Estate of Earnest Lee Boyland v. AGRI , 913 F.3d 117 ( 2019 )

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 claims-
processing 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 decades-
old 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,
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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-cv-
03119, 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 pre-
July 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) (“Court-
approved 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 non-
procedurally 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.