On April 14, 1999, a consent decree was approved in Pigford v. Glickman (FH-DC-0006 in this Clearinghouse; see "related cases", below), involving a class of thousands of African American farmers who had sued the U.S. Department of Agriculture over racially discriminatory farm loan denials. 185 F.R.D. 82 (D.D.C. 1999). In the settlement, two "claim tracks" were created: Track A, which had a lower standard of proof of discrimination (paying up to $50,000 for credit claims and $3,000 for non-credit claims), and Track B, which required a preponderance of the evidence (paying up to $250,000). The deadline for claims under this settlement was October 12, 1999. The Consent Decree allowed claimants who could show "extraordinary circumstances" for missing the October 12 deadline could file at a later date, until the final deadline of September 15, 2000. 61,000 claims were brought late, but fewer than 3,000 were adjudicated based on the merits.

On May 22, 2008, the Food, Conservation and Energy Act (a/k/a "2008 Farm Bill") was enacted, providing claimants a right to pursue discrimination claims if they had petitioned to participate but did not get their petitions considered on the merits because they were filed late. Pub. L. 110-234, 122 Stat. 923. Section 14012 of the bill created a completely new cause of action for these "late-filers," which could be brought in the U.S. District Court for the District of Columbia. This provision appropriated only $100 million for claims rewards. Subsequently, a large amount of suits were filed under this new cause of action.

On August 8, 2008, Judge Paul L. Friedman of the U.S. District Court for the District of Columbia consolidated 17 cases resulting from Section 14012 that were currently pending in the district court: Agee v. Schafer (C.A.. No. 08-0882); Kimbrough v. Schafer (08-0901); Adams v. Schafer (08-0919); National Black Farmers Association v. Schafer (08-0940); Bennet v. Schafer (08-0962); McKinney v. Schafer (08-1062); Bolton v. Schafer (08-1070); Copland v. Vilsack (08-1188); Hampton v. Schafer (08-1381); Robinson v. Schafer (08-1513); James v. Schafer (08-2220); Beckley v. Vilsack (09-1019); Sanders v. Vilsack (09-1318); Russell v. Vilsack (09-1323); Bridgeforth v. Vilsack (09-1401); Allen v. Vilsack (09-1422); and Anderson v. Vilsack (09-1507). All together, these matters were captioned In re Black Farmers' Litigation, and given the docket number 08-mc-0511.

On November 14, 2008, Plaintiffs filed their amended complaint, including a putative class of "All individuals: (1) who submitted late-filing requests under section 5(g) of the Pigford v. Glickman Consent Decree on or after October 13, 1999, and on or before June 18, 2008; but (2) who have not obtained a determination on the merits of their discrimination complaints, as defined by Section 1(h) of the Consent Decree."

On February 18, 2010, the parties came to a settlement agreement, which was submitted to the court. The settlement agreement created a class with the description language from the amended complaint (see above). This settlement maintained the two tracks of claims, established "neutrals" who were assigned to adjudicate the settlement claims, and created an ombudsman position, which was to act as the liaison between the claimants and the court. In return for the re-evaluation of late-filing claims, Plaintiffs agreed to move for dismissal of all pending consolidated cases, with prejudice, to be effective upon the court's final approval. After the execution of the initial form of the Settlement Agreement, six additional complaints were filed and consolidated with this case: Edwards v. Vilsack (10-0456); Latham v. Vilsack (10-0737); Andrews v. Vilsack (10-0801); Sanders v. Vilsack (10-1053); Johnson v. Vilsack (10-0839); and Abney v. Vilsack (10-1026).

On December 8, 2010, Congress passed the "Claims Resolution Act," which appropriate $1.15 billion to fund this settlement agreement. Pub. L. No. 111-291, §201, 124 Stat. 3064, 3070 (2010). On February 11, 2011, Judge Friedman approved this settlement agreement. The order fixed the claim period between November 14, 2011, and May 11, 2012.

On March 30, 2011, Plaintiffs filed an unopposed motion for certification of the settlement class, described above. Judge Friedman approved certified the settlement class on May 13, 2011. On October 27, 2011, Judge Friedman approved the final proposed class settlement. 820 F. Supp. 2d 78 (D.D.C. 2011).

On November 15, 2011, one of the Plaintiffs in the consolidated case, the Black Farmers and Agriculturalist Association (BFAA), moved for reconsideration of the settlement approval. The BFAA argued that the settlement should not have been approved because it unfairly prevented Plaintiffs the ability to pursue substantive relief under the Section 741 of the 1999 Farm Bill. This motion was denied on January 13, 2012, by Judge Friedman. 2012 WL 8007271 (D.D.C. 2012). The BFAA and another class member, Charlie Latham, appealed this denial to the U.S. Court of Appeals for the District of Columbia Circuit. On July 25, 2012, the Court of Appeals, in a per curiam order, denied the reconsideration appeal for the BFAA because the BFAA is not an "individual" under the class settlement, therefore is not a part of the settlement. In the same order, the Court of Appeals also denied Latham's appeal because he had already received a determination on his Pigford claim. On February 26, 2013, the Supreme Court of the United States denied BFAA and Latham's petition for a writ of certiorari.

On February 6, 2012, Stephen Carpenter was appointed the independent ombudsman per the settlement agreement. 842 F. Supp. 2d 190 (D.D.C. 2012).

On May 11, 2012, the claim process ended. The parties in this case moved on August 17, 2012 to alter the settlement to provide relief for claimants who missed the deadline for certain circumstances. On September 14, 2012, Judge Friedman approved this alteration of the settlement, which allowed claimants who made a claim before the May 11th deadline and made a prima facie showing of class membership but was not sent a claim form before May 1, 2012 to have their claim considered "timely" if resubmitted within 30 days of the approved alteration.

Dan Osher - 06/19/2013


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