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Still Seeking Justice for Hispanic Farmers and Ranchers

Still Seeking Justice for Hispanic Farmers and Ranchers

Photo: Hispanic Farmers

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The attached materials address the blatant discrimination against Hispanic and female farmers perpetrated by the Obama Administration in its purported efforts to settle the lawsuits brought by black, Native American, Hispanic and female farmers against the United States Department of Agriculture that it inherited from the Bush Administration. Unfortunately in trying to settle these lawsuits, the Obama Administration has provided settlements for black and Native American farmers that substantively and procedurally were far more favorable and far less onerous than the settlement that it has proposed for Hispanic and female farmers. You can also learn much more about this discrimination by going to www.garciaclassaction.org and www.cantuclassaction.org. Given Governor Romney’s most recent pivot to co-opt President Obama’s fairness theme, the rank hypocrisy of the Obama Administration’s blatant discrimination against Hispanic and female farmers who are also voters presents a striking contrast to the rhetoric of fairness and everyone playing by the same rules. I am also attaching a brief summary of the cases and an article that you might find of interest.Stephen S. Hill   The Law Office of Stephen S. Hill

For years, USDA has denied minority farmers equal access to farm credit and non-credit farm benefit programs, while urging the farmers to complain to it of such discrimination despite having secretly dismantled its civil rights enforcement capability in the early 1980s.  Thereafter, USDA, in violation of its own regulations, refused and still refuses to investigate discrimination complaints.  As a result, black, Native American, Hispanic and female farmers brought four identical lawsuits:  Pigford, Keepseagle, Garcia and Love, respectively.  The cases were eventually assigned to three judges.  Two judges certified the black and Native American farmers’ lawsuits as class actions, holding that commonality was established by USDA’s admitted refusal to investigate discrimination complaints filed with it.  Those rulings were ultimately approved by the court of appeals and, in the black farmers’ case, resulted in a settlement in which the government paid over $1 billion in damages and other relief to over 15,000 black farmers.  Despite those facts, the third judge, who presided over both the Hispanic and female farmers’ lawsuits, refused to certify those cases as class actions.

The underlying discrimination is conceded.  Secretary Glickman, the original defendant in the four lawsuits, testified before Congress that USDA had a “long history” of unlawful discrimination against minority farmers and that “[g]ood people lost their family land . . . because of the color of their skin. . . .”  Rosalind Gray, a former director of USDA’s Office of Civil Rights, testified that “the systemic exclusion of minority farmers remains the standard operating procedure of FSA [Farm Service Agency],” the USDA agency that administers farm credit and non-credit farm benefit programs.  The government continues to discriminate against Hispanic farmers even as it ostensibly seeks to settle the discrimination claims of all minority farmers.  While President Obama and Secretary Vilsack inherited the discrimination in the administration of USDA’s farm programs, they have engaged in discrimination in the administration of justice in seeking to settle identical lawsuits. 

When the third judge refused to certify the Garcia and Love cases as class actions, the plaintiffs ultimately appealed that ruling and the government took the unusual step of supporting the appeal because it argued that the Garcia, Love and Keepseagle cases were identical and that a ruling affirming the denial of class certification on the so-called failure-to-investigate issue would control the issue of class certification in all three identical cases brought by Hispanic, female and Native American farmers.  (At the time of the appeal the government had settled the original black farmers’ case and the subsequent cases by Black farmers who missed the deadline to participate in the settlement of the original black farmers case (Pigford I) had not been filed.)  Eventually, after two appeals and six years of litigation, the government ultimately achieved the ruling that it had long sought when the Supreme Court denied cert in January 2010..

During the intervening years, Congress passed Section 14012 of the 2008 Farm Bill giving black farmers who missed the filing deadline to participate in the original (Pigford I) black farmers’ settlement the opportunity to file new lawsuits, resulting in 17 lawsuits that became known as Pigford II.  Although none of the plaintiffs moved to have their individual cases certified as a class actions, the government, from the outset, treated those lawsuits as if they constituted a valid single class action and ultimately negotiated a class settlement for those cases.  The government also increased the $100 million initially appropriated to cover the Pigford II claims to $1.25 billion.  Thus, the government has either paid or committed to pay a total of $2.25 billion to cover the claims of black farmers.

When the Obama Administration took office there were four sets of identical cases brought by black, Native American, Hispanic and female farmers.  Eventually, the Administration offered to settle all four sets of cases by providing a dual track alternative dispute resolution (“ADR”) process for resolving the claims of the respective minority farmers similar to the process used to settle the original black farmers’ lawsuit, Pigford I.  However, rather than offer the same ADR process to each victim group, the Administration instead has offered Hispanic and female farmers a settlement process that is substantially less favorable and more onerous than the ADR processes that it offered to black and Native American farmers.

Specifically, the Administration has offered Hispanic and female farmers a dual track ADR process that provides up to $50,000, a flat $50,000 (with no limit on the number of such successful claims) and up to $250,000, respectively.  By contrast, the Clinton Administration offered black farmers in Pigford I a dual track ADR process that provided them $50,000 and such damages as they could prove without limitation (the largest amount is approximately $13 million).  The Obama Administration, for its part, offered black farmers in Pigford II and Native American farmers a dual track ADR process that provides up to $50,000 and $250,000, respectively.  Limitations on the individual recoveries in Pigford II and Keepseagle are imposed because those cases, unlike Pigford I, involve fixed sums for damages set by legislation in Pigford II ($1.25 billion) and a settlement in Keepseagle ($760 million), respectively.  Garcia is clearly most analogous to Pigford I in terms of how it should be resolved because, unlike the claimants in Pigford II, Hispanic farmers have never missed any filing deadlines and, unlike the claimants in Keepseagle, Hispanic farmers have not agreed to limit on their damages. 

In addition, the government has set aside $1.33 billion that must be shared by Hispanic and female farmers to cover their claims.  That amount is 59% of the $2.25 billion either already paid or allocated to be paid to black farmers, despite the fact that Hispanic farmers and female farmers outnumber black farmers by at least 12 to 1 and Hispanic farmers alone outnumber black farmers by nearly 2 to 1.  Indeed, Hispanic farmers have outnumbered black farmers in every Census of Agriculture since 1992.  As a result, Hispanic farmers filed a second lawsuit, Cantu v. Vilsack, alleging discrimination in the administration of justice owing to the discriminatory way in which the government has sought to settle these identical cases. The court is holding Cantu in abeyance pending the issuance of the final settlement process in Garcia.

The government attempts to justify the discriminatory settlements by arguing that Garcia and Love, unlike Pigford I and Keepseagle, were not certified as class actions.  The argument is specious.  First, using an ADR process to settle all of the cases makes a class certification completely irrelevant because must satisfy the requisite burden of proof applicable to each track before the claimant can recover damages.  Second, the government negotiated a class settlement with the black farmers in the 17 Pigford II cases although none of those cases had been certified as a class.  Third, after finally achieving the long-sought ruling on the failure-to-investigate claims, the government applied it along racial and gender lines, invoking it to refuse to settle the Garcia and Love cases on a class basis, but refusing to invoke it to block class settlements in Keepseagle, which the government expressly conceded was identical to the Garcia and Love cases, or the pending Pigford II cases.

The Obama Administration’s discrimination against Hispanic and female farmers clearly violates the United States Constitution’s guarantees of equal protection and due process of laws.  It also violates the fundamental notions of fairness that the Obama Administration seeks to make central theme of the reelection campaign, a theme that as recently as Tuesday night Governor Romney, in his most recent pivot, he has made clear he intends to co-opt as a campaign theme.