Pennsylvania Lawyer Helped Settle Black Farmers’ Bias Claims

A Pennsylvania lawyer and close to 20 other attorneys from around the country are celebrating the U.S. House of Representatives’ approval Tuesday of a $1.15 billion settlement of claims made by African-American farmers that the federal government discriminated against them in their applications to participate in agricultural programs.

“When you go to law school, these are the kinds of cases you read about,” said plaintiffs’ attorney Harris L. Pogust of Pogust Millrood in Conshohocken, Pa. “When somebody is presented an opportunity to be involved in a case like this you’re honored to be involved in helping these people out.”

House approval of the Claims Settlement Act Tuesday follows on the footsteps of the U.S. Senate’s approval of the law before the Thanksgiving holiday. President Obama, who sponsored the legislation when he was a U.S. senator, is expected to sign the measure into law.

Along with appropriating funds for the African-American farmers’ settlement, the House of Representatives also approved the $3.4 billion settlement of the claims of American Indians in Cobell v. Salazar that the U.S. government mismanaged individual Indian trusts.

U.S. Agriculture Secretary Tom Vilsack said in a statement that “President Obama and I made a firm commitment not only to treat all farmers fairly and equally, but to right the wrongs in the USDA’s past. I applaud those who took this historic step to ensure black farmers who faced discrimination by their government finally receive justice. And I commend those who led this fight in the U.S. Congress and I am thankful for their unwavering determination.”

The settlement is unusual because the government previously settled with the same class of farmers in a prior class action, Pigford v. Glickman . That class action was litigated over the USDA’s common practice from 1981 to 1996 of discrimination against African-American farmers’ applications for loans and other benefits programs; that class action also alleged that African-American farmers’ complaints to the USDA about the discrimination against them were “mismanaged, ignored or lost,” according to court papers.

But because of problems in claims administration, many farmers did not file before the claims deadline and only 2,700 late filers, of 63,000 who made timely requests for their tardy claims to be considered on their merits, were able to keep their claims alive by demonstrating that extraordinary circumstances applied to their cases, according to court papers.

The 2008 Farm Bill allowed African-American farmers who submitted late requests but did not obtain a determination on the merits of their cases to bring their legal claims again, according to court papers.

As of Sept. 29, 2008, more than 22,000 farmers filed claims, and more than 15,000 of those claims received compensation under the Pigford claims process, court papers said.

There are at least 22,407 African-American farmers making claims in the second class action, according to the third amended complaint in Hampton v. Schafer . According to later court filings, the class could range from 65,000 to 84,000.

Only claimants who were entitled to participate in the first class action and who filed a tardy claim in the first case can participate in this case, Pogust said.

The case was of such magnitude that the rights of the putative class made the consequences of missed claims deadlines for so many farmers a compelling rationale for the legislation.

Pogust said he got involved in the case about five years ago after being approached by attorneys who were representing African-American farmers but were not as experienced in class action work as his firm. Much of his work on the case included trips to Alabama and Mississippi to meet with class members — including through town hall-style meetings — and help them fill out the claim forms, Pogust said.

Unlike other class actions, this case involved the enactment of legislation that would entitle the class to bring its claims and the enactment of further legislation to appropriate money for the settlement, Pogust said.

If Obama signs the legislation as expected, the class action is still subject to judicial approval. U.S. District Judge Paul L. Friedman is presiding over the class action just as he presided over the Pigford class action.

One of the lead attorneys on the class action is Andrew H. Marks of Crowell & Moring in Washington, D.C., and other attorneys involved in the class action hail from Alabama, North Carolina and Virginia.

Michael Sitcov, Tamra T. Moore and Tamara Ulrich of the U.S. Department of Justice represented the government.