In December, Andrew Breitbart published a report, “The Pigford Shakedown,” that purported to reveal the “massive fraud” and “widespread corruption” supposedly tainting a settlement intended to compensate to black farmers who had faced discrimination from the U.S. Department of Agriculture. Breitbart's report, which is intended to form the basis for a congressional investigation, is laden with distortions, questionable sourcing, and sloppy errors.
Summary Of Pigford Case
Judge Approved Settlement Agreement And Consent Decree To Settle Black Farmers Discrimination Case. From a report by the Congressional Research Service:
On April 14, 1999, Judge Paul L. Friedman of the U.S. District Court for the District of Columbia approved a settlement agreement and consent decree in Pigford v. Glickman, a class action discrimination suit between the U.S. Department of Agriculture (USDA) and black farmers. The suit claimed that the agency had discriminated against black farmers on the basis of race and failed to investigate or properly respond to complaints from 1983 to 1997. The deadline for submitting a claim as a class member was September 12, 2000. As of November 2010, 15,642 (69%) of the 22,721 eligible class members had final adjudications approved.
Many voiced concern over the structure of the settlement agreement, the large number of applicants who filed late, and reported deficiencies in representation by class counsel. A provision in the 2008 farm bill (P.L. 110-246) permitted any claimant who had submitted a late-filing request under Pigford and who had not previously obtained a determination on the merits of his or her claim to petition in federal court to obtain such a determination. A maximum of $100 million in mandatory spending was made available for payment of these claims, and the multiple claims that were subsequently filed were consolidated into a single case, In re Black Farmers Discrimination Litigation (commonly referred to as Pigford II).
On February 18, 2010, Attorney General Holder and Secretary of Agriculture Vilsack announced a $1.25 billion settlement of these Pigford II claims. However, because only $100 million was made available in the 2008 farm bill, the Pigford II settlement was contingent upon congressional approval of an additional $1.15 billion in funding. After a series of failed attempts to appropriate funds for the settlement agreement, the Senate passed the Claims Resolution Act of 2010 (H.R. 4783) to provide the $1.15 billion appropriation by unanimous consent on November 19, 2010. The Senate bill was then passed by the House on November 30 and signed by the President on December 8 (P.L. 111-291). [Congressional Research Service, 12/10/10]
As Of December 8, More Than 20,000 Claims For Restitution Have Been Decided. According to the Office of the Monitor for the case, 15,645 claims have been approved and 6,906 have been denied. [Office of the Monitor, accessed 12/15/10]
Political Scientist Abramowitz: “There's Always Potential” For Fraud, But Some Accusations Are “Greatly Exaggerated.” Adam Abramowitz, a professor of political science at Emory University, told The Christian Science Monitor:
I think some of the claims that conservative groups have been making about fraud are greatly exaggerated, but, sure, there's always potential that there could be some fraudulent claims. But you have to weigh that against the injustice that was done. [The Christian Science Monitor, 12/08/10]
Breitbart's Attack On Pigford Is Part Of His Hopeless Quest For Vindication Over Sherrod Matter
In July, Breitbart Posted Dishonestly-Edited Video Of Pigford Claimant Shirley Sherrod. In July, Breitbart released a 2 minute and 36 second video of then-USDA official Shirley Sherrod and falsely suggested that Sherrod discriminated against a white farmer in her capacity as the Agriculture Department's Georgia Director of Rural Development. It later became clear that the full video showed that Sherrod had personally helped the white farmer obtain justice. [Media Matters, 7/22/10]
- Breitbart's Posting And Handling Of The Sherrod Video Played A Major Role In The Downfall Of His Credibility. [Media Matters 12/21/10]
Breitbart Says He First Learned Of Pigford Case Through Sherrod Episode. In a BigGovernment.com blog post accompanying the Pigford report, Breitbart stated that while watching media coverage of the Sherrod debacle, he heard The Nation's Chris Hayes say “Conservative con artist 1; black farmers, 0.” Breitbart added “I had no idea what he was talking about. None.” Breitbart then wrote:
Later I became aware that on a CNN discussion on “the Sherrod fallout,” April Ryan of Urban Radio Network mentioned the Pigford settlement. Ryan described Pigford as a “litmus test” of the Obama Administration's relationship with black Americans.
A quick Google search revealed that Ryan and Hayes had been alluding to the incredibly conspicuous news that days after Sherrod was fired by the Obama administration, funding for the $1.15 billion Pigford II settlement was pulled out from a supplementary war funding bill. [BigGovernment.com, 12/6/10]
Breitbart Falsely Claims That Sherrod's Role As A Successful Pigford Claimant Is What Actually Led To Her Firing. In the Pigford report and the accompanying blog post, Breitbart suggested that Sherrod was not fired for her comments in the deceptively-edited video, but was rather fired because she received money from the Pigford case:
- Breitbart Blog Post Asks “Why On God's Green Earth Was Shirley Sherrod Fired,” And Suggests It Was Because Of Pigford. From Breitbart's post on BigGovernment.com:
Despite the firestorm, there was still an unanswered question -- why on God's green earth was Shirley Sherrod fired?
My 1400-word piece said Sherrod helped the white farmer. The controversial video clip featured the basis for her defense, The President and Tom Vilsack were doubly informed of the whole story by both me and Sherrod herself.
My first clue came, ironically, from the epicenter of Breitbart-hate -- MSNBC. It was a week into the controversy. Nation editor Chris Hayes was filling in for Rachel Maddow and reported that I was responsible for black farmers not getting their settlement money.
“Conservative con artist, 1; black farmers, 0,” liberal Journolist Hayes said snarkily.
Black farmers? Settlement money? I had no idea what he was talking about. None.
Later I became aware that on a CNN discussion on “the Sherrod fallout,” April Ryan of Urban Radio Networkmentioned the Pigford settlement. Ryan described Pigford as a “litmus test” of the Obama Administration's relationship with black Americans.
A quick Google search revealed that Ryan and Hayes had been alluding to the incredibly conspicuous news that days after Sherrod was fired by the Obama administration, funding for the $1.15 billion Pigford II settlement was pulled out from a supplementary war funding bill.
The Google search also revealed that Senators Obama and Biden had been two of four Pigford legislative sponsors in the Senate.
Even more interesting, Rep. Steve King (R-Ia), who is on the House Agriculture committee, was on AM radio drawing attention to what was previously not known to me, and it was a blockbuster: Shirley Sherrod, and her husband, Charles, along with their decades-long defunct communal farm, New Communities Inc., were set to receive over a whopping $13 million in the Pigford settlement, the largest amount of money allocated in the history of the Pigford settlement. [BigGovernment.com, 12/6/10]
- Breitbart Report Also Suggests That Sherrod May Have Been Fired Because Of Pigford. From Breitbart's report:
When the Shirley Sherrod saga erupted on the nation's airwaves this past July, most people took the immediate firing and then rehiring of Mrs. Sherrod as a morality tale about the dangers of the media and race in America. But to an experienced political hand like former San Francisco Mayor Willie Brown, the story had to be about more than that. As he wrote: “As an old pro, though, I know you don't fire someone without at least hearing their side of the story unless you want them gone in the first place. This woman has been a thorn in the side of the Agriculture Department for years. She was part of a class-action lawsuit against the department on behalf of black farmers in the South. For years, she has been operating a community activist organization not unlike ACORN.”
What Brown was referring to was Pigford v. Glickman, a lawsuit originally involving 400 farmers filed against the U.S. Department of Agriculture in 1997. And Brown was correct: Sherrod had played an important role in Pigford, including receiving the single biggest settlement on behalf of New Communities, Inc.
[The Pigford settlement] allowed farmers to have a hearing before a court-appointed independent arbitrator to seek larger damages. Shirley Sherrod and her husband Charles chose this route. They had at one point operated New Communities Inc., a communal farm in Georgia, which was originally incorporated in 1969. By 1985 it was going broke and they suspended operations. By 1990 the farm had dissolved. But shortly after the consent decree authorizing payments was issued in 1999, New Communities was reformed, with Shirley Sherrod placed on the Board of Directors. Claiming discrimination, New Communities filed suit against the USDA and through arbitration they were awarded an almost $13,000,000 settlement, the largest amount ever won through Pigford. (The second largest award, at least according to the public record, was $675,000.) This included $150,000 each for Charles and Shirley for “pain and suffering,” as well as $1.5 million in debt forgiveness.
On July 22, 2009, they received approval of their settlement. Three days the USDA later hired Shirley Sherrod. This was a remarkable turn of events. When was the last time you heard of a litigant hiring a plaintiff after the case was resolved? [BigGovernment.com, “The Pigford Shakedown,” 12/6/10]
- Breitbart Has Since Claims That He “Can Prove” That Sherrod Was Fired Because Of Pigford. During a February 8 talk at George Washington University, Breitbart said:
BREITBART: Talk to Eddie Slaughter. Look him in his face and ask him who Shirley Sherrod is, and ask him what the Pigford settlement is and why the president of the United States says that this is about justice for black farmers when everyone got money except for the black farmers. That's an injustice. It's why Shirley Sherrod got fired. And I can prove it. [Talk at George Washington University, 2/8/11]
In Fact, Documents Show That Sherrod Was Fired Because Of The Deceptively Edited Videos. The Los Angeles Times reported that it had received “hundreds of pages of e-mails” about Sherrod's firing released to the paper under the Freedom of Information Act. But the Times article reports that the emails show that Sherrod was fired because of concerns about what she said in the deceptively-edited video. The emails reported on by the Times do not even mention Pigford. From the LA Times article:
The first sign of trouble arrived about 2 p.m. on July 19, in an e-mail from USDA communications staffer Wayne Maloney.
Maloney informed Chris Mather, the department's director of communications, that a video had popped up online and that a conservative website soon would publicize it.
“It speaks for itself and you need to watch it right away,” Maloney writes.
Mather's response was blunt. “THIS IS HORRIBLE,” she wrote as she sent notice -- subject line “Super Urgent” -- up the chain of command to Karen Ross, Vilsack's chief of staff, and her deputy, Carole Jett.
It took just an hour and a half to get a directive from Vilsack. “The S [Secretary Vilsack] is absolutely sick and mad over the S Sherrod issue. He wants her immediately on adm leave,” wrote Krysta Harden, assistant secretary of congressional relations.
Cook responded simply, “Done.”
Five minutes later, Cook reached Sherrod on a cellphone. Sherrod gave her side of the story, according to a timeline assembled by Cook.
Cook and Dallas Tonsager, undersecretary of rural development, said in an e-mail sent to Vilsack a few minutes later that the subject of the speech was blacks and whites working together.
“She said there is a copy of the entire speech, and Cheryl asked her to provide it as quickly as possible,” the e-mails said.
But Vilsack did not wait. An hour later, Cook called Sherrod, who was driving in Georgia, to ask her to resign. Another hour later, Cook called Sherrod again to ask her to resign by the end of the day.
“I called her a fourth time at 6:35 to ask whether she'd be willing to pull over to the side of the road and submit a resignation by email,” Cook writes in the account. [Los Angeles Times, 10/8/10 via Nexis]
Sherrod Received Payout From Pigford Because An Arbitrator Found That Sherrod And Her Partners Had Been Subject To An “Outrageous Act” And Likened It To The Way A “Feudal Baron” Treated His Serfs. An arbitrator appointed to review the claims by Sherrod, her partners, and her organization New Communities, Inc., found that the claimants had provided numerous instances in which they had been treated differently from white farmers following a major drought in the early 1980s and that the USDA “offered no nondiscriminatory reason for its conduct.” Specifically, with regard to a demand by the Farmers Home Administration that New Communities pay $50,000 from the sale of timber in order to secure an emergency loan, the arbitrator found:
Claimant testified that “Farmer B, a white farm located in Lee County sold timber in 1981 ... and the sale proceeds [were] treated like normal income. He didn't have to give the proceeds of the timber sale to FmHA.” Claimant's expert testified that the “County Supervisor accepted that timber attached to real property is normal farm income.” As a result, the Chief Arbitrator finds that FmHA did treat a similarly situated white farmer more favorably than New Communities.
Respondent alleges that it had a nondiscriminatory reason for making the $50,000 demand as a precondition to obtaining the Emergency Loan - that “since it was part of the real estate and reduced the value of the real estate, the FSA policy is that the borrower has to pay toward the liens of the real estate from the proceeds of, in this case, the timber sale.” However, the arbitrator found that the Respondent did not have a security interest in the Dewey Gowan property. Accordingly, the Chief Arbitrator finds the USDA's explanation for why it made a $50,000 demand on New Communities as a precondition to obtain a loan was a pretext. The demand for the $50,000 realized from property in which Respondent had no interest, was an outrageous act -- one totally unsupported by FmHA policy or regulation. In fact, the County Supervisor, in his deposition testified that he could not think of any circumstances under which FmHA would require such a payment. The payment smacks of nothing more than a feudal baron demanding additional crops from his serfs. The Chief Arbitrator finds no legitimate nondiscriminatory reasons for the demand. [In re: The Arbitration of New Communities, Inc., 7/22/2009, emphasis added]
Breitbart Distorts Evidence To Suggest That Democrats Used Pigford To Buy The Rural Black Vote
Breitbart Tries To Build Case That “Pigford Was Designed To Buy The Rural Vote For Al Gore And The Democratic Party In The 2000 Election.” From Breitbart's report:
[I] t is unlikely that such racial politics could have succeeded were it not for the alliance they were able to strike with members of congress and presidential candidates who joined the Pigford bandwagon. Some of them possibly joined out of a sincere belief that they were simply redressing a historical wrong. But others clearly saw this as an opportunity to expand their own political fortunes. It is curious to note that the three big pushes for Pigford have occurred right before three national elections: 1999, 2007, and now 2010. An the alarming theory has been put forth by USDA whistleblower Thomas Kalil: he maintains that Pigford was designed to buy the rural vote for Al Gore and the Democratic party in the 2000 election.
Coincidentally, then Senator Obama, who had been in Congress since January 2005, waited 6 months after he announced his presidential run to introduce S.1989: the Pigford Claims Remedy Act of 2007. It had no co-sponsors when introduced on August 3, 2007. The issue had little application in his state. Illinois had a grand total of 171 black farmers in 2007, it seems like an interesting choice of issues to champion. [BigGovernment.com, “The Pigford Shakedown,” 12/6/10]
Breitbart Claims That A 1996 “Self-Admission” Of Discrimination In The USDA By A Clinton Apointee Is What Created Room For The Settlement. From Breitbart's report:
In the early 1990s there were several individual lawsuits filed by black farmers against the USDA alleging racial discrimination. Buried under a cloud of legal paperwork generated by government lawyers and the lack of compelling evidence, these cases never got anywhere. But in 1996, then USDA Secretary Dan Glickman gave a speech and apologized for racial discrimination at his department, which he said came in the form of denying loans and services to some black farmers in the south. This “self-admission” opened the door to new lawsuits, and one was filed in 1997 by Timothy Pigford (Pigford v. Glickman), a black farmer who alleged he was a victim of such discrimination. [BigGovernment.com, “The Pigford Shakedown,” 12/6/10]
In Fact, A 1994 Study Found Disparities Between The Way USDA Treated Black And White Farmers In The 1990s. Contrary to Breitbart's assertion that there existed a “lack of compelling evidence” to prove the farmers' discrimination claims, CRS reported:
In 1994, the USDA commissioned D.J. Miller & Associates, a consulting firm, to analyze the treatment of minorities and women in Farm Service Agency (FSA) programs and payments. The study examined conditions from 1990 to 1995 and looked primarily at crop payments and disaster payment programs and Commodity Credit Corporation (CCC) loans. The final report found that from 1990 to 1995, minority participation in FSA programs was very low and minorities received less than their fair share of USDA money for crop payments, disaster payments, and loans.
According to the commissioned study, few appeals were made by minority complainants because of the slowness of the process, the lack of confidence in the decision makers, the lack of knowledge about the rules, and the significant bureaucracy involved in the process. Other findings showed that (a) the largest USDA loans (top 1%) went to corporations (65%) and white male farmers (25%); (b) loans to black males averaged $4,000 (or 25%) less than those given to white males; and (c) 97% of disaster payments went to white farmers, while less than 1% went to black farmers. The study reported that the reasons for discrepancies in treatment between black and white farmers could not be easily determined due to “gross deficiencies” in USDA data collection and handling. [Congressional Research Service, 12/10/10]
Republicans Have Been Involved In Pigford Case Since The Beginning. In fact, in 1998, Congress passed the first law allowing black farmers to sue the USDA for discrimination. At the time, Congress was controlled by the Republicans, with former Rep. Newt Gingrich (R-GA) as the House speaker. From the June 15 CRS report:
On October 9, 1998, the court issued a ruling certifying as a class black farmers who filed discrimination complaints against the USDA between January 1983 and February 21, 1997. In his ruling, Judge Friedman concluded that the class action vehicle was “the most appropriate mechanism for resolving the issue of liability” in the case. A complicating factor throughout the period, however, was a two-year statute of limitations in the Equal Credit Opportunity Act (ECOA), the basis for the suit. Congress, accordingly, passed a measure in the FY1999 omnibus funding law that waived the statute of limitations on civil rights cases for complaints made against the USDA between 1981 and December 31, 1996. [Congressional Research Service, 12/10/10]
AJC: Gingrich “Led An Effort To Remove The Statute Of Limitations Provisions” That Was Stalling The Case. The Atlanta Journal-Constitution reported in 1998 that it was Gingrich who “led an effort to remove the statute of limitations provisions” that had represented a major hurdle for the farmers in bringing the case. The AJC also reported that Republican Sen. Thad Cochran pushed the issue in the Senate. From the article:
The Senate has joined the House of Representatives in approving legislation that removes the two-year statute of limitations in federal discrimination cases. This measure clears a major hurdle facing about 600 black farmers in 14 states seeking monetary damages for proven acts of discrimination in lending and foreclosures.
Race discrimination complaints from black farmers go back as far as 1983, when President Ronald Reagan cut the USDA's civil rights section.
“We want the government to go on now and settle the suit. Their defense was statute of limitation and you don't have that no more, now let's settle it,” said North Carolina farmer Tim Pigford, lead plaintiff in the lawsuit.
“It's nice to see that both the Democrats and Republicans are comfortable in addressing a longstanding problem,” [lead attorney Alexander] Pires said. House Speaker Newt Gingrich led an effort to remove the statute of limitations provisions and the issue was pushed in the Senate by Sens. Charles Robb (D-Va.), Thad Cochran (R-Miss.) and Dale Bumpers (D-Ark.). [Atlanta Journal-Constitution, 7/20/98 via Nexis]
Grassley Introduced Legislation To Reopen Pigford Case. Republican Sen. Charles Grassley (IA) sponsored or co-sponsored a number of bills seeking to allow more African-American farmers to join the Pigford settlement and to provide more money to settle claims. From a Time magazine report:
[A]s a Senator Obama had championed the black farmers' lawsuit against the USDA.
Along with Republican Senator Chuck Grassley of Iowa, Obama introduced legislation to reopen the case (that was initially settled in 1999) to allow more black farmers to join and to provide more funding to settle claims. The legislative language was added to the Farm Bill passed in 2008 and its inclusion led to a second Administration-negotiated settlement in February of this year for $1.15 billion. [Time, 7/23/10]
- S.972: “A Bill To Amend The Food, Conservation, And Energy Act Of 2008 To Provide Funding For Successful Claimants Following A Determination On The Merits Of Pigford Claims Related To Racial Discrimination By The Department Of Agriculture.” [S.927, 5/5/09]
- S.515: “Pigford Claims Remedy Act Of 2007.” [S.515, 2/7/07]
- S.3976: “Pigford Claims Remedy Act Of 2006.” [S.3976, 9/28/06]
GOP House Members Also Co-Sponsored Legislation To Re-Open Pigford Case. A House version of Grassley's proposal, H.R. 3073, was co-sponsored by Republican Reps. Steve Chabot (OH) and James Sensenbrenner (IL). Another bill to re-open the Pigford case, H.R. 899, was co-sponsored by Chabot.
- H.R. 3073: “Pigford Claims Remedy Act of 2007.” [H.R. 3073, 2/7/07]
- H.R. 899: “Pigford Claims Remedy Act of 2007.” [H.R. 899, 2/7/07]
Grassley On Passage of 2010 Bill: “Today We Have The Opportunity To Make Right These Past Wrongs” By USDA. On the day the Senate approved the $1.15 billion measure to fund the Pigford II claims, Grassley said on the Senate floor: “Today we have the opportunity to make right these past wrongs by the Department and give each individual claimant the right to tell their side of the story.” He added: “We know USDA has admitted that the discrimination occurred, and now we are obligated to do our best in getting those that deserve it, some relief. It is time to make these claimants right and move forward into a new era of civil rights at the Department of Agriculture.” [Grassley Senate floor speech, 11/19/10]
Moreover, Republican Congress Passed A Law That Allowed Pigford Lawsuit To Proceed. As noted above, Gingrich's Republican Congress passed the 1998 law that made it possible for black farmers to successfully sue the USDA for discrimination for certaincases dating back to the 1980s, regardless of the statute of limitations. [Atlanta Journal-Constitution, 7/20/98 via Nexis]
Breitbart Relies On Faulty Data To Build Case That There Was “Massive Fraud”
CLAIM: Discrepancy Between Number Of Claimants And Census Figures On Black Farmers At The Time Indicates “Massive Fraud.” In his report, Breitbart alleges that “massive fraud” occurred, pointing to the fact that the number of people filing discrimination claims is far larger than the number of black farmers the Census counted at the time. From Breitbart's report:
The original estimate on both sides of the lawsuit was that the number of claimants would total between 1,000-4,000. But what started out, as a relatively small case of perhaps 4,000 claimants at most, is today a multi-billion dollar settlement with over 94,000 claimants.
What makes that figure so problematic is that during the years the alleged racial discrimination took place (1981-1996), there were never more than 33,000 black farmers total in the entire United States according to the census bureau. What these numbers speak to is massive fraud. [BigGovernment.com, “The Pigford Shakedown,” 12/6/10]
CRS: Census Bureau Count Did Not Accurately Reflect The Number Of Black Farmers. Addressing the questions that have been raised regarding the number of black farmers who would be eligible to file a claim under Pigford, CRS wrote:
Questions have been raised about the number of black farmers who were or are eligible for a settlement under Pigford or Pigford II. Determining the number of African American farm operators who farmed during the period of January 1, 1981, and December 31, 1996, is difficult because of the way in which the Census of Agriculture defined farm operator. Prior to the 2002 Census of Agriculture, only principal farm operators were counted. In the 1982 Census of Agriculture, there were 33,250 African American-operated farms; in 1987, 22,954; in 1992, 18,816; and in 1997, 18,451. Essentially, the number of African American farms was treated as synonymous with the number of African American operators.
These statistics, however, failed to recognize that many farms are operated by more than one farm operator. In 2002, the Census of Agriculture collected data for a maximum of three principal operators per farm. The 2002 Census enumerated 29,090 African American farm operators. This statistical change more accurately captured the actual number of operators, that is, those who are actually engaged in farming. For example, a single farm may be operated by four or more operators, each of whom could have conceivably made loan applications to USDA agencies. In addition, a farm operator might operate rented or leased land owned by a principal operator. In such a case, that operator renting or leasing farmland would not have been counted as the operator of that farm. Under the term of the consent decree, however, such a farmer could be an eligible claimant because he or she farmed or tried to farm during the requisite time period. The varying Census definitions of farm, farm operator, and farm owner help explain why the number of initial claimants in the Pigford case (approximately 94,000) was higher than the number of farms/farm operators enumerated by the Census of Agriculture between 1982 and 1997 and why the estimated number of potential Pigford II claimants may be greater than the number of farms/farm operators enumerated in those or subsequent Census counts. [Congressional Research Service, 12/10/10, emphasis added]
Settlement Is Open To Those Who “Attempted To Own Or Lease” Farm Land, Not Just Those Who Were Actually Able To Farm. As explained by the June 15 CRS report, and as Breitbart himself notes earlier in his report, the settlement applies to those who “attempted to own or lease” farm land but were discriminated against by USDA in their loan applications. From the June 2010 CRS report:
Track A claimants had to present substantial evidence (i.e., a reasonable basis for finding that discrimination happened) that
- claimant owned or leased, or attempted to own or lease, farm land;
- claimant applied for a specific credit transaction at a USDA county office during the applicable period;
- the loan was denied, provided late, approved for a lesser amount than requested, encumbered by restrictive conditions, or USDA failed to provide appropriate loan service, and such treatment was less favorable than that accorded specifically identified, similarly situated white farmers; and
- the USDA's treatment of the loan application led to economic damage to the class member. [Congressional Research Service, “The Pigford Cases: USDA Settlement of Discrimination Suits by Black Farmers,” 6/15/10]
Breitbart's Attack On Pigford Judge Doesn't Hold Water
CLAIM: Pigford Was Approved By “An Activist Judge.” Breitbart's report claimed that Judge Friedman, the presiding judge in Pigford v. Glickman, is an “activist judge”:
[Pigford] is a saga of fraud and financial manipulation, which has been incubated by an activist judge, and exploited, by trial attorneys, activists, and politicians.
In the opinion accompanying the Consent Decree, Judge Paul Friedman, a judge appointed by President Bill Clinton, hinted at what might lie ahead, arguing that the case was in his mind an opportunity to deal with more than the alleged discrimination at USDA and serve a larger purpose. His opinion began with an unequivocal reference to reparations, “Forty acres and a mule. As the Civil War drew to a close, the United States Government created the Freedmen's Bureau to provide assistance to former slaves...” He went on: “These events were the culmination of a strong of broken promises that had been made to African American farmers for well over a century. It is difficult to resist the impulse to try to undo all the broken promises and years of discrimination that have led to the precipitous decline in the number of African American famers in the United States. The Court has before it a proposed settlement of a class action lawsuit that will not undo all that has been done. Despite that fact, however, the Court finds that the settlement is a fair resolution of the claims brought in this case and a good first step towards assuring that the kind of discrimination that has been visited on African American farmers since Reconstruction will not continue into the next century. The Court therefore will approve the settlement.” The consent decree was about more than the USDA. [BigGovernment.com, “The Pigford Shakedown,” 12/6/10]
Appellate Court Panel -- Including Reagan Appointee -- Unanimously Held That The Principle Provisions Of The Settlement Are “Indisputably Fair And Reasonable.” A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, which included Reagan appointee Judge David Sentelle, unanimously affirmed Friedman's decision to uphold the consent decree. The decision said:
The ultimate question before the court is whether the district court abused its discretion by approving a consent decree, the principal provisions of which are an indisputably fair and reasonable resolution of the class complaint, containing one paragraph that assigns to the class a risk it would have borne in any event and another paragraph that limits the mode of enforcing the decree in the event of default. To ask the question is to answer it. Because it is clear that no abuse of discretion occurred we do not reach the government's alternative argument concerning whether it would be equitable for this court to vacate the decree in light of the number of claims that have been resolved in reliance on the decree. [U.S. Court of Appeals for the District of Columbia Circuit, Pigford, Timothy vs. Glickman, Dan, 3/31/00]
Friedman: “Judges Are Not Legislators Or Policymakers.” In his opinion denying a motion to expand the Pigford I settlement, Friedman wrote:
By filing these motions and trumpeting their optimism in the press and on the Black Farmers and Agriculturalists Association, Inc. website, Mr. [James] Myart and Mr. [Thomas] Burrell have given false hope to thousands of African American farmers. To the extent that these motions were meant to benefit those who did not get notice of the requirements of the Consent Decree or those who sought to file late claims, Mr. Myart should have understood that under the law governing class actions, negotiated settlements and finality of judgments, and the constraints under which judges are bound to operate, this was simply the wrong forum in which to seek relief.
Judges are not legislators or policymakers. Their job is to interpret and apply the laws as written by Congress, the rules of procedure adopted by the Supreme Court, and the law and legal precedents announced by the Supreme Court and the courts of appeals. The federal judiciary was intended by the Founders to be the least active branch of the federal government and, correspondingly, it operates under significant constraints -- not the least of which are the statutes enacted by Congress, the rules of procedure and legal precedents. [U.S. District Court for the District of Columbia, 1/3/05 via Pigfordmonitor.org]
Breitbart's Claim That FBI Investigation Of Pigford Fraud Was “Thwarted” Is Contradicted By The Evidence
CLAIM: FBI Investigation Was “Thwarted” And “Shut Down -- But Not Because Of Lack Of Evidence.” In the report, Breitbart claims that an FBI investigation into allegations of fraud related to the Pigford settlement was “thwarted” and that attorneys “were reluctant” to pursue them “because of the politics involved.” The report also claims that the investigation was “eventually shut down -- but not because of a lack of evidence.” From Breitbart's report:
It is the story of an FBI investigation thwarted, and USDA workers threatened and silenced. It is a tale of trial attorneys getting rich, activist groups using it for their political gain, and politicians using the settlement as a means of buying votes.
There was an FBI investigation launched, which included supervisory agents in Washington as well as agents in the field. One individual who participated in these FBI investigations, who prefers to stay anonymous (but is willing to cooperate openly with a congressional investigation), told us that they found numerous instances of fraud carried out under Pigford. This individual estimates that based on the FBI investigation, at least half of the claims filed under Pigford were false. But when U.S. attorneys were contacted with the information, they were reluctant to pursue them because of the politics involved. They were also concerned, according to this source, that they might be accused of engaging in “selective prosecution.” (Of course any prosecution of crime is in some instances selective because not all individuals who commit them will face justice.) The investigation of Pigford fraud was eventually shut down -- but not because of a lack of evidence. [BigGovernment.com, “The Pigford Shakedown,” 12/6/10]
USDA: Allegations Of Fraud Were Prosecuted By The Justice Department. In an article about House conservatives' complaints that the Pigford II settlement is “rife with fraud,” the National Journal reported:
Agriculture Secretary Tom Vilsack is firing back at a group of House conservatives who continue [to] assert that the $1.25 billion discrimination settlement with black farmers included in legislation passed Friday by the Senate is rife with fraud.
The USDA points out that allegations of fraud in connection with [the first Pigford] settlement program all were forwarded to the department's inspector general, who then passed them to the FBI. Ultimately, according to the department, the FBI prosecuted a total of 3 individuals -- out of a total of 20,000 claimants.
In his statement today, Vilsack said the Obama administration is “committed to ensuring that anyone receiving a payment under Pigford II was the victim of discrimination and has a valid claim that deserves compensation by following the very specific criteria outlined in the 2008 farm bill.” [National Journal, 11/22/10]
Breitbart Himself Mentions Cases Successfully Investigated And Prosecuted By Justice Department. Among Breitbart's examples of “widespread fraud” were two schemes that resulted in prison time for those involved:
Clovis Reed's mutilated corpse was found in a wooded area of Simpson County, Mississippi in 2003.
Reed was a government informant who had been killed by Kathleen Nelson and her boyfriend, Roosevelt Walker. Why did they want Mr. Reed dead? The three had been involved in a scheme to defraud the government through the Pigford settlement. Reed was killed because Nelson and Walker did not want him to testify about the embezzlement of Pigford money. According to one family member, all “were part of a scam to defraud the federal government of the money from the settlement between black farmers and the U.S. Department of Agriculture.” Nelson and Walker were sentenced to life in prison in 2006.
Reed's grisly murder may have been the most dramatic act related to Pigford fraud, but it is far from the only criminal incident. Daniel Anew [sic], an administrator at Elizabeth City State University [sic] traveled to Arkansas in 1999 where he attended a meeting in Pine Bluff and in the words of the Associated Press, “learned about a lucrative opportunity to scam. the U.S. government.” Told that the Pigford settlement was a “veiled way to collect reparations for centuries-old grievances,” Anew [sic] joined forces with fellow university administrator Emma Brooks and began filing false claims under Pigford. In all they were set to receive $400,000 from the federal government. The Associated Press notes that the scam was hatched in part because “with minimal documentation, they could get payments of $50,000.” Both were sentenced to prison time and restitution in 2005. [BigGovernment.com, “The Pigford Shakedown,” 12/6/10, emphasis added]
Breitbart Falsely Claims Rep. Steve King Has “Documented” Millions Of Dollars In Fraud
CLAIM: “Members Of Congress...Have Documented Millions If Not Billions In Fraud.” Breitbart's report cites “Members of Congress” among those who he says “have documented millions if not billions in fraud. [BigGovernment.com, ”The Pigford Shakedown,"12/6/10, emphasis added]
But Breitbart's Report Does Not Substantiate This Claim.An earlier passage in the report indicates that he is referring to Republican Rep. Steve King who has not, in fact, “documented” millions of dollars of fraud. From the report:
The startling number of claimants (over 90,000) has not escaped the notice of Rep. Steven King (R-IA), who is on the House Agriculture Committee. He has been studying the Pigford settlement for some time and stated in a recent interview that he believes at least 75% of the claims appear to be fraudulent. [BigGovernment.com, “The Pigford Shakedown,” 12/6/10]
King Has Credited An Unnamed Source For The Claim. During an appearance on CNN, King said that the 75 percent figure comes from an anonymous source who made an estimate based on “stacks of copies of documents.” When host Anderson Cooper asked King for “proof of this 75 percent claim you make,” King replied:
KING: I've said that I had a district director who was deployed to Washington, D.C., to help administer the distribution of the first $1.05 billion under Pigford. He came back. He among others with stacks of copies of documents, sick at heart. He said at least 75 percent are fraudulent. And so we can't say that there's no fraud here. [Anderson Cooper 360, 12/1/10]
Breitbart Ignores New Anti-Fraud Safeguards Included In New Pigford Legislation
New Pigford Legislation Includes New Provisions To Protect Against Fraud. In a floor statement supporting the Senate-passed bill, Grassley listed several systems that had been put in place to prevent fraudulent claims, saying that they “will help deter fraud and better protect taxpayer dollars”:
GRASSLEY: We've made changes to the settlement agreement that will enhance the Department's ability to fight fraud. We require the adjudicators to be a truly neutral party. We allow that neutral adjudicator to ask the claimant for additional documentation if he or she suspects any fraud. We require the claimants' attorneys to certify that there is evidentiary support for the claims. And we require the Office of Inspector General and the Government Accountability Office to evaluate the Department's internal controls and audit the process in adjudicating the claims.
All these steps will help deter fraud and better protect taxpayer dollars. [Grassley Senate floor speech, 11/19/10]
Bill Requires Neutral Adjudicator To Determine Claims' Validity. The law passed by Congress required that a neutral adjudicator be hired by the plaintiffs and that he or she be approved to determine claims by both the relevant government officials and the court. From the bill:
ADDITIONAL SETTLEMENT TERMS.-- For the purposes of this section and funding for the Settlement Agreement, the following are additional terms:
(1) DEFINITIONS.-- In this subsection:
(A) SETTLEMENT AGREEMENT.-- The term “Settlement Agreement” means the settlement, including any modifications agreed to by the parties and approved by the court, between the Secretary of Agriculture and certain plaintiffs, by and through their counsel in litigation titled Black Farmers Discrimination Litigation, Misc. No. 08-mc-0511 (PLF).
(B) NEUTRAL ADJUDICATOR.--
(i) IN GENERAL.-- The term “Neutral Adjudicator” means a Track A Neutral or a Track B Neutral as those terms are defined in the Settlement Agreement, who have been hired by Lead Class Counsel as that term is defined in the Settlement Agreement.
(ii) REQUIREMENT.-- The Track A and B Neutrals called for in the Settlement Agreement shall be approved by the Secretary of the United States Department of Agriculture, the Attorney General, and the court.
(2) OATH.-- Every Neutral Adjudicator shall take an oath administered by the court prior to hearing claims. [H.R. 4783, 11/30/10]
Bill Allows Neutral Adjudicator To Ask For Additional Documentation And Evidence Of Claims “If The Adjudicator Suspects Fraud.” The bill says:
(3) ADDITIONAL DOCUMENTATION OR EVIDENCE.-- Any Neutral Adjudicator may, during the course of hearing claims, require claimants to provide additional documentation and evidence if, in the Neutral Adjudicator's judgment, the additional documentation and evidence would be necessary or helpful in deciding the merits of the claim, or if the adjudicator suspects fraud regarding the claim. [H.R. 4783, 11/30/10]
Bill Requires GAO And USDA Inspector General Reports On Claims. From the bill as passed by the Senate:
(1) GOVERNMENT ACCOUNTABILITY OFFICE.--
(A) IN GENERAL.--The Comptroller General of the United States shall evaluate the internal controls (including internal controls concerning fraud and abuse) created to carry out the terms of the Settlement Agreement, and report to the Congress at least 2 times throughout the duration of the claims adjudication process on the results of this evaluation.
(B) ACCESS TO INFORMATION.--Solely for purposes of conducting the evaluation under subparagraph (A), the Comptroller General shall have access, upon request, to the claims administrator, the claims adjudicators, and related officials, appointed in connection with the aforementioned settlement, and to any information and records generated, used, or received by them, including names and addresses.
(2) USDA INSPECTOR GENERAL.--
(A) PERFORMANCE AUDIT.--The Inspector General of the Department of Agriculture shall, within 180 days of the initial adjudication of claims, and subsequently as appropriate, perform a performance audit based on a statistical sampling of adjudicated claims. [H.R. 4783, 11/30/10]
Breitbart's Report Suggests One Source Is Several Sources
Breitbart Inflates One Source Into Multiple Sources. At one point, Breitbart repeatedly suggested that accusations about wrongdoing in Arkansas came from several different sources:
Some of the claims of discrimination didn't make sense. One employee reports that there were numerous claims of racial discrimination against the USDA offices in Jefferson County, Arkansas, for example, but the supervisors in that office were all black.
Another employee from Arkansas reports that there were literally hundreds of claims from black women stating they had been the victims of USDA discrimination but in his 15 years in Arkansas, he had only ever seen one black female applicant for a loan.
Still another USDA employee reports that he personally witnessed an example where eight Pigford applicants came from one single family, and they were accepted and granted by USDA. “Pigford was basically legalized extortion,” reports this USDA employee, “it reached the point where they were just handing money to people.” [BigGovernment.com, “The Pigford Shakedown,” 12/6/10, emphases added]
Reality: Each Of The Quotes Apparently Came From One Interview With Anonymous Source. According to Breitbart's own website, the quotes highlighted above did not come from three different employees. Rather, they are all included in one interview with a single anonymous source posted on Breitbart's BigGovernment.com [BigGovernment.com, “Pigford Witness Report,” 12/7/10]
Breitbart Misleadingly Edited Letter To Obama To Suggest Wrongdoing
Breitbart Misleadingly Edited Letter From BFAA President To Obama To Suggest Obama Would Be Rewarded For Attending Event. Breitbart's report includes the text from& a letter from Black Farmers Agriculturists Association (BFAA) President Gary Grant to then-Senator Obama which Breitbart said “conveyed to Obama that if he attends an event, he will be rewarded with campaign contributions, and even more precious, votes.” [BigGovernment.com, “The Pigford Shakedown,”12/6/10]
However, The Letter Makes Clear Obama Would Not Attend The Event. However, Breitbart removed several key passages from the text of the letter, which made it clear that Obama would not be attending the event that Grant had invited him to.& For instance, Breitbart's report omits this portion of the letter, without giving any indication that it had done so Land Loss Summit. I do want you to know that I understand and know that you have a very busy schedule, and we probably would not have been notified if you could come until a close date to the time of the Summit. And, I am appreciative that your Washington office did finally respond to someone and the message reached me that neither you, nor anyone from your campaign, would be able to be with us on February 16, 2008 here in rural northeaster North Carolina in the 1st Congressional District represented by the Honorable G.K. Butterfield.
However, in so stating my regrets and disenchantment, let it be known that I am doing so mildly because I am more than disappointed that this organization sent you four (4) letters of request by fax and mail, and had many citizens from around the country write to you and your campaign regarding your possible visit, but we never heard anything from you or your campaign. This is very unsettling since your campaign is based on change and calling for a “New Day” in the country, one that is inclusive and, as your wife stated in a speech I heard recently on TV, "...giving a little respect and dignity" for all of us. [Black Farmers & Agriculturists Association, 3/17/08]
Breitbart Cites Source Who Committed Ethics Violation
Breitbart Quotes USDA Official Tom Kalil As Proof That Pigford Was “Designed To Buy The Rural Vote For Al Gore.” Breitbart quotes USDA official Tom Kalil saying of Pigford claims, “You didn't even have to live in the rural community. Heck, somebody from here in the Washington area could have been passing through a rural community and decided that they would have liked to farm and put in an application.” Breitbart also forwards Kalil's assertion “that Pigford was designed to buy the rural vote for Al Gore and the Democratic party in the 2000 election.” [BigGovernment.com, “The Pigford Shakedown,” 12/6/10]
Maryland's Highest Court Found That Kalil Violated Legal Ethics Duties By Engaging “In Conduct Involving Dishonesty, Fraud, Deceit Or Misrepresentation.” Kalil, a Maryland attorney, was reprimanded by Maryland's highest court for violating Rule 8.4(c) of Maryland Attorney Rules of Professional Conduct. Rule 8.4(c) provides that "[i]t is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation." [Maryland Court of Appeals, 12/6/07]
Kalil Had Falsely Claimed To Be Acting On Behalf Of D.C. Bar Counsel. The ethics case against Kalil began after he was suspended for 14 days from his job at USDA. Kalil claimed that the suspension was wrongful because he was protected by the Whistleblower Act. He then filed a complaint with the Merit Systems Protection Board, which oversees federal civil service laws. While the case was pending before the Merit Systems Protection Board, Kalil came to believe that the judge involved was involved in ethical misconduct and contacted the D.C. Bar's ethics office, the Bar Counsel. He was told that they needed more information. So then, using an alias, he contacted the Merit Systems Protection Board judge handling his case. From the Maryland Court of Appeals decision:
Kalil believed that Judge Cook and some of the witnesses at his MSPB hearing committed acts that breached the applicable rules governing attorney conduct and that he had an ethical obligation to report such acts. While his judicial review action was pending, Kalil called the MSPB Washington Regional Office on at least three occasions. On June 21, 2005, a paralegal specialist for the office, Sheila Stanton, answered a call from a person who identified himself as “John Ford” and who asked to speak with “Tom Cook, an MSPB Judge.” The caller, who was in fact Kalil, indicated that the phone call concerned a personal matter. Stanton put the call on hold and contacted Judge Cook who asked her to transfer the call to his voicemail, which she did. Judge Cook testified that he is reluctant to answer the phone because a large number of cases before him involve pro se litigants who seek to argue their cases ex parte. In addition, Judge Cook does not speak to a litigant after his or her case has been decided.
Soon after, Stanton answered another call, but the caller did not identify himself. Stanton, however, recognized the caller to be the same person who earlier had identified himself as “John Ford.” This time, the caller asked Stanton whether Judge Cook was a member of the Bar of the District of Columbia. Judge Cook is a member of the California Bar and is not admitted to the District of Columbia Bar. Stanton informed the caller that she was not sure and that he would have to ask Judge Cook. She then forwarded the call to Judge Cook's voicemail. The transcript of the voicemail reads as follows:
“Yes, Judge Cook, this is Thomas Cahill. If you could contact me at [telephone number] I would appreciate it. I have a technical question I have to obtain information from you. This is not related to the case, but I'm calling on behalf of D.C. Bar Counsel. Thank you.”
Kalil's exception regarding his representation that he was calling “on behalf of Bar Counsel” is without merit. Whether Kalil intended to deceive the recipients of his calls or misrepresent himself does not alter Judge Thompson's finding and conclusion that, "[r]egardless of Respondent's intentions, his actions of representing that he was calling on behalf of Bar Counsel were deceitful and untrue." Judge Thompson's factual finding regarding the manner in which Kalil represented himself to the MSPB is not clearly erroneous, and the conclusion of law that Kalil violated Rule 8.4(c) is supported by the record. [Maryland Court of Appeals, 12/6/07]
Judge Presiding Over Kalil's Case: Kalil “Has An Inflated View Of His Role At The U.S. Department Of Agriculture And His Public Responsibilities.” From the Maryland Court of Appeals decision quoting the lower court judge:
The actions of the Respondent in this matter are largely undisputed. To understand exactly what happened and why it occurred requires some insight into the character and personality of the Respondent. During the hearing on this matter, with the Court's ability to observe the Respondent testify, it became clear that the Respondent is an intelligent career civil servant who has an inflated view of his role at the U.S. Department of Agriculture and his public responsibilities. He is also hampered by his selective interpretations of facts and their application to his situation together with an inability, on occasion, to acknowledge that he is wrong about matters with which he is dealing. An apt description of the Respondent is as an unappreciated gad fly. At times during his testimony, Respondent was argumentative or non-responsive to the questions asked, not because he was evasive, but because he elected to split hairs during his answer or to try to restate the question to fit what Respondent believed was appropriate. It is the Court's belief that this personality trait is what led to Respondent's troubles with his employer, the MSPB, and the Office of Bar Counsel for the District of Columbia.[Maryland Court of Appeals, 12/6/07]
Breitbart Claims An Anecdote From The Newsletter Of Dr. Ridgely Muhammad “Backs Up” Kalil's Theory That Pigford Was Designed To Buy 2000 Election. In The Pigford Report, Breitbart quoted at length a passage from a newsletter posted on the personal website of BFAA Vice President Dr. Ridgely Muhammad. This passage, Breitbart claimed, “backs up the accusations of Thomas Kalil.” Earlier in the report, Breitbart had written that Kalil “maintains that Pigford was designed to buy the rural vote for Al Gore and the Democratic party in the 2000 election.” [BigGovernment.com, “The Pigford Shakedown,” 12/6/10]
Even Assuming The Anecdote Is Accurate, It Does Nothing To Corroborate Kalil's Theory. The cited portion of the newsletter in full reveals nothing about the motives of the Gore campaign or any Democratic political operatives. It simply recounts a threat Muhammad supposedly delivered to Paul Fiddick, then the Department of Agriculture's Assistant Secretary for Administration. The passage gives no indication of how Fiddick reacted or if the threat was remotely credible. Here, in full, is the portion Breitbart cites:
[I] asked him [Fiddick] to listen very carefully and deliver a message to Dan Glickman for Al Gore. “Since you can just listen, then pass this on. If Dan Glickman ain't cleaned up this mess with the Black farmers, that is give them their money, then he can tell Al Gore that he will not be president of these United States. See you next Monday and bring Dan with you.” [MuhammadFarms.com, 3/7/200, emphasis added by Breitbart]