for the court to consider
appointing as monitor. On January 4, 2000, the court entered an order
appointing Randi Ilyse Roth as monitor.
[9] Under certain circumstances, class members and the federal
government are allowed to provide additional information to the monitor
that was not included with the original claim if their claim was
processed under Track A.
[10] In addition, USDA was to use its best efforts to obtain the
assistance of community based organizations to communicate to class
members and potential class members that the court had preliminarily
approved the consent decree and the time and place of the March 1999
fairness hearing.
[11] Any declarations were required to be made pursuant to 28 U.S.C. §
1746, which prescribes the form in which such declarations, as true
under penalty or perjury, must be provided.
[12] Class members whose claims arose exclusively under non-credit
benefit programs, however, had to file under Track A.
[13] Substantial evidence is defined as relevant evidence appearing in
the record that a reasonable person might accept as adequate to support
a conclusion after taking into account other evidence that fairly
detracts from that conclusion.
[14] In addition, claimants could petition the monitor to request the
reexamination of some of the facilitator's screening decisions.
[15] According to the 2002 Agriculture Census, about 87 percent of the
African-American farm operators live in these states.
[16] See Randi IIyse Roth, Monitor's Report and Recommendations
Regarding Implementation of the Consent Decree for the Period of
January 1, 2002, through December 31, 2003, (St. Paul Minnesota: Aug.
19, 2004); and Monitor's Report Regarding Implementation of the Consent
Decree for the Period of January 1, 2004, through December 31, 2004,
(St. Paul Minnesota: Dec. 16, 2005).
[17] Speech of Mr. J.L. Chestnut of Chestnut, Sanders, Sanders,
Pettaway, & Campbell, L.L.C. at the Federation of Southern
Cooperatives/Land Assistance Fund's 2005 22nd Annual Farmer's
Conference in Albany, Georgia, February 19, 2005.
[18] As of February 6, 2006, the monitor had reviewed 4,236 petitions
for reexamination (3,631 from African-American farmers and 605 from the
government). Of these, the monitor directed the further reexamination
of 2,057 (1,979 from African-American farmers and 80 from the
government).
[19] Ninety-four petitions were from potential class members who had
been rejected by the facilitator in the initial screening process. The
monitor has reviewed all of these petitions and directed the
facilitator to reexamine 22 of them. As of February 6, 2006, the
facilitator had reexamined all 22 cases and has found all 22 of the
claimants to be eligible to participate in the claims process.
[20] The Ombudsman Association and the University and College Ombuds
Association recently merged to form the International Ombudsman
Association.
[21] GAO, Human Capital: The Role of Ombudsmen in Dispute Resolution,
GAO-01-466 (Washington, D.C.: April 13, 2001).
[22] The Superfund Program provides support to locate, investigate, and
clean up hazardous waste sites nationwide.
[23] Cordoza v. Pacific States Steel Corp., 320 F.3d 989 (9th Cir.
2003).
[24] Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003).
[25] Women Prisoners of District of Columbia Department of Corrections
v. District of Columbia, 93 F.3d 910 (D.C. Cir. 1996).
[26] See Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, §
124, 118 Stat. 2809 (2004); Department of the Interior and Related
Agencies Appropriations Act, 2004, Pub. L. No. 108-108, § 127, 117
Stat. 1241 (2003). The court held that this appropriations prohibition
made no mention of the Department of Treasury, which was also to bear
the costs of the monitor, and denied reconsideration of its order
requiring the defendants' to bear the costs incurred. In its concluding
remarks, the court noted that it "knows of no previous Congress that
has ever intervened in a specific pending civil action to reduce the
compensation rate for judicial officials below the market rate set by
the Court. For the legislative branch to interfere with an ongoing case
by attempting to preclude a court from ordering compensation rates for
its special masters appears to be wholly without precedent." Cobell v.
Norton, 263 F. Supp. 2d 58 (D.D.C. 2003).