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would say that the terms of the case and the settlement of the case have been so dramatically changed that the $1.25 billion would no longer be available, statute says. I mean, I think thatls what the

Now, we could argue about whether the

$100 million would be available. But, then, of course, then we get to the question -- s thatls your constitutional argument, Then we get to the

question of my having to decide whether the settlement is fair, adequate, and reasonable. And if I were to permit opt-outs,

then I would create a situation where the first people to get to the courthouse would get the $100 million, and the late filers .wouldnlt get anything. And again, 11m just thinking off the top

of my head here, but it may be -- what do we have here, about 25 separate lawsuits that were filed? So if I were to permit

opt-outs and let everybody fight over the first 100 million dollars, it may be that the named plaintiffs in the first of those lawsuits that were filed by -- you know, 11m not very goo with names, but hels sitting right there. one. MR, POGUST: THE COURT: Mr. Pogust. Mr. Pogust from Pennsylvania. So his He filed the first

clients were the first filers, so they would divide up the $100 million if I allowed opt-outs, if 11m reading what Congress wrote accurately. Now, Congress can say something and I can read it

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accurately,

and it can still be unconstitutional. This is true. But 11m just raising the question whether and

MS. PRICE: THE COURT: anybody benefits

4 5 6
7

from my agreeing with your position, unless theylre part of

whether your clients benefit, Mr. Pogustls lawsuit.

MR. POGUST: MS. PRICE: understand

11m not going to say a word, Your Honor. With respect to Your Honoris question, questions, and comments, I

8

9 10 11 12 13 14 15 16 17 18
19 20

your concerns,

but I donlt

offer you today a general

idea of how we I re just going to wade that I propose with this. that has been But'

through and fix all the proble~s

we are saying that just based on this proposal established agreement, plaintiffs now, this preapproved proposal

and settlement

welre saying that we believe

that all of the will be

in this case, along with our plaintiffs,
I

greatly hurt by this.

I mean, at this point we re going at a if I can say

remedy that looks to be more speedy than accurate, that. THE COURT: MS. PRICE: THE COURT: MS. PRICE: THE COURT: plaintiffs response
I

Okay.

Thank you. Any more questions?

Youlre welcome.

21 22
23

Not at the moment. Thank you, Your Honor. And I assume at some point that either the government might have a

24 25

class counselor

to what youlve said, but I think 1111 go ahead and call

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on the others who want to be heard. MS. PRICE: THE COURT: MR. BURRELL: THE COURT: also for the benefit and spell itr representing. MR. BURRELL: I am the president Association, My name is Thomas Burrell, B-U-R-R-E-L-L. Thank you. Mr. Burrell, good morning.

Good morning. And when you get to the podiumt would you

of the court reporter give me your name, that you're

and identify the organization

of the Black Farmers and Agriculturists

Incorporated. Thank you. Thank your She appreciates Your Honor. that.

THE COURT: MR. BURRELL: again, Your Honor. THE COURT: MR. BURRELL:

Good seeing you

Nice to see your

sir. an objection,

Your Honor, we submitted of mer

but if you have any questions be parallel

some of my comments might that were asked of I would -are

to I think some of the questions So before I say anythingr

the last witness. THE COURT: parallel

Well, I do think some of your comments

to what she was talking aboutr which is the concern and the concern about

about not having an opt-out provision whether law. about. the proposed settlement

comports with due process of which we didn't talk

And then you also raised something

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So the opt-out and dve process, anything further you want to add is welcome, but I would also like to hear what you want to say about attorneys' fees and the range of attorneys' fees that are proposed, and the question of fraud which you raised in your filing as well. MR. BURRELL: THE COURT: highlight. MR. BURRELL: Yes, sir. Thank you, Your Honor. Yes, sir.

And anything else that you care to

8
9

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Here again, Your Honor, on behalf of our members and all African-American fanners, we appreciate you extending this opportunity for us. I think inherent in the documents that we

have submittecl,Your Honor, we don r t believe that this settlement agreement is fundamentally fair, Your Honor. And I

use that word IIfundamentallyll literally, because we believe that the origin of this settlement back to 5(g), and by derivation the original legislation, Your Honor, that gave rise to the black farmers' lawsuit in the first place, which was signed, as you know, Your Honor, by President Bill Clinton in -- well, it was October 21st, as it were, of 1998 that gave rise to this statute of limitation. I think that original legislation, the appropriation bill was 919 pages, and two of those pages dealt with a section called Section 741. And among other things, Your Honor,

Section 741 we believe gave the claimants or potential claimants

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ln this lawsuit a full two years to file, and that full two years, Your Honor, went from oct.obe , as it were, of 1998, r through October 21st of 2000. Basically what werre saying, Your Honor, that the farmers who are now or have been labeled as late were indeed not late pursuant to that legislation, Your Honor; that the 66,000 individuals should be entitled to the same relief and remedy that was available to I, Your Honor, the Pigford African-American claimants in Pigford
I. I --

And we believe therers some evidence that will support that, and that is the Maryland Keepseagle lawsuit, the

Native American lawsuit, Your Honor, which was granted -- I think they had their hearing perhaps in April of this year. They are also filing under Section 741 of that original legislation. And if I might use this analogy, Your Honor, we're saying that basically the two years were divided into four quarters of 180 days respectively, Your Honor, and that the African-Americans filed -- the original 22,000 filed within the second quarter, as it were, if my analogy makes sense; the
66/000 individuals filed in the third quarter, in the same

17 18 19 20
21

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quarter that the Maryland Keepseagle

or Native Americans filed.

And if 741, Your Honor, is still viable for the -- if 741 was viable for Pigford
I,

if it's viable for Maryland Eeep eeaq Le ,

then those black farmers who filed in between,

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Your Honor, we believe that Section inherent

741 and the relief that is II,

in that section would be viable also for Pigford

3 4
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Your Honor. intended,

What welre saying is that we believe that Congress Your Honor, that was relief for that 66, 000 intent.

that Congress used language,

couched in mandatory group of individuals,

terms that provided

and that it was the original

7
8 9

Which now gives my the opportunity might, into the comments

to segue, if I

that -- the issue that was raised by -- the

the other speaker. new section,

That is, we also believe that Section

10 11 12 13 14 15 16 17 18
19

the new settlement,

Your Honor, 14012 - and I might that 14012, Your Honor, the and

re.fer to it as 14012 - we believe current settlement agreement,

is in contravention

consequently

unconstitutional. to the Farm Bill of 2008 that claims resolution

The issue with respect

gave rise to Section 14012 and the subsequent action that provided because the additional

funds were only necessary

in this particular

case Mr. Michael Lewis designated in fact that

those 66,000 individuals they were not late.

as late, when we believe

And that the court -- this court has the

20 21
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remedial powers, when we look at the fairness and the fundamental issue of fairness, adequacy, and reasonableness, to look

Your Honor would be, and the Court is in a position, back at that additional afforded to Keepseagle
THE COURT:

remedy which, here again, is being and others, Your Honor.

24 25

Okay.

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MR. BURRELL: to the due process,

All right.

The other issue with respect as it relates to the ability of

particularly

not opting out, we believe right.

that opting out is a substantive right in any agreement,

It is a basicl it is a fundamental
I

proceedings

Your Honor.

And that this settlement

for whatever

reason and whatever

reason that the parties find from opting out,

that it may be necessary

to limit the claimants

infringes upon a basic and fundamental

right, that substantive
ll --

right to being able to say, IIIdon't believe

and I'm saying may believe

that a farmer or his or her heir or administrator that this settlement is not adequate,

and if they can't opt oUtl which the

they are forced, thenl to findings of the neutrals, settlement morning, agreement
I

as we know and has been stated this

Your Honor, is final. The neutrals will have the final authority to determine

whether or not a claimant

has access to the remedy in 14012. to opt out. The party

The party will not have the opportunity is subj ect to
I

here again, not being able to have his or her particularly against the backdrop allegation of being of fraud, is

claim reviewedi

subject to or subjected fundamentally

to a potential

unfair, Your Honor. And what's the allegation of fraud that

THE COURT: you're alluding to?

MR. BURRELL: neutral will have
I

WeIll the potential

or the prospect

the

inherent

in the settlement,

Your Honor, to

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request additional information from a prospective claimant if they believe - they meaning the neutrals - if the neutral suspects while they are trying to make their determination that the either .farmer the heir, or the administrator may be, shall
I

we say, guilty, implicitly, of fraud or committing a fraud, the they could request additional information. We believe that that potential ability to make that determination has turned the lawsuit into what some of the other parties are saying on the one hand that it 1 S not, and that is a contested litigation. Most of the individuals are saying, well,

the Department of Agriculture will not be able to contest the testimony i however, the Department of Agriculture may not be able to contest it, but the neutral is simply doing now, Your Honor, what the Department of Agriculture did in the
Pigford lawsuit.

If we remember, Your Honor, the definition that was used in the consent decree for substantial evidence was, among other things, the amount of evidence that a reasonable person would believe for making a determination after receiving detracting information from another source. Therefore, if the

detracting information component is still available, Your Honor, and attached to substantial evidence, where is that detracting information going to come from, then? In Pigford I, Your Honor, it came from USDA. USDA's

25

employees, while or after that application was sent to the

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facilitator, Your Honor - in this particular case I think it's the claims administrator - after the party, the claimant, the heir, or the administrator submits their argument, and after, Your Honor, his or her attorney signs off on it, then detracting information can be placed into that application after it leaves, We maintain also that due process, to the extent that the claimant will not be able to refute, rebut, or cross-examine, Your Honor, any party that might be in a position to putting in directly or indirectly detracting information, THE COURT: Ilm not sure which parts of the settlement

agreement you're referring to, and perhaps Mr, Marks or Mr. Sitcov can respond at some point, But as I understand it,

12 13 14 15 16 17 18 19 20 21 22 23 24 25

there's a difference between, quote, in any sort of litigation, when you've got a lawyer on one side and a lawyer on the other side, you've got a dispute of fact, and in this case -- what happened in Pigford I was the government was able to oppose and litigate against the claimant and the claimant's lawyers on the facts: Was there a similarly situated white farmer or wasn't In this

there; did he really apply for a loan or didn't he, case the government isn't going to do any of that.

But what Congress has said in the statute is Congress is concerned about fraudulent claims. I think the concern is

overblown, but there may be some, and Congress is concerned about it, And they have required, as I understand it, that the

neutrals take an oath and that the neutrals consider any

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information

that comes to their attention

about fraud, because

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
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Congress doesn't want government don't have a legitimate claim.

funds paid out to those that 1'm assuming, and I think -- I
I

assume the neutrals would assume, and I think plaintiffs counsel and government

class

counsel would assume, this is going to of the cases.
I

happen in a very, very small percentage the neutrals

But if Congress not to

are made aware that a claim is fraudulent

is the one that's told them that they have an obligation authorize the payment.

Now, if your concern is, does the claimant have a right to dispute agreement this way: that, I just don't recall what the settlement says. But do any of us really have let me put it

I think that you are putting the right metaphor involved

the cart be.fore the
I

horse, or whatever think that everyone

or analogy might be.

-- I assume that everyone

involved

in these negotiations, issue because and B, assumed

A, felt that they had to deal with this that they deal with this issue;

Congress directed

that this was going to be a very minor problem of the

that would only occur in a very, very small percentage cases. And to suggest that the neutrals

would not be neutral

because they have this added burden on them I think is a concer that only is going to arise in, of the 60,000 cases or 40,000 claims or whatever, don t know how many.
I

a hand

lim not going to say a handful.

I

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None of us knows how many. that's my initial reaction to your

But anyway,

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concerns. MR. BURRELL: THE COURT: Could I offer one other side-bar to that?

Sure. Welre not implying that a person who has Thatls not what

MR. BURRELL:

5 6
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a fraudulent claim should not be prosecuted. welre suggesting, Your Honor. THE COURT: MR. BURRELL: 11m sure youlre not.

What welre saying, though, is if you

9 10 11 12 13 14 15 16 17 18 19 20 21 22
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interject the fraud component, fraud is a serious crime, as we know. That will have a chilling effect, we believe, on the Itls

person who may be advocating on behalf of that claimant.

going to have a chilling effect, Your Honor, on behalf of an administrator who may now be subject to a fraud allegation. believe it may even have a chilling effect, Your Honor, on a class counsells ability to wholesomely represent an individual if they believe that fraud could ultimately be the case. All welre simply saying is, itls going to have a chilling e.ffect,and a lot of individuals necessarily who may have an otherwise meritorious claim, Your Honor, may withdraw from the process because they may not want to be subjected to contested litigation. That was really the context in which we We

raised, Your Honor, this issue of fraud. THE COURT: Okay. I understand. Thank you, Your Honor. If I

24

MR. BURRELL; might, Your Honor
I

Yes, sir.

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I I m almost certain my time is up.

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THE COURT;

Yeah, but you can take a couple mare

2
3

minutes if you have some additional points. MR. BURRELL; Thank you, Your Honor. There was one

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

other similar issue, Your Honor, regarding filing the complaint, along those same lines. We understood that in 1999, a person

was required also to file a complaint of discrimination, and that complaint must have been signed by a nOD-family or non-familiar member. One of the problems that we believe is going to make that somewhat burdensome, Your Honor, is that for all intents and purposes, a lot of those individual farmers who were alive -- when we talk about claims going back to the original '80s, we're talking about, Your Honor, 30 years ago. A lot of

those farmers are going to be deceased; a lot of those farmers may be alive, but yet, Your Honor, may be suffering .fromfailing memories. And I think that's the reason why the parties have

agreed that administrators and others will be able to file, Your Hortor,on their behalf. One of the problems that we maintain that's inherent i that is that if the person who was discriminated against by
USD

30 years ago might be deceased and/or suffering from a faulty memory, it's probably, Your Honor, likely, or we can deduce, that that witness who witnessed that act of complaint, as it were, by that victim, may also be suffering or could be dead or suffering from a faulty memory. And that's all I wanted to say

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with that. Your Honor.

It!s more or less just a practical matter,

Lastly, Your Honor, injunctive relief, Your Honor. I'll try to be as brief as I can. In Pigford
I,

An

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

under

paragraph 11, a successful claimant, in addition to relief, compensatory relief - i.e., the $50,000, and the 25 percent of that, Your Honor, to pay the taxes on it - that person was eligible, then whether they prevailed under Track A,

Your Honor, or Track B, a successful claimant was eligible for the relief that was spelled out in paragraph 11 i i.e. , Your Honor, class-wide injunctive relief. That relief - and

just to rehearse briefly, Your Honor; cursory, really - would allow a successful claimant go back to the USDA and apply for a loan - operating loans, farm ownership loans - under a priority consideration, and be subject to inventory property. The settlement agreement here, Your Honor, makes no mention and/or provision for a successful claimant to receive class-wide injunctive relief. the
Keepseagle

However, again, Your Honor, under
Keepseagle

lawsuit, the success claimants under

will be eligible for class-wide injunctive relief. name has been changed to programmatic relief.

I think the

Those claimants

will be eligible to go back to USDA and to try to secure relief that will allow them, and afford members of their community, to go back into agriculture and to sustain their existence in agriculture. Again, Your Honor, this settlement is totally and

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absolutely

void of that opportunity. Your Honor, the attorneys' fees. We believe

Lastly,

3 4 5 6
7

that, in a word, Your Honor, that the fees, that the attorneys' fees here, are inordinate,
Pigford I,

they are excessive.

In the

Your Honor, I think the at.torneys received roughly -I think they received more than that. The

$15 million

THE COURT:

8 9
10 11 12 13 14 15 16

initial pa}'l11ent was 15 million. fact, I remember quite distinctly

I think what happened was - 1n - that -- and I can't remember or

what year it was, but there were a lot of fee applications bills that were submitted which were not really very intelligible, and I asked my colleague the matter.

Judge Joyce Hens-Green And she mediated the

if

she would try to mediate

matter, and she got everybody certain, that everybody

to agree that up to a date That was June

would accept $15 million.

of, I don't know, 2000. MR. SITCOV: THE COURT: going forward attorneys' this day.
2001. 2001.

17
18 19 20 21 22

But that did not preclude people applications for additional to be paid to

from SUbmitting

fees, and some of those fees continue I know Mr. Frost, for example in Pigford

-- I think Mr. Frost

submits his -- somebody

I every quarter submits a and they reach a

23 24 25

bill, and they sit down with the government stipulation and the money is paid.

On the other hand, there are other firms where the

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government has contested the bills, and those matters have been pending before Michael Lewis for a report and recommendation to me; unfortunately, have been pending far too long. So my only point, not to belabor it, is, it's not fair to say that the only thing the plaintiffs' class counsel got or will get in Pigford
I

is $15 million.

I don't know what the

number is, frankly - maybe somebody does - but it's more than that. But the total number may be less than the low end of the

range that's in this settlement agreement. MR. BURRELL: Yes, sir, Your Honor. Your Honor, I was

11 12 13 14 15
16

using the $15 million figure because that is testimony that was supplied to the House JUdiciary Committee on this lawsuit on September 18th of 2004 by one of the class counsel, Mr. Alexander pires, in his response to a question that he was being asked by Congressman Spencer Bachus of A.labama. And Mr. Pires responded: "There has never been more in the entire

17 18 19 20 21 22 23 24 25

history of the case that I know of than about $15 million to pa all of the firms for seven years of work. 'I reading from his comments, Your Honor. SO I was just

But here again, we

believe the potential in this particular case, the 7.4 figure times the $1.2 billion, could reach as much as $92 million. The problem with the attorneys' fees more than anything r Your Honor r is that in Pigford the government. USDA paid.
I

they were paid out of

The thing that makes it such

probably an issue here is that it's going to be taken off of the

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top of the farmers' agreement, and the farmers

whatever

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16
17 18

amount of work that a class counselor is going to do on any given day for whatever reason, Your Honor, is going to reduce the amount of compensation that's going to go to the farmer. Because even though the farmer is not paying, as it were, on the front end, the work that the attorneys are going to do is going to be billed out of that pool of money that the farmers would otherwise get, and necessarily, Your Honor, reduce the amount that the successful claimants would get. If USDA was willing to pay the $92 million, as they did, Your Honor, in 1999, it wouldn't be an issue, as it were, for this organization. But it competes with, here again, the

scarcity of the relief that's already available, Your Honor, to this group. And Your Honor, I thank you for your time, and unless you have THE COURT: MR. BURRELL: THE COURT: Let me just comment on your last point. Yes, sir. I agree with you, and I've been concerned

19 20 21 22 23 24 25

about trying to keep both the attorneys' fees and the implementation costs down. Because whatever goes to

implementation, whatever goes to the neutrals, whatever goes to the lawyers comes out of the farmers' pockets. I don't think it's fair to say that the Agriculture Department, I don't remember the verb you used, willingly paid

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the fees to lawyers back as a result of the 1999 claim. it's because Justice esoteric I issued an opinion under the Equal Access

I think to

-- actually,

I think what I did -- and this is too I think what I did was I took some to Justice Act and some Act, and I read them

for everybody here. of the Equal Access

provisions provisions together

6

of the Equal Credit Opportunity

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
23

and I Said they're entitled chagrin.

to both fees and costs,

much to the government's reading of the statutes.

They were not happy with my

But that was not a limited fund case. are wrestling with here -Yes, sir.

And what we all

MR. BURRELL: THE COURT: is the outside whether

-- is that Congress has said 1.25 billion What I've got to decide is

limit for everything.

-- you know, taking that amount of money that's on the creates a fair, reasonable, as a part of that, taking

table, as a part of this settlement and adequate settlement, and whether

some money out of the pockets of the farmers to pay implementation set tlement whether costs and attorneys' Because, fees nevertheless makes this

fair.

but for your earlier argument about to be viable --

the earlier statute continues MR. BURRELL: THE COURT: Yes, sir. -- because

we may all be stuck with the in this room, and

24 25

limits that Congress has put on everybody

that's one of the things I've got to wrestle with in deciding

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whether this settlement is fair, adequate, and reasonable. And every dollar that's taken out of the farmers' pockets is a problem. On the other hand, if there's no other

money to implement this settlement but for that $1.25 billion, the question then becomes whether what then goes to the farmers, even though some money would be subtracted, is -- makes it a fair settlement. One other separate point. class who was involved in Pigford
I

One of the lawyers from the as well as in this case said

9 10 11
12

to me at a status conference in this case very early on - and I think it was Ms. Sanders - that one of the problems with
Pigford I

was that there was very little, if any, money for

13 14 15 16 17 18 19 20 21 22 23 24 25

implementation costs; that the lawyers were paid for those claims which were successful and the time that was spent on that, and that no one appreciated going into it how much titne and effort was going to be spent on implementation costs, and that a lot of the lawyers rea.llywound up being hurt, and small law firms being hurt economically because so much of the work they did in Pigford
I

in effect was done for free.

So I was urged, I was urged even before Congress came up with this formula, to make sure that there was some tnoneyset aside for the lawyers for implementation costs
l

and for the

overall management of this class action, and not just for the individual success claimants. So that having been said to me by the plaintiffs'

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lawyers, I have to take that into account, along with the constraints that Congress has put on all of this, to decide whether or not the range that has been proposed of 4 point, whatever it is, percent to 7,4 percent is a fair range, and

whether -- and the point that you raised, which I entirely agree with, Mr. Burrell, is that it is very troubling to take any money out of the pockets of the farmers from this limited fund. On the other hand, if we all conclude that the lawyers and the neutrals are playing an essential role in making this possible for upwards of 62,000 farmers, then the question is, how much are they entitled to be compensated for the essential role that they're playing. I find it a hard question, and I'm troubled by taking money out of the farmers' pockets. But if I get past the other

arguments that you and Mr. Martin and others are making about opt-out and constitutionality and everything else, then I've got to decide whether or not the overall good that is achieved by the settlement, and the use of the limited fund of 1.25 billion, is a good enough thing to also approve some money going to the neutrals and the lawyers in the case. you're making it harder. MR. BURRELL: We're making it harder? Well, here It's a hard question, and

again, Your Honor, to the extent that we represent the farmers, and we believe we have the fiduciary relationship to our farmers, not to the exclusion of the hard work -- we're not

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opposing the hard work and efforts of the attorneys, Your Honor. As I said! under Pigford I they were paid under whatever the conditions that you were able to create; it did not adversely affect. Here, this settlement in effect pits the farmer, in terms of compensation! Your Honor! with his legal counsel. And

at the end of the day, the more work -- and I'm simply repeating myself, Your Honor. You've been very gracious with your time.

The more the lawyer has to do to benefit the farmer on the one hand, the less money is available for the farmer after receiving that benefit on the other. And again, Your Honor, we thank you very much for extending us this opportunity to present our arguments to you today. Thank you again. THE COURT: Mr. Paige. MR. PAIGE: THE COURT: spell your name? Thank you, Mr. Burrell. Mr. Paige, how are you? Good morning. How are you, Your Honor? I appreciate it.

And CQuld you, for the court reporter,

19 20
21

If you would spell it for her, that would be

helpful, and tell her the organization that you represent. MR. PAIGE: I am Ralph Paige, R-A~L-P-H, P-A-I-G-E. I

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represent the Federation of Southern Cooperatives Land Assistance Fund. THE COURT: MR. PAIGE: Thank you. Your Honor! do you need an additional copy!

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a written copy there? THE COURT: MR. PAIGE: this statement. I've got it.
1111 try, for sake of time, to summarize

3

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

But I want to thank you, Judge Friedman, for

this opportunity to speak about this important and historic class action lawsuit. I feel that this is an important day that we have a fairness hearing, where all voices will be heard and all minds will be settled as we go forward. I think it's important that

we bring some closure to these long -- these problems of African-American farmers, and most of all an end to discrimination at USDA and other agencies. I think it should

send a clear message that that would not be tolerated any more going forth. I represent a 44-year-old organization that has worked long and hard providing a whole range of services to farmers, including alternative production marketing, cooperative development, debt reconstruction and everything. We have done

this for over 40 years, for decades, working on equity and quality for African-American farmers. I know firsthand all the

problems, and many of these problems continue today at USDA and other agencies that keep black form farmers from going forth. Of course, welre not here to talk about that today. But I want to say, in addition to representing the Federation of Southern Cooperatives, I am here as part of a network of black

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farmers and advocacy groups, and I would like to acknowledge those folks, if I may, because these are folks that have toiled very hard and get very little recognition for the work that the have done in Pigford
I

and Pigford

II,

and especially walking
I I.

the halls advocating for funding for Pigford

Those groups include Arkansas Land and Farm, the Black Farm and Agriculture Association headquartered in North Carolina, the Federation of Southern Cooperatives Land Assistance Fund, Mississippi Family Farmers, Oklahoma Historical Society Research Project, the Rule Advancement Fund, Texas Landowners Association, and Un.i ted Farmers of America. Many,

many of those groups are represented here today, and will be available if anybody wants to talk to them after the meeting. I also want to give thanks to the attorneys as well as Secretary Vilsack for his leadership in bringing -- working on this class action lawsuit and bringing some closure -- putting this in a range where we can bring some closure to this. I also

thank Congress for funding this r you know, especially in these dire times of budgets, making this happen. us. It is important for

I would also like to make a special thanks to our President

Obama for including this in his budget, the funding for it, as well as trying to recognize it needs resolution for those farmers who are outside of this class action lawsuit. know someone spoke of it earlier
t oday .

And I

We need to extend the

statute of limitations - this is something different and big -

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but to include all farmers that may be left out and need this attention and need to have closure as well. thank them for doing that .. But saying that, I want to be very clear today. things. Two So I would like to

5 6 7 8 9 10 11 12 13 14 15 16 17 18
19

First of all, we do not want to bring -- we do not want We do not

to stop going forward with this class action lawsuit. want to re-open it at this time.

I think it will be very I

dangerous and ill advised if we should venture to re-open it.

have many farmers who have continued to suffer and need to bring closure to this. USDA need to bring closure, where it can go on

providing credit and injunctive relief and other services to those farmers who have been through the process. want to stop the negotiations to do that. However, there are real concerns that we have, three basic concerns, and I hope today that you, Judge Friedman, Your Honor, could address these in your court, or get some administrative solutions to these, so some of the things we see as flawed or as necessary to address going forward. There's a need for an appeal process. serious. And this is ver So we do not

20 21 22 23 24
25

The settlement agreement as written allows no

possibility for any appeal process to allow for errors and omissions of facts in the claim process and for adjudication. We feel that there's a need for this, for an appeal process in the cases of error and omissions. And that happens. It happened in Pigford I, where

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many, many farmers had errors and omissions and they were not able to get in. And that -- I don't think nothing can stop an After all,

error and some things being omitted out of that.

it's been a long time for people to remember and those kind of things. That seriously needs to be considered. Two, we think the IS0-day claim process may not be Ion enough. And I know that people think it's adequate time, but

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the claim process may not be long enough to reach all of the potential black farmers affected by this settlement. If a

farmer is ill or unable to get a claim processed in 180 days, period, he or she will be left out forever. We feel that there

should be an additional time period to address this, because we know of the great urgency to compensate farmers who have waited a long time for this settlement. We would be willing to make this extended period and for appeals for late claimants depending on possible monies, additional monies appropriated to pay them, if there is not enough resources in this particular settlement. think it has to do with that. And one of the things we want to be sure of, that no farmer, no farmer that deserves to be in this settlement is left out because of the lack of an appeal process, because of the lack of 180 days, not having the necessary time. happens in a process like that. things happen there. And stuff You know, I

We've been through it, and

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There have been groups of farmers as well, and these are hundreds settlement of farmers that1s left out the late claim There are several groups of farmers who

agreement.

participated

in Pigford I claim process who are late, through no

fault of their own, and who have been left out of the settlement. We feel in the interest of fairness
I

they should be

included among these defective

or farmers who file late, who file by the facilitator to

claims in Pigford I, was advised

revise their claim, but when they resubmitted

the revised claim, in

they were late and did riot get their claims adjudicated Pigford I. 5 (g)
I

Many of these people did not file a late claim under So we .feel that those type cases

but have the same needs.

should be a part of that. Farmers who were late in exercising in Pigford I because their appeal rights

of no fault of their own, these farmers di of the 60-day deadline. Because what welre no fault of

not have help from class counsel because These farmers should also be in there.

talking about, groups of farmers, through absolutely

their own, was left out; we feel they should be in there, and there is several hundred included in this. And finally, that they participated their claims farmers who show that they -- who can sho in the Pigford I process but have had in those particular groups should be

-- but have not had their claims adjudicated.

These are just a few of the things we think that add to it - if

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you could do it administratively or if you could make a decisio to remedy these things - that we think has weakened the case. THE COURT: Thank you very much, Mr. Paige. Good afternoon, sir.

Is Dr. Goldmon here? MR. GOLDMON: THE COURT:

Good morning, Judge.

So if you would for the court reporter,

7 8
9

spell your name and identify your organization, I would appreciate it. MR. GOLDMON: It's Dewayne Goldmon, and it is M-O-N, And I'm here toda

10 11
12

G-O-L-D-M-O-N, and Dewayne is D-E-W-A-Y-N-E.

representing the National Black Agriculture Alliance. Thank you, Your Honor. I've been here witnessing and On

13 14 15 16 17 18 19 20
21

watching, and I think you've been properly acknowledging.

behalf of the alliance, I want to extend thanks to you, and I thank the rest of the folks in the courtroom that need to be thanked and acknowledged and have already been properly acknowledged, and I'll just say ditto, I want to spend a few minutes, if you would, talking t you about the alliance. presume? THE COURT: Yes, I do. We have some additional copies. You got the written material there, I

22 23 24 25

MR. GOLDMON:

Ms. Ebony Alexander, our convenor, CEO of Black Family Alliance Trust, has a few additional copies if we need to distribute those.

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We have five points that we have brought before you, Your Honor, and I would like to briefly talk about those. saying But I

would like to start, just as a point of reference, that -- by stating that when the alliance organizations

and some other

that live been working with, when we started

working on issues that are impacting black farmers, we took a position that we would not get involved with the Pigford And our point for doing so was that we felt that it and we thought we should be

litigation.

was looking in the rearview mirror, focusing on the windshield.

But the further we got into it, the more it became that we had to look back in order to move .forward.
I

think Lyndon Johnson look at the unequal opportunity

said it best when he said that if you don It history, you can only expect unequal itself. And so because of that, we had

to manifest

to take a look back, and as we started to take a look back and look at some of the things that were shaping up in Pigford we've come to those five recommendations you. So 11m going to go to your purpose several others have stated. is to determine reasonable. The purpose which you stated an
I

III

that you see before

of us being here today and But I woul

if this settlement

is fair, adequate,

And I think thatlS an awesome purpose, objective,

also like to throw in an additional use this settlement

and that is to of black

to ensure the sustainability

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farmers.

I myself am a third generation black farmer, and know

firsthand the rich source of diverse talent that black folks being on the farm has brought to world agriculture, and I surel hate to see that be discontinued. As I say, the association is comprised of several organizations that are dedicated to improving conditions for black farmers. As it related to the Pigford
II

hearings, there

are five things that we brought to your attention, and if you will, I'll go into a few details, and I'll try to be cognizant of the time and not run over. But it starts and stops with the ombudsman that was talked about in the documents that we were privy to. We think

that that could be a very important position for this whole process. Because of that, we think the selection of the right

person could be one of the most important decisions that could come out of this. That person should be familiar with black

farmer issues, USDA programs, and, more importantly, with the prevailing conditions that were covered during the times that this settlement covers. And we would like to be involved with

the selection process for that individual, There's been several things that have led to uncertainties about this settlement.
Pigford I;

It's been awhile since

there have been other class action settlements that
Love, Garcia.

24 25

we are now acting on, Keepseagle,

In the

meantime, there's been a lot of misinformation put in the

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marketplace, if you will, misunderstandings about Pigford I and Pigford II; who's in, who's out, how do you get in, what should you have done, what you need to do. There's been a lot of

inconsistencies. There1s been folks that have been going aroun the country saying that if you pay a certain fee, we can get you in. Even if you're not in now, we can still get you in. I have

heard those things firsthand -THE COURT: MR. GOLDMON: THE COURT: I've heard those things too. and it is a travesty It absolutely is. that today, Your Honor, we would have

10 11

MR. GOLDMON:--

12 13 14 15 16 17 18 19 20 21 22 23
24

people here that don't know what the classifications are for the late filers and the late late filers, and if you're in, you're in, and if you're out, you're out. But that's what we need to

move forward with, and we think an ombudsman could play an important role in setting the record straight. The second thing us. and I talked about looking behind

The second thing that's disturbing is in Pigford I, thi.sis

supposed to be a black farmer settlement, but in traveling and talking to people across the country, it appears that very few black farmers actually prevailed. And of those that did, aver

few of those - the numbers that I saw showed only about 2.28 percent - of those that received debt relief. THE COURT: debt relief. So your point is, very few prevailed on

25

I think the percentage that prevailed in Track A

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and Track B generally relief, the point

is

closer

to 70 percent, submission is

but

in debt

of your written Correct?

only

2.28 percent

succeeded.

MR. GOLDMON: hank you for T I'll take that one point further.

the

clarification. hard to imagine

And that a

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
23

It's if

farmer

could

farm and not have debt against. strong

they've is,

been continually the debt farmer, relief and so
II.

discriminated should

What I'm suggesting indicator to it

be a pretty

of an active

we need to pay attention And you are percentage percentage percentage

as we move forward there

in Pigford high

correct

that

was a pretty

particularly of applicants of debt relief

in Track A there that actually

was a high but the low

prevailed, that

would indicate that objective

we still

haven1t the Thank you,

done enough toward meeting sustainability sir. The other brought fact that that debt to it thing of black

of ensuring

farmers

as we look forward.

that

we think we get that

heeds

some attention relief it, and the

-- well,

before

off

of debt for

we had few farmers reLief We think - - and this that - this should debt

qualified

we think

goes to some of the comments made relief accompanied by full debt servicing in Pigford and that's access

earlier.

to USDA programs programs serve the - that

would include be a major advisory to talk

and other
II.
I

emphasis committee, about.

24 25

on the

Secretary's

one of

things

that

we continue

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The third point is that it seems that misinformation and bad advice from multiple different sources led to a high percentage of farmers going to Track A versus Track B. And

there was plenty of blame to go around for how that happened, I thinkt but the bottom line iSt folks that were thinking about going to Track B, after conversations with certain individualst they changed their mind and went to Track A to take the path of least resistance. And that's okaYt and I think some of the

comments made earliert where Track B claimants would be given a option to revert to Track A after all parties were known, I think that's a good thing. further. In Pigford It it was all or nothing. Track B, you went for it all you could prove. If you went for In Pigford II, if you But I would like to take it a step

what we're suggesting is that you can apply for Track Bi

talk to an ombudsman or an attorney who is actually representing you, and you try for Track B and you don't meet the preponderance of the evidence standard, then you should automatically default to Track A. recommendation. The fourth thing would have to do with the processing of claims, and specifically the role of the Farm Service Agency. Farmers are still telling me today that they might have prevailed in Pigford I
I

We would like to make that a

they might have gotten a $50,000

settlement, was supposed to get debt relief and was supposed to

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have taxes paid, but some kind of way USDA has not talked to the IRS, and the IRS is coming back to USDA telling those folks still farming that we want you to levy against payments, against their welfare their farm

checks, against their

Social Security,

forcing them to sell assets. again to look into that process their situation,

We want the ombudsman

and make sure that someone can closely monitor so that when a settlement

is paid, that the farmers can be made their operations versus else.

whole and go back to focusing on running trying to prove his or her payments THE COURT: MR. GOLDMON: THE COURT: recollection

to the IRS or whoever

Let me just interrupt you. Yes, sir. And I hope what I'm saying is my accurate I'm sure Mr. Sitcov and his colleagues

of things.

will correct me if I'm wrong. I do think there were some problems tax relief that people were supposed failures of communication with respect to the

to get, and there were some

between USDA and the IRS in the And I do think that the as early in the process

earlier stages of the claims process. debt relief problems because were not addressed

so many people were focusing

on Track A and Track B.

My sense of it - and I hope I'm right - from conversations that Ilve had with the monitor have improved in Pigford
If

is

that both of those situations of years
lTI

in the last couple

terms of people being more on the same page, and

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USDA and IRS talking to each other more and trying to solve some of those problems you alluded to. And the debt relief process, pace earlier on, has now

which didnrt move at an accelerated improved.

Now, thatls just my general understanding. have the specifics, and if somebody

I donlt

6 7
8

-- maybe somebody will tell

me 11m either wrong or right. MR.. SITCOV: I can speak to that .some Your Honor.
I

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

There WaS a little bit of problem with regard to the tax payments. As I m sure you know, the IRS -I

THE COURT:

I donlt want to interrupt,

but if you want can hear

to come to the microphone you as well. MR. SITCOV: the tax payments

so others in the courtroom

There were some problems,

Your Honor, wit and in

to the IRS.

Those have been resolved,

fact, I donlt think -- I think there may be only a literal handful of pa:yments yet to be made. there were some successful ID numbers be made.
I

Part of the problem is that who did not have taxpayer

claimants

so they had to be created in order for a payment; to for the monitor to have direct at the Internal have been

But we have arranged

contact with the Office of the Taxpayer Advocate Revenue Service to make stire that those problems addressed.

With regard to debt relief, it turns out that not many farmers had existing debt. A lot of the debt had already been

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forgiven, so there wasn't -- it's not the case where there were hundreds of millions of dollars in active debt and only a small percentage were paid THE COURT: only a small percentage was paid. Okay. Thanks, Mr. Sitcov. It sounds

5

MR. GOLDMON:

Thanks for that clarification.

6 7 8 9 10 11 12 13 14 15
16 17 18

like we have learned something in Pigford help improve the process in Pigford news. Thank you, sir.
II,

I that can actually

and that is indeed good

I want to talk about -- my final point was to -- well, before I leave that point, Mr. Sitcov and Your Honor, I still hear from folks who are caught up in that triangle between USDA and IRS, and their farming (sic) is putting a downward pressure on their ability to stay on their farm. So whatever we do, I

would hope that we could in some way help those folks while we help the folks going forward. MR. SITCOV: THE COURT: MR. SITCOV: Could I address that, Judge, for a second? Sure. There are lots of things that can't be

19 20 21 22 23 24
25

forgiven i lots of, for example, tax payments or refunds have to be offset against things like student loans, guaranteed mortgages, things like that. So it's not -- the fact that

somebody may have received a tax payment under the Pi.gford consent decree does not relieve that person of other tax obligations. So you could be in parallel universes, as it is. I think some of the things that Mr. Goldmo·

THE COURT:

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is raising and that Mr. Sitcov is responding to just underscores how complicated, how complicated all of this has been over the years. And we've dealt with 22,000 people and 15,000 successful

claims, or some such number, and each case is different, and I' sure there are lots of complaints out there both from people who didn't get relief, from those that didn't get -- that filed late, as well as from those that were successful and had their level of frustration in terms of getting their taxes offset and so on and so forth. I think, again, partly from responses from talking to my monitor, Ms. Roth, that we've come a long way in terms of making the various parts of the bureaucracy deal with these problems. We had the discrimination which led to this lawsuit,

and the settlement of this lawsuit, but the logistics of dealing with so many different agencies within the Department of Agriculture, at the IRS, and at various other places has been problematic. And there are going to be people that we're all going to hear from, that I've heard from - I get letters - that feel they haven't been treated fairly, or that there are still problems, or that just when they thought the whole thing was solved for them, it wasn't solved for them. MR. GOLDMaN: THE COURT: Yes, sir.

I don't know how you make any even

25

responsive bureaucracy perfect, because you can't.

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MR. GOLDMON; clear.

I understand.

Debt relief, I want to be The most

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18
19

I know we all have different kinds of debt.

common frustration and the common thread that I hear from farmers, a farmer will typically have an operating loan, maybe an equipment loan, and a farm ownership loan. They had

discrimination on the operating loan, but they still are expected to pay the equipment and the farm ownership loan. want to make it very clear that when you are discriminated against on an operating loan, it puts down the pressure on a farmer's ability to payoff those other two loans.
I

I

What we're asking for here, because we're talking about less than one percent of the farm population, which is less tha two percent of the U.S. population, but what we're talking about are folks that are actually in worse condition after they received their settlement than they were before going in, because the discrimination cuts across all loans and they're only able to get relief on one of them. think we need to deal with. THE COURT: Dr. Goldmon, before you leave the question That's an issue that I

20 21 22 23 24 25

of debt relief, I hope that you will sit down with class counsel and have a more in-depth discussion about this. Again, from

conversation with my monitor, I will tell you that there are huge problems. Because there are a number of people, lots of

farmers that have had numerous loans, and sometimes they've bee refinanced and sometimes they've been consolidated, and some of

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them the information they're in microfiche sometimes

is stored on computers

and some of them

2 3 4 5 6 7
8 9 10 11 12 13

and some of them they're on paper, and

over the years the numbers of the loans have been And I spent a half a

changed even though they're the same loan. day at the monitor's

office with her debt expert, who has been

working very closely over the years with the USDA, who took me through examples of how complicated MR. GOLDMaN: THE COURT: because involved Yes, sir. And what I've urged class counsel is to, among the people to do, that are these things are.

this is so complicated, in this process, or whatever,

either among the neutrals

or among the

consultants addition

to have somebody working with them in Department who really an

to the people at the Agriculture this stuff. Because

14
15 16

understand

it is extremely

complicated,

in some cases the level of frustration avoided or at least minimized. not necessarily complicated.

that you describe

can be

In other cases maybe not, and it1s so dar

17
18

through bad faith, but just because

19 20
21 22

I agree with you that this is a very troublesome in part because together. MR. GOLDMaN: because that. Yeah, I understand.

area,

it's just hard to get all the moving pieces

And I'm not mad,

23 24 25

I literally understand. So I understand,

As we say, been there and done of such a person

And your description

needed takes me back to my first point, which I told you at the

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beginning would tie into my last point, and that person we're saying should be a properly selected ombudsman or ombudsperson. I want to end with general class requirements and the burden of proof or proof of discrimination. In Pigford I, there

appeared to be a high burden of proof that was placed on the farmers themselves, and especially for those who had a record with USDA. The Alliance agrees that there needs to be

sufficient proof to show that one is indeed a member of the class. If I'm going to make a claim on veterans' benefits, at

some point I should be able to tell you which branch I served in, what my years of service were. should be a requirement. But once a person can prove that they are indeed a member of the class, then I think there are things that should kick in to show that that person was discriminated against. Discrimination during the time we're talking about, and even yet today, discrimination is apparent i paperwork being delayed, can't find a form, rude behaviors that may be difficult to prove but are therer those things we hear about. We donlt hear about It's just common that that

things where the discrimination was even a little more difficult to find: A loan for less than the amounts for a given area, a

loan that was less than the funds that your neighbor got, a loa that was improperly influenced by a USDA person. things also should be investigated. Our hope is that we can implement these guidelines. Those kinds of

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And let me be very clear in stating that the Alliance favor of moving acknowledged forward. It I S not perfect, we've all

is in

that, but I think given the circumstances, But we want to implement

it's as

good as we can get.

these guidelines.

live heard some pretty 62,000, numbers 65,000, 80,000, 100,000.

lofty numbers here today, I think once we put those

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

to the acid test, given the fact that we've already When I look at those numbers

ruled on 22,700 or so complaints. compared

to census data, USDA census data dating back to the

'80s, it's hard to find a period when we had more than 30,000 black farmers, and we've got 65, 80, 100 thousand to come through the process. streamline folks wanting

I think there should be ways to farmed or

that number down to folks who actually

tried to farm. Again,
I

think that's a role that the ombudsman can work more efficiently

could

play so that the attorneys on complaints extended allotted

at deciding

within that 180-day time framei or if it's

so that we can work within the time frame that's to resolve those complaints. I think doing this is

going to be critical.

There's a lot of farmers who if you talk in

to them today, they would say they really didn't getj ustice Pigford L.

There's even yet a large group of farmers who have since 1996, and their complaints language. of trying to ensure are tied up

filed complaints

with statute of limitations
A ga1n, .

I go back to that objective

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the sustainability of black farmers.

That'sthe

goal of the

Alliance, that's the goal of several members of the Alliance, and respectfully, Your Honor, we ask that these recommendations be considered with that goal in mind. THE COURT: Thank you, sir.

Before you sit down, I want to say two

6 7 8 9 10 11 12 13
14

things about the ombudsman under this proposed settlement. First of all, I have received, unsolicited, a number of recommendations of specific individuals to appoint as the ombudsman, and I invite anybody who has any suggestions to send me a letter and recommend somebody, maybe with a resume' or however you want to do it. Secondly, as you describe the role of the ombudsman, I think it becomes much broader than it is described in the proposed settlement. In going back to the point that I think Every dollar spent to Congress has

15 16 17 18 19 20 21 22 23 24 25

Mr. Burrell and/or Mr. Paige made:

implement this comes out of the farmers I pockets.

appropriated $1.25 billion; there is a cap on implementation fees, there is a proposed range for attorneys' fees, but the ombudsman is up to me. I'm supposed to pick somebody, figure

out how to pay that person, and then, in my view, at least, try to limit the amount of time that the ombudsman spends consistent with his or her responsihilities, because the money to pay that person will come out of the 1.25 billion. So to the extent that some of the things you suggest can better be done by the lawyers or the neutrals, there I s more

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money for the farmers; MR. GOLDMaN: And let me respond, if I could. If

you've ever been in trouble, you quickly

find out, Your Honor, And so with

that talk is cheap until you hire an attorney. respect to my attorneys

here, these numbers of folks that are large number. Out of

coming through, that's a pretty conversations

in my church, my community

as I travel around,

there are folks who are not in, but today if I go to them, they think they're in, and they're going to take attorneys' figure out that, oh, by the way, you missed a deadline, not in. If it's the neutral
1

time to you're

or the ombudsman

or these other But free

words I can barely pronounce up the attorneys' complaints. I think the numbers that you quite eloquently

let that person do it.

time so they can deal with those legitimate

-- when you put the requirements I think

spelled out in your document,

the numbers will come down. the numbers will come down.

How much, I donlt know, but I think When people figure out that, "No, forum," well,

that I s not what so and so told me at a public don I t shoot the messenger, information

but so and so gave you some bad Those kinds of conversations are

and you're not in.

going to have to happen in America. THE COURT: question. Okay. Thank you. to 1:00. Let me ask this I expect that some of from

It's now 20 minutes

25

what's been said so far will engender

some responses

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plaintiffs' class counsel and government counsel.

There are

lots of people who have indicated they want to speak in their filings, so just to get a rough idea of where we stand, would anybody -- because we probably should take a break at some point. Would anybody that intends to come to the microphone and speak before this hearing is over please raise their hand so we can just get soineidea of how many people there are. maybe a dozen or so people want to speak. So

And if we say it's I

going to be five minutes each, roughly, that's an hour.

expect there may be a few others that will want to add a few words, and then there's class counsel and government counsel. So it's 20 to 1:00. If we take a break for lunch, that

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means those of you that leave the courthouse are going to have to come back to the courthouse again, which is not necessarily an easy thing to do, I know. Security is tight in all federal There is a cafeteria

buildings, and for good reasons.

downstairs on the first floor in the new building. I guess most of you came in through the 3rd Street entrance, and so it's in that building, in the William B, Bryant Annex -- which we're very proud of, It was opened, I guess,

about six years ago and named after one of the great judges of this court, one of the people whom I considered a close friend and mentor, whose photograph is up here on the right, Judge William B. Bryant, who would have been 100 years old in about

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two weeks.

He died when he was 94, and was coming to the

courthouse every day until about two weeks before he died, and was still trying cases, and his mind was as sharp as it ever was. So we're going to be celebrating hi~ 100th birthday in a

couple of weeks. So it's a quarter to 1:00. 2:00 o'clock? Should we come back at

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I'm willing to come back at a quarter to 2:00,

but I have a feeling there's a lot 0.£ people going to be coming in and out. So if everybody would try to be back at five to

2:00 and take your seats, and we'll try to start up again at 2:00 o'clock. And I guess we should just-I don't have a view at

this point about whether we should hear from counsel again before we hear from the dozen or so people, but it may be better just to let everybody be heard first and then counsel can respond. MR. MARKS: I think from class counsel standpoint, I

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think that would be a better process, Your Honor. THE COURT: Mi".Marks says that he thinks we should

hear from everybody who wants to be heard before we go back to hearing from the lawyers. Perhaps he didn't say we should wait

to hear from the lawyers for the same reason that Dr. Goldmon suggestedr but we'll hear from the lawyers at the end. All right. I'll see you all at 2:00 o'clock.

(Lunch recess taken at 12:43 p.m.)

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THE CQURT:

So there are a number of people who raised

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their hands before we broke for lunch, and there are a number of people who were listed in my order of August 26th. calIon
I

And I could

them in the order they re listed here, but I'm not sure

that everyone is actually here and that everyone still wants to speak. So why donlt you just -- everybody will have five minutes. Why don't you just come to the podium, and tell me

your name and the court reporter your name and spell your name, and make whatever comments you want to make about the proposed settlement agreement. So who wants to come up first? first. Are we going to do ladies first? Whoever gets here Would you spell your

name for the court reporter, please? MS. ATCHISON: THE COURT: Bernice C. Atchison.

Ms, Atchison, WO\1ldyou just spell your

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name for the court reporter? MS. ATCHISON: THE COURT: B-e-r-n-i-c-e, C, A-t-c-h-i-s-o-n.

Good afternoon. I'm the president for the Black Farmers

MS. ATCHISON:

of Chilton County, a part of the Black National Farmers, Mr. John Boyd, and welre here on their behalf. In reference to

the farmers discrimination litigation, Your Honor, we have journeyed to Washington to be a part of this historical case called the Black Farmers case, Pigford
I, Pigford II,

5 (g), or

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the Black Farmers discrimination litigation that has spanned from 1981 to 2010. That's not "Pickford" is it?

It is a shameful thing for such a historical case that supposedly settled under 23 (b)(3) out of the court in 1999 with an integrated contract, and is yet being litigated 1n the court because the umbilical cord cannot be cut. We have Pigford I, Pigford II, 5(g), and a half dozen other claimed acts since Congress intervened in November 2004 with a promise to a conclusion under 4(c), which was never implemented by Congress, causing the farmer due process and fundamental rights to be broken, and set a new precedent in a class action litigation, On October 6th, 2005 we had House Act 3998; on June 9, 2006 we had House Bill 5575; on July 18th, 2007 we had House Bill 558; in June 2008 we had the Energy Act, the rider, PL(110) (246) under Section 14012 of the Farm Bill that brings us to this class action litigation, 23(b) (1)(B) on Constitution and due process rights,fundamental protective right procedures. Three years after the 2008 hill, the Court's watchf\.JI eye has still failed, because the farmer had no legal counsel and the farmer had no -- had to proceed pro se because of the lack of class counsel and none representation at that time. And

you who received the law disobeyed the integrated contract, and now this case goes to court to proceed from a class action under 23 (b)(3) to a 23 (b)(1)(B) under merits
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leaving most Yale and

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Harvard lawyers scratching their head and saying: really legal? stumbled over.

Is this

Realizing, oops, the Constitution has just been

We the farmers are looking at the legal notice mail by the order of the court on June Ist
j

I

2011, which say this
II,

settlement, sometimes called Pigford some of the late filers -

provides benefits to

not all, but some - records from the lawsuit, that

original Black Farmers settlement in the Pigford

"you may be included in this new settlement, but you must request a claim form." And ironically, those claim forms were put on the Internet, and most farmers are not inept (sic) in computers. Then we must look at what has happened in the settlement agreement of 1999, which was an integrated contract that was broken. It is the opinion of the farmers, after

talking with several of the Harvard and Yale lawyers and viewing the evidence that we could gather in this case, from the opinio of the Court, the Lexis of the facilitator, the hearing of November 8th, 2004, and testifying before the judiciary committee on the Constitution, and constantly writing you, Judge Friedman, the Court, the monitor, the judiciary, and even the USDA Agriculture Secretary Vilsack and Assistant Secretary Pearlie Reed, who have contact with class counsel, all who agree that the farmers' constitutional right to due process and fundamental rights had not been upheld.

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Many of the farmers in the original Pigford lawsuit have not received redress, even though they were deemed on-time filers. They have been placed in this conjoined lawsuit, and

when it has been proven to the Court that many errors and laws has been made and broken before the ink got dry. rights was broken. Constitutional

It was deemed to be so bad by the judiciary

committee on the Constitution that a new precedent in litigatio has been set for the next 200 years. How can this gross wrong continue, when the Secretary of Agriculture stated in his investigation, and it is reported in the CRAT report, admitted that they found gross discrimination, and that it was an ongoing problem for the agency, with all the similarly situated farmers in the long program, where most are poor blacks, and it had not stopped until this day. I am a product of this problem. In 1983 and 1986, and

again in 2005, we, I, was deemed -- was denied an operating loan. Even though the laws is on the book, there is no equity So the wheels of justice

for disadvantaged blacks and women.

grind slowly for us, to the point that it is too little too late. Yes, no one take the responsibility for this inequity to

the poor farmer, who is an American citizen, the keeper of the most precious commodity that America has, the land. Now we have a problem, and a people in a war with thei own government. The farmer has done the very best they could,

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not being constitutional lawyers, and having all who represent them at the time .failso dismally in their lawsuit. 30 years

from the conception of this lawsuit, and 12 years from the settlement; even though we had the uManual For Complex Litigationu as a guide, and the founding fathers set up the Constitution; putting it in place as a guide, the farmer has not been treated fairly. Unprecedented laws has confound this case, leaving this farmer, Bernice C. Atchison, asking the question.: Who then shall speak for the people, my fellow kinsmen? Who shall object Who then

to the wrong that is being perpetrated at this time?

shall say, thi.sis not the contract, and this is outside of the law? I carried my consent decree with me for the last seven years, daily, because I had been deemed by the judiciary committee as the face that was most impacted by Pigford. Who then will make the farmer whole? $50,000 plus

18 19 20 21 22 23 24 25

taxes surely will not compensate me for the early death of my husband and so many of his friends who was farmers, and cannot come before you today to tell you, Judge Friedman, how they were humiliated and dehumanized before their wives. So we say to them, sleep on my brethrens: Isaac Campbell, Wilson Bryant, Jim Powell, Robert Henneson, the were all feeder pig growers of Chilton County, along with Alan Atchison, my husband. Even their wives are gone. It only

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leaves me, Bernice C. Atchison, speak I shall. from the ground.

to speak for my kinsmen.

And

Because the farmers!

sweat and blood cries out

The promise was made; now pay the farmer, and a Supreme Court

uphold justice, or even give us discovery case, if necessary. The new settlement, compensate the financial

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23(b) (1) (B), will only help

losses that we already have and had, for the future. It will not

and begin to lay a new foundation

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give us back the 239 acres of family land that was taken from me. It will not give me back 39 acres of land that my owned. My children's children will not play on that

grandmother hallowed

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ground.

But I can speak, and speak I shall, because we

have become legally enjoined and barred from coming back with a new lawsuit, and I think that this breaks our constitutional rights under the First Amendment, Now we ask the question, question that we ask. Article VII.

and it shall be a final Is this

We shall ask one final question: Thank you.

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true justice

for the black farmer?

THE COURT:

Thank you, Ms. Atchison. Good evening, Judge. My name is Carl

MR. EGGLESTON: Ulysses Eggleston, But in addition discriminated

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and I am a member of the class action suit. I have been

to that discrimination,

in other areas as well. and it's the

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I live in Prince Edward County, Virginia, only school division

that closed their schools for five years i

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order to avoid a court order on the Brown versus Board of
Education

decision that asked that schools to be desegregated. could not

Once received a real estate license in Farmville,and

place my license in Farmville because no white establishment of the first Afro-American would allow me to place my license in Farmville. I had to place it in Richmond, Virginia.

I also was interested in becoming a member of the Farmville town council. And I had asked the council on several

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occasions to avoid this at-large system of voting and adopt and put in place award system; they refused, I sued in federal court, I won, and became the first Afro-American to serve on the Farmville town council in 200 years. I also want to thank all groups, individuals who playe a part in this to this point. it, and I want to thank them. All of them have some stake in I know a whole lot of folks

played a major role in it, but I canlt think of any person one person, that John Boyd, who played a major role to bring us this far, all of the blood, sweat and tears that he put in it for more than 11 years. He need to be commended for that. He

I asked John when I came here, was he speaking?

said he was not going to speak, or couldn't speak, or whatever the case; Ilm not sure the reason for that. But I know we would

not be where we are today if it had not been for John Boyd. And I do thank you for your time. THE COURT: Can I ask you to spell your last name for

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the court reporter? MR. EGGLESTON: It's Eggleston, E-G-G-L-E-S-T-O-N; And I do thank

first name Carl, C-A-R-L; middle name Ulysses. you. THE COURT: MS. GILMORE: Thank you, Mr. Eggleston.

I appreciate it. My name is His

6

Good evening, Your Honor.

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
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Gloria Davis Gilmore, and I'm here on behalf of my father.

name Enoch Edwards, Junior; and also my family, Gloria Edwards, which could not be here. able to be here today. We're the family of the late Enoch Edwards, Junior. was on a Track B claim. His claim number was 20220. Also He She had surgery, and so she was not

Gloria Edwards; her track number is 69475. So we came to this hearing to ask to receive funds allocated toward my father. 2004. He has passed away in April of

He had some extenuating circumstances on his claim, but So we have our paperwork, in

he was successfully a B claimant.

which his attorney, Hyden Pender (ph), although they say she was not a class counsel attorney, asked him several times where she did not forward his paperwork to the other -- to the class counsel. claim. Also we have a letter stating where he was late on his

But Michael K. Lewis, he concluded that he met high

standard in his failure to file his claim by a certain date. THE COURT: MS. GILMORE: Say that again. Mr. Lewis concluded what?

He concluded that my father,

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Enoch Edwards, he met high standards

contained

in Paragraph

5(g)

of the consent decree, that his failure to file a claim by October 12th, 1999 was due to extraordinary circumstances beyon

3 4 5 6
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his control. And also my father, they requested papers Ms. Hyden Pender Assistant (ph) from Ms. Loretta Raffert from

(ph), Esquire, papers from

United States Attorney.

They requested claim.

her in order to further my father's THE COURT: MS. GILMORE: THE COURT: MS. GILMORE:

9 10

What was your father's name again? His name was Enoch Edwards, Junior.

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THE COURT: MS. GILMORE:

11m sorry. We from Hartsville. My son -- he has

five of his 10 children here, and we came from Hartsville, South Carolina to speak with you. My father had already -- the

wrote us and told us that Ms, Deirdre McCauton from Michael K. Lewis' office
f

(ph) Gallagher

she wrote and she told us there 's his claim, that they thought for that.
I

been some confusion

surrounding

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they had already paid him.

And I have paperwork to conclude

I also have all paperwork

a B track.

heard stated earlier that you had to prove that the loan difference in the area was different from one to the other, and

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we have proof of all of that too. THE COURT: And you submitted all of that to Mr. Lewis?

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Did you submit all of this proof to Mr, Lewis? MS, GILMORE: claim, and they already Well, they had already approved his -- they wrote us stating that they And they said for some reason it

thought they already paid him. just got lost.

And they went back over the case, but still and my father passed away in

yet -- this was on June 18, 2001, April of 2004. approved,

But his case had already been decided and any funds.

but we still yet have not received

And the family, welre here to ask you, on behalf of ou father and our mother, that we were due. THE COURT: MS. GILMORE: to help us to receive the allotted for everything. funds

11
12

I do have the paperwork

Do you have an extra copy of the paperwork? Yes, I have everything. Also, when he

13
14

was denied his loans and everything, everything, THE COURT:

I have copies of

15 16 17
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So if you leave that paperwork

with me, yo

still have copies for yourself? MS. GILMORE: THE COURT: Yes, sir. So if you leave one copy of everything though. wit

19
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me, make sure youlve got a copy for yourself, MS. GILMORE: THE COURT: We have all the copies, Okay.

Thank you, Ms. Gilmore. We might be able to give you a

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Hold on one second. handheld microphone. MR. GOLDMON:

Thank you, Your Honor,

I just came to

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help him up.

I just met him; it.

If we could just get him a

portable mie, I appreciate THE COURT: MR. GRANT: THE COURT:

Yes, Mr. Goldmon. I'm not sure if it's on or not. Hold it a little closer to your mouth, and

6
7

we'll see if it's working. MR. GRANT: So if it's possible, THE COURT: MR. GRANT: J-O-N-A-T-H-A-Ni I'm sort of weak from what I went through. can that be lowered down a little? Could you spell your name for us?
My name is Jonathan

8 9 10 11 12

Grant.

That's

Grant, G-R-A-N-T. Thank you.

THE COURT:

13 14
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MR. GRANT:

I am a Desert Storm soldier who during that

time I was with my wife and my father, and he was teaching me to be a farmer. illnesses And at the same time I came down with undiagnosed We had a dump truck, we had a trailer And

from Gulf War.

and we had a backhoe.

And we was going to have a farm.

during the process of the application go through, it was denied to us.

and the things we had to .from

And we have affidavits

about 15, I believe in '95, and a lot of things we were unaware of. But I just want you to know that Dr. Boyd over there, he's been real supportive of me and my family for years. And we

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would -- like the earlier person has said, we need to be grateful and thankful, because when things were going along, he

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was in the rain, I was in the house.

I wasn't able to get out So I want to

and be about and do the things I needed to do. commend him. doing this.

He's been real instrumental in us coming here and

And I'm coming from my heart, because when I was in the war and fighting and doing different things for my country, it was people who didn't have a heart or whatever, they didn't understand what people want to do if they want to farm, or whatever they wanted to do. So they didn't get it. And I have to

But I'm coming to you from my heart.

read something to you guys, to let everyone know that what has happened has happened, and it's nothing but destruction in everything that's going on now, and so we need -- we're here for settlementi we not here to prolong things. Because it's a lot

of things going on that we need to move on with our life, so I just want to say a few things in reference to that. First of all, I would like to give honor to those that have honor, which is a lot of people in this room. lot of honor. You have a

19 20 21 22 23 24 25

And a lot of custom where custom is due, because

there's a lot of custom that's due in here. And so I want to first of all give the honor and the glory to God for allowing me to be here, and to speak before all these magnificent people that I see in here and that touch my heart. So I just wanted to say hello, Your Honor. And I want

to just read what I have wrote down, because I'm coming from my

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spirit, 1'm not coming from my flesh.

And I know there's no

color in paradise, so we live and we let live. But 1'm going to read this to you: I came to give

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honor where honor is duer and custom where custom is due, and let every man s yes be his yes
I I

and his no be his no.

Because All of We

that's the law.

There is nothing new under the sun.

this stuff that's going on now has been already happening. just have to get past it and move on because we here for settlement. And a settlement comes about being Iike: We canlt change it.

We're here.

They lost my packet here, they lost my

packet there, they did this, that, and the other, but I pray there's a way that will work things out, and so 1'm going to continue on. And there is nothing new under the sun.

Everything 1'm going through, everybody else been through a lot of things the same way, a lot of things different. And so, as for men, history have went through all things, and should not look back. We shouldn't look back And I 1m But I

because we can I t change anything that happened. starting to get a little confused.

Just pray for me.

just wanted to let you know, we are here for settlement, and let the dead bury the dead. You can I t change if somebody died. And Dr. Boyd has You

supposed to live and let live and move on.

been real instrumental, and he's worked tirelessly for us during adjudication, during litigationr during everything.

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The next thing I want to say for the record: the provision change things. that was given to us through the courts. I donlt agree with everything.

This is I canlt

2 3 4 5 6 7 8 9 10 11 12
13

But the longer I bee

this drags on, the more to me it's going to hurt people. going through this for over 20 years now.

If the litigation

changed, Judge, then I might be going through it another 20 years. And this to me is not right, because I I m ready to

move on with my life and my livelihood. settlement,

We are here for I believe I

so that we move on with our livelihood.

just said that. No one knows what tomorrow will bring, so we canlt be considering tomorrow. that we going to know what I s going to go on Only God knows what I s going to go on tomorrow. So But

14
15 16

with that in mind, I want to continue my life and move on. for sure it will bring destruction, I've been to war. want to consider. My father-in-law, have affidavits General's his name is Joseph R. Pierce. because

I've been around. else you

I've been ducking Scuds and anything

17
18

And we

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25

from the USDA, affidavits

from the Inspector

Office, we have affidavits we have affidavits

from when we put in an And so we I believe

application,

from our families.

very interested it's B. it.

in the -- bear with me one more time.

It1s Track B. because we feel like we're entitled to

And I just want to put in for that. And I pray I'm not taking too long, but I had to bring

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up some issues, and I'm glad to be in God's court right now before a prestigious Your Honor, because he's a good man and he's doing the best he can. I can't explain, but it's just

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13

because it's been going on for like, say, 30 years, it's twisted. That's the only word I have for it. But through that I would just like to say thank you very much, and I'm just happy to be around people that can speak real well and define theyself and let the issues be known. And

no matter if you bend a bow or if you bend steel, and then you try to bend it back, it's not going to work. thank you, Your Honor, for your time. THE COURT: MR. BOYD: Thank you, Mr. Grant. I appreciate it. My name is I would like to

Good afternoon, Your Honor.

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John Boyd, founding president of the National Black Farmers Association. THE COURT: MR. BOYD: THE COURT: MR. BOYD: today. How are you, Mr. Boyd? I'm doing well. Good to see you. I have some farmers that came up by bus
0

It's good to see you again.

18
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24 25

I'd like to recognize the farmers with their T-shirts

that traveled to Washington today to hear this very, very historic hearing. I'm a fourth generation farmer -THE COURT: MR. BOYD: Good afternoon to all of you. Thank you. Thank them all for coming today.

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I'm a fourth generation farmer and great grandson of a slave, Alexander Boyd, who beared (sic) Andrew Boyd, who beared Thomas Boyd, my grandfather, and who beared John W. Boyd, Senior, who is in the courtroom today. you to stand today. My father, I would like

People spoke about Martin Luther King and

the great work that he done, but in my life, that's my Martin Luther King. My father is the one that I look up to. My mother's father died a

And we're farmers.

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sharecropper, Lee Robinson, walking over the hill checking on tobacco barns for the prominent white farm that he lived on. Thomas Boyd I dream about twice a week. As a little boy his

mules used to get out, and he said he needed a roll of wire, but he didn't have the money to buy it. about for me, Your Honor. 26 years. When I first became introduced to the United States Department of Agriculture by another black farmer by the name of Russell Sally, he said, lIGoodluck with Mr. Garnet.1! And little did I know that that type of discrimination existed 25, 30 years ago. And Mr. Garnet, during one application, when I was That's what this fight was

That's what kept me going for

inquiring about my application, he spit on me, and the tobacco juice went down my shirt, Your Honor, and for the first time in my life I felt less than a man. That's what gave me the drive for 26 years to push this issue. And when I read some of the things that was said about

Rebecca

Stonestreet

(202) 354-3249

kingreporter2@verizon,net

.---------------------------------------------------------------~110

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me in court the other day, I couldn1t believe it, the very person that lobbied every day. it allan I put my family on hold, I put

the line, Your Honor, day in, day out, in I heard !Ina"so many times that I began to ignore

Capitol Hill. "no.IT said:

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And one day, coming out of a Congressional office, they "That man is crazy. They're never going to approve a

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bill to pay African-American farmers for discrimination." That went on from 2000, 2001, 2002, 2003. I rode my

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mule and wagon 17 days in the snow and ice, and I slept in a Sleeping bag with my mule, struggling 40 acres. 2004, 2005,

2006, 2007, and in 2008, Barack Obama helped us with a bill that went on to pass into law for the farm hill. Your Honor, I want to attest today that there was not law firms lined up through 2000 and 2008, running to help me. As a matter of fact, they said: This isnlt going anywhere.

Many of the people that testified this morning didn I t have a grain of hope of a mustard seed that this would ever happen. But I want to tell them today that therels a God above. He watches high, whilst he looks down Iowan his flock. And

every day I pray, every day I got up in the morning and I shave and I said,
II

I'm going to defeat the United States Department of And I went every day, Your Honor. Every day

Agriculture. II

Congress was open, I went. there, 12:30 at night.

When the farm bill passed, I was

When the bill passed for the

$1.25 billion, I was sitting in the halls of Congress.

Rebecca Stonestreet

(202) 354-3249

kingreporte:r2@veri2:on.net

.------------------------------------------------------------------111

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So when I hear the things about what you-all wrote about me in federal court, in this courtroom -- as a matter of

fact, you owe an apology to me and my family for the work that I worked on this case, Your Honor. So I'm here tOday not to talk about the ugly issue of fees, Your Honor. I made an agreement that I wouldn't do that. to

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-.7'-

But I hope at the right time you will give me the opportunity tell my side of the story, because what was filed in federal court certainly isn't the truth. So I want the Court, and I

want it to be a part of the record, my part of the story, I will get a chance to tell that part of the story. But I also want to recognize the President of the

united States, who, we watch TV every day, and he's getting beat up for not doing the right thing, or what some people not doing the right thing. United States,when But the President of the in think is

I caught him in the halls of Congress

2007, took a chance on the Black Farmers. And I went to work just as hard as I could for the President, President and many other people of the United States. in this room did, for the And he did the right thing by

signing that bill on December

8th, 2010. Your Honor, for a reason.

All of these things happened,

Because wrong went on too long in this case, and the people fought us at the United States Department years before they recognized of Agriculture for whe

25

that discrimination

prevailed,

Rebecca

Stonestreet

(202) 354-3249

kingreporter2~verizon.net

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