Teddy Miller is an endangered species. He grows peanuts, corn and wheat, and raises cattle near Blakely, a town in southwest Georgia. Like his father before him, Miller, 49, has been working the fields since childhood.
Farming has always been a tough way to earn a living, requiring a willingness to do backbreaking work around the clock, along with a high tolerance for financial risk. But it’s been even tougher for African-American farmers like Miller.
Most successful farmers need substantial help from banks or the government. Loans or subsidies pay for seed and equipment, with the payoff coming months down the road, assuming nothing goes wrong with the harvest.
“Farming is like raising a kid, except in one year instead of 18,” Miller said in an interview. “Through the rain, the sun and snow. It’s a challenge. If he turns out good after all this, you feel proud of yourself.”
Unfortunately for Miller and thousands of other black farmers in Florida and other states, they faced adverse forces that had nothing to do with nature. Decades of pervasive discrimination by the local administrators of the U.S. Department of Agriculture’s various loan programs caused many black farmers to be denied funds for which they qualified. The result was that most went out of business, either through foreclosures or because they simply quit in disgust.
“A lot of farmers got tired of working like I do,” Miller said. “They gave up and got another job.”
From almost a million strong in 1920, the number of black farmers declined to less than 20,000 by the 1990s. As far back as 1965, a U.S. Civil Rights Commission study documented USDA discrimination against black farmers. In 1982, another study warned that farming by African-Americans could cease to exist by 2000 if the government failed to help them financially.
Last month, Miller’s decades of persistence finally paid off. His Fort Lauderdale-based attorney, Sidney Calloway, wired him $879,000 — his reward for seeing through a lengthy legal wrangle with the federal government. “He toughed it out for more than a few years,” said Calloway, a partner at Shutts & Bowen. “He lost a lot of land, but he kept farming. A lot of farmers were so disheartened by all this, they threw up their hands.”
The money was the result of a federal class action lawsuit filed in 1997 on behalf of several hundred black farmers around the country. It was believed that about 400 Florida farmers would qualify. The suit alleged violations of the Equal Credit Opportunity Act and the Administration Procedures Act. It claimed that the USDA discriminated against black farmers by delaying or denying their applications for loans and technical assistance.
It also claimed that the USDA failed to process the black farmers’ civil rights complaints for many years after the Reagan administration in 1983 disbanded the department’s Office of Civil Rights. That allegedly caused a backlog of discrimination complaints that were never investigated, or else were delayed until they became meaningless.
The suit was filed by attorneys David Frantz and Alexander Pires of Conlon Frantz Phelan & Pires in Washington, D.C; J.L. Chestnut of Chestnut Sanders Sanders Pettaway Campbell & Albright of Selma, Ala.; and Philip Fraas of Washington, D.C.
In 1999, U.S. District Judge Paul Friedman in Washington, D.C., ruled that the USDA had broken the federal government’s Civil War-era promise of “40 acres and a mule” to former slaves.
The department had done so, Judge Friedman found, by allowing its Farmers Home Administration loan system to be controlled by commissions of local farmers, who were almost all white. These commissions routinely denied loan applications by blacks, required excessive collateral, or delayed the loans until after planting season, by which time it was too late.
That same year, the USDA agreed to a settlement estimated to total $2.25 billion, considered the largest civil rights settlement in U.S. history. The department admitted no wrongdoing but agreed to compensate black farmers who could prove they were denied credit between 1981 and 1996 or who received late approval from the Farmers Home Administration. It was thought at that time that 5,000 to 6,000 farmers or their survivors would be eligible to file claims. But that number turned out to be far too low.
Frantz said that by the time the process is complete, the payout to current and former black farmers in Florida and other states will total almost $1 billion, plus millions more in debt relief. He said the total fees and costs awarded to the eight law firms that served as class counsel is about $15 million.
USDA spokesman Ed Loyd said that although not required by the settlement, his department has reformed the farm loan approval process. Loans now are processed by federal employees rather than locally elected commissions of farmers. In addition, the department has established the position of assistant secretary for civil rights within the USDA.
Loyd noted that the 2002 agricultural census found about 28,000 black farmers working farms — an 8 percent increase from 1997 and the first increase in a century. “We’ve made substantial progress,” he said.
But winning the court decision in 1999 was only first part of the legal battle. After that, lawyers like Calloway fanned out across rural areas of the country to educate current and former farmers about the settlement and how to file their claims.
The class action settlement gave black farmers who thought they qualified two options. They could take Track A, which required a relatively low burden of proof, with qualification being determined by an adjudicator. If they met the requirements, they would get $50,000 tax-free and be eligible for tax assistance, debt forgiveness, foreclosure termination and a one-time priority loan consideration.
Alternatively, there was a Track B process for farmers who could prove discrimination and damages exceeding $50,000. It was a much more rigorous process, with motions and a lengthy hearing in front of an arbitrator. Claimants had to prove by a preponderance of the evidence that white farmers in similar situations got a better deal from the government than they did.
Justice Department attorneys represented the USDA and proved aggressive in challenging black farmers’ claims in both the Track A and Track B process. When either party appealed the arbitrator’s decision, a court-appointed monitor reviewed the case and sent it back to arbitration if error was found.
Shutts & Bowen was chosen by the class counsel to administer the claims program in Florida, where it was estimated 400 or more black farmers would qualify. In 1999, Calloway formed a team of lawyers, paralegals and law students to travel around the state and meet with potential claimants. Calloway had joined the firm the previous year as a litigator with a focus on government.
Calloway also was asked to speak to farmers in Georgia, Louisiana, Texas and Alabama because of his public speaking experience. Thus, his firm ended up representing farmers in several states.
Nearly 22,500 farmers across the country eventually filed claims that were accepted into the class covered by the settlement. In Florida, nearly 1,000 farmers applied for compensation under the Track A process, according to statistics gathered by the Environmental Working Group.
But to date, only about 14,000 people nationally actually have recovered money from the government. Their total recovery so far is about $870 million, mostly in the form of $50,000 checks and debt relief, according to the court-appointed monitor reports. There are a few hundred claims yet to be resolved, and approximately 2,500 appeals of arbitrator decisions still pending, according to Frantz.
Calloway said Shutts & Bowen helped obtain $17 million in Track A compensation for about 255 farmers from various states who each received $50,000.
For his law firm, much of this has amounted to pro bono work, both he and firm chairman Bowman Brown say. Shutts & Bowen has collected only about $135,000 in fees and costs from the government for its work on the farmers’ cases, Calloway said. He estimates that he and his colleagues — 12 lawyers at the firm and about 17 law students and clerks — have spent more than 4,000 hours over the past six years working on these cases.
The firm will end up writing off probably $300,000 to $400,000 in attorney time spent assisting farmers in filing their claims, though it has a pending claim before the government seeking additional fees and costs. One big reason is that Judge Friedman ruled in 2000 that the government was not required to pay attorneys for time spent on unsuccessful claims.
Calloway said that is unfair because he and other lawyers had to travel around the country to educate potential claimants, help them determine whether they were eligible and assist them in preparing their claims. He said the lawyers had to help everyone who came to the education sessions.
“We’re going to lose money on this,” Calloway said with a rueful laugh. “We realized we would probably wind up doing some of the work pro bono. We probably did more pro bono than what we would have done if the circumstances were better known to us at the time. But it was pro bono nonetheless.”
Case ‘faded out’
One South Florida claimant was George Brennen, who’s now 82. He’s a retired farmer living in Fort Lauderdale. Brennen applied in 1999 under the Track A process to recover $50,000 under the class action settlement.
Brennen moved to South Florida from Georgia in 1937 and was a farm hand in Pompano Beach for 30 years. He saved enough money to begin renting the land to run his own operation in West Palm Beach, which he did from 1967 until retiring in 1998. He grew peppers, squash, beans and tomatoes.
Farmers Home Administration loan officers, he said, would tell him he didn’t qualify for the money, or they would give him a little money but too late. “They would give you just a little bit but not enough to go do anything,” he said. “And they wouldn’t get it to you until all the other farmers had rented up the good land for the season. You have to take what’s left.”
But like nearly 40 percent of the farmers who applied for compensation under the class action settlement, Brennen received nothing. “They said I was going to get it, but I never did,” he said with a sigh. “It looked like it just faded out.”
Calloway said he’s not sure what happened with Brennen’s case and that he will look into it.
Teddy Miller had a very different experience. Few claimants chose to go down the more onerous Track B route, but Miller did. Nationally, fewer than 200 Track B claims were filed. The average award was $550,000.
Miller’s was the case that pulled Calloway into the black farmer’s class action.
Calloway, 46, long has been a prominent advocate for black causes in Broward County. He’s a past president of the T.J. Reddick Bar Association, Broward’s black lawyers group. He’s pushed for more black judges and for minority voting districts for County Commission and the School Board.
In the course of this civil rights work, he met David Miller, an Atlanta-based consultant who was trying to persuade Broward County to order a study of its record in awarding contracts to small, minority-owned businesses. Miller was the first to tell Calloway about the farmers’ class action. He also told the attorney about his father, Andrew, and his brother Teddy, both farmers. David Miller wanted to make sure they got a good lawyer, because he suspected that his brother’s claim in particular would be sizable.
Calloway was interested because he remembered — and not fondly — having to help foreclose on family farms when he was a young clerk working for the Justice Department in Missouri. So he listened to the Millers’ stories. Key elements of the tale became painfully familiar to him by the time he had interviewed hundreds of farmers throughout the South.
“The stories were so similar,” Calloway said. “Stories about how farmers would go into these commission offices and present them with legitimate farm plans and be told that their plans wouldn’t work, or there was no money for the program. Then a white farmer would come in after them, and the staff would bypass them and serve them.”
Pack rat’s advantage
Blakely, Ga., is the seat of rural Early County, which is noted for peanut farming. The population now totals roughly 12,000, evenly split between blacks and whites. Median income is well below the national average.
That’s where Miller grew up on his family’s farm. He said he always knew farming was his destiny. But he wanted to take the small, family operation he acquired from his father and expand it. To achieve that, he applied for loans while working other jobs to cover his expenses. He was one of Early County’s first black deputy sheriffs, a position he held for 20 years.
He also worked at the local paper mill. That might have been the start of his troubles with the USDA loans. “It rubbed a lot of people in the county the wrong way,” Calloway said, “because in rural America, black people have a place and he was always rubbing up against that as an issue.”
In 1981, Miller did get a USDA loan, which he paid back. But the next time he visited the Farmers Home Administration office, he ran into a loan staffer Calloway describes as a “rural redneck.” The man told Miller he wouldn’t be getting any more loans from the government.
“Why not?” Miller asked. Because, he was told, “you’re the guy who has this job at the paper mill. You don’t need a loan.” The man told him it would be “a cold day in hell” before he got another loan from the U.S. government. The loan officer also threatened him by saying, “If you make too much noise, we’ll make sure you don’t get any loans from the private sector.”
Miller figured the man could make life even more difficult for him, so he decided not to pursue the loan. In the 1990s, Miller was still eking out a living on the farm when he heard about the class action settlement.
When Calloway first visited Teddy Miller on his farm, he quickly discovered that Miller had one big advantage over many other farmers in bringing his claim. Miller is a pack rat. The farmer led him past his herd of cows to the barn, where a half-dozen boxes contained every document related to the farm spanning all the years Miller had operated it. Many farmers or their descendants lacked thorough records.
Based on the old documents, Calloway spent a year and half building Miller’s case. With the help of Clark Atlanta University economist Charles Carter, Calloway calculated that the government owed Miller nearly $1 million.
Clark said he reviewed local data on black farmers and USDA lending patterns by race, and figured out how much Miller could have made if he had received the same loans as neighboring white farmers. “I looked at a similarly situated white farmer,” Carter said. “His growth trends compared to Mr. Miller’s growth trends. [The white farmer] was a lot further along.”
‘Redneck’ made his case
Miller’s arbitration hearing took place in Washington in early 2001. The arbitrator was a recently retired judge. The session lasted 13 hours. “It was basically a minitrial,” Calloway said. “We had to prove all the elements of a discrimination lawsuit and prove damages.”
At the hearing, the Farmers Home Administration official who had denied Miller the loan made Calloway’s job considerably easier with his behavior as a witness. Under questioning by Calloway, the man became angry and kept trying to rise out of his seat as if he were going to assault his interrogator.
“The judge had a chance to see what the man was really like,” Calloway recalls. “Can you imagine how he conducted himself in his own office down in Early County with just he and Teddy there? That destroyed [the government’s] case.”
In 2002, the arbitrator ruled that Miller had proved discrimination. The USDA appealed to a court-appointed monitor. But the department ultimately lost when the monitor ruled — three long years later in July 2005 — that Miller was entitled to damages of $879,000.
Having received the money last month, Miller says he’s pleased. But he’s philosophical about the outcome. While he received a nice cash settlement, it doesn’t compensate for the many years of struggle when he had to work second jobs to keep the farm and support his wife and two daughters.
“You’ve got [white] farmers that wrote off millions of dollars [in crop losses] and are still farming,” he said. “They go lay down in their beds at night. I get off work, lay down for a couple of hours, and then go out to do another job to make it work.”
Miller also knows that many other black farmers who suffered the same discrimination he faced never received a penny in compensation. For him personally, he said, this time “it went right, but it ain’t right. I tell the boys, ‘You live in a white man’s world, but you can play the game and win. You just can’t give up.’ You’ve got to have love and a sense of humor in beating the system.”
One black farmer who hasn’t received any money is Miller’s father, Andrew, who gave Teddy his first land to farm and taught him everything he knew about farming. Calloway says an adjudicator in the Track A process found Andrew’s claim insufficient. Andrew has appealed the denial to a monitor, and the decision is pending.
Calloway hopes to offset some of his firm’s overall losses with a big payday from Teddy Miller’s case. He’s currently preparing to bill the government for his extensive work on that case, and anticipates that the fees and costs will exceed the compensation his firm received for the hundreds of Track A cases it worked on.
Challenging the settlement
While Miller fared well, many other farmers were dissatisfied with how the settlement process worked out, says John W. Boyd, Jr., president of the Baskerville, Va.-based National Black Farmers Association.
The settlement’s stipulations disqualified many farmers who had experienced USDA discrimination prior to 1981, or who couldn’t produce the necessary paperwork. Others complained that the settlement did nothing to help black farmers survive and thrive in the future.
“This could have been a major victory for black people in this country,” Boyd said. “To me, it was a test case for reparations [for slavery]. But the money went to consultants and legal teams, and the farmers are still holding the bag.”
A small group of farmers and their attorneys petitioned Judge Friedman to reopen the settlement. But last January, Friedman rejected the petition and affirmed his judgment and the settlement, saying it was “fair, reasonable and adequate.” In his ruling, he left room for Congress to act if it chose. Boyd said those opposed to the settlement now are seeking congressional sponsors for new legislation.
The case has been fraught with other controversies. Earlier this year, a Jacksonville man pleaded guilty to one count of conspiracy for passing his relatives off as farmers to collect $150,000 in settlement payments. Two female co-conspirators also were arrested. One pleaded guilty and the other was recently charged.
David Frantz said the lawyers who worked on the class action hope the overall size of the payout has at least forced the USDA to recognize its decades of discriminatory practices and reform its ways. “It’s a first step, but we aren’t there yet,” he acknowledged. “On a daily basis we talk to farmers. Some feel they are getting better treatment, and others say it’s the same old stuff.”
Still, the relative success of the black farmers’ class action led the attorneys who brought that case to file three companion discrimination suits against the USDA on behalf of Hispanic, female and American Indian farmers. The suits claim that these groups also were unlawfully denied Farmers Home Administration loans and technical assistance for many years.
The Indian case has been certified as a class action, representing potentially as many as 30,000 farmers. The other two classes, under a different judge, were denied the status; that issue is on appeal.
Calloway said the black farmers’ case was important because “discrimination goes to the core of a person’s soul. It cuts down to the bone like almost nothing else. But when’s it’s systematic, it deprives a people of the economic ability to sustain and to grow their own community.”
He said he’s glad he got involved in the case, even if it was unprofitable financially. “To have been part of this historic lawsuit is one of the things I will always look back on with lots of affection and satisfaction,” Calloway said. “Criss-crossing rural America to help a class of folks that long had been discriminated against is an experience you don’t forget.”
Law editor Harris Meyer provided additional reporting for this article.
Sidney Calloway photo by Melanie Bell