USDA Withheld Evidence, Farmers? Lawyer Says

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The U.S. Department of Agriculture knowingly withheld evidence that would have helped prove the claims of black farmers who were denied compensation for discrimination in farm loans, a Pine Bluff lawyer said recently.

And he had a copy of a USDA letter that seems to admit as much, though some officials involved in the case characterize it differently.

Othello Cross represents Arkansas farmers in Pigford vs. Glickman, the 1997 lawsuit filed by North Carolina farmer Timothy C. Pigford against then-Secretary of Agriculture Dan Glickman and the USDA.

The federal government settled the lawsuit, agreeing by consent decree to pay farmers who had been victims of discrimination between 1981 and 1997.

The agreement set up a complex claims process by which farmers who met certain proof criteria could collect $50,000 and become eligible for debt relief.

Though about 60 percent of claims accepted for processing have been approved, Cross said many older claims have been denied because the USDA claimed it could find no record to support the farmers’ charge of discrimination.

The records exist, Cross said: The government just doesn’t want to look for them.

None of the six USDA employees contacted for this report denied Cross’ charge, instead referring questions to other officials or simply claiming ignorance of the specific issue.

“No Record Could be Found”

To prove a discrimination claim, a black farmer must identify a “similarly situated” white farmer who received a loan, while the black farmer’s loan application was denied or delayed. Some claims older than 1989 were ultimately denied by Randi Ilyse Roth, the monitor and ultimate authority in the consent decree process, because the USDA told Roth that no record could be found of the white farmers receiving loans, Cross said.

In one such case, Cross, whose office is less than a block from the Jefferson County Courthouse, said he then searched lien records filed at the courthouse and found the loan records.

He was able to repeat the process with loans records at other courthouses in Arkansas.

When Cross sent evidence of the loan, Roth recommended reconsideration of the claim, he said.

On April 16, Roth wrote to Maureen O’Brien, a USDA attorney, and Michael Sitcov, a U.S. Department of Justice official, questioning the wording of USDA responses when the department said no record could be found to support the farmer’s claim.

The USDA response, dated June 27, is proof that the government deliberately withheld evidence, Cross claimed.

The letter was written by Almeda [Dee] Cole, assistant deputy administrator of farm loan programs for the Farm Service Agency, a USDA department.

“The current database record for our borrowers includes an online history record back to 1989 …

Some or all of borrower’s loans may have been purged off the database,” Cole wrote. “The 450-11 microfiche records are a history of all the transactions processed on a borrower’s account. The Finance Office has a copy of this record from 1974-2000.”

“In order to do a microfiche search for a borrowers loan record from 1974-1989, USDA needs the state and county code for the individual along with the name and social security number of that individual.”

But, Cross said, the claimants cannot legally obtain the white farmer’s Social Security number.

The June 27 letter was the first time the USDA had revealed that a Social Security number was necessary for pre-1989 searches, Cross said. In previous responses, the agency had merely stated that no records could be found.

“I have yet to see one that says ‘there is no record,'” Cross said. “[USDA] withheld evidence.”

The Monitor

Roth, the monitor in the Pigford case, is a lawyer and executive director of Farmer’s Legal Aid Group Inc., a St. Paul, Minn., nonprofit law center. FLAG is “dedicated to providing legal services to family farmers and their rural communities in order to help keep family farmers on the land,” the organization’s Web site states. The monitor position has a five-year charge to review all decisions of the court-appointed adjudicator.

Roth said the letter was merely USDA’s response to her question.

“When I faced monitor decisions, I had to know what [a response that no record could be found] means … when somebody’s decision turns on what it means that USDA had no record,” Roth said.

She attaches a copy of the letter to any decision involving older USDA records, she said.

Roth declined to comment on Cross’ charge that USDA deliberately withheld evidence.

“I don’t know that USDA has been obligated to explain [the Social Security number requirement] in every individual claim response,” she said.

“I’m sure that the claimants would have preferred that.”

The letter helped her to decide cases more accurately, she said.

The adjudicator in the case is supposed to make his decision based on whether the claimant presents “substantial evidence,” she said.

Rather than proof beyond the shadow of a doubt, the “substantial” standard requires only that the evidence would lead a reasonable person to conclude that the evidence is likely to lead to a particular conclusion.

“In some cases [if] we conclude that the claimant laid out a coherent set of evidence [then the monitor’s decision can favor the claimant],” Roth said.

The Referral Game

Cole, the author of the letter, didn’t specifically comment on the charge that USDA withheld evidence.

“I guess you should talk to the monitor,” she said.

No USDA employee would speak directly about the consent decree.

Farm Service Agency spokeswoman Jillene Johnson first referred inquiries to the monitor’s office. She later referred questions to a supervisor, Eric Parsons. Parsons identified another employee as the spokeswoman for all matters pertaining to the consent decree.

The employee said she couldn’t comment on the letter without seeing it but refused an offer to fax a copy. She referred questions about loans to the Farm Service Agency but said they wouldn’t comment on the consent decree.

The overall process, which has taken in more than 40,000 claims, is moving steadily but is far from almost done, Roth said.

“I’m 18 months into that five-year period,” she said.

“We’re certainly on track to be done before our deadline, [but] we’re going to have five or six thousand of these to decide.”

Most Claims Fraudulent, State USDA Agent Says

A Lincoln County agent of the U.S. Department of Agriculture estimated last week that almost all of the claims filed through his office in a discrimination settlement were fraudulent.

“I wouldn’t hesitate to say that 90 percent of them are fraudulent claims,” said John Stringfellow, loan manager for the Lincoln County Farm Service Agency in Star City. The Farm Service Agency is a department of USDA.

The claims were for compensation under a consent decree between USDA and black farmers who said USDA discriminated against them by denying or delaying farm loans to them while white farmers in similar circumstances received timely loans.

As a loan manager, Stringfellow was named in some loan discrimination complaints, he said, though in some cases he was not a loan manager when the loan application was processed.

One claimant received $50,000 in compensation by claiming discrimination in 1981, though Stringfellow was not in the position then, he said.

“I’m for paying anybody who’s been discriminated against,” Stringfellow said, adding that he and other Lincoln County FSA employees can identify claimants who have never farmed.

Stringfellow said he has reported the cases to the FBI and contacted members of Congress but is aware of no prosecution in the matter.

A spokesman for the FBI’s Little Rock field office had not returned a call at press time.

Mike Dunaway, FSA state executive director from 1997 until June, said he could not comment on Stringfellow’s charges.

“We’re not supposed to be commenting on [the discrimination case] at all,” he said. “We’re not in a position to make comments.”

Stringfellow blamed low qualification standards for the prevalence of claims he identified as fraudulent, since many who were denied loans had no written proof.

“They set the bar real low,” he said. “Basically all you needed to do was have somebody not in your immediate family go in [to verify the claim].”

Othello Cross of Pine Bluff, attorney for Arkansas claimants in the case, disagreed.

Applicants were segregated from family members and were not allowed to have notes while applying and were asked questions about farming that would weed out those unfamiliar with farming, he said.

Still, “if a man came in with the right story and everything, there was almost no way to prevent [some fraudulent claims],” Cross said.