USDA Denies Discrimination against Black Farmers But Pays Out $1.25 Billion Anyway

December 8, 2010 - 4:00 AM

Ag Secretary Tom Vilsack

Agriculture Secretary Tom Vilsack at the Department of Agriculture in Washington, Wednesday, July 21, 2010 (AP photo)

(CNSNews.com) – The U.S. Department of Agriculture (USDA) denied allegations that it discriminated against African-American farmers as detailed in a class action lawsuit the farmers filed against the department, but the USDA has nonetheless agreed to pay those farmers $1.25 billion as part of a settlement agreement.

While attorneys say settlement agreements frequently deny any wrongdoing, Rep. Steve King (R-Iowa) said the denial of discrimination seemed exceptional given the amount of taxpayer money that will be paid through the settlement.

Agriculture Secretary Tom Vilsack and Attorney General Eric Holder reached the $1.25 billion settlement with the farmers in February. Congress approved the settlement last month, and President Barack Obama has said he will sign the deal.

In the 1999 case (Pigford I), about 15,640 black farmers were compensated nearly $1 billion, stemming from a lawsuit, Pigford v. Glickman. Another class action was brought by farmers who missed the filing deadline for the initial case and thus were denied claims. This case came to be known as Pigford II, which was settled in U.S. District court for the District of Columbia in February.

Page 11, section II-N of the settlement says, “The Secretary expressly denies any wrongdoing, as alleged in the Consolidated Case or otherwise, and does not admit or concede any actual or potential fault, wrongdoing or liability in connection with any facts or claims that have been or could have been alleged in the Consolidated Case.”

The term “consolidated case” refers to the plaintiffs in the second class-action lawsuit (Pigford II) that was settled in February.

“Oh, I noticed all right,” King told CNSNews.com, referring to the USDA’s denials in the settlement. “When I read through there, it caught my attention immediately. When you couple that with the USDA being willing to distribute now $2.3 billion [includes 1999 payout] and not accept any blame and that’s something that’s not been introduced into the dialogue that we’ve had over the past couple of weeks or this last fall on Pigford.”

The $1.25 billion is on top of a 1999 government settlement of $1 billion to about 15,640 African-American farmers who claimed they were discriminated against. For Pigford II, according to attorneys in the case and members of Congress, 94,000 people have made inquiries into making a claim.

Beginning on page 45 of the settlement, the entire section XIII is entitled, “No Admission of Liability.”

The section begins: “Neither this Agreement nor any order approving it is or shall be construed as an admission by the Secretary and/or the United States of the truth of any allegation or the validity of any claim asserted in the Consolidated Case, or of the liability of the Secretary and/or the United States, nor as a concession or an admission of any fault or omission of any act or failure to act, or of any statement, written document, or report heretofore issued, filed or made by the Secretary and/or the United States, nor shall this Agreement nor any confidential papers related hereto and created for settlement purposes only, nor any of the terms of either, be offered or received as evidence of discrimination in any civil, criminal, or administrative action or proceeding, nor shall they be the subject of any discovery or construed by anyone for any purpose whatsoever as an admission or presumption of any wrongdoing on the part of the Secretary and/or the United States, nor as an admission by any Party to this Agreement that the consideration to be given Here under represents the relief which could have been recovered after trial.”

The settlement goes on to say, “This Agreement does not constitute, and may not be construed as, a determination or an admission of a violation of any law, rule, regulation, policy, or contract by the Secretary and/or the United States, the truth of any allegation made in the Consolidated Case, or the validity of any claim asserted in the Consolidated Case.”

Further, this provision of the settlement says, “Neither the determination to pay money nor the payment of money under the Non-Judicial Claims Process shall be deemed to be a finding of fact, conclusion of law, or an admission of liability or damages by the Secretary and/or the United States, and any such determination to pay money or the payment of money under the Non-Judicial Claims Process shall not be admissible in any civil, criminal, or administrative action or proceeding, nor shall it be construed by anyone for any purpose whatsoever as an admission or presumption of any wrongdoing on the

part of the Secretary and/or the United States.”

A USDA spokesperson did not respond to questions by phone and e-mail from CNSNews.com about the denial of liability.

“This kind of language is boilerplate for settlements, whether it’s in the corporate or government world,” said David J. Frantz, a plaintiffs’ attorney in both Pigford I and II. “It is legal language used to prevent a separate lawsuit.

“I’ve been practicing law over 36 years, and I’ve never seen a settlement agreement that does not have that type of language,” Frantz told CNSNews.com.

But this is similar to Vilsack’s earlier assertion that the administration is not focused on firing or disciplining USDA employees who engaged in discrimination, King said.

“I think that’s an important and significant component, and I understand that if they don’t have that language in there in their consent decree, they remain being open to be litigated for that,” said King, who thinks Congress should investigate the matter for potential fraud. “But, by the same token, it begs the question: Who did they punish? At this point, we know at least, is no one. It’s completely outrageous.

“They admit to no wrongdoing, they press the taxpayers and apparently have succeeded in squeezing $2.3 billion out of the taxpayers, but they don’t have any blame, and they’re not punishing anybody,” King said. “So, how can Americans that think logically accept that as a rationale position?”