# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 1, 2018 Decided January 15, 2019

No. 17

- 5082

E STATE OF E ARNEST L EE B OYLAND , ET AL ., A PPELLANTS

v.

U

NITED S TATES D EPARTMENT OF A GRICULTURE , ET AL ., A PPELLEES

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. De partment 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: G RIFFITH and P ILLARD , Circuit Judges , and S ENTELLE , Senior Circuit Judge

. Opinion for the Court filed by Circuit Judge P ILLARD

.2

P ILLARD , Circuit Judge : Plaintiffs , representing the estates of black male farmers, seek to submit claims of past discrimination in agricultural credit programs to a claims

processing framework set up to resolve Hispanic and female farmers’ credit discrimination claims. In this lawsuit, t hey assert that the claims

- processing framework itself discriminatorily exclude d them. I n 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 cla i ms 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 afford ing women and Hispanic claimants exclusive access to a remedial cla i ms framework

, the very raison d’être of which wa s to redress USDA’s sex and ethnicity discrimination against female and Hispanic farmers. P laintiffs 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 rac ial 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 farmer s 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’s3
rampant credit discrimination and inspired parallel lawsuits by Native American, female

, and Hispanic f armers

. And USDA modeled the framework at issue here on the claims

- processing system it set up in settlement of the B lack F armers’ class action

.

P laintiffs in this case never submit ted claims in the Black F armers remedial process. W hen 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 i nvidiously discriminat ed against them based on their sex and race . They c laim that USDA violat ed 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 th ose claims

. P laintiffs’ standing nevertheless fails for wan t 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 e thnicity limitations, t hey c ould 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 f ramework the y challenge

, the harm they assert from being excluded is not redressable

. Plaintiffs ’ nested claims target discrimination by U SDA during the 1980 s 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 limitations4
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 d ysfunctional

. P laintiffs do not allege they sought to press their claims to USDA befo re July 1997, so they are ineligible to benefit from Congress’s tolling of the limitation s period for farmers who did . Their decades

old cla i ms are time barred.

Even if we assume d 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

. T ogether 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. A ny credit discrimination claim a member of t he Black Farmer s plaintiff class may have had during the relevant period, w hether or not actually pursued in the remedial process established under the Black Farmers’ consent decree , is now precluded by th at decree , or, for any member who opted out, time barred

. Thus,

e ven 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

. F armers’ bottom l ines fluctuate with the weather and crop prices, so “many farmers depend heavily on the credit5
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 t o 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.

Publi c protest over discrimination in USDA’s credit and benefit programs spurred the Department to investigate. Th at scrutiny uncovered a widespread pattern of discrimination in the Department’s agricultural credit and benefit programs . In 1996, then

- Secretar y 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 co mmunities 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, se x, 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)

.

ECO A claims formed the core of the four lawsuits filed against USDA o n behalf of black , Native American, w omen, 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

. . . o n 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 OCRE A in a 1996 report by the U.S. Commission on Civil Rights; only with the publication of the C ivil R ights A ction T eam report the following year did the
governm ent 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 t o Ensure Nondiscrimination in Fed erally 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. § 1691 e(f) ; see Dodd

- Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111

- 203, § 1085(7), 124 Stat. 2085, 2113 (2 010) (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 t he 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 t wo 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 all8

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 , t he only farmers permitted to p articipat e 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 B lack F armers 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 claimant s

. 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 proce ss 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

- cv

03119 , 2012 WL 13098692, at *1 (D.D.C. Dec. 28, 2012)

. Similar lawsuits by Hispan ic 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 far mers)

. Instead, USDA voluntarily created a joint claims process for both Hispanic and fem ale farmers

. See Garcia / Love Framework

. Claimants who9

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 b lack farmers in the Uni ted States and abroad,” Appellant s’ 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 so ught to intervene in Garcia and Love to assert, among other claims, that its members were entitled10
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 constituti onal 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: “T o participate in this Process, you must be either H ispanic/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

. T hey 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

. T he 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

. T he
court dismissed the Title VI claim against Epiq on the ground that the Garcia / Love Framework was not a “program or11
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 b ear 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 “fa irly 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 sp eculative, 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 th e court could redress any inju ry they claim from that exclusion

. For purposes of analyzing plaintiffs’ standing, we make the requisite assumption that the y 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 plaintiff12
has a legally protected interest that supports standing does not require that he show he will suc ceed on the merits ; if it did, every merits loss would amount to a lack of standing. Instead,

“ w hen 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) ) ; s ee 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 woul d 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 a ny 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 mis taking what it means to assume , in analyzing standing, that they will prevail on the merits . W e must provisionally treat the conduct plaintiffs challenge a s in fact u nlawful

, b ut 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 sought13

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 operatio n of preclusion or the statute of limitations, fatal to their current claim.

P laintiffs 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”

w hen we evaluate their standing. Appellants’ Br. 22

. But t h o se

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 C ongress 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 n ot rest on the legal

2 The ir only hint in that direction falls wide of the mark. The y 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 s ection 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 disadvant aged 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, § 1 4011, 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,

w e had to assume that the P resident had violated the Constitution.

Even a ssuming the Garcia / Love Framework unlawfully discriminates

, as the current complaint alleges, plaintiffs’ injuries are not redressable. That holding is whol ly 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 F ramework

. 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 ma k e 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 F ramework, 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 were15
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 t he plaintiffs fail to meet the basic criteria for parti cipation 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, t he 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 pre

July 1997 race

- based ECOA claim to USDA

, they would have qualif ied as Pigford I class members ; t he 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 d o 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 or16
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 Se venth 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) (“Court

approved settlement agreements . . . have res judicata effect.”); 21A Fed eral Proc edure , L awyers’ Ed ition § 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, Fed eral Prac tice and Proc edure § 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 part icipate in the Garcia / Love Framework . T hey 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 Gar cia / 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 claim17
would have lost her opportunity to submit her race discrimination claims just as the plaintiffs here have

. T he 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 plai ntiff 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 explain ed 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 disc rimination, 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 the y in fact did

, they still fail because they map no route past ECOA’s time bar. Even c laims that

were revived by Congress’ s tolling are by now time barred by the revived claims’ statute of limitations (which expired on18
October 21, 2000). Appropriations Act, Pub. L. No. 105

- 277, § 741, 112 Stat. 2681 (codified at 7 U.S.C. § 2279 n otes).

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.

T o be clear

, only the claims plaintiffs wish to present in the Garcia / Love Framework ( the underlying claims of credit discrimination by USDA in the 1980 s ) are precluded or time barred

. The claims they bring today under the Fifth Amendment and Title VI do not suffer th os e procedural defect s

. 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 offer ing them an “opportunity . . . to present a meritorious claim for discrimination against” USDA

. Compl. ¶¶ 74, 83, 90.

R ecognizing those bar rier s as a standing defect does not collapse all procedural bars into stan ding issues

. If the plaintiffs here sidestepped all the frameworks and sued USDA directly for violating ECOA in the 1980s

, the court w ould dismiss the case on grounds of claim preclusion or untimeliness, rather than standing. T he plaintiffs have avoided that fate by nesting procedurally barred claims in non

procedurally barred claims, such that the claims they bring today cannot be dismissed for those reasons. Yet, b ecause 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

P laintiffs n ever explain ed why the consent decree or statute of limitations would not bar their cl aims. 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
t heir race and gender violates the Fifth Amendment, notwithstanding the Pigford consent decrees.” Appellants’ Br. 23. E ven accepting th at theory as true does not overcome the independent hurdles of the Pigford consent decree and ECOA’s statute of limitati ons. Taking all the complaint’s allegations as true, one of th ose hurdles necessarily blocks the way

. The plaintiffs therefore lack standing because t heir injury is not redressable

— even if they satisfy the other prongs of the standing test, and even if t hey 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

.