WRITTEN TESTIMONY of John W. Boyd, Jr.
On Behalf of the National Black Farmers Association 
Oversight field Briefing in Cincinnati, OHIO on Black Farmer Class Action Discrimination Settlement with
U.S. DEPARTMENT OF Agriculture 
Title: “Civil Rights in Light of Pigford v. Glickman”
National Underground Railroad Freedom Center
MONDAY, FEBRUARY 28, 2005

Constitution Subcommittee - Chairman Steve Chabot 
Mr. Chairman, Members of the Subcommittee and Committee, Congressman Scott. It is truly an honor and privilege to be here today, and I sincerely appreciate the opportunity to be a part of this historic field briefing, at the National Underground Railroad Freedom Center. Sometimes we are lucking, as individuals, when history brings us to profound places at profound times. 
I am John Boyd, founder and president of the National Black Farmers Association (NBFA). The NBFA was formed in 1995 and incorporated in 1996. We have helped lead the struggle and negotiations with government agencies for more than a decade.  
This morning I have come to testify to the “struggles of time” for the Black farmers in America.  
Over the past decade I have testified before Members of Congress, too many times to count. I have lobbied on Capitol Hill to ask Congress to lift the statue of limitations for Black farmers, lobbied for emergency funds for Black farmers, and lobbied for the establishment of the role of the USDA’s Assistance Secretary for Civil Rights, a position which Mr. Parker currently holds.  
Over all I can report some progress and setbacks over the years. In 1983 the USDA’s Office of Civil Rights was abolished leaving, African American and other socially disadvantaged farmers with little hope of any resolutions for civil rights complaints. What a disaster that was. At the time, there were two people working on cases of employment discrimination and not one USDA staffer assigned to work on black farmer discrimination complaints and cases. Piles and boxes of complaints, literally with years of dust growing on top of them, went virtually unprocessed, uninvestigated. I recall very clearly picking up my telephone at my farm house in Baskerville, Virginia to call the Office of Civil Rights. I called some 88 times without success until I decided to identify myself as John Boyd, the president of the National Black Farmers Association. Only then did someone return my call. 
This past decade has truly been a “struggle of time” for our members and other black farmers across America. Years have gone by, and black farmers have gone on. A livelihood, truly the first occupation for black people in this country has become the first occupation to face extinction in our community. Decades of discrimination within the USDA system has helped assure this fate. 
In more ways that one, I believe we have become faces of the Underground Railroad Freedom Center, invisible players in a larger historical movement. Over the years in our “struggle of time” there have been over one hundred reports that have been completed on this subject matter, under the watchful eye of both Republicans and Democrats. In this I include the civil rights action team report commissioned by then Secretary of Agriculture Dan Glickman. I am still hopeful with all the research reports including the most comprehensive project we recently completed with the Environmental Working Group (please Addendum below), the dedicated individuals in Washington and across the nation, and most of all the series of hearings by this committee we will be able to make a systemic change at the Department of Agriculture that will reverse the downward spiral. With your help we can assure a new era for young Black farmers in America. In 1997 we filed Pigford v. Gilickman, better known today as the Black farmer class action lawsuit, the largest civil rights settlement in American history. During the beginning stages of the lawsuit no one knew the exact number of Black farmers who were affected during the years approved in the consent decree. In the end more than 90,000 Black farmers plus petitioned to be a part of the class. The consent decree today has caused an enormous amount of concern. Our legal council has begun to sound like, act like, and defend the Department of Agriculture.  There are some 65,000 Black farmers who have not had their cases heard based on merit, which is not acceptable. These black farmers are wandering through the system with absolutely no legal guidance. No legal assistance is provided by the USDA or the Justice Department or Congress. This is just the first step to helping black farmers navigate through this broken system. INJUNCTIVE RELIEF
The Pigford consent decree provides that each successful claimant is entitled to injunctive relief in the form of:
1.) Priority access to one farm ownership and one farm operating loan
2.) Priority access to USDA inventory farmland
3.) Consideration of his or her application for a loan or inventory property in “a  light most favorable to the class member”
4.) Technical assistance 
Since 1999 we have attempted to draw federal support to promote the injunctive relief options of claimants under Pigford. Yet, because we are a non-profit organization that operates on a limited budget, and because we are barred from using any USDA grant monies to promote the injunctive options, we have found it difficult to play the role of the USDA grassroots field operation, though we have offered to help as best we can. None of the above injunctive relief options would cost USDA any additional funds, yet USDA does little to ensure black farmers take advantage of these options as a closing deadline, April 2005, approaches. To date very few black farmers have received “injunctive relief” in this process. Only 100 class members have received injunctive relief. The NBFA finds this to be evidence of a total failure of the class action settlement.  Mr. Chairman we need your support to keep the doors open to the benefits of injunctive relief and we need your support to force USDA to ensure black farmers have fair access to benefits under each of these steps. In my own personal case, I was unable to navigate through this injunctive relief process, even though I was a successful claimant under Pigford. I proved my case, demonstrated discrimination, yet could not take advantage of these steps of injunctive relief. 
Mr. Chairman, I can report to you this morning that our own lawyer, referred to as “class council” and “participating council,” failed to fully explain what “injunctive relief” is and how to take advantage of it. Second, the USDA, through its outreach activities, should have always offered guidance on “injunctive relief.” Yet it does not. This is a major failure. Earlier this month, USDA said it would not extend “injunctive relief.” The sickening realization is it would not cost USDA any additional funds to do it.  
 
Today many Track A cases are still pending and the NBFA receives calls every day from participants asking when they will receive their fifty-thousand dollars ($50,000). The point is that many black farmers sit in limbo. This process has identified they were the victims of USDA system discrimination yet our government cannot find an expeditious way to compensate them. Our democratic system ensures that our entire government can change hands with each election. Yet our bureaucracy cannot find a way to complete the cases of many black farmers in six years. 
Mr. Chairman, as you move forward in your deliberations, I urge this committee to engage the full Agriculture Committee. Many of the obstacles that currently face black farmers will come through the jurisdiction of the full Agriculture Committee. To include new legislation to address longstanding concerns that have festered for decades, they must be partners of ours. In closing, there is a terrible misconception in the South as it relates to the black farmer class action lawsuit. The NBFA receives calls on a daily basis from black farmers who are uninformed about the settlement and are still asking how to sign up to be a claimant in the lawsuit. It’s becoming more and more difficult as the “struggle of time” goes on to try and explain the class action has been closed for quite some time. The reality is there are some 66,000 black farmers who have not had their cases heard, based on their merit. And some 9,000 black farmer cases the NBFA specifically supports for further review.  
Congress must act to open an extension of the statue of limitations in this case to allow for those cases to be heard by a special master. With your help, Mr. Chairman, if the Department of Justice, the Department of Agriculture, Office of General Council and our very own class council would do their best, we could fix this problem. 
ADDENDUM As two independent non-profit organizations working on farm policy, the National Black Farmers Association (NBFA) and Environmental Working Group (EWG) joined forces to evaluate the outcome of the landmark civil rights settlement between black family farmers and the Department of Agriculture, producing a report in 2004, which found that the settlement was a failure for the majority of farmers with discrimination complaints.  
We analyzed court documents and settlement statistics, interviewed farmers and attorneys involved in the settlement, talked to the settlement's governing bodies, and reviewed expense reports and timesheets from the United States Department of Justice. Our key findings were that: 
* Nine in ten black farmers who came forward with complaints of discrimination were denied access to the settlement funds.* The settlement was estimated to be worth $2.3 billion dollars in compensation to black farmers before the size of the class was even known. So, depending on the actual of the class, the value of the settlement could have gone much higher. In fact, the size of the class was larger expected, but black farmers received only twenty-five percent of the settlement’s estimated value in direct payments awarded through the settlement.
 
* The Department of Agriculture withheld vital information that was required to prove the black farmers' settlement claims and spent $12 million dollars on 56,000 Department of Justice legal staff hours to challenge black farmers one-by-one.
 
The settlement was an opportunity for the Department of Agriculture to take responsibility for the decades of discriminatory treatment it has imposed on hardworking black family farmers, but, instead, the Department committed time and resources to vigorously challenging the farmers' claims under the settlement, and failed to take any affirmative steps to address any of the problems with the way that the settlement was carried out.  
 
The specific problems, which the Department of Agriculture could address, either by voluntarily acting on its own, or by proposing an agreement with the lawyers for the farmers, include:  
* Providing an opportunity for the nearly 64,000 farmers who were denied access to the settlement on the grounds that they filed too late, a chance to participate in the settlement. The last hearing of this Subcommittee documented, through the testimony of farmers, and through the testimony of the company that was paid to ensure that farmers received notice of the settlement, that the notice campaign was poorly crafted, and did not, in fact, reach most affected farmers. The Poorman-Douglas representative admitted that the notice program was not well funded, and that the company significantly underestimated the number of potentially affected farmers. The notice campaign for the settlement was not conducted by an expert in agriculture communications, it was not distributed through regular Department of Agriculture communications to farmers, it did not include direct mailing, and it was a failure at actually reaching farmers. Notice is a fundamental component of the due process rights that our constitution guards so closely, and the lack of notice in this settlement may have ultimately deprived 64,000 farmers of the right to seek justice for discrimination by a federal agency. It is not too late for the Department of Agriculture to step forward and agree to an extension of the deadline for these 64,000 farmers, and if the Department will not agree to do this, then Congress is our only hope for justice.* The Department should also reverse its decision to deny access to information that it holds in its files that could help farmers prove their claims. A major problem with the settlement was the Department of Agriculture's refusal to release information on white farmers while arguing that the black farmers in the lawsuit had to meet exacting standards for proving their claims. This unreasonable denial of access to information on white farmers may have caused some 8,500 black farmers, who were admitted to the class, to lose their claims. The Department of Agriculture clearly had the advantage, with the unlimited access to information on all farmers in the Department's programs, with the thousands of hours that the legal team at the Department of Justice devoted to challenging claims, and with the settlement's complete lack of discovery rights, to effectively ensure that the number of farmers in the settlement who actually succeeded was kept to a minimum. Ultimately, in a settlement that was supposed to provide a "virtually automatic payment" to those that were allowed into the class, 40% of the farmers in the settlement received nothing. These farmers agreed to the settlement, expecting "virtually automatic" relief, giving up their rights to go to trial in federal or administrative court, and instead they faced obstruction and adversarial treatment from the agency that was supposed to be helping them. The playing field was clearly stacked in the Department of Agriculture's favor. An individual farmer simply doesn't have a chance when faced with no discovery rights, and two federal agencies working to challenge each individual farmer's claim. This problem, however, has a straightforward solution. The Department of Agriculture can address this issue by agreeing to release information on white farmers, under seal, to all farmers and attorneys involved in the settlement, and allowing for all cases to be re-evaluated in light of this newly released data. This would only be fair, in light of the tremendous inequities that are present in the current structure. And if USDA refuses to take this step to ensure the fairness of the settlement, then Congressional action would be the only solution. * Subsequent research has revealed that an attorney assigned by the Department of Justice to work on the Pigford cases was not licensed to practice law. DOJ has confirmed that this person was hired to serve as a "General Attorney," and represented USDA under the guise that she was a licensed attorney, in at least six Track B cases--where farmers participate in a quasi-trial process to prove their damages. This attorney appeared as the attorney of record in two arbitration hearings, filed a petition to overturn a favorable ruling for a farmer, and worked on the case of a farmer who ultimately agreed to a settlement. Although DOJ has contacted the attorneys for the farmers, neither DOJ nor USDA has reported that they will allow these farmers to have their cases reexamined in light of the fact that a DOJ attorney who misrepresented herself as a licensed lawyer handled their claims. Fairness dictates that USDA allow these farmers at least have the chance to obtain reexamination and reassignment to a reputable, licensed attorney. Without USDA's voluntary action, then the only alternative is for this Subcommittee step in to ensure that these farmers have that opportunity.