The clock is ticking on negotiations to settle another mammoth discrimination lawsuit against the U.S. Department of Agriculture, this one brought by Native American farmers and ranchers.
The class action, filed in Washington, D.C., federal court in November 1999, accuses the department of denying thousands of Native American farmers and ranchers the same opportunity to obtain farm loans that it routinely gave to white farmers. The discrimination allegedly caused the loss of billions of dollars in credit over a 25-year period. The suit also charges the department with failure to accept and investigate many civil rights complaints filed by those farmers and ranchers.
This past December, Agriculture Secretary Tom Vilsack asked the plaintiffs in Keepseagle v. Vilsack to join the department in seeking a stay of the class action in order to focus on settlement negotiations. U.S. District Judge Emmet Sullivan of the District of Columbia agreed to halt the litigation for 60 days. Although that initial stay expired in mid-February, the parties won another stay, which runs out April 21.
A status report on the negotiations is due to be filed with the judge on April 15.
"We are nowhere close to a settlement, but it remains to be seen what our clients are prepared to do in connection with the stay," said lead counsel Joseph Sellers, head of the civil rights and employment practice group at Washington's Cohen Milstein Sellers & Toll.
Sellers said his clients are frustrated by the slow pace. "Given the case has been pending more than 10 years and has lost some of the named plaintiffs, the passage of time can be very cruel," he said. "The concern is moving the case along, whether through settlement or continuing the litigation."
U.S. Reps. Dale Kildee, D-Mich., and Tom Cole, R-Okla., co-chairs of the Native American Caucus, sent a letter on March 26 urging Vilsack to settle the litigation on terms comparable to the department's recent settlement with African-American farmers. The department settled late-filed claims of black farmers for $1.25 billion, in addition to the $1 billion previously awarded for timely filed claims in that litigation.
"We trust that you will agree that Native American farmers and ranchers should have their claims resolved and be provided comparable relief, since they were victims of the same discrimination committed by the same agency over the same time period, and since they too lost substantial revenue and lands that had been in their families for generations," wrote the two lawmakers.
An Agriculture Department spokesperson said, "The Secretary has repeatedly made clear that he is committed to resolving all of the large civil rights cases quickly and fairly. He believes it is time to move past this sad chapter of USDA's history so that USDA can focus on helping all farmers be successful."
Sellers said his clients believe the Obama administration genuinely wishes to resolve the litigation. "The question isn't whether the administration will settle the case, but when," he added.
His clients also agree with Kildee and Cole that any settlement should be comparable to the black farmers deal, said Sellers. "It's hard to imagine why different amounts would be awarded, although the path to a settlement and funding it is different," he said.
The late-filed claims of black farmers were resurrected by Congress, not the court, and the $1.25 billion must be funded by an act of Congress, which has not yet happened. The claims in the Keepseagle litigation could be paid from the government's Treasury Judgment Fund, which does not require congressional action, according to Sellers.
The Judgment Fund, established by Congress in the 1950s, is available to pay court judgments and settlement agreements negotiated by the Justice Department on behalf of federal agencies. Congress established the fund as a permanent, indefinite appropriation.
Discovery has been completed in the Keepseagle litigation. The class action includes all Native Americans who farmed or ranched between 1981 and 1999, applied to the Agriculture Department for participation in a farm program during that time period and filed a discrimination complaint with the department during that time period.
Sellers said he does not know yet whether his clients are willing to postpone the court case again if the department asks for more time to negotiate.
"I know from my own experience that cases of this magnitude take some time to resolve," Sellers said. "I didn't expect this to settle in 60 days or 120 says. I think our clients remain resolute in their belief that statements by the secretary of Agriculture that he wants to settle case are ones they can rely on."