In re Black Farmers Discrimination Litig.

• Decision Date: 10 November 2011
• Docket Number: Misc. No. 08–0511(PLF).
• Parties: In re BLACK FARMERS DISCRIMINATION LITIGATION. This document relates to: All Cases.
• Court: U.S. District Court — District of Columbia

856 F.Supp.2d 1

In re BLACK FARMERS DISCRIMINATION LITIGATION.

This document relates to: All Cases.

Misc. No. 08–0511(PLF).

United States District Court,

District of Columbia.

Oct. 27, 2011.

As Amended Nov. 10, 2011.

Alphonso Michael Espy, Mike Espy, PLLC, Jackson, MS, Andrew H. Marks, David E. Bell, Laurel Pyke Malson, Michael Wyld Lieberman, Crowell & Moring LLP, Anurag Varma, Benjamin G. Chew, Patton Boggs LLP, Brian P. Phelan, Conlon, Frantz & Phelan LLP, Faya R. Toure, Gary Edward Mason, Mason LLP, Phillip L. Fraas, Stinson Morrison Hecker, LLP, Jennifer I. Klar, John Peter Relman, Reed Colfax, Relman, Dane & Colfax, PLLC, Washington, DC, David Joseph Frantz, David C. Silver, Blum & Silver, LLP, Coral Springs, FL, Gregorio Francis, Morgan & Morgan, P.A., Orlando, FL, Harris L. Pogust Pogust & Braslow, LLC, Conshohocken, PA, Henry Sanders, Chestnut Sanders Sanders & Pettaway, Selma, AL, Andrew J. Meyer, Morgan & Morgan, P.A., Fort Myers, FL, Joseph P. Strom, Strom Law Firm, LLC, Columbia, SC, Rose M. Sanders, Chestnut Sanders Sanders & Pettaway, Kindaka J. Sanders, Sanders Law, Selma, AL, Scott William Weinstein, April England–Albright, Atlanta, GA, for All Plaintiffs.

Tamara Lynn Ulrich, Tamra Tyree Moore, U.S. Department of Justice, Washington, DC, for Defendants.

Lillie M. Wingard, Kasciusko, MS, pro se.

Robert E. Walker, Tuscaloosa, AL, pro se.

Henry Barris, pro se.

Muhammad Robbalaa, pro se.

Karla K. Bates–Adams, Hill City, KS, pro se.

Terrie L. Bates–Best, Hill City, KS, pro se.

Theodore B. Bates, Jr., Hill City, KS, pro se.

Brad E. Bates, Hill City, KS, pro se.

Ava L. Bates, Hill City, KS, pro se.

Kerry F. Bates, Hill City, KS, pro se.

Ada C. Bates, Hill City, KS, pro se.

Doris Gray, pro se.

Errol Von Hart, Albany, NY, pro se.

Diahann C. Stevens, Atlanta, GA, pro se.

Booker T. Woodard, Pinola, MS, pro se.

Justin G. Fouts, pro se.

Willa G. Fouts, pro se.

Ronald Otto Gaiser, Jr., Gaiser & Johnston, Birmingham, AL, Alexander John Pires, Jr., Pires Cooley, Washington, DC, for Movant.

David Joseph Frantz, Conlon, Frantz & Phelan, LLP, Washington, DC, Dedrick Brittenum, Jr., Memphis, TN, Precious T. Martin, Sr., Precious Martin, Sr. & Associates, PLLC, Jackson, MS, Scott William Weinstein, Morgan & Morgan, P.A., Fort Myers, FL, for Black Farmers Discrimination Litigation.

OPINION

PAUL L. FRIEDMAN, District Judge.

This matter is before the Court on the motion of named plaintiffs James Copeland, Earl Moorer, and Marshallene McNeil (“the Moving Plaintiffs”) for final certification of a plaintiffs' class and approval of a settlement agreement that would resolve the pending claims of approximately 40,000 plaintiffs and compensate thousands of victims of race discrimination whose complaints have gone unanswered for decades. The defendant, the United States Department of Agriculture, supports the motion.

After careful consideration of the arguments made by the Moving Plaintiffs and the defendant, the comments and objectionsoffered by interested parties, the statements made by interested persons at the Fairness Hearing on September 1, 2011, and the long history of this case and that of its predecessor, Pigford v. Glickman, Civil Action No. 97–1978 (D.D.C.), the Court will grant the motion, certify a class pursuant to Rule 23(b)(1)(B) of the Federal Rules of Civil Procedure, and approve the settlement.¹ Although, like any compromise, the settlement agreement before the Court will not satisfy everyone, it offers class members their best option for obtaining meaningful redress of longstanding injuries.

I. BACKGROUND

A. Pigford v. Glickman (“Pigford I”)

1. Claims of Pigford I Plaintiffs and Their Resolution by Consent Decree

In 1997, a group of African–American farmers brought suit in this Court against Dan Glickman, at that time the Secretary of the United States Department of Agriculture (“USDA”). Their final amended complaint alleged that, from January 1983 through January 1997, the USDA discriminated on the basis of race in allocating benefits under various federal agricultural programs, denying African–American farmers loans and other benefits that were freely granted to similarly situated white farmers. See Pigford v. Glickman, Civil Action No. 97–1978, Seventh Amended Complaint at 4 (D.D.C. Oct. 26, 1998) (“ Pigford I Compl.”). The Pigford plaintiffs further alleged that, when they attempted to protest that discrimination by filing complaints with the USDA, the Department failed to investigate those complaints, flouting its responsibilities under federal civil rights laws, including the Civil Rights Act of 1964 and the Equal Credit Opportunity Act (“ECOA”). Pigford I Compl. at 4. According to the complaint, that history of discrimination in the administration of USDA farm programs, combined with the agency's long-standing refusal to investigate and remedy specific instances of discrimination, deprived countless farmers of desperately needed credit and payments under various aid programs, with the result that many farmers suffered severe financial losses and even, in many cases, lost title to their farms. See, e.g., id. at 7–34 (summarizing the damages claimed by the named plaintiffs); see generally Pigford v. Glickman, 185 F.R.D. 82, 86–89 (D.D.C.1999).

The plaintiffs thus alleged that the USDA had committed and then exacerbated a vast array of civil rights violations over a period spanning nearly twenty years. Their claims, though broad in scope, were no exaggeration. The USDA itself, in a report commissioned by Secretary Glickman at the behest of then-President Clinton, noted that the “USDA's painful history of individual and class action lawsuits, court orders, media exposés, numerous Congressional hearings, and reports depicts the Department as a stubborn bureaucracy that refuses to provide equal opportunity for all as the law requires.” USDA Civil Rights Action Team, Civil Rights at the United States Department of Agriculture 6 (1997).

Congress acknowledged the scope of the civil rights problems plaguing the USDA by giving new life to thousands of claims of past discrimination by the agency. Claims alleging violations of ECOA typically have a short life; they must be brought within two years of the occurrence of the statutory violations in question. See15 U.S.C. § 1691e(f). In 1998 Congress eliminated that restriction on ECOA claims against the USDA, creating a new statute of limitations for complaints alleging ECOA violations in the administration of various farm-related benefit programs. SeePub.L. No. 105–277, § 741, 112 Stat. 2681, 2681–3–1 (1998). Such complaints could be brought at any time within two years of Congress' enactment of the new statute of limitations, so long as (1) the allegations underlying those complaints had previously been presented to the USDA before July 1, 1997, and (2) the ECOA violations alleged had occurred between January 1, 1981, and December 31, 1996. Id. § 741(e). Congress' action thus had the effect of opening the courthouse doors to large numbers of old claims, including many subsequently brought in Pigford I.

In light of Congress' 1998 amendments to the statute of limitations applicable to ECOA claims, this Court ultimately certified a plaintiffs' class in Pigford under Rule 23(b)(3) of the Federal Rules of Civil Procedure that was composed of

[a]ll African American farmers who (1) farmed, or attempted to farm, between January 1, 1981 and December 31, 1996; (2) applied to the (USDA) during that time period for participation in a federal farm credit or benefit program and who believed that they were discriminated against on the basis of race in USDA's response to that application; and (3) filed a discrimination complaint on or before July 1, 1997, regarding USDA's treatment of such farm credit or benefit application.

Pigford v. Glickman, 185 F.R.D. at 92. Rather than proceeding to trial on the claims of the plaintiffs' class members, class counsel and the USDA negotiated a settlement, which was approved by the Court and memorialized in a consent decree filed on April 14, 1999. That consent decree did not provide for the automatic payment of damages to any plaintiff. Instead, it established a non-judicial mechanism by which each class member would have an opportunity to demonstrate that he or she had been the victim of past discrimination by the USDA and therefore was entitled to compensatory damages. Potential class members were not required to participate in that alternative claims resolution process, however; those African–American farmers who wished to pursue their ECOA claims against the USDA in court were permitted to opt out of the Pigford plaintiffs' class by submitting an opt-out request within 120 days of the entry of the consent decree. Pigford v. Glickman, Civil Action No. 97–1978, Consent Decree ¶ 5(b)-(f) (D.D.C. Apr. 14, 1999) (“Consent Decree”); see also Pigford v. Glickman, 185 F.R.D. at 95–96.

For those who did not opt out of the plaintiffs' class, the Pigford consent decree created a distinctive process for resolving class members' claims against the USDA. First, any individual seeking an award under the consent decree was required to submit to a neutral “Facilitator,” the Poorman–Douglas Corporation (now Epiq Systems, Inc.), evidence that he or she was in fact a member of the class. See Consent Decree ¶ 2(b). Next, if the Facilitator determined that a given claimant was a member of the class, the claimant was permitted, at his or her election, to proceed along one of two “tracks” for determining the merits of the claim. Id. ¶ 5(f). “Track A” allowed a claimant to prevail by presenting “substantial evidence” of discrimination to a neutral, third-party “Adjudicator.” Id. ¶ 9. The requirement of “substantial evidence”—defined as “such relevant evidence as ... a reasonable person might accept as adequate to support a conclusion after taking into account other evidence ... that fairly detracts from that conclusion,” id. ¶ 1( l )—represents a less stringent...