Pigford & Class Action Part 1

As a result, a proposed class action lawsuit, Pigford v. Glickman, was filed in 1997 by Timothy Pigford in the U.S. District Court for the District of Columbia on behalf of Black farmers against the USDA. It alleged that the federal agency had discriminated against Black farmers from 1983 to 1997 when they applied for federal financial help and again by failing to investigate allegations of discrimination, ultimately resulting in systemic discrimination against black farmers on the basis of race, in violation of the Fifth Amendment, the Equal Credit Opportunity Act, Title VI of the Civil Rights Act and the Administrative Procedure Act.

After two years of litigation, the case was settled by the parties in 1999 and would ultimately become the largest civil rights class action settlement in the history of the United States up to that point, with a total of more than $1 billion in cash relief, tax payments and debt relief. The decree ultimately allowed claimants to receive a $50,000 settlement plus loan forgiveness relief and offsets of tax liability. Today, the case is only surpassed by Keepseagle v. Vilsack, a case which Native American farmers brought against the USDA in the wake of the Pigford settlement.

It looked like a huge victory for Black farmers. But as has so often been the case throughout this group's history, it did not play out that way and Black farmers were left with even more mistrust for the Federal government as a result.

The terms of the Pigford settlement agreement were outlined in a Consent Decree by U.S. District Court Judge Paul Friedman in April of 1999. That decree stated that eligible farmers were required to file their claims by October 12 that same year and also said that those claimants that demonstrated the required “extraordinary circumstances” for missing that deadline could file at a later date of September 15, 2000.

Approximately 22,000 farmers filed claims before the initial deadline and slightly more than 60,000 additional individuals requested permission to file late under the extraordinary circumstances provision. Ultimately, only 16,000 claims were approved for monetary payments, but 7,000 individuals were flat out denied and fewer than 3,000 of the original 61,000 late filers were found to have demonstrated the extraordinary circumstances needed to file their claim late.

This meant that more than 58,000 farmers did not even have their discrimination claims heard at all. And only about 400 Black farmers received any debt relief as a result of this settlement.

That did not feel like a win for many farmers looking for help after decades of discrimination.

In general, there was a consensus that the relief process itself was also discriminatory and burdensome to the very Black farmers it was seeking to help. For instance, one requirement in the settlement stated that Black farmers had to find a “similarly situated” white farmer who had not been discriminated against, in order to receive their compensation. The restrictive deadlines and lack of access to needed USDA documents to fulfill these requirements further served to leave many Black farmers feeling even further disenfranchised and helpless.

Many claimants said the problem was at the local level. The Farm Service Agency (FSA), the USDA’s lending branch, had county offices throughout the country that were often the first and only point of contact for farmers seeking access to government assistance programs. Black farmers stated that their dealings with FSA officials (who are pivotal in determining if loans are granted) were often tinged with racial bias, inexperienced personnel and lack of resources to help applicants.

“The process put in place keeps you from being able to apply,” said Carolyn Jones, a Black farmer and executive director for the Mississippi Minority Farmers Alliance, in an interview with Politico. She cited issues such as overly complex applications, lack of access to a competitive market and outright discrimination.

The confusion and widespread concern facing the implementation of the settlement only increased in subsequent years. It became such an obvious issue that in 2008, due to concerns about the large number of applicants who did not obtain a determination on the merits of their claims under the original Pigford settlement, Congress included a new provision in the 2008 Farm Bill that permitted any claimant who had submitted a late request under Pigford and who had not obtained a determination on the merits of their claim to petition in federal court to obtain such a determination.

Pigford II

That 2008 Farm Bill did not totally re-open the original Pigford case. Rather, it allowed Congress to provide a new right to sue. However, even though it created a new cause of action for tens of thousands of Black farmers, the total amount of funding in that Farm Bill for new and valid claims was only $100 million.

Regardless of limited reimbursement funds, the Farm Bill resulted in numerous new and separate lawsuits being filed, with these claims being consolidated into a single new case, In re Black Farmers Discrimination Litigation (commonly referred to as Pigford II).

After nearly two years of ongoing litigation and recognizing that $100 million would never be enough to pay all the valid claims from Pigford II, a settlement agreement was reached between the USDA and Black farmers in the lawsuit, which required Congress to fund an additional $1.25 billion for successful claimants.

Just like the original Pigford settlement, Pigford II provided two avenues for relief: any Black farmer able to demonstrate suffering from racial discrimination and timely filing received up to $50,000 and debt relief; or a separate but longer claims process was also available to farmers which provided up to $250,000. Nearly every single claimant pursued the first avenue, and the claims administer at the time estimated that 50-60% of those claims were approved, in a surprise contrast to almost 70% of approved claims in the original Pigford settlement.

That may sound like Black farmers were finally recompensed and supported after so many years fighting for equality with the USDA. But even after close to $2.3 billion was approved in the two Pigford cases, fewer than half of the total claims filed by Black farmers were approved overall. That left an incredible number of Black families and farms out in the cold and even the ones who finally received their settlement money were still not on an even playing field with white farmers.

Even Judge Friedman himself, in his original Pigford ruling, acknowledged as much. The U.S. District Court judge stated that based on USDA county offices long history of discrimination against black farmers, “it is probable that no amount of money can fully compensate class members for past acts of discrimination,” and that “$50,000 is not full compensation in most cases.”

So, where does $2 billion in assistance and settlements put things almost a decade later?

A HISTORY OF PROMISES
MADE AND BROKEN

Despite the years of media attention, policy changes, litigation, historic class action settlements and ongoing political support, by 2021 during the still ongoing COVID-19 pandemic, farmers of color had lost 90% of their land compared to a century ago, due in large part to systemic racism and an endless cycle of debt.

Despite the federal government’s recent track record of broken promises of financial assistance and debt relief for Black farmers, many still saw hope with the Pigford settlements and the 2003 opening of the USDA Office of the Assistant Secretary for Civil Rights as important steps in the right direction. However, the Trump administration decided to leave the post unfilled throughout his term in office and soon after that a trade war with China resulted in farmers across the country experiencing record-breaking losses.

President Trump’s administration quickly came to the aid of the agricultural industry in response to this trade war, creating a subsidy program to mitigate farmers’ losses, which resulted in a record $46 billion farm aid program.

But once again, Black farmers said that the financial assistance passed them over.

John Boyd of Baskerville, Va., founder and president of the National Black Farmers Association (NBFA) and participant in the original Pigford case, said, "That money went predominantly to white farmers and large corporate farmers." In 2019, The Counter, a nonprofit news organization focused on food and agriculture, reported that 99 percent of the subsidies provided to farmers linked to the trade war with China went to white farmers.

And then, on the heels of the trade war, COVID happened. And, as with everyone else in America, it hit Black and minority farmers hard.

President Biden campaigned on addressing the history of systemic racism faced by Black farmers and healing the USDA’s strained relationship between the federal agency and the minority farming community. Biden spent the summer leading up to the election criticizing discrimination in agriculture, organizing roundtable discussions and tapping former Black government officials in a strong effort to attract the vote of Black farmers. His campaign even released a comprehensive plan to work with nonwhite farmers to tackle these issues.

So, when COVID shut the country down and hit the Black farming and agricultural communities a critical blow, it was no surprise to see President Biden include substantial relief for them in some of the largest COVID relief aid packages.

In March of 2021, the President signed off on The American Rescue Plan, also called the COVID-19 Stimulus Package, a $1.9 trillion economic stimulus bill, which included $4 billion in debt relief and $1 billion in technical assistance for Black, Latino and Native American farmers.

It was a massive win and relief for farmers of color in a time of crisis and it seemed to finally be a fulfilled promise of help for the Black farming community.

“We saw an opportunity with this COVID package to begin the process of righting so many wrongs,” Agriculture Secretary Tom Vilsack said at the time in a meeting with farmers of color.

The aid is necessary, Vilsack said, because today’s minority farmers have inherited the disadvantages of their forebears being denied access to USDA services.

“They simply weren’t able to expand their operations, to get the technology and the opportunities to grow their operations,” he said.

And so, thousands of Black farmers once again had reason to hope.

It was with that same sense of hope that Barbara Norman, a Black fourth-generation farmer, first opened a letter from the USDA in late 2021. That letter forgave more than half a million dollars she owed the department for various loans she’d taken out for her farm over the years.

“I was so relieved … it was amazing,” she said in an interview with NPR at the time, recalling her initial reaction upon opening the letter.

But a year after that interview, the debt was still a part of Norman’s life and was yet to be discharged.

That was because, yet again, hope was snatched from the hands of Black farmers by political forces beyond their control.

The American Rescue Plan program was swiftly blocked by a dozen lawsuits, including one led by former President Trump’s adviser Stephen Miller and current Texas Agricultural Commissioner Sid Miller, who argued that the program was discriminating against them for being white.

In what was seen as an unusual move at the time, the Justice Department let the deadline to appeal the injunctions that froze the debt relief program lapse, choosing to instead continue the court battle in local jurisdictions.

“The government vigorously defended this program in the courts but because of these injunctions, the $5 billion provided by the American Rescue Plan remained frozen,” said USDA press secretary Marissa Perry at the time. “This litigation would likely have not been resolved for years.”

Which meant that the only timely remedy was in the hands of Congress, who could repeal or amend any program that it had authorized.

Lawmakers took the “repeal” route with the program and then passed a second one through the Inflation Reduction Act (IRA).

Seemingly in response to the dozen related lawsuits involving the American Rescue Plan, lawmakers inserted a provision into the Inflation Reduction Act that repealed and replaced the original program with $3.1 billion in debt relief for “economically distressed borrowers,” which included white borrowers. They also included $2.2 billion for farmers who have faced discrimination, regardless of race, an item of particular note given the related lawsuits from white farmers saying that the original program discriminated against them.

For many farmers, that meant complete cancellation of their debt. For many others, it meant partial assistance or none at all, even after they were promised a clean slate and full debt cancellation just a year prior.

“They just basically came up with new programs that benefit white people, but they used Black farmers to get the white farmers assistance as well, and we help them get it,” said Eddie Lewis, a Black farmer from Louisiana in a recent interview with NPR’s political correspondent. “And we are still stuck without the help.”

According to representatives from the Federation of Southern Cooperatives, which advocates for Black farmers, the loss of trust is what makes even the possibility of help something that seems out of reach now.

“You lose a lot of trust when there was very little trust even in the beginning,” said Brandon Smith, the outreach coordinator for the Federation. “These farmers were promised something by the government and then put on hold for over a year and a half.”

“They were told money was allocated to them during the pandemic. They were not able to use those funds. Now the Inflation Reduction Act was passed, they added more money to that pool, but they aren’t doing debt forgiveness.”

Boyd feels the same way.

“Well, it’s been rough waiting for the relief,” said Boyd, who stated that he’s not happy with the new program, which no longer sets aside relief money specifically for farmers of color.

“The language isn’t good for Black farmers. It’s too wide of a definition,” he said. Now, any farmer who claims to have faced any kind of discrimination or financial distress can apply for one pot of aid.

“Distressed could be any farmer, age discrimination, white women who feel they’ve been discriminated against and even white male farmers,” said Boyd.

That leaves less for farmers of color who’ve borne the brunt of the federal government’s lending discrimination.

As of the first quarter of 2023, around $850 million had been paid out by the USDA as part of the Inflation Reduction Act to farmers who were either delinquent or on the edge of being foreclosed upon.

But even the USDA acknowledges that is only the beginning of the bureaucratic process.

"The steps we've taken so far are really for lack of a better analogy, to stop the bleeding," said Zach Ducheneaux, a member of the Cheyenne River Sioux Tribe and first Native American in the role of administrator of the Farm Service Agency in a recent interview.

He said the next step is to deal with 15,600 "complex cases," including borrowers on the brink of foreclosure and those near delinquency.

"This work requires diligence and time to make sure we are doing right by producers and fundamentally changing our approach to be better and in a long-lasting way," said Dewayne Goldmon, senior advisor for racial equity to the secretary of agriculture. "I'm in this job to advance racial justice and opportunity — and we will keep mending and improving our approach at USDA to ensure Black farmers and any other farmers who have been left behind in the past are no longer left behind."

Many Black and minority farmers have taken the attitude of “this is better than nothing,” when it comes to the IRA. but even if some farmers have received more aid than in previous years, the history of broken promises and discrimination will be hard issues to overcome.