United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 1, 2018 Decided January 15, 2019

No. 17-5082

ESTATE OF EARNEST LEE BOYLAND, ET AL.,

APPELLANTS

v.

UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-01112)

Robert E. Hauberg Jr. argued the cause and filed the briefs 

for appellants. Paul A. Robinson Jr. entered an appearance.

Jennifer L. Utrecht, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With her on the brief was 

Charles W. Scarborough, Attorney.

Stephen P. Murphy was on the brief for appellee EPIQ 

Class Action & Claims Solutions, Inc.

Before: GRIFFITH and PILLARD, Circuit Judges, and 

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge PILLARD.
2

PILLARD, Circuit Judge: Plaintiffs, representing the 

estates of black male farmers, seek to submit claims of past 

discrimination in agricultural credit programs to a claimsprocessing framework set up to resolve Hispanic and female 

farmers’ credit discrimination claims. In this lawsuit, they 

assert that the claims-processing framework itself

discriminatorily excluded them. In short, they raise a 

discrimination claim about the handling of discrimination 

claims. They therefore identify two distinct discrimination 

claims, one nested within the other: the underlying credit 

discrimination claims, and the current challenge to the 

framework. Plaintiffs argue that the district court failed to 

assume the merits of their claim when it held they lacked 

standing to bring the current challenge. That is incorrect. 

Plaintiffs lack standing to challenge the framework because 

they have no live underlying credit discrimination claims to 

present there.

Plaintiffs sued the United States Department of 

Agriculture (“USDA” or “the Department”) and Epiq Class 

Action & Claims Solutions, Inc. (“Epiq”), the firm USDA hired 

to administer the framework, contending they unlawfully 

discriminated by affording women and Hispanic claimants 

exclusive access to a remedial claims framework, the very 

raison d’être of which was to redress USDA’s sex and ethnicity 

discrimination against female and Hispanic farmers. Plaintiffs 

allege that the farmers whose estates they represent

experienced discrimination in USDA agricultural credit and 

benefit programs—based not on sex or Hispanic ethnicity, but 

on their black racial identity. That claim is certainly plausible. 

It is well established that, during the 1980s and 1990s, USDA 

engaged in systemic discrimination on multiple grounds 

against many of the farmers its programs were supposed to 

serve. In fact, it was a class action lawsuit by black farmers 

(the “Black Farmers” suit) that first illuminated USDA’s 
3

rampant credit discrimination and inspired parallel lawsuits by 

Native American, female, and Hispanic farmers. And USDA

modeled the framework at issue here on the claims-processing 

system it set up in settlement of the Black Farmers’ class 

action. 

Plaintiffs in this case never submitted claims in the Black 

Farmers remedial process. When they instead sought to present 

their claims in the parallel framework for claims of 

discrimination against women and/or Hispanic farmers, the 

claims processor turned them away. Plaintiffs contend that 

USDA and Epiq thereby invidiously discriminated against 

them based on their sex and race. They claim that USDA 

violated the constitutional equal protection guarantee and that 

Epiq violated the federal statutory prohibition against 

discrimination by a program or activity that receives federal 

financial assistance. 

In assessing standing, we assume that plaintiffs could 

prevail on those claims. Plaintiffs’ standing nevertheless fails 

for want of redressability. The claims-processing framework 

for women and Hispanic farmers, like the parallel one for black

farmers, can only make good on live claims. Thus, even 

assuming plaintiffs succeeded in invalidating the framework’s 

challenged sex and ethnicity limitations, they could not benefit 

unless they had unexpired claims of credit discrimination to 

process there. 

Because plaintiffs fail to allege that they have any live 

claims to process in the framework they challenge, the harm 

they assert from being excluded is not redressable. Plaintiffs’

nested claims target discrimination by USDA during the 1980s

in violation of the Equal Credit Opportunity Act (ECOA), 

which prohibits discrimination in credit transactions. 15 

U.S.C. § 1691 et seq. ECOA’s five-year statute of limitations 
4

has long since run on most claims of that vintage. Congress in 

1998 legislated an important but limited exception to ECOA’s 

time bar for farmers who had complained of discrimination to 

USDA between 1981 and July 1997—a period when, Congress 

found, the Department’s internal system for addressing 

discrimination claims was dysfunctional. Plaintiffs do not 

allege they sought to press their claims to USDA before July 

1997, so they are ineligible to benefit from Congress’s tolling 

of the limitations period for farmers who did. Their decadesold claims are time barred.

Even if we assumed that plaintiffs in fact took steps before 

1997 to preserve their claims and merely neglected to so 

specify in their complaint, they would still be out of luck. 

Together with everything else they allege, that would mean—

as the district court assumed—that they were members of the 

plaintiff class in the Black Farmers’ lawsuit. Any credit 

discrimination claim a member of the Black Farmers plaintiff 

class may have had during the relevant period, whether or not 

actually pursued in the remedial process established under the 

Black Farmers’ consent decree, is now precluded by that

decree, or, for any member who opted out, time barred. Thus, 

even if the challenged framework were not limited to women 

and Hispanic farmers, it could do nothing to redress plaintiffs’

precluded claims. 

I.

A.

Over the past two decades, USDA has resolved

discrimination lawsuits with several different groups of 

farmers. These lawsuits primarily challenged discrimination in 

USDA’s lending programs in violation of ECOA. 15 U.S.C. 

§ 1691 et seq. Farmers’ bottom lines fluctuate with the weather 

and crop prices, so “many farmers depend heavily on the credit 
5

and benefit programs of the United States Department of 

Agriculture to take them from one year to the next.” Pigford v. 

Glickman (Pigford I), 185 F.R.D. 82, 86 (D.D.C. 1999) 

(footnote omitted).1

 If a farmer’s crops fail, “he may not have 

sufficient resources to buy seeds to plant in the following 

season”; if he needs a new grain harvester, “he often cannot 

afford to buy the harvester without an extension of credit.” Id. 

“Because of the seasonal nature of farming, it also is of utmost 

importance that credit and benefit applications be processed 

quickly or the farmer may lose all or most of his anticipated 

income for an entire year.” Id. 

Public protest over discrimination in USDA’s credit and 

benefit programs spurred the Department to investigate. That

scrutiny uncovered a widespread pattern of discrimination in 

the Department’s agricultural credit and benefit programs. In 

1996, then-Secretary of Agriculture Dan Glickman appointed 

a Civil Rights Action Team to assess the Department’s history 

of racial discrimination and recommend changes. See id. at 88. 

The Action Team documented extensive economic harm to 

minority farmers from discrimination in USDA programs. See 

id. at 86-88. That discrimination owed partly to USDA’s 

practice of delegating loan application decisions to small, local 

committees in each county. Id. at 86. The county committees 

were far less diverse than the communities they served. Id. at 

87. USDA denied or delayed processing loan applications, 

approved insufficient amounts, discriminatorily denied access 

to loan servicing options, or imposed restrictive conditions on 

loans because of the applicants’ race, sex, or ethnicity. See 

Fourth Am. Compl. 3, Love v. Veneman, No. 1:00-cv-02502 

(D.D.C. July 13, 2012), ECF No. 160 (female farmers); Eighth 

 1 Subsequent litigation in the case, not relevant here, became known 

as Pigford II. We refer to Pigford I for clarity and consistency with 

other opinions.
6

Am. Compl. 2, Keepseagle v. Veneman, No. 1:99-cv-03119

(D.D.C. Feb. 11, 2008), ECF No. 460 (Native American 

farmers); Third Am. Compl. 13, Garcia v. Veneman, No. 1:00-

cv-02445 (D.D.C. June 30, 2006), ECF No. 144 (Hispanic 

farmers); Pigford I, 185 F.R.D. at 87 (black farmers).

ECOA claims formed the core of the four lawsuits filed 

against USDA on behalf of black, Native American, women, 

and Hispanic farmers. ECOA creates a private right of action 

against a creditor, including the United States, who 

“discriminate[s] against any applicant, with respect to any 

aspect of a credit transaction . . . on the basis of race, color, 

national origin, [or] sex,” among other characteristics. Id.

§§ 1691(a), 1691e(a). 

The evidence developed in the Pigford I Black Farmers 

litigation showed that, on top of discrimination by the 

committees, by 1983, USDA’s Office of Civil Rights 

Enforcement and Adjudication (OCREA), which was 

responsible for handling civil rights complaints against the 

Department, “essentially was dismantled and complaints that 

were filed were never processed, investigated or forwarded to 

the appropriate agencies for conciliation,” to the point that,

“[i]n some cases, OCREA staff simply threw discrimination 

complaints in the trash without ever responding to or

investigating them.” Pigford I, 185 F.R.D. at 88. The public 

learned of the dysfunction of OCREA in a 1996 report by the 

U.S. Commission on Civil Rights; only with the publication of 

the Civil Rights Action Team report the following year did the 

government begin to reckon with the scale of the 

discrimination. See USDA Civil Rights Action Team, Civil 

Rights at the United States Department of Agriculture 2 (1997); 

U.S. Comm’n on Civil Rights, Federal Title VI Enforcement to 

Ensure Nondiscrimination in Federally Assisted Programs 255 

(1996). The same month the Action Team released its report, 
7

USDA’s Office of the Inspector General issued a report 

describing USDA’s lack of transparency and backlog of 

unprocessed complaints. See Pigford I, 185 F.R.D. at 88. “The 

acknowledgment by the USDA that the discrimination 

complaints had never been processed, however, came too late 

for many African American farmers.” Id. Farmers’ legal 

recourse was limited by the then-two-year statute of limitations 

on claims of discrimination in credit transactions under ECOA. 

15 U.S.C. § 1691e(f); see Dodd-Frank Wall Street Reform and 

Consumer Protection Act, Pub. L. No. 111-203, § 1085(7), 124 

Stat. 2085, 2113 (2010) (changing the statute of limitations to 

five years).

In 1998, Congress responded to the farmers’ predicament 

by lifting the time bar for farmers who had made timely efforts 

to seek administrative redress for credit discrimination but 

were stymied by the dysfunction at USDA. See 7 U.S.C. 

§ 2279 note (Omnibus Consolidated and Emergency 

Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, 

§ 741, 112 Stat. 2681) (“Appropriations Act”). The 

Appropriations Act tolled the statute of limitations for two 

years after its passage—from October 1998 to October 2000—

for people who (1) alleged non-employment-related 

discrimination by USDA occurring between January 1, 1981,

and December 31, 1996, and (2) had filed a complaint with 

USDA before July 1, 1997. A farmer who complained to 

USDA in 1983, when OCREA broke down, could have had 

valid claims based on discrimination as far back as 1981, which 

presumably accounts for Congress’s choice of that year as the 

beginning of the statutory date range. By confining the Act’s 

beneficiaries to people who had sought to complain to USDA 

during a period when the Department systematically failed to 

process farmers’ discrimination claims, Congress limited its 

legislative fix to claimants blocked by OCREA’s dysfunction. 

It did not more broadly waive the statute of limitations for all 
8

farmers who suffered discrimination in the 1981 to 1996 

statutory period.

USDA has resolved the discrimination lawsuits of each of 

the four groups of farmers. For each group, the only farmers 

permitted to participate in the claims-resolution processes 

established in response to these cases were those who had, 

before the suits were filed, complained in some manner of 

USDA’s discrimination. Framework for Hispanic or Female 

Farmers’ Claims Process ¶¶ VIII.A, VIII.B, VIII.C.1.g, Love, 

No. 1:00-cv-02502 (D.D.C. Jan. 20, 2012), ECF No. 155-1

(“Garcia/Love Framework”); Keepseagle, No. 1:99-cv-03119, 

2001 WL 34676944, at *6 (D.D.C. Dec. 12, 2001); Pigford I, 

185 F.R.D. at 92. 

USDA settled with the class of Black Farmers first, in 

1999, in Pigford I. 185 F.R.D. 82. The court approved the 

creation of a two-track dispute resolution mechanism for 

distributing proceeds to claimants. Under that process,

claimants with less documentary evidence of discrimination

received capped payments, while claimants with more 

documentary evidence could seek to prove and recover actual 

damages. Pigford I, 185 F.R.D. at 95-97. 

The process established in Pigford I became a template for 

the other cases. Next, USDA settled a class action suit with 

Native American farmers. See Keepseagle, No. 1:99-cv03119, 2012 WL 13098692, at *1 (D.D.C. Dec. 28, 2012). 

Similar lawsuits by Hispanic and female farmers followed, but 

did not result in class-wide settlements because neither case 

was certified as a class action. Garcia v. Johanns, 444 F.3d 

625 (D.C. Cir. 2006) (Hispanic farmers); Love v. Johanns, 439 

F.3d 723 (D.C. Cir. 2006) (female farmers). Instead, USDA 

voluntarily created a joint claims process for both Hispanic and 

female farmers. See Garcia/Love Framework. Claimants who 
9

wished to recover under the Garcia/Love Framework agreed, 

in the claim packets they submitted, to release their individual 

claims against USDA. See id. ¶ 5; Settlement Agreement, 

Love, No. 1:00-cv-02502 (D.D.C. Feb. 3, 2017), ECF No. 275-

1.

As described above, Congress did not toll all claims of 

discrimination arising between 1981 and 1996—only those of

farmers who also brought a complaint of discrimination by July 

1, 1997. See Pigford I, 185 F.R.D. at 92-93, 100. The plaintiffs 

here have neither shown nor alleged that they made a credit 

discrimination complaint to the government at any time, much 

less by the deadline, as they would have had to do to qualify as 

Pigford I class members. 

B.

This case addresses whether the plaintiff black farmers 

who, again, did not file claims in Pigford I, may now 

participate in the Garcia/Love Framework established to 

compensate farmers discriminated against because of their sex 

or Hispanic ethnicity. The plaintiffs are the Black Farmers and 

Agriculturalists Association, Inc. (BFAA), which describes 

itself as “a not[-]for-profit organization created for the specific 

purpose of responding to the issues and concerns of black 

farmers in the United States and abroad,” Appellants’ Br. 4, 

and the estates of three now-deceased black male farmers (the 

individual plaintiffs), which allege that USDA discriminated 

against the farmers in lending programs during the 1980s. The 

individual plaintiffs’ current challenge to their exclusion from 

the Garcia/Love Framework is pressed by the farmers’ children 

and grandchildren, who are also members of plaintiff BFAA.

In 2013, after the Pigford process had closed, plaintiff 

BFAA unsuccessfully sought to intervene in Garcia and Love

to assert, among other claims, that its members were entitled 
10

under the Equal Protection and Due Process Clauses to 

participate in the Garcia/Love Framework. Garcia, 304 F.R.D. 

77, 81 (D.D.C. 2014), aff’d, No. 14-5175, 2014 WL 6725751 

(D.C. Cir. Nov. 18, 2014); Love, 304 F.R.D. 85, 88 (D.D.C. 

2014), aff’d, No. 14-5185, 2014 WL 6725758 (D.C. Cir. Nov. 

18, 2014). The court denied intervention because, as relevant 

here, BFAA lacked standing to press its constitutional 

challenges. Garcia, 304 F.R.D. at 82. In the meantime, the 

three individual plaintiffs submitted claims to the Garcia/Love

Framework. They received denials explaining: “To participate 

in this Process, you must be either Hispanic/Latino or female.

. . . [Y]ou indicated that you are an African American male.” 

J.A. 57, 64, 72.

BFAA and the individual plaintiffs then brought this 

putative class action against USDA and Epiq. They alleged

that USDA and Epiq violated their Fifth Amendment due 

process and equal protection rights, as well as Title VI of the 

Civil Rights Act of 1964, by excluding them from the 

Garcia/Love Framework because of their race and sex.

The district court granted USDA’s motion to dismiss the 

constitutional claims. It held that issue preclusion barred 

BFAA from relitigating its standing, because the Garcia/Love

court had already decided the question. Estate of Boyland v. 

Young, 242 F. Supp. 3d 24, at 30 (D.D.C. 2017); see also 

Garcia, 304 F.R.D. at 82; Love, 304 F.R.D. at 90. The 

individual plaintiffs also lacked standing for much the same 

reason the Garcia/Love court had given for denying BFAA’s 

standing: their lack of opportunity to present their 

discrimination claims was not fairly traceable to the 

Garcia/Love Framework, but to their own failure to file timely

claims for compensation under the Pigford settlement. The 

court dismissed the Title VI claim against Epiq on the ground 

that the Garcia/Love Framework was not a “program or 
11

activity” within the meaning of Title VI, and that Epiq had not 

received “federal financial assistance,” a prerequisite to the 

statute’s applicability.

II.

We review de novo the district court’s dismissal for lack 

of standing, Young Am.’s Found. v. Gates, 573 F.3d 797, 799 

(D.C. Cir. 2009), and for failure to state a claim on the merits, 

Hispanic Affairs Project v. Acosta, 901 F.3d 378, 385 (D.C. 

Cir. 2018). The plaintiffs bear the burden of establishing our 

jurisdiction, including the elements of standing. Lujan v. Defs. 

of Wildlife, 504 U.S. 555, 561 (1992). The requirements of 

Article III standing are injury in fact, causation, and 

redressability. Id. at 560-61. Injury in fact is “an invasion of a 

legally protected interest which is (a) concrete and 

particularized . . . and (b) actual or imminent, not conjectural 

or hypothetical.” Id. at 560 (internal quotation marks and 

citations omitted). The injury must also be “fairly traceable to 

the challenged action of the defendant, and not the result of the 

independent action of some third party not before the court.” 

Id. (internal quotation marks and alterations omitted). Finally, 

“it must be likely, as opposed to merely speculative, that the 

injury will be redressed by a favorable decision.” Id. at 561 

(internal quotation marks omitted).

Plaintiffs lack standing to sue USDA and Epiq for 

excluding them from the Garcia/Love Framework, because 

they have failed to show that the court could redress any injury 

they claim from that exclusion. 

For purposes of analyzing plaintiffs’ standing, we make 

the requisite assumption that they would prevail on the merits 

of their claim that, in excluding them from the Garcia/Love

Framework, USDA and Epiq impermissibly discriminated 

against them because of their race and sex. Whether a plaintiff 
12

has a legally protected interest that supports standing does not 

require that he show he will succeed on the merits; if it did, 

every merits loss would amount to a lack of standing. Instead, 

“when considering whether a plaintiff has Article III standing, 

a federal court must assume, arguendo, the merits of his or her 

legal claim.” Parker v. District of Columbia, 478 F.3d 370

(D.C. Cir. 2007) (citing Warth v. Seldin, 422 U.S. 490, 501-02 

(1975)); see also Campbell v. Clinton, 203 F.3d 19, 23 (D.C. 

Cir. 2000) (warning against “conflat[ing] standing with the 

merits”). 

Even assuming plaintiffs here would prevail on their 

challenge to their exclusion from the Framework, their injury 

is not redressable because they lack live credit discrimination 

claims to present there. The district court accepted the 

plaintiffs’ description of their injury as “the loss of the 

‘opportunity . . . to present a meritorious claim for 

discrimination against’” USDA challenging past credit 

discrimination, as do we. Estate of Boyland, 242 F. Supp. 3d 

at 31 (quoting Compl. ¶¶ 74, 83, 90). That loss of opportunity 

cannot be redressed by opening the Framework to plaintiffs, 

because any credit discrimination claims they once had under 

ECOA have been extinguished, as explained below.

Plaintiffs argue that accounting for this fact in our standing 

analysis impermissibly folds the merits of their case into 

standing, but that is not so. Plaintiffs see error only by 

mistaking what it means to assume, in analyzing standing, that 

they will prevail on the merits. We must provisionally treat the 

conduct plaintiffs challenge as in fact unlawful, but we do not 

assume away other, unchallenged constraints—whether of fact 

or law. Here, plaintiffs take aim at the limitation of the 

Garcia/Love Framework to victims of discrimination based on 

sex or Hispanic ethnicity. But they raise no claim against the 

Framework’s limitation to farmers who unsuccessfully sought 
13

redress of credit discrimination from USDA before 1997.2 

That criterion, wholly apart from the Framework’s challenged 

sex- or ethnicity-based limitation, is, whether by operation of 

preclusion or the statute of limitations, fatal to their current 

claim. 

Plaintiffs read our decisions in Campbell and Animal 

Legal Defense Fund, Inc. v. Glickman (ALDF), 154 F.3d 426 

(D.C. Cir. 1998), as requiring us to accept their “legal theory” 

when we evaluate their standing. Appellants’ Br. 22. But those 

cases stand for the narrower proposition that a “party need not 

prove that the . . . action it attacks is unlawful . . . in order to 

have standing to level that attack.” ALDF, 154 F.3d at 441

(quoting La. Energy & Power Auth. v. FERC, 141 F.3d 364, 

368 (D.C. Cir. 1998)). Thus, in Campbell we held that plaintiff 

members of Congress had not suffered the requisite 

individualized injury to support their legislative standing to 

seek a declaration that President Clinton violated the 

Constitution’s War Powers Clause, even if he did in fact violate 

the Clause. 203 F.3d at 23-24. We did not rest on the legal 

 2 Their only hint in that direction falls wide of the mark. They allege 

that “any socially disadvantaged farmer or rancher who had not filed 

a meritorious claim for relief against USDA” is still entitled to do so 

“under § 14011” of the Food, Conservation, and Energy Act of 2008. 

J.A. 19. But section 14011 by its terms establishes no such right. 

That provision says that “[i]t is the sense of Congress that all pending 

claims and class actions brought against the Department of 

Agriculture by socially disadvantaged farmers or ranchers . . . 

including Native American, Hispanic, and female farmers or 

ranchers, based on racial, ethnic, or gender discrimination in farm 

program participation should be resolved in an expeditious and just 

manner.” Pub. L. 110-234, § 14011, 122 Stat. 923, 1448 (2008) 

(codified at 7 U.S.C. § 2279-2 note). It did not thereby revive 

untimely claims, but only referred to “pending claims and class 

actions,” several of which had been filed but not yet settled when the 

bill was passed. Id. (emphasis added). 
14

conclusion that the President “did not take any actions that 

constitute ‘war’ in the constitutional sense,” as “[t]hat analysis 

. . . conflate[d] standing with the merits.” Id. at 23 (disavowing 

concurrence’s reasoning to that effect). In analyzing standing, 

we had to assume that the President had violated the 

Constitution.

Even assuming the Garcia/Love Framework unlawfully 

discriminates, as the current complaint alleges, plaintiffs’ 

injuries are not redressable. That holding is wholly consistent 

with Campbell and ALDF. The bar plaintiffs face is no knock 

against their equal protection and Title VI claims against 

USDA and Epiq. The problem, rather, is that plaintiffs have 

not alleged that they have any live credit discrimination claims 

to press in the Framework. Plaintiffs did not make a 

discrimination complaint before July 1997, and are thus barred 

by ECOA’s statute of limitations. The district courts here and 

in Garcia/Love nevertheless treated the plaintiffs as Pigford I

class members, who by definition did make a discrimination 

complaint by that deadline. See Estate of Boyland, 242 F. 

Supp. 3d at 31; Garcia, 304 F.R.D. at 81; Love, 304 F.R.D. at

88. Even if plaintiffs did make such a complaint, however, they 

are barred by the Pigford I consent decree. Plaintiffs have 

articulated a theory for opening the Framework, but they have 

no theory for resurrecting the underlying claims they wish to 

process there. What follows is a detailed explanation of why 

that is so.

Plaintiffs do not allege that they complained to USDA 

before July 1997, and, accepting that they did not do so, two 

obstacles prevent them from participating in the Garcia/Love

Framework, over and above USDA and Epiq’s alleged 

discrimination. One is statutory: Congress only revived ECOA 

claims for those farmers who made a prior discrimination 

complaint by July 1, 1997. Because the plaintiffs’ claims were 
15

never revived, they are subject to ECOA’s ordinary statute of 

limitations (which is now five years). That means that their 

credit discrimination claims, which allege discrimination in the 

1980s, are time barred. The second obstacle is that the 

plaintiffs fail to meet the basic criteria for participation in the 

Garcia/Love Framework, race and sex aside, because the 

Framework requires claimants to have complained of 

discrimination by July 1997. See Status Report Ex. 20-21, 

Love, No. 1:00-cv-02502 (D.D.C. July 18, 2012), ECF No. 

162-1; Garcia/Love Framework ¶¶ VIII.A, VIII.B, VIII.C.1.g. 

Indeed, the Garcia/Love Framework includes this requirement 

because it was a key parameter in Congress’s resurrection of 

ECOA claims. Whatever form the obstacle takes, it prevents 

the plaintiffs from processing their claims through the 

Framework.

If plaintiffs did complain of discrimination by July 1997, 

claim preclusion or the statute of limitations would bar their 

claims now. As for preclusion, if plaintiffs had made a preJuly 1997 race-based ECOA claim to USDA, they would have 

qualified as Pigford I class members; the Pigford I complaint 

alleged precisely the same kind of racial discrimination as these 

plaintiffs’ nested claims. See Seventh Am. Class Action 

Compl. 4-5, Pigford v. Veneman, No. 1:97-cv-1978 (D.D.C. 

Oct. 26, 1998), ECF No. 92. Plaintiffs do not allege that they 

opted out of Pigford I. If they did not, their claims are barred 

by the preclusive effects of the Pigford I consent decree, which

included the following release:

As provided by the ordinary standards governing the 

preclusive effects of consent decrees entered in class 

actions, all members of the class who do not opt out of 

this Consent Decree . . . and their heirs, administrators, 

successors, or assigns . . . hereby release and forever 

discharge the defendant and his administrators or 
16

successors, and any department, agency, or 

establishment of the defendant, and any officers, 

employees, agents, or successors of any such 

department, agency, or establishment . . . from—and 

are hereby themselves forever barred and precluded 

from prosecuting—any and all claims and/or causes of 

action which have been asserted in the Seventh 

Amended Complaint, or could have been asserted in 

that complaint at the time it was filed, on behalf of this 

class.

Consent Decree ¶ 18, Pigford, No. 1:97-cv-1978 (D.D.C. Apr. 

14, 1999), ECF No. 167 (“Consent Decree”). The court 

approved the decree, and it binds the class. See Tritz v. U.S. 

Postal Serv., 721 F.3d 1133, 1141 (9th Cir. 2013) (“Courtapproved settlement agreements . . . have res judicata effect.”); 

21A Federal Procedure, Lawyers’ Edition § 51:258 (“[A] 

consent judgment entered pursuant to a settlement agreement 

constitutes a final judgment on the merits in a res judicata 

analysis.”); 18A Charles Alan Wright, Arthur R. Miller & 

Edward H. Cooper, Federal Practice and Procedure § 4443 (2d 

ed. 2002) (explaining that “settlement agreements and consent 

judgments ordinarily support claim preclusion”). 

The plaintiffs hypothesize that an African American

female Pigford I class member who failed to present her credit 

discrimination claims in the Pigford process might nonetheless 

participate in the Garcia/Love Framework. They contend that 

must mean that Pigford I also lacks preclusive effect on the 

credit discrimination claims the individual plaintiffs seek to 

process as estates of African American male farmers. It does 

not. The Garcia/Love Framework only processes claims that 

USDA discriminated against claimants “due to their being 

Hispanic or female.” Garcia/Love Framework ¶ I. An African 

American female farmer who failed to file a Pigford claim 
17

would have lost her opportunity to submit her race 

discrimination claims just as the plaintiffs here have. The 

Garcia/Love Framework would allow her recovery only for 

losses caused by sex discrimination, a type of discrimination 

not at issue in Pigford nor in any credit discrimination claims

these plaintiffs may have had against USDA. Claim preclusion 

does not prevent a plaintiff from asserting a ground of recovery 

that she could not have asserted in the earlier action. See

Littlejohn v. United States, 321 F.3d 915, 920 (9th Cir. 2003). 

In Stewart v. Rubin, for example, the district court explained 

that a black female class member in a class action challenging 

racial discrimination “certainly would not be precluded by the 

Settlement Agreement” from separately litigating sex 

discrimination claims. 948 F. Supp. 1077, 1089 (D.D.C. 1996), 

aff’d, 124 F.3d 1309 (D.C. Cir. 1997). 

Further, the Pigford I consent decree’s release only 

precluded class members from litigating claims that were or 

could have been asserted in the operative complaint. Consent 

Decree ¶ 18. It is because Pigford I alleged race 

discrimination, not sex discrimination, that the black male 

plaintiffs are precluded even while a sex discrimination claim 

by the black female farmer in plaintiffs’ example would not be. 

See 18A Charles Alan Wright, Arthur R. Miller & Edward H. 

Cooper, Federal Practice and Procedure § 4443 (2d ed. 2002) 

(“The basically contractual nature of consent judgments has led 

to general agreement that preclusive effects should be 

measured by the intent of the parties.”). 

Plaintiffs do not allege that they opted out of Pigford and 

timely filed their own suit, thereby avoiding Pigford’s 

preclusive effect, but if they in fact did, they still fail because 

they map no route past ECOA’s time bar. Even claims that 

were revived by Congress’s tolling are by now time barred by 

the revived claims’ statute of limitations (which expired on 
18

October 21, 2000). Appropriations Act, Pub. L. No. 105-277, 

§ 741, 112 Stat. 2681 (codified at 7 U.S.C. § 2279 notes). 

In any of the scenarios in which the plaintiffs initially 

sought to complain to USDA of discrimination by July 1997, 

their claims have been extinguished.

To be clear, only the claims plaintiffs wish to present in 

the Garcia/Love Framework (the underlying claims of credit 

discrimination by USDA in the 1980s) are precluded or time

barred. The claims they bring today under the Fifth 

Amendment and Title VI do not suffer those procedural 

defects. But the plaintiffs cannot end-run the procedural bars 

on their underlying credit discrimination claims by nesting 

them in new framework-discrimination claims not subject to 

those bars. Those bars operate independently from any 

potential discrimination by USDA and Epiq, and prevent us 

from redressing the plaintiffs’ injury by offering them an 

“opportunity . . . to present a meritorious claim for 

discrimination against” USDA. Compl. ¶¶ 74, 83, 90.

Recognizing those barriers as a standing defect does not 

collapse all procedural bars into standing issues. If the 

plaintiffs here sidestepped all the frameworks and sued USDA 

directly for violating ECOA in the 1980s, the court would 

dismiss the case on grounds of claim preclusion or 

untimeliness, rather than standing. The plaintiffs have avoided

that fate by nesting procedurally barred claims in nonprocedurally barred claims, such that the claims they bring 

today cannot be dismissed for those reasons. Yet, because their 

underlying ECOA claims are procedurally barred, we cannot 

avoid the reality that, even if plaintiffs won an opportunity to 

present those claims in the Framework, they would be 

ineligible for redress and thereby lack standing to sue.
19

Plaintiffs never explained why the consent decree or 

statute of limitations would not bar their claims. They simply 

describe the “legal theory of their case” as being “that the 

USDA’s administrative claims process whereby Epiq, at the 

direction of and on behalf of the USDA, expressly excludes 

African-American males from participating based solely on 

their race and gender violates the Fifth Amendment, 

notwithstanding the Pigford consent decrees.” Appellants’ Br. 

23. Even accepting that theory as true does not overcome the 

independent hurdles of the Pigford consent decree and ECOA’s 

statute of limitations. Taking all the complaint’s allegations as 

true, one of those hurdles necessarily blocks the way. The 

plaintiffs therefore lack standing because their injury is not 

redressable—even if they satisfy the other prongs of the 

standing test, and even if they are right on the merits that the 

Garcia/Love Framework violates the law.

Because the standing defect is dispositive, we need not 

consider the district court’s holding that issue preclusion 

prevents BFAA (alone or in addition to the individual

plaintiffs) from relitigating its standing. We affirm the district 

court’s decision dismissing the case in its entirety. 

So ordered.