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Chapter One
Introduction
This
series aims to help class members in the African-American farmers'
lawsuit understand their right to injunctive relief. Officially known as Pigford
v. Schafer and Brewington v.
Schafer, the lawsuit is a nationwide class action brought by black
farmers alleging race discrimination by the United States Department of
Agriculture (USDA).[1] The lawsuit
resulted in a settlement, and, as a part of the settlement, class members
are given the right to injunctive relief.
I.
Role of the Monitor
The
Office of the Monitor exists as a result of the settlement in the lawsuit.
The Monitor is independent of the parties and was appointed by the federal
court judge who handled the case. Part of the Monitor's job is to help
class members who have difficulty getting their injunctive relief. Anyone
with questions for the Monitor's Office may call toll-free:
1-877-924-7483.
II.
What Injunctive Relief Is Available
In
general, injunctive relief is the remedy a party gets in a lawsuit that is
in addition to, or separate from, damages. For example, for a successful
Track A claimant in this case, injunctive relief is in addition to
the $50,000 payment, the debt forgiveness on certain USDA debts, and the payments made on behalf of class
members for income taxes. In the Consent Decree, injunctive relief means
three things. Each of the following types of injunctive relief is
explained in more detail in Chapter Two of this series.
A.
Technical Assistance
All
prevailing class members are entitled to technical assistance and
service from employees of USDA.[2]
This means that, if asked, government officials must help applicants
understand and complete the paperwork necessary for obtaining farm
operating loans, farm ownership loans, and inventory property. Technical
assistance must be from a USDA employee who is both qualified and
acceptable to the class member.
B.
Most Favorable Light
All
prevailing class members are entitled to have certain applications for
loans and inventory property viewed in the light most favorable to
having them approved.[3]
In
addition, once prevailing class members are determined to be eligible
for an operating loan or a farm ownership loan, the amount and terms of
any loan must be the most favorable they can be and still meet the
requirements of the law and USDA regulations.[4]
C.
Priority Consideration
Class
members who prevail on credit claims may request priority consideration
for one direct operating loan - known as an OL Loan - and one direct
farm ownership loan - known as an FO loan.[5]
1.
Priority Consideration for Inventory Property
Prevailing
class members receive priority consideration on a one-time basis for
the purchase, lease, or acquisition of some property that USDA owns -
known as inventory property.[6]
2.
Priority Consideration for Operating Loan
Prevailing
class members receive priority consideration for one USDA direct
operating loan - known as an OL Loan.[7]
3.
Priority Consideration for Farm Ownership Loan
Prevailing
class members receive priority consideration for one USDA farm
ownership loan - known as an FO Loan.[8]
III.
Eligibility for Injunctive Relief
Eligibility
for injunctive relief depends on the following two factors. For a more
detailed explanation of eligibility for injunctive relief, see Chapter
Two.
A.
Prevail in Either Track A or Track B
In
order to be eligible for injunctive relief, a person must be a class
member who has filed a claim under either Track A or Track B
of the Consent Decree settlement and who has prevailed on that claim. To
prevail, in legal terms, means to win on the main issues in a legal
action. To prevail on a claim under the Consent Decree means that the
Adjudicator or Arbitrator found in favor of the class member. In this
case, in other words, farmers who received a favorable result in either
Track A or Track B for a discrimination claim are eligible for
injunctive relief.
B.
Some Injunctive Relief for All Successful Claimants
All
class members are entitled to two types of injunctive relief.
1.
Technical Assistance
All
prevailing class members are entitled to technical assistance from
USDA in their efforts to obtain future farm operating or farm
ownership loans and to purchase, lease, or otherwise acquire inventory
property.
2.
Most Favorable Light
All
prevailing class members are entitled to the right to have any
application they file for an operating loan, a farm ownership loan, or
inventory property viewed in the light most favorable to the class
members and to have the most favorable amount and terms permitted by
law and USDA regulations for any loan issued to them.
3.
Credit vs. Noncredit - the Difference Matters for Priority
Consideration
African-American
farmers could make one of two types of claims in the lawsuit - either
a credit claim or a noncredit claim.[9]
a.
Credit Claims and Noncredit Claims
In
general, a credit claim means a claim based on the class member's
effort to get a farm loan of some type. A noncredit claim is a claim
that is not based on an effort to get a farm loan but instead is
based on the class member's effort to receive some other benefit
from USDA. An effort to receive disaster payments, for example,
could be the basis of a noncredit claim, but not a credit claim.
Those
who prevail in a credit claim receive $50,000 under the Consent
Decree. Those who prevail in a noncredit claim receive $3,000. The
difference between credit claims and noncredit claims is also
important because some parts of injunctive relief are available only
for credit claims.
b.
Credit Claims Result in Priority Consideration
Class
members with prevailing credit claims get the right, on request, to
receive priority consideration for one operating loan, one farm
ownership loan, and one purchase, lease, or other acquisition of
inventory property.[10]
Understanding
the shape of injunctive relief can be confusing. The information in this
series is based on the following sources of information.
A.
Consent Decree
The
Consent Decree is a legally binding agreement that resulted from the
lawsuit. It sets out the terms of the settlement that was agreed to by
the parties. Those terms include the basic shape of injunctive relief.
It is the Consent Decree, for example, that provides for priority
consideration for USDA loans and inventory property.
B.
FSA Regulations and Statutes
Regular
Farm Service Agency (FSA) regulations continue to control certain parts
of a class member's right to injunctive relief.[11]
The basic eligibility rules for USDA programs are not, in general,
changed by the Consent Decree. For example, FSA regulations say that in
order to receive an FSA loan, a borrower must be creditworthy. The
Consent Decree does not eliminate this creditworthiness requirement.
Similarly, FSA inventory property regulations provide for a priority in
certain cases for some beginning farmers. The Consent Decree does not
eliminate this beginning farmer priority.
C.
Liberal Construction of Consent Decree
Finally,
although the statutes and regulations governing FSA programs must be met
in providing injunctive relief to class members, the Consent Decree says
that in light of the purpose of the Consent Decree - to provide a remedy
for class members - the Consent Decree is to be liberally construed to
support that purpose.[12]
The
important part of this aspect of the Consent Decree is the term
"liberal construction." Although not defined in the Consent
Decree, the term liberal construction is often used in the law. In legal
terms, liberal means to be generous or free in giving. The opposite of
liberal, in legal terms, is to be strict or narrow-minded.
A
liberal construction of the Consent Decree in favor of class members,
therefore, means that when someone tries to understand the meaning of
the Consent Decree, he or she should resolve all reasonable doubts as to
its meaning in favor of the class member.
V.
Dealing With FSA and Its Regulations
Several
aspects of injunctive relief - in particular getting an FSA loan and
getting inventory property - are not automatic. As a result, class members
must generally act first to fill out an application for an FSA program. In
dealing with FSA, the following general points are notable.
A.
Applications and Paperwork Are Important
Every
FSA farm program has a written application that requires a fair amount
of paperwork. Completing the paperwork is always required for someone to
receive a benefit from an FSA program. The paperwork can be complicated.
Class members should feel free to ask USDA employees to help them with
this paperwork. The class member's right to this help - sometimes known
as technical assistance - is discussed in Chapter Two.
Completing
the application and paperwork is important. In many cases, there is a
significant difference between a complete application and an incomplete
application. Complete applications, for example, often receive priority
for a loan or other services before an incomplete application.
B.
Deadlines and Timeliness
Many
FSA programs have deadlines. It is important to meet those deadlines.
In
addition, many FSA program benefits go to people in the order in which
they apply. In other words, in many cases, it is to an applicant's
advantage to apply for a program earlier rather than later.
C.
Documentation - Get Things in Writing
Many
farmers are used to do doing business without a written record. From a
legal point of view, this may be a mistake. In general, it is a good
idea for class members to document every important contact they have
with USDA and other lenders and creditors. In many cases, the farmer's
records may be the only proof of what really happened.
Documenting
dealings with FSA and other lenders can be done any number of ways. The
following is only a suggestion.
1.
Create a File at Home
Create
a file at home. This is the place to put letters and other documents
that come from or go to FSA.
2.
Document Letters Sent
When
a letter is written, a copy should always be kept. In addition, the
applicant should send things to FSA by certified mail, return receipt
requested. Certified mail forms are available at the post office. When
certified mail, return receipt requested, is used, a postcard is
attached to the back of the letter. When the Post Office delivers the
letter to FSA, an FSA employee must sign the postcard to show that he
or she received it. Then the post office will send the signed postcard
back to the original sender. A farmer should keep this postcard in the
file at home. It provides proof that FSA received the letter.
3.
Create a Paper Record
Create
a paper record of dealings with FSA. If a farmer calls an FSA employee
and reaches an agreement with the employee on a certain point - for
example, on whether an incomplete application for an operating loan is
now complete - the farmer should document the phone call. This can be
done by writing a short letter to the FSA office that confirms the
phone call. For example, the letter might say:
As
you recall, we talked on the telephone yesterday. You told me that
my application for an operating loan is now complete. If I do not
hear from you in writing within five days, I will assume that my
understanding of our conversation was correct.
In
addition, a farmer should keep notes of talks the farmer has with FSA.
It may help to keep a notebook by the phone and make a short note
about the conversation whenever the farmer talks to FSA.
VI.
Sources for This Series
In
general, this series is based on the four sources: (1) the Consent
Decree; (2) federal statutes that control USDA programs, USDA regulations
(found in the Code of Federal Regulations, known as the C.F.R.); (3)
internal Farm Service Agency (FSA) policy notices - often called FLPs; and
(4) other official FSA publications.[13]
When these sources are used, they are cited in the footnotes. Where the
series relies on other sources, these are also cited in the footnotes.
Anyone who would like a copy of these other sources should feel free to
contact the Monitor's Office toll free at 1-877-924-7483.
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Endnotes
[1] Pigford
v. Glickman, Civ. No. 97-1978 (PLF), and Brewington
v. Glickman, Civ. No. 98-1693 (PLF). The court's opinion and the
Consent Decree can be found at http://www.dcd.uscourts.gov. The Monitor
maintains a web site as well at http://www.pigfordmonitor.org.
[back to text]
[2]
Consent Decree ¶ 11(d). [back
to text]
[3]
Consent Decree ¶ 11(c). [back
to text]
[4]
Consent Decree ¶ 11(c). [back
to text]
[5]
Consent Decree ¶ 11(b). These loans are made by an agency within
USDA known as the Farm Service Agency (FSA). The farm loans that were once
made by the Farmers Home Administration (FmHA) are now made by the Farm
Service Agency (FSA). [back
to text]
[6]
Consent Decree ¶ 11(a). [back
to text]
[7]
Consent Decree ¶ 11(b). [back
to text]
[8]
Consent Decree ¶ 11(b). [back
to text]
[9]
All noncredit claims are considered under Track A. Consent Decree
¶ 5(d). [back
to text]
[10]
See Consent Decree ¶¶ 9(a)(iii)(D) (injunctive relief for Track A
credit claims), 9(b)(iii)(B) (injunctive relief for Track A noncredit
claims), 10(g)(iii) (injunctive relief for Track B claims). See, as well,
FSA Notice FLP-313, Priority Consideration for Prevailing Claimants (July
21, 2003); FSA Notice FLP-225, Priority Consideration for Prevailing
Claimants (October 18, 2001) (expired July 21, 2004); FSA Notice FLP-151,
Priority Consideration for Prevailing Claimants (August 18, 2000) (expired
June 1, 2001). [back
to text]
[11]
Consent
Decree ¶ 19. Specifically, the "performance of [duties] which
would be inconsistent with federal statutes or federal regulations [is not
required] . . . ." [back
to text]
[12]
More specifically, the purpose of the Consent Decree is remedial. See
prefatory remarks in the Consent Decree. A remedial consent decree is one
that is intended to remedy wrongs or abuses. [back
to text]
[13]
This series assumes that FLPs are binding on USDA. The use of such policy
notices and handbooks as official and binding is controversial. See, for
example, Robert A. Anthony, Interpretive Rules, Policy Statements,
Guidances, Manuals, and the Like - Should Federal Agencies Use Them to
Bind the Public?, 41 Duke Law Journal 1311 (1992); Robert A. Anthony, "Interpretive"
Rules, Rules and "Spurious" Rules: Lifting the Smog, 8
Administrative Law Journal 1 (1994); and Christopher R. Kelley, Notes
on the USDA National Appeals Division Appeal Process, 1999, Arkansas
Law Notes 61 (1999). [back to
text]
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