Discrimination case against USDA continues

Oct 26, 2012

—A new claim resolution program for minority farmers called unequal, insufficient.

Nearly 12 years after female and Hispanic farmers initiated a lawsuit against USDA for discrimination, a claims resolution program has been created to address the issue. Though it is a “step in the right direction,” representatives of female and Hispanic farmers claim the program is insufficient, alleging it is excessively confusing and has more onerous requirements and offers less protections than similar programs geared towards other minority farm groups.

Launched in late September, the Hispanic and Woman Farmers and Ranchers Claims Resolution Process (claims process) gives those minority groups a way to seek financial damages for discrimination faced in the past. The claims process covers female and Hispanic farmers or ranchers who feel they were discriminated against in securing farm loans or farm loan services between 1981 and 2000.

On Oct. 15, USDA moved for portions of the 2000 Love v. Vilsack discrimination case to be dismissed because of the creation of the claims process. However, minority farmers and their counsel, Arent Fox, LLP, assert the new claims process is in itself discriminatory and challenged USDA efforts to have parts of Love v. Vilsack dismissed.

“The form is confusing and sometimes inconsistent with the other documents provided by the government,” said Rosemary Love, a named plaintiff in the 2000 discrimination case. “I expect that many farmers will have trouble understanding and completing the documents.”

The claims package (accessible online at Farmer claims.gov/Documents.aspx or by mail by calling 888/508-4429) includes 27 pages of descriptions, instructions, forms, and lists of requirements and applicability information. Of that, 16 pages are the required claims form.

Documents required for making claims range widely depending on the nature of the claim being made. Those required documents drawing the most complaints are those ostensibly required to establish discrimination did occur. For example, the claim category with the largest potential award (Tier 1b with up to $250,000 cash awards) requires the following:

The fully filled out, errorless 16-page claim form A copy of the farm loan form or relevant document relating to the event which saw the original instance of discrimination A copy of the claimant’s original discrimination complaint against USDA or some proof they received it The name of a farmer similarly situated to the claimant, but neither female nor Hispanic as applicable Documents proving the claimant was economically harmed by USDA treatment of the farm loan application or service procedures

Considering the time frames the claims process covers, necessary documents could be anywhere from 12 to 31 years old. Two other claim award tiers exist with differing documentation requirements and with different potential restitution awards.

“The eligibility and document requirements that women and Hispanic farmers must meet for their claims to be successful are more difficult than what was required in the claims programs provided to black farmers and Native-American farmers,” said long-time farmers’ advocate Benny Bunting.

The matter of the claims process for female and Hispanic farmers being unfairly different from claims for other minority farmers— namely African-Americans and Native Americans—has been a sticking point. In the legal challenge to USDA’s move for dismissal of parts of Love v. Vilsack, several significant differences between the current claims process and that of prior minority groups’ claims processes were listed out.

The length (and inferred complexity) of claims forms for African-American and Native American farmers alleging discrimination were each eight pages. This is compared to the 16 pages of the claims process for female and Hispanic farmers.

Female and Hispanic claimants are not provided with legal advice on the claims process by USDA, which Arent Fox asserts was available to African-American and Native American claimants.

Other claims of increased and inappropriate levels of complexity with the claim forms revolve around the number and types of questions asked of claimants.

“For instance,” reads the Arent Fox challenge to US- DA’s recent dismissal move, “women farmers must fill out approximately twenty open-ended questions and fifty closed-ended questions, while Pigford II [African- American] claimants had to complete only twenty open-ended questions and ten closed-ended questions, and Keepseagle [Native American] claimants only had to answer fifteen open-ended questions and ten closed-ended questions.”

According to an official response to the claims process from Arent Fox, “the program violates the Equal Protection and Due Process clauses of the Constitution and the Administrative Procedure Act in offering to women (and Hispanic) farmers a claims program that is inferior to and more onerous than the programs the government provided to other minority farmers.”

Other details of the claims process which have drawn criticism and legal attention in the challenge to USDA’s dismissal move stem from what voluntary participation in the claims process requires.

In filing a claim under the current process, claimants waive their right to participate in discrimination lawsuits over the matter such as Love v. Vilsack. Additionally, claim decisions are made by third party adjudicators and cannot be appealed. Claimants who are both female and Hispanic can only make one claim, regardless of the number of discrimination experiences they have had. And claimants whose spouse has filed under either the claims process for African-American or Native American farmers cannot file, regardless of whatever unique discrimination experiences they had.

“We are pleased that a program exists for women farmers, and we encourage women farmers to consider whether they want to participate. But we also wish this was a more equitable program,” said Arent Fox attorney Kristine Dunne.

This is not the first version of the claims process USDA has drafted for this issue. Previous drafts were successfully challenged going back to February 2011 and the process culminated in the current claims process.

“Now that the program has officially begun, we hope that USDA will take steps to address confusion and clarify questions prompted by its documents,” said Dunne. “We would be happy to work with the administration in such an effort.”

According to most recent Agriculture Census data, there are more than 306,000 female and approximately 55,570 Hispanic principal farm operators in the U.S. This is compared to the relatively small 65,300 combined African-American and Native American principal farm operators.

Any female or Hispanic farmer who feels they suffered discrimination by USDA or any of its subsidiary agencies while trying to secure a farm loan or farm loan services between 1981 and 2000 may be able to participate in this claim. For more information or for claim documents, visit FarmerClaims.gov online or call 888/508-4429. Claims must be postmarked by March 25, 2013.

Additional information can be found at the Arent Fox website created to track the Love v. Vilsack case and related claim process issues, WomenFarmers.com.— Kerry Halladay, WLJ Editor