Federation of Southern Cooperatives
Land Assistance Fund


 
Injunctive Relief in Pigford v. Glickman

(Note from the Federation: The following is about the injunctive relief being offered to farmers in the class action suit. The Monitor would have also sent this to class members in 2001. We urge that all farmers in the suit read this and have some familiarity with how they can benefit as class members. The phone number to the Monitor is 1-877-924-7483.)

I. Introduction and the Monitor’s Role
This Monitor Update summarizes class members’ rights to injunctive relief in Pigford v. Glickman—the nationwide class action brought by black farmers alleging race discrimination by the United States Department of Agriculture (USDA). Injunctive relief is the remedy in the lawsuit that is separate from money damages. The Consent Decree in Pigford provides for injunctive relief. The Monitor is independent of the parties and was appointed by the Honorable Paul L. Friedman, the judge in this case. Part of the Monitor’s job is to help class members who have difficulty getting injunctive relief.
II. Only a Brief Summary
This Update is intended to give only a brief summary of injunctive relief rights in this case. To learn about the current state of your rights in detail, please contact an attorney. You may also contact the Monitor’s office for more information.
III. Eligibility for Injunctive Relief
A. Must Prevail in Track A or Track B 
In order to be eligible for injunctive relief, a class member must prevail in either Track A or Track B of the settlement.
B. Credit vs. Noncredit Claim - the Difference Matters
Two types of claims are possible—credit claims and noncredit claims. A credit claim means a claim based on the class member’s effort to get a farm loan. A noncredit claim is a claim that is not based on an effort to get a farm loan but instead is based on the class member’s effort to receive some other benefit from USDA. For example, a disaster payment is a noncredit benefit. The difference between credit claims and noncredit claims is important because some parts of injunctive relief are available only for credit claims.
C. What Law Applies for Injunctive Relief
1. Consent Decree - In general, the Consent Decree sets the terms of the settlement of the lawsuit. This includes injunctive relief. In light of the purpose of the Consent Decree—to provide a remedy for class members—the Consent Decree is to be liberally construed. A liberal construction in favor of class members, therefore, means that when someone tries to understand the meaning of the Consent Decree, he or she should resolve all reasonable doubts as to its meaning in favor of the class member.
2. FSA Regulations and Most Favorable Light
The regulations governing FSA programs must be met in providing injunctive relief to class members. For example, in order to get a loan from the Farm Service Agency (FSA), the farmer must still meet FSA eligibility requirements. According to the Consent Decree, however, applications for farm ownership or farm operating loans or for inventory property must be viewed in the light most favorable to the class member. This provision applies every time a class member applies for an operating loan, for a farm ownership loan, or for inventory property.
IV. Types of Injunctive Relief
Injunctive relief falls under two main categories—priority consideration and technical assistance.
A. Priority Consideration—Three Types
The Consent Decree provides for priority consideration for three types of FSA benefits.
1. Inventory Property - Priority consideration for the purchase, lease, or acquisition of some property that USDA owns—known as inventory property—is a part of injunctive relief. FSA will advertise inventory land at its appraised market value. Priority consideration comes into play in deciding who is allowed to buy the land at the appraised market value.
2. Farm Ownership Loan - Priority consideration for one FSA direct farm ownership loan—known as an FO loan—is a part of injunctive relief.
3. Farm Operating Loans - Priority consideration for one FSA direct operating loan—known as an OL loan—is a part of injunctive relief. Farm operating loans may be used to pay annual farm operating expenses; to pay farm or home needs, including family subsistence; to purchase livestock and farm equipment; to refinance other debt; and for other purposes.
4. How Priority Consideration Works  - Several general rules apply to priority consideration.
a. Request in Writing  - Priority consideration must be requested from FSA in writing.
b. One-Time Basis  - Priority consideration is available on a one-time basis.
c. Credit Claims Only - Priority consideration is available only to those who had credit claims.
B. Technical Assistance and Service 
Technical assistance from USDA in getting operating loans and farm ownership loans and acquiring inventory property is a part of injunctive relief. Technical assistance is defined as USDA assistance in filling out loan forms, developing farm plans, and all other aspects of the application process.
1. Credit and Noncredit Claims  - Technical assistance is available both for those with credit claims and noncredit claims.
2. Must Be Requested - The class member must request the technical assistance and service.
3. Qualified and Acceptable USDA Employees - Technical assistance and service must come from qualified USDA employees who are acceptable to the class member.
V. Getting an FSA Loan
A. Eligibility and Priority Consideration - Priority consideration does not mean that getting the loan is automatic. FSA eligibility requirements continue to apply.
B. Debt Forgiveness and Loan Eligibility - Many class members will have problems getting a loan because of past debt forgiveness.
1. General Rule—No FSA Direct Loan if Debt Forgiveness  - As a general rule, applicants who have had FSA debt forgiveness that resulted in a loss to FSA cannot get an FSA direct loan.
a. Defining Debt Forgiveness  - Debt forgiveness, for this purpose, has a specific definition. It includes, for example, the write-down or write-off of an FSA debt. It also includes the discharge of a debt to FSA as a result of bankruptcy. In addition, it includes a loss paid by FSA on a guaranteed loan.
b. Exceptions to the General Rule - For operating loans, there are two exceptions to the debt forgiveness restriction. The first exception has two parts. The borrower must meet both parts of the exception to be eligible for an operating loan. First, the form of debt forgiveness must have been a restructuring with what FSA calls a primary loan servicing write-down. Second, the farmer must be applying for an operating loan that is intended to pay annual farm operating expenses. This includes family subsistence. The second exception applies for operating loans for borrowers who are current on payments under a confirmed bankruptcy reorganization plan.
2. Debts Forgiven Under Pigford—or Affected by Discrimination - Many claimants had outstanding FSA debt discharged under the Consent Decree. A debt discharged under the Consent Decree will not hurt the class member’s eligibility for another FSA loan. Further, if discrimination was found in a loan that was previously written down or written off, this debt forgiveness will not hurt the class member’s eligibility for another FSA loan.
C. Creditworthiness - An applicant must be creditworthy to be eligible for an FSA loan. Credit history can be taken into account when FSA considers the creditworthiness of the applicant. FSA has a specific definition for creditworthiness. Many credit problems cannot be held against the applicant. In addition, if discrimination is found in a loan, and problems paying that debt caused a class member to miss payments, become delinquent, or so forth, these problems should not affect the class member’s eligibility for a new loan.
D. Other Requirements for FSA Loans - FSA has several other requirements for a loan. For example, borrowers must be unable to get credit elsewhere, they must meet a family farm requirement, and they must be able to cash flow the loan.
VI. If Injunctive Relief Efforts Fail
If those seeking to use the injunctive relief described in this booklet fail in their efforts, they have several options.
A. Contact the Monitor - Part of the Monitor’s job according to the Consent Decree is to assist class members with problems they may be having with injunctive relief. Anyone with questions for the Monitor’s Office may call toll-free 1-877-924-7483.
B. FSA Appeals - Any FSA applicant—not just class members—who receives what is known as an adverse decision from FSA may appeal that decision within USDA. Under the current rules, to obtain a National Appeals Division (NAD) hearing, a participant must request the hearing not later than thirty days after the date on which he or she first received notice of the adverse decision.
C. Civil Rights Complaint - Any person—not just class members—may file a discrimination complaint with USDA. In order for this complaint to be considered, it may not cover the claims raised in the Pigford lawsuit. In other words, an African-American farmer could use the complaint process if the discrimination occurred after December 31, 1996 (the last date covered by the lawsuit). Discrimination complaints may be filed with Director Office of Civil Rights, USDA, Room 326-W, Whitten Building, 1400 Independence Avenue, S.W., Washington, DC, 20250-9410.
VII. More Information on Injunctive Relief
The Monitor’s Office will prepare a much more detailed version of this Monitor Update for class members who request it. If you would like a copy of the much longer booklet, call the Monitor’s office toll-free at 1-877-924-7483.

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