Text: H.R.4264 — 111th Congress (2009-2010)All Information (Except Text)

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Introduced in House (12/10/2009)


111th CONGRESS
1st Session
H. R. 4264


To provide for resolution of certain discrimination claims against the Department of Agriculture, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES

December 10, 2009

Ms. DeLauro (for herself and Ms. Eshoo) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Agriculture and Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned


A BILL

To provide for resolution of certain discrimination claims against the Department of Agriculture, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the “Equality for Women Farmers Act”.

SEC. 2. Resolution of certain discrimination claims against the Department of Agriculture.

(a) Notice to potential claimants.—

(1) IN GENERAL.—Within 120 days after the date of the enactment of this Act, the Secretary shall attempt to notify each person who may be an eligible claimant of the opportunity, during the 3-year period that begins with such date of enactment, to submit a claim under this section for damages resulting from discrimination described in section 6(4).

(2) METHODS.—The Secretary shall provide the notice—

(A) by United States mail and electronic mail, to each such person whose address can be determined from the records of the Department or records provided by counsel for eligible claimants; and

(B) by posting in public places, such as local Farm Service Agency offices and on the website of the Department, in a manner designated to reach all such persons.

(b) Submission of claims.—A person desiring to submit a claim under this section shall file with the Special Master a sworn statement that contains the following:

(1) The full name of the person.

(2) The mailing address of the person.

(3) To the best of the person’s ability, each date in the claims period on which the person requested from, or submitted to, the Department an application for a farm loan, farm loan servicing, or a disaster loan.

(4) With respect to each such request or submission—

(A) the identity of the office of the Department to which the request or submission was originally made;

(B) the type of loan or loan servicing sought, including a copy of any document submitted;

(C) the amount of damages suffered by the person as a result of the failure of the Department to provide, act on, or approve (in whole or in part) the application; and

(D) a claim for compensation for the damages.

(c) Processing of claims.—

(1) PERSONNEL.—

(A) FMCS APPOINTEES.—

(i) SPECIAL MASTER.—Within 60 days after the date of the enactment of this Act, the Federal Mediation and Conciliation Service (in this subparagraph referred to as the “FMCS”) shall appoint a Special Master to process, review, and adjudicate claims under this section.

(ii) ASSISTANT SPECIAL MASTERS.—At the request of the Special Master, the FMCS shall designate assistant special masters, as necessary, to assist the Special Master in processing, reviewing, and adjudicating claims under this section.

(iii) COMPENSATION.—From funds made available to carry out this section, the Special Master and any assistant special masters designated under this paragraph shall be paid on an hourly basis, consistent with the payment processes and procedures of the FMCS, for services provided under this section.

(B) DEPARTMENTAL EMPLOYEES.—On request of the Special Master, the Secretary may detail employees of the Office of Civil Rights of the Department to assist persons who request assistance in submitting claims under this section.

(2) PROCEDURE FOR REVIEW OF CLAIMS.—

(A) DEADLINE FOR CLAIMS SUBMISSION.—An award under this section may not be made with respect to a claim submitted after the 3-year period that begins with the date of the enactment of this section.

(B) EXPEDITIOUS CLAIMS REVIEW.—The Special Master shall process, review, and adjudicate claims under this section as expeditiously as possible.

(C) EVIDENTIARY RULES.—

(i) IN GENERAL.—The Special Master may permit a claimant to present evidence and testimony to substantiate a claim under this section.

(ii) INAPPLICABILITY OF CERTAIN RULES.—The Federal Rules of Civil Procedure, the Federal Rules of Evidence, section 554 of title 5, United States Code, and the legal standards and precedents otherwise required to state a legally cognizable prima facie discrimination case in the courts of the United States shall not apply to a claim under this section.

(D) PUBLICATION OF CLAIMS PROCEDURES.—Within 90 days after the date of the enactment of this Act, the Special Master shall cause to have published in the Federal Register the procedures and criteria to be used in reviewing and adjudicating claims under this section.

(E) IMPLEMENTATION OF PROCEDURES AND CRITERIA.—The procedures and criteria shall be established and implemented so as to effectuate the remedial purpose of giving each claimant the opportunity to obtain full relief for past discrimination.

(d) Adjudication of claim of gender discrimination in denial, or failure To provide notice of action on, an application for a farm loan, farm loan servicing, or a disaster loan.—The Special Master shall award $5,000 to an eligible claimant who has submitted a claim under this section, for each calendar year in the claims period with respect to which—

(1) the claim includes an allegation that the Secretary denied a request from the claimant for an application for a farm loan, farm loan servicing, or a disaster loan, or failed to notify the claimant of any action taken by the Department on such an application submitted by the claimant, on the basis of the gender of the claimant; and

(2) the Secretary fails to prove by a preponderance of the evidence that the allegation is false.

(e) Adjudication of claim of gender discrimination in denial of farm loan, farm loan servicing, or disaster loan.—

(1) IN GENERAL.—In addition to any amount awarded under subsection (d), the Special Master shall award an amount determined in accordance with paragraph (2) of this subsection to an eligible claimant who has submitted a claim under this section in which there is an allegation that the Secretary denied an application by the claimant for a farm loan, farm loan servicing, or a disaster loan on the basis of gender of the claimant, if the Special Master finds that the discrimination occurred.

(2) DETERMINATION OF AWARD AMOUNT.—In determining the amount to award a claimant under paragraph (1), the Special Master shall presume that the amount to be awarded is $109,000, and shall increase or decrease the amount, as appropriate, based on factors to be determined by the Special Master, including—

(A) the duration of ownership or operation of a farm by the claimant;

(B) the type of farming operation of the claimant;

(C) the past production by the claimant of agricultural products;

(D) the availability of contemporaneously created documents and witness testimony concerning the allegations of discrimination made by the claimant;

(E) the inappropriateness of the conduct of employees of the Department with regard to the claimant; and

(F) the damages suffered by the claimant.

(f) Attorney’s fees.—

(1) COUNSEL FOR PLAINTIFFS AND CLASS MEMBERS IN LOVE V. VILSACK.—Within 120 days after the date of the enactment of this Act, counsel of record for the plaintiffs and putative class members at the time of the filing of the complaints in Love v. Vilsack, C.A. No. 1:00–CV–02502 (U.S. District Court for the District of Columbia) may present to the Special Master a petition for reasonable compensation for all services the counsel have provided to the plaintiffs and putative class members from calendar year 2000 through the date the petition is presented, which shall be determined by the Special Master in accord with the legal precedents of the United States Court of Appeals for the District of Columbia Circuit pertaining to awards of attorneys’ fees for the litigation of actions where a favorable result is obtained for the common benefit of a class.

(2) OTHER COUNSEL.—The Special Master may, in accordance with procedures and guidelines established by the Special Master, award fees to counsel who represent a claimant in a proceeding under this section, not exceeding $10,000 per claimaint, for services the counsel have provided to the claimant in connection with the proceeding, regardless of whether the claimant receives an award under this section.

(g) Finality of determinations.—An adjudication of a claim under this section shall be final and not reviewable by any court.

(h) Acceptance of award constitutes satisfaction of all claims of discrimination during the claims period.—A claimant who accepts an award under this section may not bring or pursue an action in any Federal or State court, or an administrative proceeding, for damages based on any claim of discrimination by the Department on the basis of gender in the issuance or review of an application for a farm loan, farm loan servicing, or a disaster loan during the claims period.

(i) Award exempt from federal taxation.—An award under this section shall be exempt from taxation under the Internal Revenue Code of 1986.

(j) Reports to the Congress.—On each anniversary of the date of the enactment of this Act, the Special Master shall submit to the Committees on Agriculture and on Appropriations of the House of Representatives and the Committees on Agriculture, Nutrition, and Forestry and on Appropriations of the Senate a report (with a copy to the Department) regarding—

(1) the number of claims made under this section;

(2) the number of the claims that have been adjudicated under this section; and

(3) the total of the amounts awarded under this section.

(k) Appropriation.—Out of any funds in the Treasury of the United States not otherwise appropriated, there are appropriated $4,500,000,000, without fiscal year limitation, for payment by the Special Master to carry out this section.

(l) Definitions.—In this section:

(1) DAMAGES.—The term “damages” includes economic loss.

(2) SPECIAL MASTER.—The term “Special Master” means the Special Master appointed under subsection (c)(1)(A)(i).

SEC. 3. Remedial measures.

(a) Limitation on foreclosures.—During the 3-year period that begins with the date of the enactment of this Act, the Secretary may not initiate foreclosure on collateral or secured property, assist any creditor or any State in connection with a foreclosure on collateral or secured property, or expend any money relating to foreclosure or sale of collateral or secured property, of an eligible claimaint.

(b) Processing of applications for farm loan, farm loan servicing, or disaster benefit.—

(1) ELIGIBILITY DETERMINATIONS.—The Secretary shall approve an application for a farm loan, farm loan servicing, or a disaster benefit submitted by an eligible claimant in the 3-year period that begins with the date of the enactment of this Act, unless the Secretary establishes, by clear and convincing evidence, that the eligible claimaint does not satisfy the published, objective eligibility criteria for the farm loan, farm loan servicing, or disaster loan, as the case may be.

(2) DEADLINE TO PROVIDE NOTICE OF REASONS FOR DENIAL; EFFECT OF FAILURE COMPLY WITH DEADLINE.—Within 30 days after the Secretary denies an application submitted pursuant to paragraph (1), the Secretary shall provide the applicant with the documentation on the basis of which the application was denied. If the Secretary fails to comply with the preceding sentence, the application is deemed approved.

(3) OPPORTUNITY OF APPLICANT TO SUBMIT ADDITIONAL DOCUMENTATION.—Within 20 days after the Secretary complies with the 1st sentence of paragraph (2), the applicant may provide the Secretary with additional information in support of the application.

(4) RECONSIDERATION OF APPLICATION.—Within 20 days after the earlier of the date the Secretary receives the additional information, the Secretary shall reconsider the application on the basis of the additional information.

(5) ACTION ON RECONSIDERED APPLICATION.—The Secretary shall approve an application submitted pursuant to paragraph (1) with respect to which the applicant has provided additional information, unless the Secretary concludes by clear and convincing evidence that the applicant is ineligible for the farm loan, farm servicing, or disaster loan involved, based on the published, objective eligibility criteria for the farm loan, farm servicing, or disaster loan, as the case may be.

(6) NOTICE OF DENIAL OF RECONSIDERED APPLICATION.—Within 30 days after an application is denied pursuant to paragraph (5), the Secretary shall provide the applicant with written notice of the denial, including the specific reason for the denial.

(c) Other remedial measures.—The Secretary shall—

(1) install and maintain recordkeeping systems that document each contact between a farmer and the Department;

(2) establish community-based outreach programs to assist socially disadvantaged farmers in applying for farm loan and farm loan servicing programs;

(3) implement an effective method to achieve transparency in the administration of the loan and loan servicing programs of the Department to facilitate evaluation of whether the fundamental reforms are expeditiously and effectively implemented; and

(4) establish an efficient and effective system for processing discrimination complaints of socially disadvantaged farmers.

(d) Report on implementation of remedial measures.—Within 6 months after the date of the enactment of this Act, the Secretary shall submit to the Congress a report on the status of implementation of the remedial measures described in subsections (b) and (c).

SEC. 4. GAO audit.

(a) In general.—The Comptroller General shall conduct an audit of the administration of farm loan and benefit programs by the Farm Service Agency, to—

(1) identify data that must be collected to determine whether the Department is providing equal access to all programs;

(2) determine whether the technology used by the Department is adequate to collect and store the data, and—

(A) if the technology is adequate for such purpose, shall determine the reasons why the technology is not being used properly; or

(B) if the technology is not adequate for such purpose, shall identify the technology necessary to adequately collect and store the data.

(b) Report to the Congress.—Within 1 year after the date of the enactment of this Act, the Comptroller General shall submit to the Committees on Agriculture and on Appropriations of the House of representatives and the Committees on Agriculture, Nutrition, and Forestry, and on Appropriations of the Senate a report on the findings of the audit conducted under subsection (a).

SEC. 5. Annual reports on denial of requests for applications for farm loans, loan servicing, or disaster benefits, or of applications therefor.

(a) In general.—Not later than March 1 of each year, the Secretary shall submit to the Congress a report which summarizes the following information on each person whose request for an application for a farm loan, farm loan servicing, or a disaster loan, or whose application for a farm loan, farm loan servicing, or a disaster loan, was denied in the 12-month period covered by the report:

(1) The gender of the person.

(2) The race of the person.

(3) The national origin of the person.

(4) Whether the person is an Indian or a member of an Indian tribe.

(5) The amount of time that elapsed from the date the request or application was made to the date of the denial.

(6) The location of the office that denied the request or application.

(7) All information taken into account in the denial.

(b) No personally identifiable information.—The report shall not contain any information that identifies any person referred to in subsection (a).

(c) Definitions of Indian and member of an Indian tribe.—In this section, the terms “Indian” and “member of an Indian tribe” shall have the same meanings given the terms, respectively, in paragraphs (1) and (2) of section 2 of the Tribally Controlled College or University Assistance Act of 1978.

SEC. 6. Definitions.

In this Act:

(1) CLAIMS PERIOD.—The term “claims period” means the period that began on January 1, 1981, and ended on the date of the enactment of this Act.

(2) DEPARTMENT.—The term “Department” means the Department of Agriculture.

(3) DISASTER LOAN.—The term “disaster loan” means a loan under subtitle C of the Consolidated Farm and Rural Development Act.

(4) ELIGIBLE CLAIMANT.—The term “eligible claimant” means any person who claims that she was discriminated against, on the basis of gender, in the issuance or review of an application for a farm loan, farm loan servicing, or a disaster loan, during the claims period.

(5) FARM.—The term “farm” includes a ranch.

(6) FARM LOAN.—The term “farm loan” means a loan under subtitle A or B of the Consolidated Farm and Rural Development Act.

(7) SECRETARY.—The term “Secretary” means the Secretary of Agriculture.

(8) SOCIALLY DISADVANTAGED FARMER.—The term “socially disadvantaged farmer” has the meaning given the term “socially disadvantaged farmer or rancher” in section 355(e)(2) of the Consolidated Farm and Rural Development Act.