Having passed the Senate, the $4.6 billion Claim Settlement Act of 2010 is now in the hands of the House. The legislation – which bundles together settlements for Pigford II, Cobell (brought by Native Americans against the Interior Department over the management of Indian trust accounts and resources) and four Native American water rights cases – is expected to be voted on in early December.

On Monday, Agriculture Secretary Tom Vilsack and U.S. Associate Attorney General Tom Perrelli addressed the settlements and how the claims process will be set up. While keen to point out efforts to root out any fraud, Vilsack made it clear it is unlikely anyone at USDA will be punished for the discrimination that was the basis for Pigford.

“President Obama has been very clear with me … that we’re to treat farmers, ranchers and growers equally and fairly,” said Vilsack. “That means not only making sure we’re doing the right things today but righting the wrongs from the past.

“Civil rights has become a top priority of mine since coming to USDA and we’ve implemented a comprehensive program to learn from past errors, to learn from our mistakes, and take definitive action to ensure all our customers are treated fairly. We’ve conducted civil rights training in our FSA locations, doubled our compliance reviews and seen the lowest number of FSA complaints since we began keeping records.”

Also on the USDA agenda: “cultural transformation. Today, we have the lowest number of equal employment opportunity complaints since the department began keeping track.”

Vilsack spoke on how claims will proceed, assuming House passage of the settlement funding.  

“First, the proposal passed by the Senate and agreed upon by USDA, lays out a very complicated and detailed method for individuals filing a claim seeking compensation. They must qualify as a class member (which means they must have filed a ‘late-filing request’ under the original Pigford consent decree sometime after October 1999 and prior to June 2008). If they aren’t on the current ‘timely’ list of those who filed late requests, they’ll have to provide significant and independent documentary evidence that they had, in fact,” made such a filing.

In addition to being a member of the class, claimants “also must furnish a detailed, complete claim form. If they’re represented by counsel, that will include a statement by the attorney (representing the claimant under penalty of perjury) that the claim is based on existing law and factual contentions are true and correct.”

The eligibility/payment process will include “a number of steps inherent in the review of these claims by the comptroller general and USDA’s inspector general. (This will) ensure we’re performing the settlement process appropriately … and paying those who are entitled to payment.

“Payments will not be forthcoming until the court has ultimately approved the final accounting of expenditure funds made available in the appropriation.”

Quick action by House

Vilsack is hopeful the House takes quick action “because we’d like to put this chapter at USDA behind us. Then, we’ll focus on other cases pending against the department.”

The cases have been in court for decades, said Perrelli, and have been “incredibly hard-fought. Both judges and Congress have repeatedly urged the parties to settle and there’s never been any doubt that significant sums were necessary to resolve them….

“With respect to Pigford II, in the 2008 farm bill, Congress gave new claims to African American farmers who’d submitted late claims to the original Pigford settlement. Working with the USDA, we at DOJ took that class of individuals … didn’t make one additional person eligible, and saw that we could fight this for years in court or see if there was a more responsible way to resolve it. We think this settlement does that.”

Vilsack said USDA operations are currently under review to make sure the agency “isn’t making the same mistakes made 20 years ago.” That report is due at the end of December.

Looking at claims during the last Bush presidency “we found, roughly, 3,000 claims that required further investigations and 600, or so, that might very well lead to claims. We’ve asked Congress to take a look at that in terms of the statute of limitations.”

Congress, said Vilsack, has yet to respond.

If the funding is approved, how long before payments reach claimants?

“I don’t know that anyone can give a good estimate,” said Vilsack. “Obviously, an individual arbitrator … has to be appointed with the consent of all engaged. That person/s will have to set up shop (and review claims).

“That will take some time. We want to make sure it’s done right and, as it is looked at by the comptroller general or inspector general, there aren’t any problems. We’ll take the time required to do it right with the understanding that folks have waited a long time.”

Vilsack was also asked about the USDA facing discrimination cases involving Hispanics and women.

“We are engaged in an effort to provide opportunities for a quicker resolution for individual claimants (in the cases involving Hispanics and women). They are different than the Pigford II cases because there was no congressional directive or a certification of the courts of a class. So, these are individual claims…

“What we hope is that in the not-too-distant future we’ll see how to set up a process where those claims will at least have the option of resolving their dispute with the government case-by-case.”

Asked if the Obama administration has decided not to punish USDA employees for past discrimination, Vilsack said his focus “has been on making sure we don’t get the government in the same situation it’s been in (over the) last 20 or 30 years.” That means “taking a look at our current practices and procedures and making sure we’re not making the same mistakes again, intentionally or unintentionally…

“I think it might be somewhat difficult to be able to establish responsibility for something that may have occurred 20 or 30 years ago. I think what we ought to be doing is focusing … on making sure we’re serving today’s farmers as well as we possibly can.”

Perrelli fleshed out the anti-fraud measures in the Pigford settlement. “The Pigford II settlement arises out specific legislation out of Congress that created a class of individuals of between 65,000 and 66,000 individuals who’d filed claims late in the original Pigford settlement…

“With respect to fraud, the government’s liability is capped. That provides some protection.

“More directly, there is an independent adjudicator who is responsible for making sure the process is fair and without fraud. They are directed, if there is any concern about fraud, to seek additional, appropriate information. … There will (also be) multiple audits that will focus across the whole.”

dbennett@farmpress.com